United States v. Ash

Opinion

22-1048-cr United States v. Ash

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3 16th day of November, two thousand twenty-two. 4 5 PRESENT: 6 PIERRE N. LEVAL 7 DENNY CHIN 8 EUNICE C. LEE, 9 Circuit Judges. 10 _____________________________________ 11 12 UNITED STATES OF AMERICA, 13 14 Appellee, 15 16 v. No. 22-1048-cr 17 18 SYLVIA ASH, AKA SEALED DEFENDANT 1, 19 20 Defendant-Appellant. 21 _____________________________________ 22 23 For Defendant-Appellant: JUSTINE HARRIS (Noam Biale & Maya 24 Brodziak, on the brief), Sher Tremonte LLP, 25 New York, New York. 26 27 For Appellee: ELI J. MARK, Assistant United States 28 Attorney (Daniel C. Richenthal, Jonathan E. 29 Rebold, & Danielle R. Sassoon, Assistant 30 United States Attorneys, on the brief), for 31 Damian Williams, United States Attorney for 32 the Southern District of New York, New 33 York, New York. 34 35 Appeal from a judgment of the United States District Court for the Southern District of

36 New York (Kaplan, J.). 1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

2 DECREED that the judgment of the district court is AFFIRMED.

3 Defendant-Appellant Sylvia Ash appeals from her criminal conviction on charges of

4 conspiracy to obstruct justice, obstruction of justice, and making false statements to federal

5 officers. Ash was a judge in the courts of New York State since 2005 and also served as member

6 of the Board of Directors (the “Board”) of Municipal Credit Union (“MCU”), a nonprofit credit

7 union, from May 2008 until August 2016, when she resigned. During her last year on the Board,

8 Ash was Board Chair. In 2015, Ash inquired about whether she could serve as Board Chair, and

9 the New York State Advisory Committee on Judicial Ethics told her she should resign from her

10 Board position entirely. Ash kept her Board position for another year, only resigning after the

11 New York State Commission on Judicial Conduct filed a complaint against her in 2016.

12 Although Board positions are unpaid, Ash received tens of thousands of dollars in benefits

13 in connection with her position, including sporting event box seats for her private use, travel,

14 personal expenses including “cable internet reimbursement,” and Apple electronic devices.

15 App’x 638. She did not disclose these benefits on state financial disclosure forms she had to file

16 annually due to her position as a judge. Many of the benefits Ash received were controlled by

17 MCU’s then-CEO and President, Kam Wong.

18 On January 18, 2018, federal investigators interviewed Wong about millions of dollars in

19 checks MCU had issued to him. Wong told them that these payments were proper due to a term

20 in his employment contract and that the Board had approved the payments. The next day, Wong

21 met with Ash in MCU’s offices, gave her an iPhone X as a “belated birthday/Christmas gift,” and

22 presented her with a memo to sign. App’x 564, 570–71. According to the memo, Ash agreed

2 1 that MCU properly owed Wong approximately $3.7 million after taxes due to a condition of

2 Wong’s employment with MCU. Ash signed the memo. Wong turned over a copy of the signed

3 memo to federal investigators on January 25, 2018.

4 On March 1, 2018, Ash voluntarily met with investigators in the United States Attorney’s

5 Office for the Southern District of New York (the “USAO”). Confronted with the memo she had

6 signed at Wong’s behest, Ash told investigators that the memo was not accurate and that she did

7 not agree with the amount of money listed in the document. Ash then gave false statements to

8 the investigators about how MCU’s general counsel told her it would be “legal but not advisable”

9 to pay Wong as stated in the memo. App’x 495.

10 In May of 2018, in part due to Wong’s embezzlement, the New York Department of

11 Financial Services took over managing MCU. On or about May 7, 2018, Wong was arrested and

12 charged with embezzlement in the Southern District of New York. MCU issued a

13 contemporaneous press release about Wong’s arrest, stating that MCU was cooperating with the

14 USAO and was conducting its own internal investigation. 1

15 First in mid-March of 2018, and then again in June of 2018, Ash received subpoenas for

16 documents and communications relating to Wong and MCU’s payments to him. Ash responded

17 to the first subpoena by saying she had no responsive documents. She responded to the second

18 subpoena, through counsel, with a production that later was shown to have been materially

19 incomplete.

1 Wong was eventually convicted and sentenced to five and a half years in prison. Judgment in a Criminal Case, United States v. Wong, Case No. 1:18-cr-00737-JGK (S.D.N.Y. June 13, 2019). 3 1 In May 2018, Ash received an email from MCU requesting the return of any of its

2 electronic devices she had in her possession, “per MCU protocol.” App’x 619. MCU then

3 clarified that Ash did not need to return any devices she had possessed for more than three years

4 and instructed her to “disregard” the initial request.” Id. In June 2018, Ash received a further

5 written request from MCU, again demanding the return of any electronic devices, including those

6 given to her by Wong. Id. at 896. MCU cautioned Ash not to “wipe, delete, factory restore,

7 image or copy any of MCU’s electronic devices.” Id.

8 Through counsel, Ash returned the iPhone X and an Apple Watch. However, before she

9 returned them, Ash took the iPhone X to an Apple Store and had it factory reset, which caused

10 data to be deleted from it. She also deleted text messages and emails that were responsive to the

11 government’s subpoenas. MCU handed the iPhone over to the government and consented to its

12 being used in a search. Upon seeing that the iPhone had been reset, the government obtained

13 warrants for stored communications, including communications in Ash’s Gmail account, relying

14 in part on the fact that the iPhone had been wiped.

15 On July 9, 2018, Ash had another interview with federal investigators, this time

16 accompanied by her own counsel, during which she made various false statements, including about

17 MCU’s payments to Wong and about not possessing certain documents.

18 Ash was arrested on October 11, 2019. The operative superseding indictment charged

19 her with conspiring to obstruct justice between January of 2018 and July of 2018 in violation of

20 18 U.S.C. §§ 1519 and 1512(c) (“Count One”); with obstructing justice by falsifying or creating a

21 false document in violation of § 1519 (“Count Two”); with obstructing justice by corruptly

22 concealing and deleting texts and emails or making false statements in violation of § 1512(c)

4 1 (“Count Three”); and with making false statements in violation of § 1001(a) (“Count Four”). Ash

2 was convicted on Counts One, Three, and Four, and acquitted on Count Two. We assume the

3 parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on

4 appeal.

5 Ash raises four arguments on appeal.

6 First, she argues that the district court erred in not granting her motion to suppress the

7 iPhone X or any information obtained from the search warrant based on the seizure of the iPhone

8 X. Ash contends that she was effectively compelled to give MCU the iPhone. In the alternative,

9 she argues that she should have been granted a pre-trial hearing into the extent to which the

10 government was involved with MCU’s internal investigation, including its efforts to get the iPhone

11 X from Ash. To the extent Ash argues that the iPhone was obtained in violation of her Fifth

12 Amendment right against self-incrimination, that argument fails. To prevail, Ash would need to

13 “demonstrate the existence of three elements: 1) compulsion, 2) a testimonial communication, and

14 3) the incriminating nature of that communication.”

15 In re Grand Jury Subpoena, 826 F.2d 1166, 1168 (2d Cir. 1987). But Ash did not show

16 compulsion, as she does not articulate “circumstances that overb[ore] the defendant’s will.”

17 United States v. Anderson, 929 F.2d 96, 99 (2d Cir. 1991). Here, Ash only argues that MCU’s

18 communications demanding the return of the iPhone X “raised the specter” of “legal action” and

19 thus “implicit[ly] threat[ened]” Ash. Appellant’s Br. 25. Even assuming that MCU’s

20 communications are wholly attributable to the government, these arguments are not enough to

21 show that the communications overcame Ash’s will. To the contrary, the communications told

5 1 Ash not to delete data off the iPhone X, but she did so anyway, demonstrating that Ash did not

2 feel compelled to comply exactly as MCU told her.

3 To the extent Ash argues that the iPhone X should have been suppressed because the

4 government violated her due process rights in using the MCU internal investigation to gather

5 evidence, Appellant’s Br. 26, that argument is forfeited because she did not make it below. See

6 Greene v. United States, 13 F.3d 577, 586 (2d Cir. 1994). Her argument for suppression before

7 the district court was premised solely on the notion that MCU compelled Ash to return the iPhone

8 in violation of her Fifth Amendment right against self-incrimination, not on any other ground.

9 Second, Ash contends that the district court erred in overruling her objections to evidence

10 of valuable benefits she received for being on the Board and her failure to disclose those benefits

11 on her obligatory financial disclosure forms. This evidence was admissible as it tended to show

12 motive and consciousness of guilt. See United States v. Mercado, 573 F.3d 138, 141 (2d Cir.

13 2009). The district court furthermore properly instructed the jurors that they were only to consider

14 it to assess “defendant’s motive, knowledge, and intent with respect to what she has been charged

15 with in the indictment,” and not for anything that may suggest Ash had a “propensity” to commit

16 the crimes charged. App’x 843–44. See Mercado, 573 F.3d at 141 (rejecting challenge to

17 admission of “prior bad acts evidence” where “[t]he evidence was also accompanied by a careful

18 and thorough instruction limiting the evidence to relevant [FRE] 404 grounds”).

19 Third, Ash argues that the district court erred in instructing the jury on Count Three. This

20 contention is subject to plain error review because she did not object at trial. “On plain error

21 review, the burden rests on the appellant to establish that there is ‘(1) error, (2) that is plain, and

22 (3) that affects substantial rights. If all three conditions are met, an appellate court may then

6 1 exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the

2 fairness, integrity, or public reputation of judicial proceedings.’” United States v. Jenkins, 43

3 F.4th 300, 302 (2d Cir. 2022) (quoting United States v. Solano, 966 F.3d 184, 193 (2d Cir. 2020)).

4 In reviewing jury instructions for error, we “determine whether considered as a whole, the

5 instructions adequately communicated the essential ideas to the jury,” not whether there was error

6 “on the basis of excerpts taken out of context.” United States v. Sabhnani, 599 F.3d 215, 237 (2d

7 Cir. 2010) (internal quotation marks and citations omitted).

8 Here, Ash objects to the district court’s explanation to the jury of what it means to have

9 acted “corruptly” in the context of obstructing justice under Count Three. Among other things,

10 she contends that the district court’s instruction allowed the jury to convict her of obstructing an

11 official proceeding if it found that she had any “bad purpose,” rather than one specifically

12 connected with impeding an official proceeding, as required by the statute. See Appellant’s Br.

13 41. We disagree. Viewed as a whole, the district court’s instructions told the jury that it could

14 only convict Ash on Count Three if it found that Ash acted corruptly in taking actions meant to

15 impair an official proceeding, and in particular, that Ash must have known these corruptly taken

16 actions were likely to interfere with the proceeding. Further, even if we found error in the

17 instruction, the error would not be plain. The district court provided a definition of the word

18 “corruptly” that has been affirmed in Circuit precedent. See United States v. Ng Lap Seng, 934

19 F.3d 110, 142 (2d Cir. 2019) (“When a statute uses the word ‘corruptly,’ the government must

20 prove more than the general intent necessary for most crimes. It must prove that a defendant acted

21 ‘with the bad purpose of accomplishing either an unlawful end or result, or a lawful end or result

7 1 by some unlawful method or means.’” (quoting United States v. McElroy, 910 F.2d 1016, 1021–

2 22 (2d Cir. 1990)).

3 Fourth, Ash argues that the district court erred by premising its sentence on conduct of

4 which Ash was acquitted in Count Two. “A district court may treat acquitted conduct as relevant

5 conduct at sentencing, provided that it finds by a preponderance of the evidence that the defendant

6 committed the conduct.” United States v. Pica, 692 F.3d 79, 88 (2d Cir. 2012). However,

7 “[w]here we identify procedural error in a sentence, but the record indicates clearly that the district

8 court would have imposed the same sentence in any event, the error may be deemed harmless,

9 avoiding the need to vacate the sentence and to remand the case for resentencing.”

10 United States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009) (internal quotation marks omitted).

11 Here, it is clear to us that any error in the use of acquitted conduct did not affect Ash’s

12 sentence. The district court sentenced Ash to “a term of imprisonment of 15 months.” App’x

13 1232. Whereas the presentence report calculated her sentencing guidelines range as one

14 providing for a 46- to 57-month custodial sentence, Ash argued to the district court that, absent

15 acquitted conduct, her guidelines “range instead should be 30 to 37 months’ imprisonment.”

16 Sentencing Mem. on Behalf of Sylvia Ash at 2, United States v. Ash, Case No. 1:19-cr-780-LAK

17 (S.D.N.Y. Apr. 8, 2022), ECF No. 173. During sentencing, the district court overruled Ash’s

18 objections but told the parties that “the sentence that will be imposed will make that ruling

19 immaterial,” and that its “sentence w[ould] be the same under either [party’s proffered] guideline

20 range.” App’x 1200. Thus, not only did the district court make clear that Ash would have

21 received the same sentence regardless, but the sentence she did receive was significantly less than

22 what even she argued the guidelines called for.

8 1 * * *

2 We have considered Ash’s remaining arguments and find them to be without merit.

3 Accordingly, we AFFIRM the judgment of the district court.

4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk of Court