United States v. Benny Smith, Also Known as Bennie

198 F.3d 377, 1999 U.S. App. LEXIS 31539

• Court: Court of Appeals for the Second Circuit
• Decided: December 2, 1999
• Docket: 1998
• Status: Published

Opinions

Judge PARKER dissents in a separate opinion.

POOLER, Circuit Judge:

Benny Smith appeals from the judgment of the United States District Court for the Southern District of New York (Barbara S. Jones, Judge) convicting him after a seven-day jury trial of eleven counts of extortion, extortionate collection of money, and conspiracy to commit extortion in connection with his participation in a loansharking scheme that co-defendant Dennis De-Bernardis led.¹ Smith asks that we vacate his convictions on Counts 4, 6, 8 and 10 for improper venue because the payments were made in the Eastern District of New York rather than the Southern District. Appellant also challenges the sufficiency of the evidence, the admissibility of a co-conspirator’s redacted plea allocution, the district court’s refusal to give a “consciousness of innocence” charge, and the effectiveness of trial counsel. For the reasons that follow, we reject appellant’s arguments and affirm the judgment of conviction in all respects.

BACKGROUND

Smith and DeBernardis both are former members of the New York City Police Department. Smith met DeBernardis in the mid-1980s, when they both still worked for the police department, and began moonlighting as a security guard in DeBernardis’ security business in the early 1990s. From 1993 through 1996, Smith also assisted DeBernardis in his loansharking operation. DeBernardis typically lent money at a weekly interest rate of ten percent. He forced victims to make interest payments each week until they could repay the full amount of principal. When borrowers could not make payments, De-Bernardis or his associates threatened them with violence. Smith collected money from victims, helped lend funds, and extorted victims when they failed to repay their loans.

Four victims of the DeBernardis loansharking scheme testified at trial. Their testimony established that Smith collected money from victims on behalf of DeBer-nardis and used their fear of violence to intimidate them. Among other things, the victims testified that DeBernardis sometimes was in Manhattan when he perpetrated his extortion. Augustus Davis testified that DeBernardis often called him from Manhattan or Long Island to say that he was on the way to Brooklyn to collect his money. Davis knew when De-Bernardis was calling from Manhattan because the 212 area code appeared on his beeper. Diane Scott, who ran a barbecue restaurant in Brooklyn, testified that De-Bernardis would sometimes call from Manhattan to say that he would be there to collect his money within twenty to thirty minutes. At times, DeBernardis called Scott to tell her that he was sending Smith to collect money from her.

At the conclusion of the government’s case-in-chief, Smith moved for judgment of acquittal pursuant to Fed.R.Crim.P. 29, claiming that the government failed to establish venue in the Southern District with respect to Counts 4, 6, 8 and 10. Smith also argued there was insufficient evidence to convict him of the eleven counts against him because he was merely an “instrumentality” of DeBernardis and did not have the requisite mental state to be convicted. The district court denied the motion in all respects. After trial, Smith moved pursuant to Fed.R.Crim.P. 33 for a new trial, claiming ineffective assistance of counsel and government violations of the Jencks Act. The district court denied the motion. On June 2, 1998, Judge Jones sentenced Smith to 51 months imprisonment, two years supervised release and a special assessment of $500. Smith now appeals.

DISCUSSION

I. Venue

A. Background

Smith challenges his convictions on Counts 4, 6, 8 and 10, which relate to extortion involving victims Davis and Scott. Smith contends that venue was improper in the Southern District because the alleged loans and payments took place in the Eastern District of New York, where the victims resided. The government responds that venue was proper in the Southern District because a conspiracy is a continuing offense which may be “prosecuted in any district in which such offense was begun, continued, or completed.” 18 U.S.C. § 3237(a). In addition, the government claims that extortionate activity charged under 18 U.S.C. §§ 892, 894, and 1951 may constitute a continuing offense where an ongoing plan of extortion encompasses multiple payments.

Because it is not an element of the crime, the government bears the burden of proving venue by a preponderance of the evidence. See United States v. Naranjo, 14 F.3d 145, 146 (2d Cir.1994). We review the sufficiency of the evidence as to venue in the light most favorable to the government, crediting “every inference that could have been drawn in its favor.” See United States v. Rosa, 17 F.3d 1531, 1542 (2d Cir.1994). The Sixth Amendment establishes that a federal defendant shall be tried in the “district wherein the crime shall have been committed, which district shall have been previously ascertained by law.” U.S. Const. amend. VI. In addition, Fed.R.Crim.P. 18 provides that “[e]xcept as otherwise permitted ... the prosecution shall be had in a district in which the offense was committed.” Moreover, “when a defendant is charged in more than one count, venue must be proper with respect to each count.” United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1188 (2d Cir.1989). As discussed more fully below, the government may establish venue as to the challenged counts through 1) the acts of a coconspirator; 2) the acts of a principal where the defendant is charged as an aider and abettor; or 3) a continuing offense.

B. Conspiracy

We first consider Count 8, which charged Smith with conspiracy to commit extortion of Scott in violation of 18 U.S.C. § 1951(a). In a conspiracy prosecution, “venue is proper in any district in which an overt act in furtherance of the conspiracy was committed by any of the coconspira-tors.” Naranjo, 14 F.3d at 147 (quotation and citation omitted). “The defendant need not have been present in the district, as long as an overt act in furtherance of the conspiracy occurred there.” Id. Overt acts in furtherance of a conspiracy can include phone calls. See id. We specifically have held that phone calls from one district to another by themselves can establish venue in either district as long as the calls further the conspiracy. See United States v. Friedman, 998 F.2d 53, 57 (2d Cir.1993). In Friedman, defendant placed calls from Long Island to Manhattan, and venue was proper in the Southern District. Id. There is no reason why the opposite calling pattern should not also establish venue. The evidence at trial established that DeBernardis telephoned and “beeped” Scott from Manhattan to inform her that he was on his way to collect money she owed him. As a co-conspirator, appellant is liable for acts DeBernardis made in furtherance of the conspiracy. See Naranjo, 14 F.3d at 147. Therefore, we affirm Smith’s conviction on Count 8.

C. Aiding and Abetting

In Counts 4, 6, and 10, Smith was charged with aiding and abetting substantive crimes. Because Smith was charged as an aider or abettor under 18 U.S.C. § 2, he was triable as a principal in the district where the substantive offense was committed. See United States v. Delia, 944 F.2d 1010, 1014 (2d Cir.1991). As this court pointed out in United States v. Molina, Title 18 U.S.C. § 2

abolished the differentials in punishment between an accessory before the fact and a principal. Under common law an aider and abettor had to be present at the site of the crime. An accessory before the fact is one who, though absent, procures, counsels or commands another to commit an unlawful act. 18 U.S.C. § 2(a) combines these two classifications, making each such defendant equally as guilty as the principal. Courts now indiscriminately refer to both as aiders and abettors.

United States v. Molina, 581 F.2d 56, 61 n. 8 (2d Cir.1978). Moreover, aiding and abetting “does not constitute a discrete criminal offense but only serves as a more particularized way of identifying ‘persons involved.’ ” United States v. Oates, 560 F.2d 45, 54 (2d Cir.1977) (quoting United States v. Campbell, 426 F.2d 547, 553 (2d Cir.1970)). In fact, “when a person is charged with aiding and abetting the commission of a substantive offense, the ‘crime charged’ is ... the substantive offense itself.” United States v. Oates, 560 F.2d at 55. To convict a defendant of aiding and abetting a substantive crime, the government must prove that “the underlying crime was committed by someone other than the defendant and that the defendant himself either acted or failed to act with the specific intent of advancing the commission of the underlying crime.” United States v. Pipola, 83 F.3d 556, 562 (2d Cir.), cert. denied, 519 U.S. 869, 117 S.Ct. 183, 136 L.Ed.2d 122 (1996). Much like a conspiracy charge, in order to prove that a defendant aided and abetted a substantive crime, the government must prove that the defendant “joined and shared in the underlying criminal endeavor and that his efforts contributed to its success.” Id.

Venue is proper where the defendant’s accessorial acts were committed or where the underlying crime occurred. See United States v. Bozza, 365 F.2d 206, 221 (2d Cir.1966) (stating that “Congress seems to have been content with venue where the defendant’s own accessorial acts were committed or where the crime occurred”). It is without question that De-Bernardis committed some of the offense conduct in the Southern District of New York. Viewing the evidence in the light most favorable to the government, it is clear that Smith was an aider and abettor because he joined and contributed to the criminal endeavors of DeBernardis. Even if Smith committed all of his accessorial acts in the Eastern District of New York, Smith nevertheless would be triable in the Southern District because 18 U.S.C. § 2 alters the common law rule to provide for an additional venue where DeBernardis, the principal, acted. The Southern District was an additional rather than the exclusive venue for this prosecution. Depending on whether we consider Smith’s accessorial acts or the acts of DeBernardis for venue purposes, Smith could be tried in either the Eastern or Southern Districts. Because the government proved that principal DeBernardis acted in the Southern District, the government was not required to prove that Smith also committed acces-sorial acts in the Southern District.

1. Count 10

Count 10 charged Smith with aiding and abetting extortion and with extorting money from Scott in violation of the Hobbs Act over a period of almost two years, from April 1994 through February 1996, in violation of 18 U.S.C. §§ 1951 and 2. In a substantive Hobbs Act prosecution, venue is “proper in any district where interstate commerce is affected or where the alleged acts took place.” United States v. Stephenson, 895 F.2d 867, 875 (2d Cir.1990). There is no question that De-Bernardis’ scheme consisted of multiple acts that affected interstate commerce, and the acts charged in Count 10 concerned the collection of extensions of credit through extortionate means in both the Southern and Eastern Districts. See 18 U.S.C. § 894(a) (statutory definition of collection of extensions of credit by extortionate means). We know that DeBernardis committed extortionate acts in the Southern District when he placed telephone calls from Manhattan into Brooklyn. The issue before us, however, is whether Smith can be tried in the Southern District for extortionate acts that DeBernardis committed there. Scott testified that on eight or ten times, DeBernardis sent Smith to collect payments on his behalf after first calling Scott. Moreover, the proof at trial clearly established that Smith engaged in extortionate collections within DeBernardis’ overall scheme. As explained above, Smith as an aider and abettor is liable for the criminal acts of the principal, and this liability extends to establishing venue in the Southern District.

Furthermore, venue is proper because Count 10 was a continuing offense. Pursuant to 18 U.S.C. § 3237(a), “any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.” Several courts have held that Hobbs Act and extortion crimes involving multiple payments are continuing offenses for purposes of statutes of limitations. See United States Textiles, Inc. v. Anheuser-Busch Cos., Inc., 911 F.2d 1261, 1265 (7th Cir.1990); United States v. Bucci, 839 F.2d 825, 829-30 (1st Cir.1988); United States v. Aliperti, 867 F.Supp. 142, 147 (E.D.N.Y.1994). In those cases, a single extortionate act committed within the statute of limitations period was sufficient to make defendant liable for all acts comprising the single scheme, even where the additional acts took place beyond the statute of limitations. We hold that the same principle applies in the context of venue. As previously noted, although venue is grounded in the Sixth Amendment, it is not an element of the crime and the government need only establish venue by a preponderance of the evidence. Surely the location of a trial is a lesser consideration than the acts for which defendant must stand trial in the first place, and existing case law already opens the statute of limitations window to include all acts comprising an extortionate scheme. This holding does not contravene our recent decision in United States v. Brennan, 183 F.3d 139 (2d Cir.1999). Brennan concerned the mail fraud statute, 18 U.S.C. § 1341, rather than extortion under the Hobbs Act. However, read more broadly, Brennan stands for the proposition that prosecution should take place only in those districts in which an act occurs that the statute at issue proscribes. See Brennan, 183 F.3d at 147. In Brennan, venue in the Eastern District was improper because the mailings underlying each mail fraud conviction merely passed through the Eastern District subsequent to the illegal act of depositing and prior to the illegal act of receiving mail, both of which took place in other districts. Brennan, 183 F.3d at 146-47. In contrast, in this case, the defendants perpetrated the very acts proscribed by the statute in the Southern District of New York, thereby making venue proper there.

The government proved by a preponderance that DeBernardis and his aiders and abetters for nearly two years made multiple threats to Scott, collected many payments from her, and used the telephone across district lines to facilitate the collections. These individual acts comprised an entire, ongoing and continuous offense straddling both the Southern and Eastern Districts. Because the government charged Smith as an aider and abettor, he may be tried wherever the substantive offense was committed. We conclude, therefore, that the government properly tried Smith in the Southern District.

2. Counts 4 and 6

We consider whether the government proved venue with respect to Counts 4 and 6 of the indictment, which charged Smith with using extortionate means to collect and attempt to collect extensions of credit, as well as aiding and abetting these crimes, all in violation of 18 U.S.C. §§ 894 and 2. Counts 4 and 6 concern extortionate collections from Davis and Scott, respectively. The government proved by a preponderance that principal DeBernardis committed criminal acts in the Southern District. The government need not also prove venue with respect to the accessorial acts individually because the aiding and abetting charge against Smith not only describes his involvement in the scheme but also provides an additional location where Smith can be tried. In other words, the government may try the accessory where the principal acted. See United States v. Delia, 944 F.2d at 1014. Accordingly, because DeBernardis committed acts within the Southern District and was convicted within the proper venue, venue also was proper with respect to accessory Smith.

Moreover, as discussed more fully above, the offense conduct charged in each count was a continuing offense because it encompassed weekly collections by extortionate means and continual threats over a period of more than one year. See Aliperti, 867 F.Supp. at 147. The offense was “not unitary but instead span[ned] space or time” so that section 3237(a) applied and permitted prosecution in any district in which the offense was begun, continued, or completed. See Beech-Nut Nutrition Corp., 871 F.2d at 1188. We conclude that the government proved venue in the Southern District by a preponderance because the evidence established that DeBer-nardis’ calls from Manhattan to Davis and Scott in Brooklyn were integral parts of the extortionate collection process. Finally, as with Count 10, the government charged Smith as an aider or abettor under 18 U.S.C. § 2 and could prosecute Smith in any district where a principal committed a substantive act. See Delia, 944 F.2d at 1014. Therefore, we affirm Smith’s convictions on Counts 4 and 6.

II. Remaining Contentions

Appellant’s remaining contentions do not warrant extended discussion. Smith argues that the district court violated his Sixth Amendment right to confront witnesses when it admitted the redacted plea allocution of co-defendant DeBernar-dis into evidence. Smith claims the ruling was improper in light of the Supreme Court’s decision in Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998). Because the redacted plea allocution mentioned other co-conspirators without naming them and Smith was the only co-conspirator on trial for conspiracy and extortion, appellant argues that the jury improperly may have inferred that DeBer-nardis named Smith in his plea allocution. It was within the district court’s discretion to admit the plea allocution of a co-conspirator as a statement against the declarant’s interest that the jury could consider as evidence of the existence and scope of the conspiracy. See United States v. Williams, 927 F.2d 95, 98-99 (2d Cir.1991). In addition, the plea allocution was not incriminating on its face because it did not directly implicate Smith. Therefore, we find no violation of Gray. Finally, the district court properly instructed the jury both at the time it admitted the plea allo-cution and at the end of the trial on the purposes for which the jury could consider it.

We also beject appellant’s challenge to the sufficiency of the evidence. “A conviction challenged on sufficiency grounds will be affirmed if, viewing all the evidence in the light most favorable to the prosecution, a reviewing court finds that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Desimone, 119 F.3d 217, 223 (2d Cir.1997) (quotation and citation omitted). Smith argues that the government failed to prove that he had the requisite specific intent to aid and abet DeBernardis’ violation of 18 U.S.C. § 894(a)(1). Smith claims that he was merely an instrumentality of the loansharking operation and had no “desire to bring about the crimes charged.” Based on our review of the record, we reject Smith’s sufficiency claim. In United States v. Scotti, 47 F.3d 1237, 1244 (2d Cir.1995), we made clear that “[s]ection 894(a)(1) is ... not confined in its reach to those who directly threaten or commit acts of violence, but encompasses indirect participation in the use of extortionate means.” The government needs only prove that Smith’s participation was “knowing,” not that he possessed specific intent. See id. at 1245. A rational jury could conclude that Smith, a former New York City police officer, was more than an instrumentality of DeBernardis’ scheme. Trial evidence showed that. Smith knew the terms of the loans, collected weekly interest payments and exploited victims’ fear of DeBernardis.

Appellant also argues that the district court deprived him of a fair trial when it refused to charge the jury regarding “consciousness of innocence.” Smith maintains that he was entitled to the instruction because he denied any wrongdoing when the police offered him immunity in exchange for his cooperation. According to Smith, his failure to take advantage of the immunity offer demonstrates that he was innocent of wrongdoing. We review de novo the propriety of jury instructions. See United States v. Abelis, 146 F.3d 73, 82 (2d Cir.1998). Appellant bears the burden of showing both that the jury instruction he requested “accurately represented the law in every respect and that, viewing as a whole the charge actually given, he was prejudiced.” Id. (quotations and citations omitted). In denying Smith’s requested charge, the district court properly found that the testimony at trial did not support the language Smith proposed. Specifically, the record does not support Smith’s claims that he was promised complete immunity from arrest or prosecution in exchange for his cooperation. Moreover, the district court gave defendant ample opportunity to elicit consciousness of innocence testimony and argue that theory to the jury during summation. Viewing the charge as a whole, we find that it addressed each element of the offenses and did not prejudice Smith.

Finally, appellant identifies several areas in which he claims to have received ineffective assistance of trial counsel. In order to prevail on this claim, Smith must show “both (1) that his attorney’s performance fell below an ‘objective standard of reasonableness,’ and (2) that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Kieser v. New York, 56 F.3d 16, 18 (2d Cir.1995) (quoting Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). As an initial matter, nearly all of the instances of ineffective assistance that Smith alleges “fall squarely within the ambit of trial strategy and, if reasonably made, cannot support an ineffective assistance claim.” United States v. Eisen, 974 F.2d 246, 265 (2d Cir.1992) (internal quotations omitted). Trial counsel’s decision not to examine Scott on the contents of a taped interview, not to challenge the admissibility of De-Bernardis’s address book, and not to offer into evidence a card from DeBernardis’ Rolodex were not unreasonable trial tactics. Similarly, counsel’s decision not to call witnesses to testify about Smith’s role in DeBernardis’s security business cannot form the basis of a meritorious ineffective assistance claim. “The decision whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial.” Id. at 265 (internal quotations omitted). Nor can Smith demonstrate the necessary prejudice. Smith has not shown that any of counsel’s alleged miscues prevented the jury from considering evidence probative of his innocence. In contrast, the government presented ample evidence of Smith’s guilt — evidence that included Smith’s post-arrest statements and the testimony of Smith’s victims. As a result, the district court did not err in finding that Smith failed to demonstrate a reasonable probability that, but for counsel’s allegedly unprofessional conduct, the result of the trial would have been different.

CONCLUSION

We have examined all of appellant’s contentions and find them to be without merit. Therefore, we affirm the judgment of the district court.

1 . Second superseding indictment S2 96 Cr. 600, filed in the Southern District of New York on February 18, 1997, charged Smith in Counts One and Two with conspiring to make and making extortionate extensions of credit in violation of 18 U.S.C. § 892(a). Counts Three through Seven charged Smith with using extortionate means to collect and attempt to collect extensions of credit from debtors, in violation of 18 U.S.C. § 894(a). Counts Eight through Eleven charged Smith with conspiring to commit, attempting and committing extortion in violation of 18 U.S.C. § 1951(a). Counts 2, 4-7, 10 and 11 also charged Smith with aiding and abetting the commission of substantive offenses in violation of 18 U.S.C. § 2. The indictment also charged co-defendant DeBernardis in 33 counts. DeBernardis pleaded guilty to 32 of the 33 counts on March 7, 1997. Co-defendant Anthony Monk was charged in two counts and stood trial along with Smith. Another individual named in the indictment, Nola Michael, remains a fugitive.