United States v. McCrudden

120 F. Supp. 3d 257, 2015 U.S. Dist. LEXIS 108975, 2015 WL 4899550
CourtDistrict Court, E.D. New York
DecidedJuly 29, 2015
DocketNo. 11-CR-61 DRH
StatusPublished

This text of 120 F. Supp. 3d 257 (United States v. McCrudden) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. McCrudden, 120 F. Supp. 3d 257, 2015 U.S. Dist. LEXIS 108975, 2015 WL 4899550 (E.D.N.Y. 2015).

Opinion

MEMORANDUM AND ORDER

HURLEY, Senior District Judge.

On April 10, 2015, a hearing was held before me concerning two violations of supervised release alleged by the Probation Department to have been committed by Vincent McCrudden (“McCrudden” or “defendant”). Following the taking of testimony and oral argument, a briefing schedule was established. Pursuant to that schedule, the Court is now in receipt of [259]*259Defense Counsel Abigail C. Field’s original and reply letter briefs of April 16, 2015 and May 14, 2015 respectively, as well as Assistant United States Attorney Christopher Caffarone’s post-hearing submission in opposition dated May 7,2015.

The purpose of this decision is to address and resolve those open .violations, viz. Charges 4 and 5 as set .forth in the “amendments to the Violation^ of] Supervised Release Report” (“AVOSR”) filed on January 14,2015.1

CHARGE!
Charge 4 reads:
Between June 2, 2013 and September 24, 2014, the offender violated the following standard condition of supervisión: “[the offender] shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a felony unless granted* permission to do so by the probation officer.” (Jan. 14, 2015 AVOSR ,at 2.)

As noted by Defense Counsel Field, the resolution of charge 4 turns solely on one issue, namely whether “Mr. McCrudden’s [acknowledged] contact with felons constitute[s] an ‘association.’ ” 2 (See Field’s Apr. 16, 2015 Letter at 1.) In urging that a negative answer to that question is called for, defendant relies primarily upon dictionary definitions of “associate” consistent with guidance found in Birzon v. King, 469 F.2d 1241 (2d Cir.1972), together with the instruction furnished in United States v. International Brotherhood of Teamsters, 998 F.2d 120, 125 (2d Cir.1993) that a “determination of knowing association should be inferred from the duration and quality of the association.” Id. (internal quotation marks and citations omitted).

It is undisputed that McCrudden had contact with a number of known felons during his period of supervised release via, inter alia, letters to several and telephone calls. (Gov’t’s May 7, 2015 Letter at 2; see also Def.’s May 14,-2015 Reply at 4-5.) None of those contacts, defendant urges, violated the subject condition of his supervised release because (1) none of the subject contacts was face-to-face, and (2),.the contacts were not of sufficient duration and quality to constitute proscribed associations. Each of these arguments will be addressed in turn.

a) Purported Need for Faee-to-Face . Contact Between McCrudden and a Known Felon-

The Second Circuit in Birzon v. King explained that “associate” is a word of “common usage and understanding” known to persons of “ordinary intelligence,” 469 F.2d at 1243, quoting the “general definition” of the term found in Webster’s Third New-International Dictionary, to wit: “[t]ó join often, in a loose relationship as a partner, fellow worker, colleague, friend, companion or ally.” Id. at 1243, n. 3. Against that backdrop, defendant argues:

Because the touchstone of the constitutionality analysis was the ordinariness of the term associate, and its “adequate interpretation in common usage and understanding,”' dictionary definitions, rather than casé law, [are] the best place to start the analysis. Merriam Webster [260]*260offers, in relevant .part: “to join as a partner, friend, or companion” and “to come or be together as partners, friends, or companions.” While the communications at issue were certainly’ friendly, Mr. McCrudden did not “join”, “come or be together” with anyone; all of his communications were at distance. The American Heritage Dictionary says in relevant part: “To spend time socially; keep company: associates with her coworkers on weekends.” Again, Mr. McCrudden did- not keep' company with anyone he 'was communicating with; they were incarcerated, he was not, nor is there any allegation that he visited •them. '• '■

(Def.’s Apr. 16, 2015 Letter Br. at 8 (dictionary cites deleted)).

In essence, defendant posits that absent evidence that he and a known felon were “physically . . together” at some point, no association occurred as a matter of linguistics and law. Id. That proposition is not persuasive. If correct, it would mean, by way of an example, that if a known felon and an offender subject to a “no association” provision, planned a terrorist attack via weekly telephone conversations and emails, but never met in person, the offender would have a viable defense to a violation of supervised release charge. Not only would such a result defy common sense, but is also out-of-sync with a series of well reasoned, albeit out-of-Second Circuit decisions rejecting the notion that face-to-face contact is a prerequisite to a finding that two individuals associated with one another.- See United States v. Everhart, 562 Fed.Appx. 937, 939-40 (11th Cir.2014) (unpublished opinion)(letters with convicted felon constituted association)); United States v. Charles, 531 F.3d 637, 639 (8th Cir.2008) (association evidenced by possession of two letters from, federal inmates)); United States v. Lovelace, 257 Fed.Appx. 773, 775-76 (5th Cir.2007) (unpublished decision)) and United States v. Bunch, 2012 WL 1711345, at *1-2, 2012 U.S. Dist. LEXIS 67520, at *1-3 (E.D.Ky. Jan, 30, 2012) (two phone calls and receiving a letter from a convicted felon constituted association)).

Simply put, association with another individual typically, but not necessarily includes face-to-face interaction. Tellingly, McGrudden’s counsel, notwithstanding the first-rate caliber of her submissions, was unable to cite a single decision espousing a contrary view.

b) Duration and Quality of the Contacts Between McCrudden añd a Known Felon

As earlier noted, McCrudden acknowledges that he was in contact with known felons. The gravamen of this part of defendant’s argument is that .those contacts were insufficient in duration and quality to constitute a breach of his obligation not to associate with such an individual or individuals. In doing so, he quotes language from United States v. International Brotherhood of Teamsters, 998 F.2d 120, 125 (2d Cir.1993) indicating that a “determination of knowing association should be inferred from the duration and quality of the association.” (Def.’s Apr. 16, 2015 Letter Br. at 7 (internal quotation marks and underlining deleted).) However, the issue in International Brotherhood of Teamsters did not entail the meaning of a non-association condition of supervised release but the more multi-layered question of whether a former union official violated a particular provision of a consent decree intended to prevent members of organized crime from improperly influencing union activities.

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Related

United States v. Lovelace
257 F. App'x 773 (Fifth Circuit, 2007)
Arciniega v. Freeman
404 U.S. 4 (Supreme Court, 1971)
United States v. Coplan
703 F.3d 46 (Second Circuit, 2012)
United States v. Charles
531 F.3d 637 (Eighth Circuit, 2008)
United States v. John Paul Everhart, II
562 F. App'x 937 (Eleventh Circuit, 2014)

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Bluebook (online)
120 F. Supp. 3d 257, 2015 U.S. Dist. LEXIS 108975, 2015 WL 4899550, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mccrudden-nyed-2015.