United States v. Peter J. Santos

Opinion

18‐313‐cr United States v. Peter J. Santos

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 COURTʹS 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 ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 7th day of February, two thousand twenty.

PRESENT: DENNIS JACOBS, GUIDO CALABRESI,

DENNY CHIN,

Circuit Judges.

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UNITED STATES OF AMERICA, Appellee,

‐v‐ 18‐313‐cr

PETER J. SANTOS, Defendant‐Appellant.

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FOR APPELLEE: MARC H. SILVERMAN, Assistant United States Attorney, for John H. Durham, United States Attorney for the District of Connecticut, New Haven, Connecticut.

FOR DEFENDANT‐APPELLANT: DEVIN MCLAUGHLIN, Langrock Sperry & Wool, LLP, Middlebury, Vermont, and Jeremy Gutman, New York, New York.

Appeal from the United States District Court for the District of Connecticut (Thompson, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED in part and VACATED in part and the case is REMANDED for resentencing.

Defendant‐appellant Peter J. Santos appeals from a judgment entered January 30, 2018, after a jury trial, convicting him of threatening a federal official in violation of 18 U.S.C. § 115(a)(1)(B). The district court sentenced Santos principally to 41 monthsʹ imprisonment. On appeal, Santos challenges the sufficiency of the evidence, the district courtʹs evidentiary rulings, and the procedural reasonableness of his sentence. We assume the partiesʹ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

In 2014, Santos was convicted in the Southern District of New York (Wood, J.) of unrelated crimes (related to the transportation of stolen goods) and sentenced to 25 monthsʹ imprisonment and three yearsʹ supervised release. While on supervised release in the District of Connecticut after completing his prison term, Santos tested positive for heroin more than a dozen times and failed to complete several drug programs. On August 31, 2016, the district court (Arterton, J.) held a hearing to

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address Santosʹs violations of his conditions of supervised release. After concluding that Santos violated the conditions of his supervised release, the district court sentenced Santos principally to six monthsʹ imprisonment, to be followed by two years of supervised release. As he was leaving the court room, Santos turned to his probation officer and made a threatening comment. A federal grand jury eventually indicted Santos for threatening a federal official, in violation of 18 U.S.C. § 115(a)(1)(B). On June 2, 2017, a jury convicted Santos. After the district court (Thompson, J.) imposed sentence, this appeal followed.

DISCUSSION

I. Sufficiency of the Evidence A. Applicable Law To be liable for violating § 115(a)(1)(B), a defendant must, inter alia, threaten a federal official with the intent to impede, intimidate, or interfere with the individual in the performance of official duties. See 18 U.S.C. § 115(a)(1)(B). Although the statute criminalizes certain speech, the Supreme Court has held that the First Amendment does not afford protection to speech that constitutes a ʺtrue threat.ʺ Watts v. United States, 394 U.S. 705, 708 (1969) (internal quotation marks omitted). This Court has traditionally applied an objective test to determine whether a defendantʹs statement is a true threat. United States v. Turner, 720 F.3d 411, 420 (2d Cir. 2013). A statement rises to the level of true threat if ʺan ordinary, reasonable recipient who is familiar with

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the context of the [communication] would interpret it as a threat of injury.ʺ Id. (quoting United States v. Davila, 461 F.3d 298, 305 (2d Cir. 2006) (internal quotation marks omitted)). ʺ[W]hether [the] words used are a true threat is generally best left to the triers of fact.ʺ United States v. Amor, 24 F.3d 432, 436 (2d Cir. 1994) (internal quotation marks omitted).

ʺWe review sufficiency of evidence challenges de novo, but defendants face a heavy burden, as the standard of review is exceedingly deferential.ʺ United States v. Baker, 899 F.3d 123, 129 (2d Cir. 2018) (internal quotation marks omitted). ʺWe must view the evidence in the light most favorable to the government, crediting every inference that could have been drawn in the governmentʹs favor, and deferring to the juryʹs assessment of witness credibility and its assessment of the weight of the evidence.ʺ Id. (internal quotation marks and brackets omitted). ʺ[W]e will sustain the juryʹs verdict if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.ʺ Id. (internal quotation marks omitted).

B. Application Santos contends that the evidence is insufficient to show that he conveyed a ʺtrue threatʺ to his probation officer. The argument fails because the record contains ample evidence supporting the juryʹs verdict, including testimony from six different witnesses present at the August 31, 2016 violation hearing. For example, the probation officer testified that while the U.S. Marshals escorted Santos from the courtroom, he

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turned and said, ʺWhen I get out, Iʹm coming for you.ʺ Govʹt Appʹx at 281. Two U.S. Marshals also testified to hearing the same comment. See Govʹt Appʹx at 361‐62, 393. Moreover, the court reporter testified that Santos said, ʺsomething to the effect of ʹWhen I get out, Iʹll come see you,ʹ or ʹIʹll come look for you.ʹʺ Govʹt Appʹx at 92‐93. Beyond the trial testimony, there is additional evidence that Santos exhibited open hostility to his probation officers in two different recorded prison calls prior to his August 31, 2016 violation hearing. See Govʹt Appʹx at 682, 684. After reviewing this evidence, a reasonable jury could have concluded beyond a reasonable doubt that Santosʹs statement was a ʺtrue threatʺ sufficient to violate § 115(a)(1)(B). II. Evidentiary Rulings A. Applicable Law Santos contends that he was deprived of a fair trial because the district court erroneously admitted evidence of the value of the stolen goods involved in his previous conspiracy conviction, during the governmentʹs redirect examination of two witnesses. ʺThe scope of redirect examination is a matter entrusted to a trial judgeʹs broad discretion.ʺ United States v. Vasquez, 267 F.3d 79, 85 (2d Cir. 2001) (internal quotation marks omitted). We review the district courtʹs decision to admit evidence for abuse of discretion, United States v. Spoor, 904 F.3d 141, 153 (2d Cir. 2018), and we will reverse only if an error affects a ʺsubstantial right,ʺ United States v. Garcia, 413 F.3d 201, 210 (2d Cir. 2005) (quoting Fed. R. Evid. 103(a)).

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B. Application Santos argues that evidence of the value of the stolen goods involved in his prior convictions was irrelevant and only served to show his propensity to commit the charged offense. We disagree. First, the governmentʹs redirect was relevant under Federal Rule of Evidence 403 as a response to the defenseʹs argument that Santos was unlikely to engage in criminal conduct because he was simply a heroin addict. See Dist. Ct. Docket No. 113 at 16; see also Govʹt Appʹx at 512 (defense counsel portraying Santos as a drug addict living in a ʺcareless mannerʺ who made a ʺcareless commentʺ to his probation officer). That Santosʹs prior criminal actions involved a large sum showed a degree of sophistication relevant to the juryʹs assessment of whether Santos made a ʺcareless comment,ʺ Govʹt Appʹx at 512, or a ʺtrue threat.ʺ Second, the testimony was not bad‐acts evidence under Federal Rule of Evidence 404 because the government was permitted on redirect to explore the nature and circumstances of the prior convictions after defense counsel, on cross‐examination, asked whether the offenses were ʺcrimes of violence.ʺ Govʹt Appʹx at 188. Accordingly, the district court did not abuse is discretion in admitting the testimony. III. Procedural Reasonableness of Sentence A. Applicable Law In calculating Santosʹs sentence, the district court declined to apply a reduction under United States Sentencing Guidelines (ʺU.S.S.G.ʺ) § 2A6.1(b)(6), which

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permits a four‐level reduction if the threat ʺinvolved a single instance evidencing little or no deliberation.ʺ This Court considers two factors in determining whether § 2A6.1(b)(6) applies: ʺ(1) whether, and under what circumstances, the threat itself has been repeated and (2) whether there is evidence of planning or some effort to carry out the threat.ʺ United States v. Wright‐Darrisaw, 781 F.3d 35, 41 (2d Cir. 2015).

A district court ʺcommits procedural error where it . . . makes a mistake in its Guidelines calculation.ʺ United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). We review de novo a district courtʹs interpretation of the Guidelines and for clear error its factual findings regarding the applicability of specific enhancements or reductions. See United States v. Richardson, 521 F.3d 149, 156 (2d Cir. 2008).

B. Application We conclude that the district court committed procedural error in declining to apply § 2A6.1(b)(6) because there was insufficient evidence of deliberation and repetition of the threat. The evidence relied on by the district court demonstrated that Santos was agitated by the results of the violation hearing, but it did not establish that Santos engaged in any deliberation or planning. See Wright‐Darrisaw, 781 F.3d at 41. Indeed, the fact that Santos was ʺunder controlʺ during parts of the hearing shows that his threat was a spontaneous outburst triggered by his mounting anger. Govʹt Appʹx at 640.

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Moreover, there was insufficient evidence that Santos repeated this threat.

The district court erred in concluding that Santosʹs discussion with the U.S. Marshals outside the courtroom constituted a separate repetition of the threat. After Santos made his threatening comment, the U.S. Marshals moved him outside the courtroom and escorted him down a hallway to an elevator. It was at that point ‐‐ which likely was just moments later ‐‐ that Santos told a U.S. Marshal, ʺ[w]e all have to meet our maker at some point, whether itʹs by me or someone else.ʺ Govʹt Appʹx at 369. Given the temporal proximity between his threat and this comment and all the circumstances, this was a single episode rather than multiple threats. Because the record contains insufficient evidence of deliberation and repetition, the district court erred in declining to apply § 2A6.1(b)(6). On this record, we conclude that Santos is entitled to a four‐level reduction pursuant to § 2A6.1(b)(6). Accordingly, his Total Offense Level was 14, and with a Criminal History Category of III, his Guidelines range is 21 to 27 months. The district court shall conduct a plenary resentencing.

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We have considered Santosʹs remaining arguments and conclude they are without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED as to the conviction and VACATED as to the sentence, and the case is REMANDED for resentencing. The mandate shall issue forthwith. The district court is instructed to proceed to resentencing as soon as practicable in light of the reduced Guidelines range.

FOR THE COURT:

Catherine OʹHagan Wolfe, Clerk