U.S. v. CAMPBELLDocket No. 00-1588.
300 F.3d 202 (2002)
UNITED STATES of America, Appellee,
George CAMPBELL, also known as Ramadan, also known as Roland Campbell, Defendant-Appellant.
George CAMPBELL, also known as Ramadan, also known as Roland Campbell, Defendant-Appellant.
United States Court of Appeals, Second Circuit.
Argued: January 25, 2002.
Decided: August 7, 2002.
Judith Philips, Assistant United States Attorney, Brooklyn, N.Y. (Alan Vinegrad, United States Attorney for the Eastern District of New York, Peter A. Norling, Assistant United States Attorney, Brooklyn, NY, on the brief), for Appellee. Labe M. Richman, New York, NY, for Defendant-Appellant.
Before: NEWMAN and KEARSE, Circuit Judges, and RAKOFF, District Judge.
KEARSE, Circuit Judge.
Defendant George Campbell appeals from a judgment of conviction entered in the United States District Court for the Eastern District of New York, Raymond J. Dearie, Judge, following a jury verdict finding him guilty on four counts of armed
In October 1991, members of a violent gang of robbers known as the "Forty Thieves" were arrested following a five-month spree of armed robberies of more than 10 banks and post offices in New York and Connecticut. Campbell, a core member of the gang, was arrested in Maryland in December 1991, but he escaped some weeks later by posing as another inmate who was scheduled for release. He remained at large while four of the gang members were convicted after a jury trial in 1993; he was finally arrested in Costa Rica in the summer of 1996.
A. The Extradition
The United States submitted a formal request to the Republic of Costa Rica seeking the extradition of Campbell, also known as "Roland Lavar Campbell". The request was supported by an affidavit by Assistant United States Attorney ("AUSA") Charles W. Gerber dated June 7, 1996 ("AUSA's Affidavit"), together with, inter alia, a copy of the 33-count superseding indictment ("indictment"), which included 24 counts against Campbell; a copy of the warrant issued for Campbell's arrest; and the affidavit of a postal inspector describing the investigation and the evidence that led to the indictment. The AUSA's affidavit described, inter alia, the elements of and maximum penalties for the charges against Campbell, including the charges on which he was ultimately convicted, and it provided excerpts from the pertinent substantive and sentencing provisions of Title 18 of the United States Code.
In a decree dated October 1, 1996, the Costa Rican criminal court granted extradition,
Decree of Third Criminal Court of San José dated October 1, 1996 ("Extradition Decree") (quoted in Order of Costa Rican Superior Court of Criminal Cassation dated December 3, 1996 ("Court of Criminal Cassation Order"), at 1.) The Extradition Decree was in all respects confirmed on appeal by the Court of Criminal Cassation Order.
The United States Department of State, through the United States Embassy in Costa Rica, provided assurances to the Costa Rican government in a diplomatic note ("State Department Note") stating, inter alia, that "Campbell will not be sentenced to serve a term of imprisonment greater than 50 years." (State Department Note.) In addition, the United States District Court for the Eastern District of New York issued an order stating the following assurances:
Order dated January 24, 1997 (Denis R. Hurley, Judge) ("1997 Order"), at 2. Campbell was extradited to the United States in March 1997.
B. The Conviction and Sentence
Following extradition, several counts against Campbell were dismissed either before or at trial. Of the remaining 17 counts, the jury found him guilty on 15 and not guilty on two. He was found guilty on one count of conspiracy to commit robberies of banks and post offices, in violation of 18 U.S.C. § 371 (count 1); four counts of armed bank robbery in violation of 18 U.S.C. § 2113 (counts 8, 14, 16, and 22), together with four counts of using and carrying a firearm in committing those bank robberies, in violation of 18 U.S.C. § 924(c) (counts 9, 15, 17, and 23); and three counts of post office robbery in violation of 18 U.S.C. § 2114 (counts 6, 10, and 12), together with three counts of using and carrying a firearm in committing those postal robberies, in violation of 18 U.S.C. § 924(c) (counts 7, 11, and 13).
Following the jury's verdict of guilty in March 1999, and prior to Campbell's sentencing, the government sought clarification of the Costa Rican government's position concerning the permissible form of
(Costa Rican Ministry Letter (emphases added).) The Costa Rican Consulate forwarded that letter (in Spanish) to the United States Attorney's Office for the Eastern District of New York, with a cover letter (in English) that stated that
(Letter from Costa Rican Consul General to United States Attorney's Office dated June 16, 2000 ("Costa Rican Consul General's Letter").)
A presentence report ("PSR") was prepared on Campbell. It stated that the maximum prison term on the conspiracy count was five years and that the maximum prison term on each of the seven robbery counts was 25 years. On count 7, the first weapons charge, § 924(c)(1) required the imposition of a five-year prison term, consecutive to any other sentence imposed. The PSR stated that the convictions on the remaining gun charges, counts 9, 11, 13, 15, 17, and 23, would properly be treated as second and subsequent convictions under § 924(c)(1), and thus would require 20-year prison terms each, to be served consecutively to each other and to any other sentence imposed, for a total of 120 years, see 18 U.S.C. § 924(c)(1) (1988 & Supp. II 1990). The PSR concluded that Campbell's total offense level was 38, that his criminal history category was IV, that the resulting prescribed Guidelines range was 360 months (30 years) to life imprisonment on the conspiracy and robbery counts, and that that range "must be imposed consecutive to Counts 7, 9, 11, 13, 15, 17, and 23 which require a total of 125 years pursuant to 18 U.S.C. § 924(c)(1)," resulting in a total of 155 years. The PSR noted, however, that "[a]s a result of the extradition treaty with Costa Rica, the defendant's sentence appears to be restricted to a maximum of fifty years."
At the sentencing hearing in July 2000, Campbell argued, inter alia, that the Costa Rican criminal court's specification "[t]hat he will not receive a sentence of more than 50 years" meant that the sentence the court was to pronounce could not exceed 50 years. The government argued that the letters of clarification received from the Costa Rican Ministry and the Costa Rican Consul General made it clear that a sentence of more than 50 years could be pronounced, so long as the controlling decretal provisions made clear that Campbell could not be kept in prison for more than 50 years.
The district court rejected Campbell's argument and interpreted the Extradition Decree as meaning that Campbell simply could not be required to serve more than 50 years in prison. The court concluded that the appropriate course would be "to impose the sentence as called for [by the Guidelines] and lay all the facts out."
After hearing from Campbell himself, the court imposed sentence as follows:
The concurrent sentences of 360 months (30 years) on the conspiracy and robbery counts, with a total of 125 years imposed on the firearm counts to run consecutively, resulted in a sentence of a total of 155 years imprisonment. The court appended to the judgment of conviction an order stating as follows:
Order dated July 14, 2000 ("Judgment Addendum"), at 1-2. This appeal followed.
On appeal, Campbell argues principally (1) that his conviction on the firearms charges and his overall sentence violate both the terms of the extradition treaty between the United States and Costa Rica and the Costa Rican government's grant of extradition; (2) that his 20-year sentences on six of the firearms charges violate the principles of Apprendi; and (3) that the 30-year sentences on the conspiracy and substantive robbery counts exceed the statutory maxima for those offenses. He also makes a variety of constitutional challenges to his conviction. For the reasons that follow, we affirm the conviction, and we see no violation of the Treaty or the Extradition Decree; but we remand for corrections in the calculation of the sentence.
A. Compliance With the Treaty and the Grant of Extradition
Campbell contends that his convictions on the firearms charges should be reversed,
1. Compliance With the Treaty
It is well established that, under the international principle of specialty, an extradited defendant may not be tried for a crime not enumerated in the applicable extradition treaty. See United States v. Rauscher,
Thus, although courts of the United States have authority to determine whether an offense is an extraditable crime when deciding whether an accused should be extradited from the United States, see, e.g., Shapiro v. Ferrandina,
In the present case, Costa Rica rendered its decision to extradite Campbell to face all of the charges set forth in
2. The Scope of Costa Rica's Grant of Extradition
It is also well established that even if the extradition treaty explicitly lists as extraditable crimes the offenses with which a defendant is charged, prosecution on those charges is barred if the extradition request did not list those charges or if the extraditing state declined to grant extradition for those crimes. See Johnson v. Browne, 205 U.S. at 316-18, 27 S.Ct. 539; United States v. Levy,
Although our courts have authority to determine whether a prosecution in the United States for a given crime is within the scope of the extraditing country's extradition decree, see, e.g., United States v. Flores, 538 F.2d at 944 (United States court may determine "whether certain offenses which the government seeks to prosecute fall outside the contemplated scope of the foreign sovereign's extradition decree"); Fiocconi v. Attorney General,
The United States government's formal extradition request to the Costa Rican government attached a copy of the indictment, which included 11 counts alleging that Campbell violated § 924(c). The supporting affidavit explicitly addressed the § 924(c) counts, inter alia, stating that they charged Campbell with "the use of a firearm during and in relation to a crime of violence; namely, the various armed bank and post office robberies charged in the superseding indictment" (AUSA's Affidavit ¶ 17), outlining what the government would be required to prove to establish guilt on those counts, explaining what the § 924(c) penalties were, and attaching copies of the applicable statutory and sentencing provisions. For example, the affidavit stated that
(AUSA's Affidavit ¶ 17.)
Presented with this affidavit and copies of the indictment and the statutory provisions, the Costa Rican Criminal Court granted extradition, and its decision was affirmed on appeal. We thus reject Campbell's contention that the Costa Rican government did not knowingly consent to his extradition to face § 924(c) charges carrying cumulative penalties.
3. Compliance With the 50-Year Condition
Campbell also contends that his 155-year sentence violated the terms of the Costa Rican government's grant of extradition, which included the condition that the United States would not sentence him to a prison term longer than 50 years. Given the record of the communications between the two nations, and the district court's judgment as a whole, we see no violation.
In the initial grant of extradition, as translated, the Costa Rican Criminal Court imposed the condition that the United States must promise that Campbell "will not receive a sentence of more than 50 years." Extradition Decree. In response to that condition, the United States Department of State promised that Campbell would "not be sentenced to serve a term of imprisonment greater than 50 years" (State Department Note (emphasis added)), and the United States District Court for the Eastern District of New York gave the assurance that that court would not "impose any sentence pursuant to which the defendant would serve a term of imprisonment of greater than fifty years" (1997 Order at 2 (emphasis added)).
In light of the possible lack of congruence between the phrases "will not receive a sentence" and will not be sentenced to "serve," the United States, following Campbell's conviction, sought clarification as to whether the judgment could permissibly announce a longer term, so long as Campbell's release was guaranteed after no more than 50 years. The Costa Rican government plainly responded in the affirmative. The Costa Rican Ministry stated that
(Costa Rican Ministry Letter (emphasis added).) We think it plain that the Costa Rican government's reference to "verdict" — given its conception of a document that would not only announce guilt but would also impose sentence — was a reference not to the jury's finding but rather to the judgment of conviction. And plainly the Costa Rican Ministry stated that so long as the dispositive part of the judgment made clear that Campbell could "serve" no more than 50 years, the judgment could permissibly make reference to the amount of jail time that would generally be applicable. Our interpretation of the Costa Rican Ministry Letter is confirmed by the language of the accompanying letter from the Costa Rican Consul General, which stated that
(Costa Rican Consul General's Letter (emphasis added).)
In accordance with these clarifications, the district court, after announcing a sentence of 155 years, stated that in order to comply with the terms of the Extradition Decree the judgment would be clarified by an accompanying order making clear that Campbell was to serve no more than 50 years of that sentence. The court then attached to the judgment of conviction an order stating that Campbell "shall be released after he serves a period of incarceration not greater than 50 years." Judgment Addendum at 2. That order constitutes an integral part of the judgment, and it clearly and dispositively establishes that the "maximum sentence" to be served by Campbell — his "real serving time" — is 50 years. Accordingly, the sentence imposed complies with the terms of the Costa Rican government's grant of extradition.
Finally, we note that it was well within the discretion of the district court to impose its sentence in the form of a 155-year sentence with an order that exactly 50 years be served, without any diminution for, e.g., good time credits, in order to ensure that Campbell would be incarcerated for the full 50 years permitted by the Extradition Decree. See, e.g., United States v. Casamento,
B. The Apprendi Challenge to the 20-Year § 924(c) Sentences
At the time of Campbell's offenses, § 924(c), which prohibits the use or carrying of a firearm during and in relation to a crime of violence, provided that a defendant's first § 924(c) conviction requires imposition of a prison term of five years and that "[i]n the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for twenty years." 18 U.S.C. § 924(c)(1) (1988 & Supp. II 1990). Campbell was convicted of § 924(c) violations in counts 7, 9, 11, 13, 15, 17, and 23 of the indictment. Because it was proper to treat Campbell's conviction on count 7 as his first such conviction and his convictions on the other six counts as second or subsequent convictions under that section, see Deal v. United States,
The Apprendi Court, though holding that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt," stated that that requirement is applicable only to facts "[o]ther than the fact of a prior conviction." 530 U.S. at 490, 120 S.Ct. 2348. And this Court has held that the fact of a prior conviction is not an element of a § 924(c) offense. See, e.g., United States v. Anglin,
C. The Guidelines Calculations and the Statutory Maxima
Campbell contends that his 30-year sentences on the conspiracy and substantive robbery counts exceed the statutory maxima for those offenses. He also complains that the PSR, relied on by the district court, misstated his adjusted and total offense levels and, independently of that error, invoked the wrong Guidelines range. These contentions have some merit. We address them in reverse order.
First, the PSR calculated that Campbell's total offense level was 38, that his criminal history category was IV (which is undisputed), and that the prescribed Guidelines range of imprisonment was therefore 360 months to life. The correct Guidelines range for that offense level and criminal history category, however, is 324 to 405 months.
Second, the government concedes that the PSR's conclusion as to Campbell's adjusted and total offense levels was also incorrect. The PSR initially calculated that his adjusted offense level was 31, the highest level for any one of his offenses. However, in an apparent clerical error, the PSR later copied the adjusted offense level figure as 33 rather than 31. This error, after the PSR's addition of five steps pursuant to Guidelines § 3D1.4 in grouping Campbell's offenses, gave him a total offense level of 38 rather than 36. The imprisonment range prescribed by the Guidelines for the correct offense level of 36, with a criminal history category IV, is 262 to 327 months.
Finally, the district court sentenced Campbell to concurrent prison terms of 360 months (30 years) on the conspiracy charge and each of the seven substantive armed robbery counts, stating that those terms were "subject, of course, to the statutory limitations with respect to the specific counts." (S.Tr.20.) The statutory maximum for conspiracy under 18 U.S.C. § 371 is five years (60 months), and the statutory maximum for each of the § 2114 postal robbery counts and the § 2113 bank robbery counts is 25 years (300 months). None of the counts of conviction carried a statutory maximum as high as 360 months.
Campbell asks us to amend the judgment to reflect concurrent 25-year sentences, rather than 30-year sentences, on the substantive robbery counts, which would reduce his overall sentence from 155 to 150 years. The government urges us instead to remand to the district court for resentencing, pointing out that under Guidelines § 5G1.2(b), the sentencing judge determines the "total punishment" to be imposed by selecting an appropriate punishment within the Guidelines range, see, e.g., United States v. McLeod,
D. Other Contentions
Campbell also challenges his conviction, contending principally that he was denied effective assistance by his trial attorney, that his right to testify in his own defense was infringed, that certain of the trial court's discovery and evidentiary rulings denied him a fair trial, and, in a brief filed pro se, that his prosecution and conviction on multiple firearms charges violated the Double Jeopardy Clause. These contentions are meritless.
1. The Performance of Counsel
Campbell argues that his trial counsel was ineffective in various aspects of his performance, including failing to object to the seating of a bank security guard as a juror; failing to call Campbell's brother as a witness to testify that he had "regularly" seen Campbell in Costa Rica between May and October of 1991, the period of the charged conspiracy; failing to introduce snapshots of Campbell in Costa Rica; failing to conduct an effective cross-examination of certain witnesses; and failing to object to the mention of Campbell's escape from jail. In order to establish a claim of ineffective assistance of counsel, a defendant must show (1) that his counsel's performance fell below an objective standard of reasonableness judged by prevailing professional norms, and (2) that but for the deficiency, there is a reasonable probability that the outcome of the proceeding would have been different. See Strickland v. Washington,
Jurors are presumed to be free of bias, see, e.g., United States v. Brown,
Nor did Campbell make any showing that either photographs of him in Costa Rica or his brother's testimony that Campbell was in Costa Rica at various times would have materially advanced his defense. The government did not contend that Campbell was never in Costa Rica, but simply that he was present at the robberies in the United States on the dates alleged in the indictment. Most of the testimony of whose omission Campbell complains consisted of general statements that he had been in Costa Rica, apparently without pinpointing any particular date. In only one instance has Campbell pointed to testimony that placed him in Costa Rica on a day on which he was alleged to be in the United States committing a robbery, and that testimony was in fact put in evidence.
Finally, we see no substandard performance in counsel's cross-examination of the witnesses, which was intensive with respect to matters that tended to impeach their testimony, or in his decision to forgo objection to a witness's reference to Campbell's escape from jail rather than have a parade of government witnesses testify about the escape.
2. The Right To Testify
Campbell also contends that the district court erred in failing to find that his trial counsel rendered constitutionally
Here, the district court conducted a hearing at which Campbell's trial attorney testified that he had told Campbell that Campbell could testify at trial if he wished and that Campbell was "fully aware" of that right. The district court credited the attorney's testimony and discredited that of Campbell, noting that Campbell had been aggressively involved in every aspect of his case and that it would be unreasonable to conclude that he was uninformed or had suddenly become docile regarding his right to testify. Giving due deference to the court's assessments of credibility, we see no error in its conclusion that counsel did not fail to render correct advice.
3. The Discovery and Evidentiary Contentions
Campbell also contends that his right to present a defense was violated by the district court's exclusion of the deposition of Campbell's brother and its denial of Campbell's request to take additional depositions; and that he was denied a fair trial by the admission of evidence of uncharged crimes and by the court's refusal to allow Campbell to sit in the audience during in-court identifications. We see no basis for reversal.
The district court did not abuse its discretion in denying further depositions, see, e.g., United States v. Johnpoll,
Nor is there merit in Campbell's challenge to the admission of uncharged crimes. Evidence of other similar crimes by a defendant is admissible under Fed. R.Evid. 404(b) to prove the identity of the defendant as the person who committed the offense being prosecuted, and the decision whether to admit or exclude such evidence is committed to the discretion of the trial court, see, e.g., United States v. Williams,
It was also well within the trial court's discretion in this case to reject Campbell's request to be seated in the audience during the in-court identifications. Although suggestive settings in the courtroom are generally to be avoided where the defendant has properly raised the issue, see, e.g., United States v. Archibald,
4. The Multiple § 924 Convictions
Finally, in a pro se brief, Campbell contends that his convictions on the firearms charges violated the Double Jeopardy Clause; his premise is that each of the separate robberies charged in the indictment were merely "predicate acts" of the conspiracy, and thus that the conspiracy is the only count that can support the firearms conviction. This contention is meritless.
Although only one § 924(c) violation can be appended to any single crime of violence, see United States v. Lindsay,
We note also that Campbell's pro se brief argues that he is entitled to the benefit of a postsentencing amendment to the Guidelines that makes clear that when a defendant is convicted of both an underlying offense and a § 924(c) offense for using a firearm in connection with the underlying offense, his sentence on the underlying offense cannot be enhanced for the possession or use of a firearm. See Guidelines § 2K2.4 Application Note 2 (eff. Nov. 1, 2000). This amendment affords Campbell no relief, for none of the punishments imposed for the substantive robbery counts was enhanced on account of his use or possession of a firearm. And although such an enhancement was included for his conviction on the conspiracy count, there was no § 924(c) count appurtenant to the conspiracy count and that count charged as overt acts two bank robberies in addition to the robberies that resulted in convictions on the substantive counts. Hence, the firearm enhancement in connection with Campbell's conviction of conspiracy was proper, for, even as amended, the guideline commentary states that "if a defendant is convicted of two armed bank robberies, but is convicted under 18 U.S.C. § 924(c) in connection with only one of the robberies, a weapon enhancement would apply to the bank robbery which was not the basis for the 18 U.S.C. § 924(c) conviction," Guidelines § 2K2.4 Application Note 2. This principle applies equally where the defendant is convicted of both armed robbery and a conspiracy to commit robberies in addition to those that resulted in convictions on substantive counts, and a § 924(c) count is not added with respect to the conspiracy count. Cf. Guidelines § 3D1.2(b) Application Note 4 (grouping conspiracy and substantive counts only where the substantive offense was the "sole object" of the conspiracy).
We have considered all of Campbell's contentions on this appeal and, except as indicated above with respect to errors in the calculation of his 155-year sentence, have found them to be without merit. In addition, we note that the original judgment recited that all seven of Campbell's convictions for robbery, rather than just three, were under 18 U.S.C. § 2114, and it omitted mention of 18 U.S.C. § 2113, the section under which he was convicted on four counts of bank robbery.
The judgment of the district court is vacated. The matter is remanded for a correct calculation of the applicable Guidelines range and the imposition of a sentence that both is within that range and is not in excess of the statutory maxima, and for the entry of a corrected judgment, with the eventual sentence again accompanied by an explicit order that the Bureau of Prisons release Campbell after he has served 50 years in prison.
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