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09-3520-cr United States v. Boyd



### UNITE D STATES COURT OF AP PEALS FOR T HE SE COND CIRCU IT



## SUM MARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY ORDER FILED
ON OR AFTER J

ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL R ULE OF APPELLATE PROCEDURE 32.1 AND T H I S COURT ’ S LO CAL R ULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT , A PARTY MU ST 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 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 31 day of January, two thousand eleven. st 5 PRESENT: DENNIS JACOBS, 6 7 Chief Judge, 8 AMALYA L. KEARSE, 9 CHESTER J. STRAUB, 10 Circuit Judges. 11 12 13 - - - - - - - - - - - - - - - - - - - -X UNITED STATES OF AMERICA , 14 15 Appellee , 16 17 18 -v.- 09-3520-cr 19 20 CHRISTOPHER BOYD, 21 22 Defendant-Appellant. 23 - - - - - - - - - - - - - - - - - - - -X 24
FOR APPELLANT: ANTHONY J. LANA, Eoannou, Lana & D’Amico, 25 Buffalo, NY. 26 272 1 FOR APPELLEE: JOSEPH J. KARASZEWSKI, Assistant United 2 States Attorney (KAREN ODDO, Law Clerk, 3 on the brief), for William J. Hochul, 4 Jr., United States Attorney for the 5 Western District of New York, Buffalo, 6 NY. 7 8 Appeal from a judgment of the United States District 9 Court for the Western District of New York (Skretny, J.). 10 11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 12 AND DECREED that the judgment of the district court be 13 AFFIRMED in part and VACATED in part, and the case REMANDED 14 for further proceedings. 15 16 Defendant-appellant Ch ris top herBo yd appeals from a 17 judgment of conviction entered on August 7, 2009. Pursuant 1 8 to a plea agreement, Boyd ple d g uil ty to cri min al cop yri ght 19 inf rin gementan d t o f ili ng a f als e t ax ret urn , i n v iol ati on 20 of 18 U.S .C. § 231 9(b )(1 ), 17 U.S .C. § 506 (a) (1) (A) , a nd 26 21 U.S .C. § 720 6(1 ). Hewa s s ent enc ed to 46 mon ths of 22 inc arc era tio n, thr ee yea rs’ super vis ed rel eas e, andwa s 23 ord ere d t o p ay ove r $ 2 m ill ioninre sti tut ion

. We assume 24 the parties’ familiarity with the underlying facts, the 25 procedural history, and the issues presented for review. 26 27 Boyd argues that his trial counsel’s performance was 28 constitutionally ineffective because Boyd was not informed 29 of relevant statutes of limitations, which circumscribed the 30 conduct for which he could be charged. When an ineffective 31 assistance claim is raised on direct appeal, we have three 32 options: “(1) decline to hear the claim, permitting the 33 appellant to raise the issue as part of a subsequent [28 34 U.S.C.] § 2255 petition; (2) remand the claim to the 35 district court for necessary fact-finding; or (3) decide the 36 claim on the record before us.” United States v. Hasan, 586 3 7 F.3d 161, 170 (2d Cir. 2009) (brackets in original). “[I ]n 38 mos t c ase s [ a h abe as cla im] is pr efe rab le to dir ectap pea l 39 forde cid ingcl aim s o f i nef fec tiv e-a ssi sta nce .” Ma ssa ro v. 40 Uni tedSt ate s, 538 U. S. 500 , 5 04- 05 (20 03)

. How eve r, we 41 hav e a ddr ess ed ine ffe cti ve ass ist anc e c lai ms on dir ect 42 app eal wh en the ir res olu tio n i s “ bey ondan y d oub t” or to do 43 so is “inth e i nte res t o f j ust ice .” Un ite d S tat es v. Mat os, 44 905 F. 2d 30, 32 (2 d C ir. 19 90)

. 45The limitations period is the five years before the 1 filing of the information on February 9, 2009. Conduct as early as 180 days before February 9, 2004 may have been chargeable, however, because of the time period inherent in the offense. For example, if the first infringement

3 1 It is in thein ter estofju sti ce to con sid er Boy d’s 2 cla ims ondi rec t a ppe al. B oydar gue s i n p artth at he agr eed 3 to payre sti tut ionwi th res pec t t o t ime -ba rre d c onduct 4 wit hou t k now ingth at (ab sen t h is con sen t) thedi str ictco urt 5 cou ld imp osere sti tut ionon ly forco ndu ct wit hinth e 6 lim ita tio ns per iod

. SeeUn ite d S tat es v. Sil kow ski , 3 2 F .3d 7 682 , 6 88- 89 (2dCi r. 199 4) (in terpre tin g 1 8 U .S. C. §§ 366 3- 8 366 4 a s l imi tin g r est itu tio n t o l oss ca use d b y “ spe cif ic 9 con duc t f orm ingth e b asi s f or theof fen se of con vic tio n,” 10 unl ess mo re ext ens ivere sti tut ionis ag ree d t o i n apl ea 11 agr eement ). Re sti tut ionor der s c ann ot be cha lle nge d t hro ugh 12 a h abe as pet iti on bec aus e a“mone tar y f ineis no t a 13 suf fic ien t r est rai nt on lib ert y t o meetth e ‘ in cus tod y’ 14 requir eme nt, ” e venifra ise d i n c onj unc tio n w itha cha lle nge 15 to a s ent enc e o f i mpr iso nme nt. S ee Kam ins ki v. Uni ted 16 Sta tes , 3 39 F.3 d 8 4, 87- 88 (2dCi r. 200 3) (qu oti ng Uni ted 17 Sta tes v. Mi cha ud, 90 1 F .2d5, 7 (1s t C ir. 19 90) ). To 18 ass ess th e e ffe ct on res tit uti on, wemu st con sid er Boy d’s 19 cla ims ondi rec t a ppe al. 20 21 [1] There is insufficient record for us to decide Boyd’s 22 ineffectiveness claim for the copyright infringement count. 23 We remand to the district court to consider it first, with 24 additional fact-finding on the restitution amount and the 25 representation of Boyd, including: the timing of the acts of 26 infringement; whether Boyd was aware of the statute of 27 limitations; whether the issue was raised during plea 28 negotiations; and whether Boyd would have insisted upon 29 going to trial had he known about the limitations period. 30 31 The following considerations bear upon the remand: 32 33 First, the court must determine whether Boyd had a 34 valid statute of limitations defense for the offense itself. 35 Criminal copyright infringement under 18 U.S.C. § 2319(b)(1) 36 involves ten or more copies of a protected work during any 37 180-day period, and has a five-year statute of limitations. 38 See18 U. S.C . §32 82( a) . It seems unlikely, albeit 39 possible, that Boyd’s infringements all occurred before the 40 limitations period; if Boyd pled guilty to an offense for 1occurred 180 days before February 9, 2004 and the tenth

occurred on February 9, 2004, one could argue that the offense was committed within the limitations period--when it was completed on February 9. The parties can brief the issue on remand if it affects the timeliness of the count.

For example, Boyd’s counsel may have used the 2 (hypothetically) time-barred copyright count as a negotiating tool to secure a better overall plea deal, by offering excessive restitution (from the time-barred copyright count) to minimize the sentence length (from the timely tax count). The Hansel court hinted at such a possibility, but had no occasion to elaborate because the defendant pled guilty without a plea agreement. Hansel, 70 F.3d at 8.

4 1 which he (unknowingly) had a valid affirmative defense, it 2 is likely that his counsel’s performance was deficient and 3 that he suffered prejudice, though the performance would not 4 be per se deficient. See United States v. Hansel, 70 F.3d 5 6, 8 (2d Cir. 1995) (per curiam). 2 6 7 Second, the Guidelines range is the same even if some 8 acts were time-barred, because Boyd’s infringement was 9 ongoing. Acts that were “part of the same course of conduct 10 or common scheme or plan as the offense of the conviction” 11 are “relevant conduct” that is included in Guidelines 12 calculations, even if the acts occurred prior to the 1 3 limitations period. Sil kow ski , 3 2 F .3dat68 7-8 8 ( quo tin g 14 U.S .S. G. § 1 B1. 3(a )(2 )). 15 1 6 Third, an ine ffe cti ve ass ist anc e c lai man t who ple d 17 gui ltymu st sho w are aso nab le pro bab ili ty tha t, “bu t f or 18 cou nse l’s er ror s, he wou ld notha ve ple ade d g uil ty andwo uld 19 hav e i nsi ste d o n g oin g t o t ria l.” Hil l v . L ockhar t, 474 20 U.S . 5 2, 59 (19 85) . Other circuits have interpreted Hill 21 strictly, reasoning that without a reasonable probability of 22 insistence upon trial, a defendant’s claim that he could 23 have negotiated a better plea deal cannot establish the 2 4 requisite prejudice for an ineffectiveness claim. See , 25 e.g ., Sho rt v. Uni tedSt ate s, 471 F. 3d 686 , 6 96- 97 (6t h C ir. 26 200 6); Be the l v . U nit ed Sta tes , 4 58 F.3 d 7 11, 72 0 ( 7thCi r. 27 200 6)

. We hav e n ot yetco nsi der ed thi s “ bet terpl ea dea l” 28 arg ume nt, bu t t he rec ordsh oul d b e d eve lop ed to det erm ine 29 whe the r B oyd ’s cla im pre sen ts theis sue

. 305 1 [2] Boyd’s ineffective assistance claim for the false tax 2 return count has no merit. The statute of limitations for 3 filing a false tax return, in violation of 26 U.S.C. § 4 7206(1), is six years. See 26 U.S.C. § 6531(5). The 5 information was filed on February 9, 2009; it alleged that 6 Boyd filed four false tax returns beginning on or around 7 April 15, 2003; therefore, all returns were filed within the 8 six-year limitations period.

9 We have considered the remainder of Boyd’s contentions 10 on this appeal and have found them to be without merit. 11 Accordingly, the judgment of the district court is AFFIRMED 12 for the false tax return count and VACATED for the copyright 13 infringement count. The case is REMANDED for proceedings 14 consistent with this order. 15 16 17 FOR THE COURT: 18 CATHERINE O’HAGAN WOLFE, CLERK 19