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09-3520-cr

United States v. Boyd

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 COURT’S 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 “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

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 AMALYA L. KEARSE,

9 CHESTER J. STRAUB,

10 Circuit Judges.

11

12

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14 UNITED STATES OF AMERICA, 

15

16 Appellee,

17

18 -v.- 09-3520-cr

19

20 CHRISTOPHER BOYD,

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22 Defendant-Appellant.

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24

25 FOR APPELLANT: ANTHONY J. LANA, Eoannou, Lana & D’Amico,

26 Buffalo, NY.

27
2

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 Christopher Boyd appeals from a

17 judgment of conviction entered on August 7, 2009. Pursuant

18 to a plea agreement, Boyd pled guilty to criminal copyright

19 infringement and to filing a false tax return, in violation

20 of 18 U.S.C. § 2319(b)(1), 17 U.S.C. § 506(a)(1)(A), and 26

21 U.S.C. § 7206(1). He was sentenced to 46 months of

22 incarceration, three years’ supervised release, and was

23 ordered to pay over $2 million in restitution. 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

37 F.3d 161, 170 (2d Cir. 2009) (brackets in original). “[I]n

38 most cases [a habeas claim] is preferable to direct appeal

39 for deciding claims of ineffective-assistance.” Massaro v.

40 United States, 538 U.S. 500, 504-05 (2003). However, we

41 have addressed ineffective assistance claims on direct

42 appeal when their resolution is “beyond any doubt” or to do

43 so is “in the interest of justice.” United States v. Matos,

44 905 F.2d 30, 32 (2d Cir. 1990).

45
 The 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 the interest of justice to consider Boyd’s

2 claims on direct appeal. Boyd argues in part that he agreed

3 to pay restitution with respect to time-barred conduct

4 without knowing that (absent his consent) the district court

5 could impose restitution only for conduct within the

6 limitations period. See United States v. Silkowski, 32 F.3d

7 682, 688-89 (2d Cir. 1994) (interpreting 18 U.S.C. §§ 3663-

8 3664 as limiting restitution to loss caused by “specific

9 conduct forming the basis for the offense of conviction,”

10 unless more extensive restitution is agreed to in a plea

11 agreement). Restitution orders cannot be challenged through

12 a habeas petition because a “monetary fine is not a

13 sufficient restraint on liberty to meet the ‘in custody’

14 requirement,” even if raised in conjunction with a challenge

15 to a sentence of imprisonment. See Kaminski v. United

16 States, 339 F.3d 84, 87-88 (2d Cir. 2003) (quoting United

17 States v. Michaud, 901 F.2d 5, 7 (1st Cir. 1990)). To

18 assess the effect on restitution, we must consider Boyd’s

19 claims on direct appeal.

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 See 18 U.S.C. § 3282(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 1
occurred 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. 

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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

13 limitations period. Silkowski, 32 F.3d at 687-88 (quoting

14 U.S.S.G. § 1B1.3(a)(2)).

15

16 Third, an ineffective assistance claimant who pled

17 guilty must show a reasonable probability that, “but for

18 counsel’s errors, he would not have pleaded guilty and would

19 have insisted on going to trial.” Hill v. Lockhart, 474

20 U.S. 52, 59 (1985). 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

24 requisite prejudice for an ineffectiveness claim. See,

25 e.g., Short v. United States, 471 F.3d 686, 696-97 (6th Cir.

26 2006); Bethel v. United States, 458 F.3d 711, 720 (7th Cir.

27 2006). We have not yet considered this “better plea deal”

28 argument, but the record should be developed to determine

29 whether Boyd’s claim presents the issue.

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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. 

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16

17 FOR THE COURT:

18 CATHERINE O’HAGAN WOLFE, CLERK

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