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09-0683-cr

USA v. Pickett

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at

the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New

York, on the twentieth day of July, two thousand and ten.

PRESENT:

RALPH K. WINTER,

JOSÉ A. CABRANES,

RICHARD C. WESLEY,

Circuit Judges.

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UNITED STATES OF AMERICA,

Appellee,

v. No. 09-0683-cr

GORDON PICKETT,

Defendant-Appellant.

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FOR DEFENDANT-APPELLANT: KATHERINE ALFIERI, Law Offices of

Katherine Alfieri, New York, NY.

FOR APPELLEE: WINSTON M. PAES, Assistant United States

Attorney (Benton J. Campbell, United States

Attorney, Jo Ann M. Navickas, Assistant

United States Attorney, on the brief), Office of

the United States Attorney for the Eastern

District of New York, Brooklyn, NY.

Appeal from a judgment of the United States District Court for the Eastern District of New

York (John Gleeson, Judge).

UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

Defendant-appellant Gordon Pickett (“defendant” or “Pickett”) appeals from a judgment of

the District Court entered on February 18, 2009. Defendant was convicted on eight counts—all

relating to his production and possession of counterfeit credit cards and identification cards—and

sentenced principally to 168 months’ imprisonment. On appeal he argues as follows: (1) that the

District Court erred in denying his motion to proceed pro se at trial; (2) that there was insufficient

evidence to sustain a conviction on each of the eight counts; (3) that the District Court erred in

denying his motion for blanket suppression of all items seized during the execution of a search

warrant; (4) that the District Court erred in admitting evidence of his prior conviction pursuant to

Fed. R. Evid. 404(b); (5) that the District Court gave an erroneous jury instruction; (6) that his

sentence is substantively unreasonable; and (7) that the District Court made errors in ordering

restitution. We assume the parties’ familiarity with the remaining factual and procedural history of

the case.

We address whether the District Court retained authority to order restitution more than

ninety days after defendant’s sentencing hearing in a separate opinion filed on the same day as this

order. We consider defendant’s remaining arguments in this summary order and find them to be

without merit.

First, we find no error in the District Court’s denial of defendant’s request—made eight days

after the jury was empaneled and during the second day of the government’s case—to proceed pro se. 

After a trial has begun, a criminal defendant’s right to represent himself “is sharply curtailed.” United

States v. Stevens, 83 F.3d 60, 67 (2d Cir. 1996) (internal quotation marks omitted). A district court

considering such a request “must weigh ‘the prejudice to the legitimate interests of the defendant’

against the ‘potential disruption of proceedings already in progress.’” Id. (quoting United States ex rel.
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Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir. 1965)). In weighing the prejudice to the legitimate

interests of the defendant, the court should consider “the defendant’s reasons for the selfrepresentation request, the quality of counsel representing the party, and the party’s prior proclivity

to substitute counsel.” United States v. Matsushita, 794 F.2d 46, 51 (2d Cir. 1986).

 We have no trouble concluding that the District Court acted well within its discretion in

denying defendant’s request to proceed pro se. Defendant’s reasons for seeking to represent himself

were expressed in what the District Court accurately described as a “barely comprehensible

diatribe,” during which defendant asserted that the District Court lacked jurisdiction over him based

on, among other things, the Administrative Procedure Act. Appellant’s App. 164-65. Defendant

also asserted, without explanation, that he was “without competent counsel.” Id. at 164.

Against those “reasons” for the request, the District Court was required to weigh the

potential disruption of the trial. In our view, the potential for disruption was self evident from

defendant’s request. In sum, we detect no error in the District Court’s denial of defendant’s motion

to represent himself for the remainder of the trial.

Defendant next challenges the sufficiency of the evidence produced to demonstrate his guilt

on each of the eight counts charged in the indictment. Upon review of the record, we conclude that

there was ample evidence to sustain the jury’s verdict on each count. See United States v. Gagliardi,

506 F.3d 140, 149-50 (2d Cir. 2007) (explaining that a jury’s verdict must be affirmed “unless no

rational trier of fact could have found all of the elements of the crime beyond a reasonable doubt”

(internal quotation marks omitted)).

We also find no merit in defendant’s argument that the search of his residence so exceeded

the scope of the search warrant as to require blanket suppression of all evidence seized. The District

Court concluded that the search of defendant’s basement exceeded the scope of the warrant but

excluded only the evidence seized from the basement itself. Defendant argues that all evidence

seized during the search should have been suppressed because government agents “flagrantly

disregard[ed]” the scope of the warrant. See United States v. Shi Yan Liu, 239 F.3d 138, 140 (2d Cir.

2000). The District Court, however, found that the search of the basement was conducted in good

faith and that blanket suppression was unwarranted. See id. (noting that blanket suppression is

appropriate only where government agents (1) “effect a widespread seizure of items that were not

within the scope of the warrant and (2) do not act in good faith” (internal quotation marks and

citation omitted)). We conclude that the District Court’s good faith finding was not clearly

erroneous.

Defendant next argues that the District Court erred in admitting evidence of his prior

conviction pursuant to Fed. R. Evid. 404(b). We disagree. Defendant placed his intent at issue
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during trial, thereby making his prior conviction relevant. See Fed. R. Evid. 404(b) (explaining that

evidence of other crimes may be admissible as proof of intent). The prior conviction demonstrated

that defendant was aware that counterfeit credit cards are used to commit fraud. A reasonable juror

could therefore infer from defendant’s possession of counterfeit credit cards and card-making

equipment that he had the requisite intent to defraud. Moreover, the District Court gave a forceful

limiting instruction reducing any risk that the jury might consider defendant’s prior conviction as

evidence of his propensity to commit crime.

We also disagree that the District Court’s jury instruction on aggravated identity theft was

erroneous. The District Court instructed the jury that, to find defendant guilty of aggravated

identity theft, it must, among other things, find that defendant knew at the time he committed bank

fraud that the persons whose identities he was using “were actual as opposed to fictitious persons.” 

Appellant’s App. 232. Defendant argues that the District Court was required to instruct the jury that

“defendant knew that the means of identification at issue belonged to another person,” FloresFigueroa v. United States, 129 S. Ct. 1886, 1894 (2009), not just that he knew that the other persons

were actual as opposed to fictitious. Because defendant did not object to the instruction at trial, we

review the instruction for plain error. See Fed. R. Crim. P. 52(b).

We discern no error, much less plain error, in the District Court’s jury instruction. The

District Court instructed the jury that it must find both (1) that defendant “knowingly used . . . a

means of identification of another person” and (2) that he knew that that other person “w[as an]

actual as opposed to [a] fictitious person[ ].” Appellant’s App. 231-32. That instruction is fully

consistent with the Supreme Court’s interpretation of the statute as “requir[ing] the Government to

show that the defendant knew that the means of identification at issue belonged to another person.” 

Flores-Figueroa, 129 S. Ct. at 1894.

With respect to sentencing, we reject defendant’s argument that his sentence of 168 months’

imprisonment is substantively unreasonable. See United States v. Cavera, 550 F.3d 180, 189 (2d Cir.

2008) (en banc) (noting that we will “set aside a district court’s substantive determination only in

exceptional cases where the trial court’s decision cannot be located within the range of permissible

decisions” (internal quotation marks omitted)); see also United States v. Rigas, 583 F.3d 108, 123 (2d

Cir. 2009) (explaining that substantive unreasonableness is akin to the “manifest-injustice,” and

“shocks-the-conscience” standards employed in other contexts).

Defendant’s final argument is that the District Court committed several errors in ordering

restitution in the amount of $2,400,800. Specifically, defendant maintains that (1) the record fails to

demonstrate that the District Court considered the factors set forth in 18 U.S.C. § 3664(f)(2); (2) the

government failed to meet its burden of proving the amount of loss by a preponderance of the

evidence; and (3) the restitution order must be vacated because it was entered more than ninety days
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after the sentencing hearing in contravention of 18 U.S.C. § 3664(d)(5). We address defendant’s

third argument in a separately filed opinion. We find the remaining two arguments to be without

merit.

First, with respect to the factors set forth in 18 U.S.C. § 3664(f)(2), we have held that “we

will not vacate and remand [restitution orders] solely by reason of the sentencing judge’s failure to

indicate consideration of the mandatory factors.” United States v. Walker, 353 F.3d 130, 134 (2d Cir.

2003). Thus, the District Court’s failure to recite those factors in the record does not require

vacatur.

Second, with respect to the proof of loss, we reject defendant’s suggestion that the

government was required to establish the loss amounts for each victim by affidavit. Section 3664

provides only that “to the extent practicable” victims shall be notified of the opportunity to file “a

separate affidavit relating to the amount of the victim’s losses subject to restitution.” 18 U.S.C.

§ 3664(d)(2)(A)(vi). Nothing precludes a court from ordering restitution in the absence of such

affidavits. Here, although affidavits from each of the victims were not produced, the District Court

relied on the trial testimony of a case agent along with a chart prepared by that agent summarizing

the losses incurred by the victim banks. That evidence was sufficient to establish the amount of loss

by a preponderance of the evidence. See 18 U.S.C. § 3664(e) (providing that the government bears

the burden of proving the amount of restitution by preponderance of the evidence).

CONCLUSION

We have considered all of defendant’s arguments and find them to be without merit. We

affirm District Court’s imposition of restitution ninety-eight days after defendant’s sentencing

hearing in a separately filed opinion. In all other respects, the judgment of the District Court is

AFFIRMED.

FOR THE COURT,

Catherine O’Hagan Wolfe, Clerk of Court