1 15-2752-cr

United States v. Skvarla

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 TO 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, 1

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City 2

of New York, on the 21 st day of December, two thousand sixteen. 3

4

PRESENT: AMALYA L. KEARSE, 5

RAYMOND J. LOHIER, JR., 6

CHRISTOPHER F. DRONEY, 7

Circuit Judges. 8

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 9

UNITED STATES OF AMERICA, 10

Appellee

, 11

12

v. No. 15

‐ 2752

‐ cr 13

14

NICHOLAS M. SKVARLA, 15

Defendant

‐ Appellant. 16

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 17

FOR APPELLEE: J OSEPH J. K ARASZEWSKI

, Assistant United 18

States Attorney, for William J. Hochul, Jr., 19

United States Attorney for the Western 20

District of New York, Buffalo, NY. 21

22

FOR DEFENDANT

‐ APPELLANT: A RZA F ELDMAN

, Feldman and Feldman, 23

Uniondale, NY. 242 1

Appeal from a judgment of the United States District Court for the Western 2

District of New York (Richard J. Arcara, Judge ). 3

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 4

AND DECREED that the judgment of the District Court is AFFIRMED

. 5

Defendant

‐ appellant Nicholas Skvarla appeals from an August 6, 2015 judgment 6

of conviction in the United States District Court for the Western District of New York 7

(Arcara, J.). Following a bench trial, Skvarla was convicted of three counts of receipt 8

and distribution of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A) 9

(2006), and one count of possession of child pornography, in violation of 18 U.S.C. 10

§ 2252A(a)(5)(B) (2006). Skvarla argues primarily that (1) a thirty

‐ month delay 11

between the conclusion of the bench trial and the verdict violated the Speedy Trial 12

Clause of the Sixth Amendment, and (2) the evidence was insufficient to prove that the 13

pornography in Skvarla’s possession moved in interstate commerce. Skvarla also 14

raises several sentencing challenges. We assume the parties’ familiarity with the facts 15

and record of the prior proceedings, to which we refer only as necessary to explain our 16

decision to affirm. 17

1. Speedy Trial Clause 18

Skvarla argues that the thirty

‐ month delay between the conclusion of the bench 193 trial and the rendering of the verdict violated the Speedy Trial Clause of the Sixth 1

Amendment. We disagree. 2

In determining whether a defendant’s constitutional right to a speedy trial has 3

been violated, we consider (1) the length of the delay, (2) the reason for the delay, (3) 4

the defendant’s assertion of his speedy trial right, and (4) any prejudice to the 5

defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972); United States v. Moreno, 789 6

F.3d 72, 78 (2d Cir. 2015). Although the Speedy Trial Clause proscribes undue delay 7

prior to conviction, see Betterman v. Montana, 136 S. Ct. 1609, 1613 (2016), we conclude 8

that Skvarla failed to demonstrate a violation of the Speedy Trial Clause under the 9

circumstances of this case. 10

Throughout the period of delay from trial to verdict, Skvarla never invoked the 11

Sixth Amendment or otherwise objected to the delay. In the context of pretrial delay, 12

the Supreme Court has stated that “failure to assert the right will make it difficult for a 13

defendant to prove that he was denied a speedy trial.” Barker, 407 U.S. at 532. Far 14

from asserting his right, Skvarla did not even join the Government’s motion for a 15

verdict, filed twenty

‐ three months after the close of evidence at trial. Instead, 16

Skvarla’s counsel appeared to encourage the District Court’s delay. At a status 17

conference, defense counsel chastised the Government for “put[ting] maximum 184 pressure on the Court” with, inter alia, its motion, and noted that Skvarla “is doing 1

very well.” App’x at 101. When the District Court stated that the verdict was 2

forthcoming, defense counsel replied, “don’t rush.” App’x at 101. Although defense 3

counsel stated that he was “confident with respect to the acquittals,” App’x at 102, 4

when the District Court finally scheduled a date to announce the verdict, Skvarla 5

sought (and was granted) a thirty

‐ day adjournment. This conduct shows that Skvarla 6

“did not want a speedy [verdict].” United States v. Lane, 561 F.2d 1075, 1079 (2d Cir. 7

1977) (quotation marks omitted); see also United States v. Vasquez, 918 F.2d 329, 338 8

(2d Cir. 1990). 9

Moreover, “[t]he fact that [Skvarla] did not assert [his] right” to a speedy verdict 10

“during the period of the delay is strong evidence that [his] general claims of prejudice 11

are not substantial.” United States v. Lasker, 481 F.2d 229, 237 (2d Cir. 1973). In any 12

event, pending the verdict, Skvarla was not incarcerated, required to participate in any 13

treatment programs, or restricted from travelling outside the Western District of New 14

York when he requested to do so. 1 After consideration of the Barker factors, we agree 15

1 To be sure, Skvarla faced some degree of prejudice as a result of the pre-verdict delay. For example, Skvarla

lost his job, was subjected to the derision of his communit y, was faced with the stress and anxiety of an unresolved

trial, and was required to comply with several conditions of pretrial release, such as electronic monitoring and a

nightly curfew. See Barker, 407 U.S. at 533 (asserting that “even if an accused is not incarcerated [during the

delay], he is still disadvantaged by restraints on his libe rty and by living under a cloud of anxiety, suspicion, and

often hostility”). Indeed, the District Court found th at this prejudice “was substantial.” App’x at 158.

Nonetheless, the District Court ultimately concluded th at the prejudice was “not sufficiently oppressive” to5 with the District Court that Skvarla’s Sixth Amendment Speedy Trial rights were not 1

violated. 2

2. Interstate Commerce 3

Skvarla next claims that the Government failed to satisfy the “transported in 4

interstate

. . . commerce” element of the pre

‐ October 2008 version of 18 U.S.C. 5

§ 2252A(a)(2)(A) and (a)(5)(B), under which Skvarla was charged. He argues that the 6

stipulated fact that he downloaded child pornography from the internet was 7

insufficient to establish movement in interstate commerce. But this argument is 8

foreclosed by our decision in United States v. Rowe, in which we noted that the 9

defendant’s “act of publishing an internet advertisement to trade child pornography 10

can readily be described as an ‘offense involving

. . . transportation in interstate

. . . 11

commerce.’ 18 U.S.C. § 3237(a).” 414 F.3d 271, 279 (2d Cir. 2005); see also United 12

States v. MacEwan, 445 F.3d 237, 244 (3d Cir. 2006) (“[B]ecause of the very interstate 13

nature of the Internet, once a user submits a connection request to a website server or 14

an image is transmitted from the website server back to user, the data ha[ve] traveled 15

in interstate commerce.”). 16

17

constitute a Speedy Trial Clause violation, App’x at 159, and we agree with that conclusion.6 3. Sentencing 1

Skvarla also challenges his sentence as substantively unreasonable. Here, the 2

District Court imposed a non

‐ Guidelines sentence, based in part on Skvarla’s status as 3

a first

‐ time offender and on the length of the pre

‐ verdict delay. The District Court 4

also took into account Skvarla’s rehabilitation, remorse, and compliance with the 5

requirements of his pretrial supervision. In light of this careful and reasoned analysis, 6

we conclude that Skvarla’s sentence is substantively reasonable. 7

Skvarla next contends that various standards and special conditions of 8

supervised release were improperly imposed because they were not sufficiently 9

tailored to his offense. As to the challenged standard conditions, Skvarla’s argument 10

is foreclosed by our decision in United States v. Truscello, in which we explained that 11

standard conditions “are almost uniformly imposed by the district courts and have 12

become boilerplate.” 158 F.3d 61, 63 (2d Cir. 1999); see also United States v. 13

Asuncion

‐ Pimental, 290 F.3d 91, 94 (2d Cir. 2002) (confirming that standard conditions 14

are “presumed suitable in all cases”). 15

As to the challenged special condition, which imposes certain financial 16

disclosure obligations on Skvarla, we conclude that Skvarla’s argument fails under 17

plain error review. See United States v. Sofsky, 287 F.3d 122, 125 (2d Cir. 2002) 187 (asserting that plain error review generally applies to “unobjected to errors occurring 1

at sentencing”). Unlike standard conditions, special conditions must be declared “in 2

open court and with appropriate precision.” United States v. Thomas, 299 F.3d 150, 3

156 (2d Cir. 2002). Here, the District Court failed to impose the financial disclosure 4

condition “with appropriate precision.” However, because the condition applies only 5

where restitution is owed, and because the District Court did not order restitution, the 6

condition can have no effect on Skvarla’s substantial rights. We therefore decline to 7

correct the District Court’s error. See United States v. Thomas, 274 F.3d 655, 667 (2d 8

Cir. 2001). 9

We have considered all of Skvarla’s remaining arguments and conclude that 10

they are without merit. For the foregoing reasons, the judgment of the District Court 11

is AFFIRMED

. 12

FOR THE COURT: 13

Catherine O’Hagan Wolfe, Clerk of Court 14