On appeal from a judgment of conviction for violation of federal narcotics laws entered after trial in the United States District Court for the Eastern District of New York (Dora L. Irizarry, Judge), defendant argues that (1) his statements pursuant to a proffer agreement should not have been admitted into evidence because (a) they were the product of economic coercion, and (b) his attorney's conduct did not trigger the proffer agreement's waiver of Fed. R. Evid. 410; (2) his Sentencing Guidelines range should not have been enhanced for abuse of a position of trust, see U.S.S.G. § 3B1.3; and (3) the ordered $3,160,000 forfeiture was miscalculated. We identify no merit in the first two arguments but remand for further fact-finding as to the last.
The opinion of the court was delivered by: Reena Raggi, Circuit Judge:
Before: RAGGI, LYNCH, and WALLACE, Circuit Judges.*fn1
AFFIRMED IN PART, VACATED IN PART AND REMANDED.
Defendant O'Neal Roberts was convicted after a jury trial in the Eastern District of New York (Dora L. Irizarry, Judge) of crimes committed while working for American Airlines at John F. Kennedy International Airport ("JFK"), specifically, conspiracy to import and actual importation of five or more kilograms of cocaine and conspiracy and attempt to distribute and possess with intent to distribute the same quantity of cocaine. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), 846, 952(a), 960(a)(1), (b)(1)(B), and 963.*fn2 In this appeal from the judgment entered on March 31, 2010, Roberts argues that (1) his statements made pursuant to a proffer agreement should not have been received in evidence because (a) they were elicited through economic coercion, and (b) defense counsel's conduct did not trigger the provision in Roberts's proffer agreement waiving Fed. R. Evid. 410; (2) his Sentencing Guidelines range was erroneously enhanced for abuse of a position of trust, see U.S.S.G. § 3B1.3; and (3) the ordered $3,160,000 forfeiture was miscalculated, see 21 U.S.C. § 853; Fed. R. Crim. P. 32.2. We identify no merit in the first two arguments, but we conclude that the last requires further fact-finding to determine whether the conspiracy's proceeds were realized at the wholesale or retail level. Accordingly, we affirm all aspects of the judgment except for the forfeiture order, which we vacate, remanding the case for further proceedings consistent with this opinion.
This section summarizes the trial evidence supporting Roberts's conviction. Other facts pertinent to Roberts's challenges to the judgment of conviction are detailed in the discussion points addressing those issues.
A. The November 5, 2005 Importation of Five Kilograms of Cocaine
On November 5, 2005, United States Customs and Border Protection ("CBP") agents investigated possible criminal activity involving American Airlines flight 1384, which had arrived at JFK from Barbados at 10:41 p.m. ("Barbados flight"). On meeting the flight, Agent Michael Roessel's attention was drawn to a person offloading the rear of the aircraft whom Roessel had never previously seen doing such work. Rather, Roessel knew the individual to be assigned to the control office, where he handed out work schedules and assignments to other American Airlines employees.*fn3
Agents proceeded to search each item offloaded from the Barbados flight. At one point, Roessel observed that Roberts had stopped offloading items even though some remained on the aircraft. When, after a half hour, Roberts did not resume offloading, the agents instructed him to remove all remaining items from the plane. The first removed container was empty. Inside the second, however, agents found a canvas bag containing five brick shaped packages, which subsequent laboratory analysis confirmed contained a total of 5,038 grams -- just over five kilograms -- of 84% pure cocaine. Immigration and Customs Enforcement ("ICE") Agent William McAlpin testified that the seized cocaine had a wholesale value of $121,000, and a retail value of $403,000.
B. Beckford Implicates Roberts in the Charged Crimes
Roberts was not arrested on November 5, 2005. Nevertheless, his role in smuggling the drugs seized from the Barbados flight that night was detailed at trial by Clive Beckford, an American Airlines ramp agent whose duties included loading and unloading aircraft. Beckford testified that he, Roberts, and two other American Airlines employees, Matthew
James and Victor Bourne, had been involved in smuggling drugs into the United States through JFK since at least 2003. Beckford explained that drugs would be loaded onto American Airlines planes in foreign countries. To avoid heightened government scrutiny of international cargo, the conspirators frequently did not remove the drugs when planes first arrived in the United States. Rather, they waited until an aircraft completed at least one domestic flight, whereupon the drugs would be unloaded on the plane's next arrival at JFK. To effect this scheme, the conspirators tracked a plane's movement on computer printouts, with Bourne having general responsibility for making "everything run smoothly," Trial Tr. at 356, and Roberts, as crew chief, ensuring that trusted employees offloaded drugs from the identified flights. Beckford stated that between 2003 and his own 2009 arrest, the conspirators followed this procedure for approximately twenty flights, one of which was a test flight, another of which imported marijuana, and the remainder of which all imported bricks of cocaine. Beckford stated that the number of cocaine bricks he saw removed from individual flights ranged from as few as four or five to as many as fifteen.
With respect to November 5, 2005, Beckford testified that he was working at JFK when Roberts told him that drugs would be on the Barbados flight. Beckford proceeded to perform his regular loading and unloading duties until Bourne advised him that the Barbados flight had landed. Bourne and Beckford then drove to the gate in a tractor, where they saw Roberts unloading the plane using a machine called a "Cochran." At the same time, however, they saw a large number of CBP agents around the plane, whereupon Bourne and Beckford left the area without stopping.
C. Roberts's Statements to Federal Authorities
In response to an implicit defense assertion that Beckford was not present when the Barbados flight was offloaded on November 5, 2005, a matter discussed in more detail in Part II.A.2 of this opinion, see infra [11-26], ICE Agent Heather O'Malley was permitted to testify to certain parts of a proffer statement that Roberts made while attempting to cooperate with federal authorities on November 2, 2006. With his attorney present, Roberts told federal officials that on November 5, 2005, he had been summoned to a meeting by Victor Bourne, who instructed Roberts to remove baggage from the Barbados flight. Roberts adjusted crew schedules to ensure that employees who would normally have offloaded the Barbados flight would be occupied elsewhere. Roberts then called Clive Beckford and told him that Bourne needed Beckford to remove bags from the Barbados flight. When Roberts arrived at the gate for the Barbados flight, which had landed early, Bourne was already waiting on a freight tractor. Bourne and Beckford then began unloading baggage from the flight, while Roberts operated a Cochran. At one point, Beckford told Roberts that any containers remaining on the aircraft were empty, whereupon Beckford and Bourne drove away with the removed baggage. Roberts proceeded to the front of the aircraft where he offloaded what he thought were empty containers. While this account of events differed in some respects from that provided by Beckford, it conclusively refuted defense counsel's implicit assertion that Beckford was not present for the unloading of the Barbados flight.
D. Sentence and Forfeiture
Found guilty on all drug counts, Roberts was sentenced to concurrent terms of 240 months' imprisonment -- a variance from his 265-292 month Guidelines range -- concurrent terms of five years' supervised release, and a total special assessment of $400. Roberts was further ordered to forfeit $3,160,000 in drug proceeds realized by conspirators in the course of the charged crimes.
A. Challenges to the Admission of Roberts's November 2, 2006 Proffer Statements
Roberts asserts that his conviction must be vacated because it was obtained through inadmissible evidence, specifically, Agent O'Malley's testimony about the statements Roberts made to federal authorities on November 2, 2006, pursuant to a proffer agreement. Roberts argues that the statements should have been suppressed as involuntary because they were obtained through economic coercion. Alternatively, he submits that his attorney's conduct was insufficient to trigger the provision in Roberts's proffer agreement waiving the protections of Fed. R. Evid. 410. We reject both arguments as without merit.
Prior to trial, Roberts unsuccessfully moved in the district court for suppression of all statements that he made to federal authorities in the course of three proffer sessions held on October 16, October 31, and November 2, 2006. Roberts asserted that he was questioned at the first session without counsel or advice of rights, and that his statements at the final two sessions were induced by economic coercion, specifically, by threats that he would lose his job at the airport unless he provided federal authorities with information about criminal activity at JFK. The district court conducted a hearing at which Roberts testified, as well as six witnesses called by the government, i.e., an Assistant U.S. Attorney, three federal agents, and two of Roberts's former attorneys, all of whom had arranged or attended one or more of the proffer sessions. The court found the government's witnesses entirely credible, but found Roberts, who was caught in numerous lies and contradictions during the hearing, "unworthy of belief." United States v. Roberts, No. 07-CR-425, 2009 WL 700188, at *7 (E.D.N.Y. Mar. 13, 2009). Based on these assessments, the district court found that, contrary to Roberts's assertions, he had been represented by counsel and advised of his rights before questioning at the first session, and had not been subjected to economic coercion at the second and third sessions. See id. at *8-10.
Roberts does not challenge the district court's findings of fact. Thus, we construe the evidentiary record in the light most favorable to the government. See In re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 177, 198 (2d Cir. 2008). Roberts also does not assert legal error in the district court's rejection of his advice of rights or counsel claim. On appeal, he claims only that the district court applied the wrong legal standard in evaluating his economic coercion claim. Specifically, he faults the district court for requiring a threat of job loss to establish economic coercion. We review this claim of legal error de novo, see id., and conclude that it is without merit.
The district court's correct understanding of the legal standard applicable to a claim of economic coercion is apparent from its statement that a significant "threat of economic harm" or "economic sanctions" -- whatever the form -- could violate a defendant's Fifth Amendment right against self incrimination. United States v. Roberts, 2009 WL 700188, at *9 (internal quotation marks omitted). This is consistent with Supreme Court precedent holding that government officials may not compel statements through threat of "economic or other sanctions capable of forcing the self-incrimination which the [Fifth] Amendment forbids." Minnesota v. Murphy, 465 U.S. 420, 434 (1984) (internal quotation marks omitted); see Garrity v. New Jersey, 385 U.S. 493, 499-500 (1967). This does not mean that the "mere risk of any adverse economic consequence" rises to the level of coercion; the economic threat must "reasonably appear to have been of sufficiently appreciable size and substance to deprive the accused of his free choice to admit, to deny, or to refuse to answer." United ...