United States of America v. Leslie

Filing

OPINION, affirming judgment of the district court, per curiam (GC., RCW., GEL.,), FILED.[406507] [10-2994]

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10-2994-cr
United States v. Leslie

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UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term, 2011
(Argued: September 13, 2011

Decided: October 3, 2011)

Docket No. 10-2994-cr
UNITED STATES OF AMERICA,
Appellee,
–v.–
SADIKI KOMUNYAKA LESLIE,
Defendant-Appellant.*

Before:
CALABRESI, WESLEY, and LYNCH, Circuit Judges.
Appeal from a judgment of the United States District
Court for the District of Connecticut (Thompson, C.J.),
entered on July 12, 2010, sentencing defendant to 51-months
imprisonment. Defendant pled guilty to conspiring to commit
bank fraud. At sentencing, the district court determined
that defendant was responsible for actual losses incurred
during the entire period of the charged conspiracy.
Defendant argues that the district court should not have
attributed any losses to him after he was incarcerated
because his incarceration constituted a withdrawal from the
conspiracy. We hold that the district court did not err in
calculating the appropriate Sentencing Guidelines range

*

The Clerk of Court is directed to amend the caption as set
forth above.

Case: 10-2994

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because defendant did not establish that he withdrew from
the conspiracy.
AFFIRMED.

WILLIAM T. KOCH, JR., Koch and Koch, Lyme, CT, for
Defendant-Appellant.
DAVID T. HUANG, Assistant United States Attorney
(Sandra S. Glover, Assistant United States
Attorney, on the brief), for David B. Fein,
United States Attorney for the District of
Connecticut, New Haven, CT, for Appellee.

PER CURIAM:
Defendant-Appellant Sadiki Komunyaka Leslie appeals

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from a July 12, 2010 judgment of the United States District

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Court for the District of Connecticut (Thompson, C.J.),

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following his guilty plea to conspiring to commit bank fraud

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in violation of 18 U.S.C. § 1349.

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argued that he was not responsible for the losses incurred

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during the time period he was incarcerated because his

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incarceration was evidence of his withdrawal from the

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conspiracy.

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actual losses incurred during the entire conspiracy to

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Leslie when it calculated his Sentencing Guidelines range.

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The district court sentenced Leslie to 51-months

At sentencing, Leslie

The district court disagreed and attributed the

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imprisonment.

On appeal, Leslie argues that his

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incarceration was prima facie evidence that he withdrew from

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the conspiracy, which then shifted the burden to the

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government to prove the contrary.

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the defendant failed to meet his burden of proving

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affirmative conduct necessary to show withdrawal.

We disagree and find that

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Background

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Leslie devised and led a conspiracy to commit bank

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fraud in the greater Bridgeport, Connecticut area beginning

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in early 2004.

Leslie and his co-conspirators took

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advantage of a flaw in the Bridgeport-based People’s Bank’s

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automated teller machine (“ATM”) system.

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obtained checks associated with closed bank accounts or open

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accounts with little or no balance.

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those checks at ATMs with ATM cards associated with open

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bank accounts, knowing that the checks would not be honored

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by the bank from which the check was issued.

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fraudulently deposited checks became available for

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withdrawal before People’s Bank could detect the fraud.

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During that period, Leslie and his co-conspirators withdrew

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the ATM maximum daily limit from the respective accounts and

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made additional cash withdrawals when they used the ATM card

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They first

They then deposited

The

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for purchases.

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how to execute it.

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Leslie devised the scheme and taught others

join the conspiracy.

Leslie’s students recruited others to

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Leslie was arrested on state charges and pled guilty in

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Connecticut Superior Court for bank fraud activity from 2004

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to April 2005.

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April 2005 to June 2005, he continued to participate in the

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bank fraud conspiracy.

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serving his four year state prison sentence.

While Leslie remained free on bond from

On July 1, 2005, Leslie began
He was

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released from prison on March 16, 2007, but was incarcerated

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again on July 24, 2007 for a parole violation.

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Leslie’s incarceration, his co-conspirators continued the

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scheme.

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the federal government charged him with the subject federal

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crime covering the period April 2005 to December 2007.

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During

In 2009, Leslie was transferred to federal custody;

As part of the plea agreement, the parties agreed that

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the total actual loss from the conspiracy was $310,475 and

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that the total amount of intended loss from the scheme was

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$509,447.

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responsible for $60,400—the amount of losses from the start

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of the charged conspiracy in April 2005 to his incarceration

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on July 1, 2005.

At sentencing, Leslie argued that he was only

This loss amount would have resulted in a

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six-level enhancement under the Guidelines, see U.S.S.G. §

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2B1.1(b)(1)(D), and an imprisonment range of 27–33 months.

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The district court rejected Leslie’s argument that he had

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withdrawn from the conspiracy when he was incarcerated.

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Accordingly, the district court agreed with the government

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that the intended loss from the entire conspiracy was

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attributable to Leslie, resulting in a fourteen-level

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enhancement under the Guidelines.

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2B1.1(b)(1)(H).

See U.S.S.G. §

The district court, however, determining

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that it was more appropriate to assess only the actual

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losses to Leslie, calculated an imprisonment range of 51 to

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63 months.

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by the district court.

Leslie now appeals the 51-month sentence imposed

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Discussion

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Leslie argues that the district court erred when it

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attributed losses to him that were incurred as a result of

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the conspiracy after he was incarcerated.

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sentence for reasonableness, which is “akin to review for

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abuse of discretion, under which we consider whether the

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sentencing judge exceeded the bounds of allowable

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discretion, committed an error of law in the course of

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exercising discretion, or made a clearly erroneous finding

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We review a

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of fact.”

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Cir. 2007) (internal quotation marks and ellipses omitted).

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“A finding is clearly erroneous when although there is

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evidence to support it, the reviewing court on the entire

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evidence is left with the definite and firm conviction that

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a mistake has been committed.”

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F.3d 58, 63 (2d Cir. 2010) (quoting United States v. Lin

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Guang, 511 F.3d 110, 122 (2d Cir. 2007)).

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United States v. Williams, 475 F.3d 468, 474 (2d

United States v. Markle, 628

On appeal, Leslie argues that his incarceration was

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prima facie evidence that he withdrew from the conspiracy,

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which then shifted the burden to the government to prove

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that he remained in the conspiracy.

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squarely address this argument in the sentencing context.1

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However, our case law counsels that, notwithstanding his

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incarceration, the burden should remain on Leslie to prove

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that he affirmatively withdrew from the conspiracy.

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failed to meet that burden.

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This Court has yet to

Leslie

As an initial matter, it is well-settled that

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In United States v. Borelli, 336 F.2d 376 (2d Cir. 1964),
we briefly addressed the argument in the context of a defendant
challenging his conviction for conspiring to violate the Narcotic
Drugs and Import and Export Act. Although we did not decide the
issue, we found the proposition that confinement is sufficient to
constitute withdrawal “unless the Government comes forward with
evidence of continued participation” difficult to reconcile with
Supreme Court precedent. Id. at 389.

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withdrawal from a conspiracy is an affirmative defense for

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which the defendant bears the burden of proof at trial.

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United States v. Pizzonia, 577 F.3d 455, 466 (2d Cir. 2009);

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United States v. Flaharty, 295 F.3d 182, 192 (2d Cir. 2002).

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Mere cessation of the conspiratorial activity by the

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defendant is not sufficient to prove withdrawal.

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States v. Eppolito, 543 F.3d 25, 49 (2d Cir. 2008);

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Flaharty, 295 F.3d at 192.

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that he performed some act that affirmatively established

United

The defendant “must also show

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that he disavowed his criminal association with the

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conspiracy, either the making of a clean breast to the

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authorities, or communication of the abandonment in a manner

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reasonably calculated to reach co-conspirators.”

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543 F.3d at 49 (citations and internal quotation marks

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omitted).

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evidence of withdrawal, his participation in a conspiracy is

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presumed to continue until the last overt act by any of the

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conspirators.”

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Cir. 1999) (quoting United States v. Greenfield, 44 F.3d

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1141, 1150 (2d Cir. 1995)).

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Eppolito,

“Unless a conspirator produces affirmative

United States v. Diaz, 176 F.3d 52, 98 (2d

We find no reason why placement of the burden should be

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any different in the sentencing context.2

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already noted, in another sentencing context, that

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incarceration does not create a rebuttable presumption of

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withdrawal from a conspiracy.

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F.3d 123, 136 (2d Cir. 2008) (per curiam).

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district court used the post-2004 Sentencing Guidelines

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because it found that the defendant’s involvement in the

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conspiracy continued beyond his arrest and incarceration in

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2003.

Id.

Indeed, we have

United States v. Massino, 546
In Massino, the

On appeal, we rejected Massino’s argument that

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the government had to rebut the presumption that he had

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withdrawn from the conspiracy due to his incarceration.

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We see no difference between Massino’s argument and

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Leslie’s.

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incarceration, the burden remained on Leslie to prove that

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he withdrew from the conspiracy.

Id.

Accordingly, notwithstanding Leslie’s

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Leslie argues that imprisonment may be evidence of an

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affirmative act of withdrawal from a conspiracy; we agree.

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But “while arrest or incarceration may constitute a

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Other circuits have similarly held that the defendant
should bear the burden of proving withdrawal from the conspiracy
at sentencing. See United States v. Zimmer, 299 F.3d 710, 723
(8th Cir. 2002); United States v. Schorovsky, 202 F.3d 727, 729
(5th Cir. 2000); United States v. Dale, 991 F.2d 819, 854 (D.C.
Cir. 1993); United States v. Watford, 894 F.2d 665, 670 (4th Cir.
1990).

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withdrawal from a conspiracy, it does not follow that in

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every instance it must.”

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(internal quotation marks omitted).

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evidence of imprisonment during a conspiracy is merely a

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relevant fact that entitles the defendant to a jury

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instruction on withdrawal.

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at 98.

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withdrawal “in light of the length and location of the

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internment, the nature of the conspiracy, and any other

Flaharty, 295 F.3d at 192
In the trial context,

See id. at 193; Diaz, 176 F.3d

The jury decides whether imprisonment constitutes a

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available evidence.”

United States v. Panebianco, 543 F.2d

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447, 454 n.5 (2d Cir. 1976).

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must find a withdrawal if the government does not prove that

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the defendant continued in the conspiracy after

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imprisonment.3

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judge to make a similar finding at sentencing.

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remains on the defendant to present affirmative evidence

We have never held that a jury

For the same reasons we will not require a

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The burden

In United States v. Morales, 185 F.3d 74 (2d Cir. 1999),
this Court held that no rational jury could have found, beyond a
reasonable doubt, that a criminal enterprise continued for the
duration charged because, inter alia, the government did not
present sufficient evidence to show that the enterprise continued
during the seven-year period that the defendants were
incarcerated. Id. at 81. That holding, however, was not based
solely on the government’s failure to present sufficient
evidence. Rather, our holding was motivated by the dearth of
evidence of activity during the incarceration and the length of
the incarceration. Id. Morales, therefore, is distinguishable
and does not support Leslie’s argument here.

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that he withdrew from the conspiracy.

The defendant’s

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imprisonment is but one fact to consider in deciding whether

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withdrawal occurred.

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Here, the district court did not err in determining

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that Leslie failed to meet his burden of proving that he

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withdrew from the bank fraud conspiracy.

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imprisonment did not, as a matter of law, constitute a

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withdrawal from the conspiracy.

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Salameh, 152 F.3d 88, 155 (2d Cir. 1998) (per curiam).

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conceded at sentencing that he had no evidence to offer

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other than the mere fact of his incarceration to suggest

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that he withdrew from the conspiracy.

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other evidence of withdrawal, Leslie’s imprisonment was

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tantamount to a “resignation from a criminal enterprise,

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[which,] standing alone, does not constitute withdrawal.”

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United States v. Berger, 224 F.3d 107, 118 (2d Cir. 2000).4

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Leslie devised the bank fraud scheme, executed it, and

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Leslie’s

See United States v.
He

In the absence of any

Other circuits have similarly held that incarceration
alone is not sufficient evidence of an affirmative act of
withdrawal from a conspiracy. See United States v. Fishman, 645
F.3d 1175, 1196–97 (10th Cir. 2011); United States v. Robinson,
390 F.3d 853, 882 (6th Cir. 2004); United States v. Benabe,
No. 09-1190, 2011 WL 3624961, at *12 (7th Cir. Aug. 18, 2011);
United States v. Lopez, 403 F. App’x 362, 372 (11th Cir. 2010);
Untied States v. Zamudio-Orosco, 405 F. App’x 83, 84–85 (8th Cir.
2010).

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taught it to others who continued to use the scheme to steal

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thousands of dollars during Leslie’s incarceration.

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never told the authorities how to stop the conspiracy nor

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did he inform the authorities or his co-conspirators that he

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had abandoned the conspiracy.

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Accordingly, the district court did not err in concluding

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that Leslie remained in the conspiracy during his

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imprisonment while his co-conspirators continued to defraud

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the bank.

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Leslie

See Eppolito, 543 F.3d at 49.

See Diaz, 176 F.3d at 98.

Leslie’s reliance on cases from the Third Circuit to

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support his burden-shifting argument is misplaced.

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cases do not address incarceration at all.

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States v. Steele, 685 F.2d 793 (3d Cir. 1982); United States

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v. Lowell, 649 F.2d 950 (3d Cir. 1981).

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Third Circuit cases support our view that mere cessation of

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conspiratorial activity is not sufficient to constitute

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withdrawal from a conspiracy.

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803–804; Lowell, 649 F.2d at 955.

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Those

See United

Furthermore, both

See Steele, 685 F.2d at

Finally, there is evidence in the record that Leslie

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did not withdraw from the conspiracy during his

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incarceration.

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an unindicted co–conspirator who told Leslie that the bank

While out of prison in 2008, Leslie met with

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fraud scheme was still ongoing.

See Flaharty, 295 F.3d at

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193.

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incarceration; the nature of the bank fraud conspiracy that

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he formulated, led, and executed; and Leslie’s contact with

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a co-conspirator upon his release from prison support the

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district court’s finding that Leslie did not withdraw from

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the conspiracy during his incarceration.

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district court did not err in attributing the actual losses

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of the entire conspiracy to Leslie.

The evidence before the sentencing court of Leslie’s

Accordingly, the

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Conclusion
For the foregoing reasons, the judgment of the district
court is hereby AFFIRMED.

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