USA v. Erik Constante

Filing 511133909

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USA v. Erik Constante Doc. 511133909 Case: 09-40491 Document: 00511133909 Page: 1 Date Filed: 06/07/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-40491 S u m m a r y Calendar June 7, 2010 Lyle W. Cayce Clerk U N I T E D STATES OF AMERICA, P la in tiff-A p p e lle e v. E R IK ALFREDO CONSTANTE, D e fe n d a n t-A p p e lla n t A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 7:08-CR-501-1 B e fo r e BENAVIDES, PRADO and SOUTHWICK, Circuit Judges. P E R CURIAM:* E r ik Alfredo Constante appeals his jury trial conviction for bank fraud and e m b e z z le m e n t and for theft, embezzlement, or misapplication by a bank officer o r employee. He also appeals the district court's order that, as a condition of his s u p e rv is e d release, he is required to pay restitution in the amount of $100,000 w it h in 90 days of his release from incarceration. Constante was sentenced to t e r m s of imprisonment of 36 months on each count, the terms to run c o n c u r r e n t ly , and to concurrent five-year terms of supervised release. Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Case: 09-40491 Document: 00511133909 Page: 2 No. 09-40491 Date Filed: 06/07/2010 C o n s t a n te argues that the district court abused its discretion in refusing t o give the jury an instruction on the affirmative defense of duress. He contends th a t his testimony permitted a rational jury to conclude that he illegally w it h d r e w funds from the account of a bank customer because of an imminent t h r e a t to his family members and because he had no legal alternative. A defendant is entitled to a jury instruction on the affirmative defense of d u r e s s if he carries his burden of showing that he was subject to an imminent a n d impending threat that induces fear of death or serious bodily injury, that he h a d not recklessly placed himself in such circumstances, and that he had no r e a s o n a b le alternative but to violate the law to avoid the threatened harm. U n ite d States v. Posada-Rios, 158 F.3d 832, 873 (5th Cir. 1998). The threat m u s t be a "real emergency leaving no time to pursue any legal alternative." Id. a t 874. Constante testified that all the threats made against him were verbal and t h a t he was never threatened with a gun or any other weapon. Although the fir s t threat was made in late February, he did not hear from another perpetrator u n til mid-March, and he took no steps during that time to alert the bank to the s c h e m e or to obtain legal assistance. He also had the opportunity after receiving a text message to alert authorities that an extortionist would be coming to the b a n k to take the funds, but he failed to do so. After illegally withdrawing the fu n d s , Constante voluntarily returned evidence of the extortion to his e x t o rtio n is ts . T h e record, including Constante's own testimony, supports the district c o u r t 's determination that Constante failed to carry his burden of showing that h e was subject to an imminent and impending threat that induced a valid a p p r e h e n s io n of death or serious bodily injury. Nor did he present evidence s h o w in g that he had no viable legal alternative to engaging in the criminal a c t iv it y . The district court did not abuse its discretion in denying Constante's r e q u e s t for a jury instruction on duress. Posada-Rios, 158 F.3d at 873-75. 2 Case: 09-40491 Document: 00511133909 Page: 3 No. 09-40491 Date Filed: 06/07/2010 C o n s ta n t e argues that, in light of the information in the presentence r e p o r t (PSR) showing his financial inability to pay immediate restitution, the d is t r ic t court committed plain error by ordering him to make a single lump sum r e s t it u t io n payment of $100,000 within 90 days of his release. He contends that t h e district court did not indicate that it had considered his financial resources a n d obligations in accord with 18 U.S.C. 3664(f)(2) and, thus, abused its d is c r e t io n and plainly erred in scheduling the lump sum payment. B e c a u s e Constante did not raise his 3664(f)(2) argument in the district c o u r t, this claim is reviewed for plain error only. See United States v. Howard, 2 2 0 F.3d 645, 647 (5th Cir. 2003). Section 3664(f)(2) requires the district court in setting a restitution payment to consider the defendant's financial resources a n d assets, his projected earnings and income, and his financial obligations. T h is court will reverse a district court's decision concerning the scheduling of r e s t it u tio n payments only if the defendant can show "that it is probable that the d is t r ic t court failed to consider one of the mandatory factors and the failure to c o n s id e r that factor influenced the court." United States v. Schinnell, 80 F.3d 1 0 6 4 , 1070 (5th Cir. 1996). T h e PSR reflected that Constante had cash assets of only $1300, a monthly c a r note of $395 on a vehicle worth $18,000, and credit card debt of $600. Other t h a n its determination that Constante could not afford to pay a fine, the district c o u r t made no reference to Constante's limited financial resources and merely s u r m is e d that he had hidden the stolen funds. T h e record does not reflect that the district court considered Constante's lim it e d financial resources in ordering his immediate restitution payment of $ 1 0 0 ,0 0 0 as a condition of his supervised release. Therefore, the district court p la in ly erred in requiring the immediate payment of the restitution. See United S ta t e s v. Myers, 198 F.3d 160, 169 (5th Cir. 1999). Constante's conviction and sentence are affirmed, except for the r e q u ir e m e n t that he pay the full amount of restitution immediately; that part 3 Case: 09-40491 Document: 00511133909 Page: 4 No. 09-40491 Date Filed: 06/07/2010 o f the sentence is vacated and remanded for reconsideration of the scheduling o f the restitution payment. See id. A F F IR M E D REM ANDED. IN PART, SENTENCE VACATED IN PART AND 4

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