16-4186 United States v. Williams

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 ASUMMARY 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, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 30th day of May, two thousand eighteen.

PRESENT: REENA RAGGI, GERARD E. LYNCH, Circuit Judges, * LEWIS A. KAPLAN, District Judge. ____________________________________________

UNITED STATES OF AMERICA, Appellee,

v. No. 16-4186-cr

JOHN TODD WILLIAMS, Defendant-Appellant,

WILLIAMS SCOTT & ASSOCIATES, LLC, AKA WSA, AKA WARRANT SERVICES ASSOCIATION, BENITA CANNEDY, AKA SHARON WRIGHT, ARTHUR COOK, AKA ACE ROGERS, TITUS MCDOWELL, AKA MR. MCDOWELL, Defendants. †

* Judge Lewis A. Kaplan, of the United States District Court for the Southern District of New York, sitting by designation. † The Clerk of the Court is directed to amend the official caption to read as shown above. FOR APPELLEE: Benet J. Kearney, Sarah E. Paul, Brian R. Blais, Assistant United States Attorneys, for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, New York.

FOR APPELLANT: John Todd Williams, pro se, Marianna, Florida.

Appeal from a judgment of the United States District Court for the Southern District

of New York (Richard J. Sullivan, Judge).

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

DECREED that the judgment entered on November 11, 2016, is AFFIRMED.

Defendant John Todd Williams, proceeding pro se, appeals from a judgment of

conviction entered after a jury trial at which he was found guilty of conspiracy to commit

wire fraud, in violation of

, 1349, for his role in a scheme to collect

money from individuals by making fraudulent representations and false threats over the

telephone. Sentenced to five years’ imprisonment and ordered to forfeit $3,995,443.53

and to pay restitution in the same amount, Williams now challenges his conviction and

sentence on multiple grounds. In addressing these, we assume the parties’ familiarity with

the facts and record of prior proceedings, which we reference only as necessary to explain

our decision to affirm.

Among his numerous challenges, Williams urges error on grounds that (1) the

warrant authorizing the search of his company’s premises was illegally obtained through

false statements in the supporting affidavit, (2) the government vindictively prosecuted him

for his refusal to cooperate with various regulatory agencies, (3) the wire fraud statute

2 underlying his conviction is void for vagueness, and (4) the indictment failed sufficiently

to allege an offense. Williams raised these same arguments in his pre-trial motions to

suppress and to dismiss the indictment. Upon independent review of the record and

relevant law, we deem these challenges meritless and affirm substantially for the reasons

stated on the record by the district court in its June 6, 2016 ruling. We have carefully

reviewed Williams’s remaining arguments and deem them equally meritless.

First, Williams argues that a parallel civil action by the Federal Trade Commission

(“FTC”) precluded his criminal prosecution. Insofar as Williams invokes the Double

Jeopardy Clause to support his arguments, see U.S. Const. amend. V, his argument is

defeated by precedent recognizing that civil enforcement orders do not equate to criminal

punishment, see Helvering v. Mitchell,

, 398–99 (1938); Abuzaid v. Mattox,

(2d Cir. 2013) (explaining that if one of two penalties imposed is “a

civil penalty, and not a criminal punishment,” then double jeopardy claim fails). In urging

otherwise, Williams observes that the FTC enforcement action resulted in ordered

disgorgement of $3,935,246.51, roughly the same amount as his ordered criminal forfeiture

and restitution. The argument fails because, as this court has recognized, disgorgement of

profits is not punitive but, rather, “a civil remedy which serves the remedial purpose of

preventing unjust enrichment.” S.E.C. v. Contorinis,

(2d Cir. 2014).

By contrast, a criminal forfeiture order punishes the offender and “serves no remedial

purpose,”

and restitution is designed to make victims whole, see United States v.

Finazzo,

(2d Cir. 2017). The district court may well have intended, as a

factual matter, for its restitution and criminal forfeiture orders to recoup from Williams the 3 same money—not more—as the civil disgorgement order. See No. 14 Cr. 784 (S.D.N.Y.),

Dkt. No. 218 (district court commenting, at sentencing, that it did not anticipate

government collecting same $3.9 million amount more than once). But that is not the

issue before us. We here conclude only that the FTC civil action against Williams did not

bar his criminal prosecution.

Second, Williams argues that his due process rights were violated because his arrest

was not supported by a warrant or summons. The record belies this claim. A magistrate

judge in the Southern District of New York signed a criminal complaint against Williams

and issued a warrant for his arrest on November 12, 2014. Williams was arrested pursuant

to that warrant and arraigned thereon in the Northern District of Georgia on November 18,

2014, at which time he waived his rights to an identity hearing and to the production of the

warrant, and was ordered detained. A grand jury in the Southern District of New York

returned an indictment against Williams on December 1, 2014, and the Northern District

of Georgia ordered Williams committed to the Southern District of New York on December

2, 2014. We thus identify no due process violation in connection with Williams’s arrest

and transfer to the Southern District of New York. 3

Third, Williams challenges venue in the Southern District of New York. Venue is

3 Williams argues that the Northern District of Georgia docket notes his arrest pursuant to Fed. R. Crim. P. 40, which authorizes arrest based on an individual’s failure to appear in another district. This apparent docketing error, however, fails to undermine record evidence that Williams was arrested pursuant to a valid arrest warrant. Certainly, Williams points to no evidence supporting his conclusory assertions that the warrant and supporting documents were falsified and added to the Southern District of New York docket after the fact. 4 proper in “any district in which an offense was begun, continued, or completed.” United

States v. Lange,

(2d Cir. 2016) (internal quotation marks omitted); see

(a). Where the charged offense is a conspiracy, venue lies in “any district

in which an overt act in furtherance of the conspiracy was committed.” United States v.

Tzolov,

, 319–20 (2d Cir. 2011) (internal quotation marks omitted). A phone

call made to a district may establish venue, provided that the phone call furthers the

conspiracy. See United States v. Tang Yuk,

(2d Cir. 2018). Here, a

fraudulent debt collection phone call made by one of Williams’s employees to a victim in

Manhattan was sufficient to establish venue in the Southern District of New York. Insofar

as Williams challenges the denial of his motion to transfer venue, we identify no abuse of

discretion in the district court’s ruling. See

at 74 n.5.

Fourth, Williams argues that his 19-month pre-trial detention violated due process.

Williams did not challenge the length of his pre-trial detention before the district court,

and, on plain error review, see United States v. Abad,

(2d Cir. 2008), we

identify no constitutional violation. In conducting a case-specific inquiry into a

defendant’s pre-trial detention, we consider the length of the detention itself, the strength

of the evidence justifying the detention, and the government’s responsibility for the delay.

See United States v. Briggs,

(2d Cir. 2012). Here, strong evidence

supported Williams’s detention, see United States v. Williams,

(2d Cir.

2016) (affirming district court’s denial of Williams’s bail motion on flight-risk grounds),

and the delays were attributable not to government foot-dragging but to voluminous

discovery that had to be produced and reviewed and by Williams’s changes in counsel. A 5 delay of 19 months, by itself, is not so excessive as to be presumptively prejudicial,

especially where, as here, there is no allegation that there was any impairment to the

defense. See Barker v. Wingo,

, 530–32 (1972); United States v. Briggs,

(identifying no due process violation in 25-month pre-trial detention). These

circumstances do not manifest delay violative of due process.

Fifth, Williams argues that jury instructions constructively amended the indictment,

because the indictment alleged that the fraudulent debt collection scheme caused victims

to pay more than they actually owed but the jury instructions did not require a finding of

intent to cause harm of that nature. Rather, the jury was instructed that, to convict

Williams of wire fraud conspiracy, it had to find only that his misrepresentations were

intended to induce victims to enter into transactions without the relevant facts necessary to

make informed economic decisions. See United States v. Binday,

, 576–77

(2d Cir. 2015). Williams did not object to this jury instruction in the district court, and,

on plain error review, see United States v. Bastian,

(2d Cir. 2014), we

identify no inconsistency with the indictment resulting in constructive amendment, see

United States v. Milstein,

(2d Cir. 2005) (explaining no constructive

amendment occurs where indictment generally encompasses “specific legal theory or

evidence used at trial”); see also United States v. Bastian,

(requiring only

notice of “essence of the crime” charged and explaining that “discrepancies in the

particulars of how a defendant effected the crime do not constructively amend the

indictment” (brackets and internal quotation marks omitted)). The indictment charges a

scheme to transmit fraudulent statements by telephone and electronic mail in order to 6 coerce victims into paying “purported” debts, No. 14 Cr. 784 (S.D.N.Y.), Dkt. No. 40 at

1–2, language broad enough to encompass both the inducement of payments in excess of

what was actually owed and the “loss of control” theory about which Williams complains.

Sixth, Williams argues that his sentence was procedurally unreasonable because the

evidence introduced at trial and at his sentencing hearing was insufficient to support the

district court’s Guidelines calculations as to loss and number of victims. See Gall v.

United States,

(2007) (stating that sentence is procedurally unreasonable

if district court commits “significant procedural error, such as failing to calculate (or

improperly calculating) the Guidelines range”). We review factual findings relating to

loss calculation for clear error, see United States v. Brennan,

(2d Cir.

2005), which is not evident here. For purposes of Guidelines calculations, a district court

need only make a reasonable estimate of loss based on a preponderance of the evidence

presented. See United States v. Coppola,

, 249–50 (2d Cir. 2012); U.S.S.G.

§ 2B1.1 cmt. 3(C). The district court’s loss and victim calculations here were reasonably

derived from records compiled from a payment processor used by Williams Scott &

Associates, LLC to receive victims’ payments, which records showed the loss amounts

associated with each victim. The district court also reasonably concluded that, whether or

not any of the victims’ payments made to Williams’s collection agency reflected debts

legitimately owed, Williams’s use of fraudulent means to deprive those victims of

“potentially valuable economic information” that might otherwise have led them not to pay

off those debts, Binday,

(internal quotation marks omitted), rendered each

payment part of the harm he inflicted by depriving the victims of the right to control their 7 finances, and therefore a reasonable estimate of the victims’ loss.

Insofar as Williams also argues procedural error in the district court’s failure to

consider sentencing disparities among his co-defendants,

(a) “requires a

district court to consider nationwide sentence disparities, but does not require a district

court to consider disparities between co-defendants.” United States v. Ghailani,

(2d Cir. 2013) (emphasis added). In any event, Williams, who headed the fraud

scheme, can hardly show that he was similarly situated in all respects to co-defendants

playing lesser roles. See United States v. Goffer,

(2d Cir. 2013)

(identifying no unreasonableness in sentencing disparity where defendant was leader of

fraudulent enterprise and therefore was not similarly situated to co-defendants whom he

recruited and directed).

Accordingly, Williams’s procedural challenge fails on the merits. 4

Seventh, Williams claims four separate counsel appointed during proceedings below

provided him constitutionally ineffective assistance. We deny these claims on the record

4 Equally meritless is Williams’s suggestion that his 60-month sentence, well below his 235 to 293-month Guidelines range, is substantively unreasonable. See United States v. Perez-Frias,

(2d Cir. 2011) (“[I]n the overwhelming majority of cases, a Guidelines sentence will fall comfortably within the broad range of sentences that would be reasonable in the particular circumstances. It is therefore difficult to find that a below- Guidelines sentence is unreasonable.” (internal citation and quotation marks omitted)); United States v. Cavera,

(2d Cir. 2008) (en banc) (explaining sentence substantively unreasonable only in “exceptional cases” where it “cannot be located within the range of permissible decisions” (internal quotation marks omitted)). Much less is his sentence “extreme” or “grossly disproportionate” to his crime so as to warrant relief under the Eighth Amendment. United States v. Rivera,

, 254–55 (2d Cir. 2008); see Ewing v. California,

(2003) (explaining proportionality challenges rarely successful outside of capital punishment context and rejecting Eighth Amendment challenge to 25-year sentence for theft of golf clubs worth $1,200). 8 before us, but without prejudice to their renewal in a

proceeding. See

United States v. Khedr,

, 99–100 (2d Cir. 2003) (explaining “baseline aversion

to resolving ineffectiveness claims on direct review” (internal quotation marks omitted));

see also Massaro v. United States,

, 504–05 (2003) (expressing preference

that ineffective assistance claim be evaluated on § 2255 motion, rather than on direct

appeal, to permit development of record).

We have considered all of Williams’s remaining arguments, including those raised

in his supplemental brief, and conclude that they are without merit. Accordingly, we

AFFIRM the judgment of conviction.

We also have considered Williams’s motions to add exhibits to his reply brief, to

add exhibits and an argument to his supplemental brief, and to compel the government to

produce the oral order issued for his criminal complaint and a Fed. R. Crim. P. 4.1 transcript

or recording. Because we identify no basis for granting the relief requested in any of these

motions, they are DENIED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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