16‐3473‐cr United States v. Canfield 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 COURTʹS 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 ʺSUMMARY ORDERʺ). A PARTY CITING 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 11th day of December, two thousand eighteen.

PRESENT: DENNY CHIN, RAYMOND J. LOHIER, JR., Circuit Judges, JOHN F. KEENAN, District Judge.* ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

UNITED STATES OF AMERICA, Appellee,

v. 16‐3473‐cr

RYAN CANFIELD, Defendant‐Appellant.

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FOR APPELLEE: RAJIT S. DOSANJH, Assistant United States Attorney (Wayne A. Myers, Assistant United

* Judge John F. Keenan, of the United States District Court for the Southern District of New York, sitting by designation.

States Attorney, on the brief), for Grant C. Jaquith, United States Attorney for the Northern District of New York, Syracuse, New York.

FOR DEFENDANT‐APPELLANT: SUSAN C. WOLFE, Law Office of Susan C. Wolfe, New York, New York.

Appeal from the United States District Court for the Northern District of

New York (Hurd, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant‐appellant Ryan Canfield appeals from a judgment entered

October 6, 2016, after a jury trial, convicting him of one count of conspiracy to distribute

and possess with intent to distribute methylone, in violation of

, and

eight counts of use of a communication facility to facilitate commission of a controlled

substance felony, in violation of

(b). He was sentenced principally to 144

monthsʹ imprisonment. We assume the partiesʹ familiarity with the underlying facts,

procedural history, and issues on appeal.

On appeal, Canfield argues: (1) the trial evidence was insufficient to show

that any coconspirator knew that methylone was a controlled substance; (2) the trial

evidence was insufficient to show that the text messages charged in Counts 2 through 9

(the ʺphone countsʺ) were used to facilitate a drug offense; (3) venue was not proper in

the Northern District of New York (the ʺNDNYʺ) for the phone counts and the trial

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court erred in failing to charge the jury on venue; (4) the communications facility statute

is unconstitutionally vague and the phone counts were multiplicitous; (5) the

government committed misconduct in summation; (6) Canfieldʹs Fourth Amendment

rights were violated by the search and seizure of his automobile and laptops; and (7) his

sentence was procedurally unreasonable. We address each issue in turn.

DISCUSSION

1. Sufficiency of Evidence of Knowledge that Methylone Was a Controlled Substance

Canfield argues that the evidence was insufficient to prove that any of his

coconspirators knew that methylone was a controlled substance. In particular, he

contends that at the time of the charged conspiracy, methylone was not illegal under

New York law and it was not added to the federal controlled substance schedules until

October 21, 2011. See

(h)(2);

; Schedules of Controlled

Substances: Temporary Placement of Three Synthetic Cathinones Into Schedule I,

(Oct. 21, 2011) (to be codified at 21 C.F.R. pt. 1308). We review a claim

of insufficiency of the evidence de novo. United States v. Geibel,

(2d Cir.

2004).1

1 The government contends that plain error review applies to this argument as well as others because Canfield failed to raise the precise issues below. We assume, without deciding, that Canfield preserved for review the issues he raises now on appeal.

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The Controlled Substance Act makes it unlawful for a person ʺknowinglyʺ

to, inter alia, distribute or possess with intent to distribute ʺa controlled substance.ʺ

(a)(1). In McFadden v. United States, the Supreme Court made clear that the

knowledge requirement is met when the government shows that (1) ʺthe defendant

knew he possessed a substance listed on the schedules, even if he did not know which

substance it was,ʺ or (2) ʺthe defendant knew the identity of the substance he

possessed.ʺ ‐‐‐U.S.‐‐‐,

(2015); see also United States v. Demott,

, 240‐44 (2d Cir. 2018).

Canfieldʹs sufficiency challenge fails, for the government presented direct

and circumstantial evidence that his coconspirators, including M.D., Dan Conti, and

John Chin, knew they were trafficking in methylone and that methylone was a

controlled substance. For example, M.D., a cooperator, testified that she and Conti

purchased methylone from Canfield, in December 2011, to resell. M.D. marketed the

methylone to her customers as ecstasy, referring to it as MDMA or ʺMolly.ʺ She

engaged in additional methylone transactions with Canfield in 2012, prior to her

cooperation in August 2012. The government also presented evidence that Canfield

and Chin exchanged emails in October 2011 about the impending ʺbanʺ on methylone,

and that they exchanged further emails in January 2013, after the ban was imposed,

discussing Chinʹs sale of additional methylone to Canfield.

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There was also evidence that M.D., Conti, and Canfield engaged in

convoluted arrangements to receive methylone and used code words in their

communications, showing that they knew it was a controlled substance. See, e.g.,

McFadden,

n.1 (noting that defendantʹs ʺconcealment of his activitiesʺ

and ʺevasive behavior with respect to law enforcementʺ was circumstantial evidence of

knowledge the substance was controlled); United States v. Agueci,

, 828‐29

(2d Cir. 1962) (holding district court properly charged jury that, inter alia, ʺcode wordsʺ

constituted circumstantial evidence that material in question was narcotics).

Accordingly, Canfieldʹs sufficiency challenge to his conviction on Count 1

fails.

2. Sufficiency of Evidence as to the Phone Counts

Canfield contends that the government failed to prove that the eight text

messages charged in the phone counts were sent to facilitate a federal drug trafficking

felony in violation of

(b).2 In particular, he argues that the texts were

between Canfield and M.D., and that because M.D. was cooperating with the

2 Section 843(b) makes it a crime for any person to ʺknowingly or intentionally . . . use any communication facilityʺ to facilitate a controlled substance crime.

(b). It provides that ʺ[e]ach separate use of a communication facility shall be a separate offense under this subsection.ʺ

It defines a ʺcommunication facilityʺ to include ʺany and all public and private instrumentalities used or useful in the transmission of writing, signs, signals, pictures, or sounds of all kinds and includes mail, telephone, wire, radio, and all other means of communication.ʺ

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government, the text messages were not in furtherance of the conspiracy. We are not

persuaded, for we agree with the government that even though M.D. was a

government informant at the time the text messages were exchanged, a reasonable jury

could have found that the text messages facilitated Canfieldʹs ongoing methylone

trafficking with others, including Conti, Chin, and an individual using the email

address beginning ʺbish0p9.ʺ

The evidence established that Canfield was using the text messages to set

up a meeting with M.D. (in Connecticut) on January 3, 2013, in part so that she could

pay him money she owed him for a lost shipment of methylone and to sell her

additional methylone. Indeed, at the meeting Canfield gave her a beer can containing

methylone. Even assuming that Canfield could not have conspired with M.D. that day

because she was acting at the behest of the government, the text messages facilitated

his ongoing dealings with other coconspirators as the meeting provided him with an

opportunity to sell additional methylone, which he obtained from his suppliers, and

money to purchase yet more methylone. See United States v. Miranda‐Ortiz,

(2d Cir. 1991) (ʺSince the essence of any conspiracy is agreement, rather than

the success of the venture, a defendant may be convicted of conspiracy even if the

intended substantive crime could not occur because the person he and his

coconspirators thought would participate in it was actually an agent of the

government.ʺ) (citations omitted); see also United States v. Valencia,

,

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511‐12 (S.D.N.Y. 2002) (convicting defendant of narcotics conspiracy where he sold

drugs to government cooperator, where evidence established that defendant conspired

with others, including suppliers), affʹd, 100 F. Appʹx 17 (2d Cir. 2004). Even assuming

Canfield could not conspire with M.D. on January 3, 2013, the meeting was still in

furtherance of his ongoing narcotics trafficking with others.

3. Venue

Canfield raises two issues relating to venue with respect to the phone

counts: he argues that, first, venue did not lie in the NDNY; and, second, the trial court

erred in failing to give a venue instruction to the jury. Both arguments fail.

First, venue was proper in the NDNY. Venue need be proven by only a

preponderance of the evidence, United States v. Rommy,

(2d Cir. 2007),

and ʺa telephone call placed by a government actor within a district to a conspirator

outside the district can establish venue within the district provided the conspirator

uses the call to further the conspiracy,ʺ

; see also United States v. Kirk Tang Yuk,

(2d Cir. 2018) (ʺA telephone call placed by someone within the Southern

District of New York ‐‐ even a person acting at the governmentʹs direction ‐‐ to a co‐

conspirator outside the Southern District can render venue proper as to the out‐of‐

district co‐conspirator so long as that co‐conspirator ʹuses the call to further the

conspiracy.ʹʺ) (quoting Rommy,

). Here, M.D. was in the NDNY when

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she exchanged the texts with Canfield, and Canfield knew that she lived in the Albany

area, which is in the NDNY.

Second, Canfield waived his claim that the district court erred in not

charging venue. He did not propose a venue instruction in his requests to charge.

Although he did raise the issue at the close of the governmentʹs case, he did not object,

after the district court completed its charge, to the absence of a jury instruction on

venue. In any event, venue is not an element of the crime, Kirk Tang Yuk,

, and any error in not charging the jury on venue would be harmless, see Rommy, 506

F.3d at 123‐24 & n.10 (finding harmless error in district courtʹs failure to instruct jury as

to foreseeability of venue in the Southern District of New York, and observing that

ʺharmless error analysis can be applied to a possible charging omission with respect to

venue, which is not an element of the crime and requires only proof by a

preponderance of the evidenceʺ).

4. The Communication Facility Statute

Next, Canfield argues that the communication facility statute is

unconstitutionally vague as applied to text messages and, relatedly, that the phone

counts fail because they are multiplicitous. He argues that the statute is vague because

it does not define ʺuseʺ of a communication device, and notes that text messaging did

not exist when the statute was enacted. He also contends that the eight phone counts

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charge a single offense multiple times, as the various messages purportedly are part of

one continuing conversation.

The Due Process Clause ʺrequires that a penal statute define the criminal

offense with sufficient definiteness that ordinary people can understand what conduct

is prohibited and in a manner that does not encourage arbitrary and discriminatory

enforcement.ʺ Kolender v. Lawson,

(1983) (citations omitted). Ordinary

people would surely understand that § 843(b) prohibits the use of a cellular telephone

to send or receive text messages to further narcotics trafficking. Numerous federal

criminal statutes employ the word ʺuseʺ without defining it, see, e.g.,

(c),

and where a statute does not define the term ʺuse,ʺ we ʺsupply it with its ordinary

meaning,ʺ United States v. Desposito,

, 226‐27 (2d Cir. 2013) (ʺThe verb ʹuseʹ

means ʹto put into action or service,ʹ ʹto avail oneself of,ʹ or ʹto carry out a purpose or

action by means of.ʹʺ (quoting Merriam‐Websterʹs Collegiate Dictionary 1378 (11th ed.

2004))). The statute also defines ʺcommunication facilityʺ to include a ʺtelephone,ʺ and

it encompasses ʺthe transmission of writing, signs, signals, pictures, or sounds of all

kinds.ʺ

(b); see United States v. Rodgers,

(7th Cir. 1985)

(ʺSection 843(b) is no more, and possibly less, vague than other broadly‐phrased

federal criminal statutes that we have consistently upheld over vagueness and

overbreadth challenges.ʺ).

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The multiplicitousness argument presents a somewhat closer call, as some

counts charge what appear to be different parts of the same conversation (Counts 2

and 3, Counts 4 and 5) and one count is based on a one‐word text (Count 3: ʺOk.ʺ).

But we are not persuaded. The statute explicitly provides that ʺ[e]ach separate use of a

communication facility shall be a separate offense,ʺ

(b), and the

government charged here each transmission ‐‐ whether it was one word (Count 3) or

thirty‐two words (Count 8) ‐‐ as a ʺuseʺ of a telephone and a separate count, with the

exception that certain transmissions that occurred at the same time were included in

one count (Counts 6 and 7). Indeed, except for the transmissions combined into

Counts 6 and 7, the transmissions occurred minutes if not hours apart. We have

upheld charges of separate counts under § 843(b) for each telephone call made or

placed by a defendant, see, e.g., United States v. Jaramillo‐Montoya,

(2d

Cir. 1987) (ʺUnder

(b), each telephone call is a separate offense

punishable by a sentence of four yearsʹ imprisonment.ʺ), and courts have held that

ʺnondescript conversationʺ and even ʺhanging up after a busy signalʺ can be

communications facilitating a drug transaction, United States v. Roberts,

(10th Cir. 1993).

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5. Prosecutorial Misconduct

Canfield argues that the government engaged in prosecutorial misconduct

by referencing his incarceration and commenting on the credibility of M.D. in closing

arguments. The arguments are rejected.

The reference to Canfieldʹs incarceration was clearly inadvertent, as the

prosecutor simply referred in rebuttal summation to Canfieldʹs ʺletter from 2014 when

he was in jail.ʺ Appʹx 115. Defense counsel did not object, and at the conclusion of the

argument, the prosecutor himself brought the matter to the attention of the district

court, saying: ʺI regret it and I didnʹt realize it until after the fact, I mentioned, I believe,

that the letter sent by the defendant was, I think the words I used were, while he was

in jail.ʺ Appʹx 116. Defense counsel declined a limiting instruction. The single,

inadvertent remark did not so substantially prejudice Canfield as to deny him a fair

trial. See United States v. Carr,

(2d Cir. 2005); United States v. Shareef,

(2d Cir. 1999).

Nor did the prosecutorʹs comments on M.D.ʹs credibility cross the line.

Obviously, M.D. was a critical witness, and both sides addressed her credibility at

various points in the trial. See United States v. Perez,

(2d Cir. 1998)

(ʺProsecutors have greater leeway in commenting on the credibility of their witnesses

when the defense has attacked that credibility.ʺ). The prosecutorʹs comments, if they

were improper at all, did not rise to the level of ʺflagrant abuse,ʺ United States v.

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Germosen,

(2d Cir. 1998), nor did they cause Canfield ʺsubstantial

prejudice,ʺ Carr,

.

6. The Automobile and Laptop Searches

Canfield raises several issues related to the seizure and search of his

automobile, when he was arrested by Drug Enforcement Administration (ʺDEAʺ)

agents on April 11, 2013, and the subsequent seizure and search of two laptops found

in the car. After Canfield moved to suppress, the district court held an evidentiary

hearing and issued a written decision on July 23, 2014, denying the motion. We review

the district courtʹs legal conclusions de novo and its findings of fact for clear error.

United States v. Bershchansky,

(2d Cir. 2015).

On the day of his arrest, Canfield had traveled alone in a Connecticut‐

registered car to a motel in Latham, New York. After he was arrested, the car was

sitting in the motel parking lot. Canfield was not registered as a guest and had not

sought permission to leave the car in the motel parking lot. In the circumstances of this

case, it was appropriate for the agents to seize the vehicle for safekeeping. See South

Dakota v. Opperman,

(1976) (law enforcement officials may seize and

impound vehicles of arrested individuals, without a warrant, ʺ[i]n the interests of

public safety and as part of . . . ʹcommunity caretaking functionsʹʺ (quoting Cady v.

Dombrowski,

(1973))); United States v. Lopez,

, 366‐67, 372

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(2d Cir. 2008) (arrest of both occupants of car ʺcalled for the impoundmentʺ of car,

which was parked on city street).

Once the vehicle was taken into custody, the agents were permitted to

ʺsearch the vehicle and make an inventory of its contents without need for a search

warrant and without regard to whether there is probable cause.ʺ Lopez, 547 F.3d at 369‐

70. As the district court found, the inventory search here complied with DEA written

policy. See United States v. Thompson,

(2d Cir. 1994) (law enforcement

agents must act in accordance with ʺstandardizedʺ procedures in conducting inventory

searches).

As for the laptops found in the car, the DEA agents obtained a warrant to

perform a forensic analysis of them. We discern no error in the district courtʹs findings

or conclusions with respect to the search of the laptops.

7. Sentencing Issues

Finally, Canfield raises two claims of procedural error in his sentence: he

contends that, first, the record does not establish that the district court knew it had

authority to vary from the applicable 500:1 ratio for marijuana equivalency; and,

second, the district court failed to resolve the issue of drug quantity.

We review a sentence for procedural reasonableness under a ʺdeferential

abuse‐of‐discretion standard.ʺ United States v. Thavaraja,

(2d Cir.

2014) (quoting Gall v. United States,

(2007)). A sentence is procedurally

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unreasonable if the district court ʺfails to calculate (or improperly calculates) the

Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory, fails to

consider the [18 U.S.C.] § 3553(a) factors, selects a sentence based on clearly erroneous

facts, or fails adequately to explain the chosen sentence.ʺ United States v. Chu,

(2d Cir. 2013) (internal quotation marks omitted).

As for the first claim of procedural error, there is nothing in the record to

suggest that the experienced district judge failed to understand that he had discretion

to reject the 500:1 ratio based on policy grounds. It has been well established since

2007 that district judges may reject a drug ratio in a guidelines calculation based on a

policy disagreement. See Kimbrough v. United States,

, 109‐10 (2007); see also

Spears v. United States,

(2009) (ʺA sentencing judge who is given the

power to reject the disparity created by the crack‐to‐powder ratio must also possess the

power to apply a different ratio which, in his judgment, corrects the disparity.ʺ). We

have held that ʺwe are ʹentitled to assume that the sentencing judge understood all the

available sentencing options, including whatever departure authority existed in the

circumstances of the case,ʹʺ unless the district courtʹs sentencing remarks ʺcreate

ambiguity as to whether the judge correctly understood an available [sentencing]

option.ʺ United States v. Sanchez,

(2d Cir. 2008) (citations omitted and

alternation in the original). No ambiguity exists here, where the parties argued the

issue and both sides cited cases recognizing that district courts have authority to

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depart based on disagreements with the applicability of equivalency ratios. See United

States v. Kamper,

, 740‐41 (6th Cir. 2014). Significantly, in the end, Canfield

was sentenced to 144 monthsʹ imprisonment, which was substantially below the

recommended 360‐744 months guidelines range.

As for the second claim of procedural error, the district court expressly

adopted the factual findings of the presentence report as well as its guidelines

calculations. Hence, the district court adopted the Probation Officeʹs finding that

Canfield was responsible for 13.4596 kilograms of methylone. See Thompson, 76 F.3d at

456 (district courtʹs adoption of presentence report at sentencing satisfies requirement

to make factual findings). There was no procedural error.

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We have considered Canfieldʹs remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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