21-471 United States v. English

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 “SUMMARY 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 6th day of October, two thousand twenty-two.

PRESENT: PIERRE N. LEVAL, RICHARD J. SULLIVAN, MYRNA PÉREZ,

Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 21-471

CLAUDIUS ENGLISH, a.k.a. JAY BARNES, a.k.a. BRENT ENGLISH,

Defendant-Appellant. * _____________________________________

* The Clerk of Court is respectfully directed to amend the official case caption as set forth above. For Defendant-Appellant: JOHN C. MERINGOLO, Meringolo & Associates, P.C., Brooklyn, NY.

For Appellee: NI QIAN (Michael Kim Krouse, Frank Balsamello, Danielle R. Sassoon, on the brief), Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.

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

District of New York (Paul G. Gardephe, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

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

AFFIRMED.

Defendant Claudius English appeals his conviction and sentence following

a jury trial in which he was found guilty of one count of conspiracy to engage in

sex trafficking of minors, in violation of

(Count One); four counts

of sex trafficking of minors, in violation of

(Counts Two, Three,

Four, and Eight); three counts of attempted sex trafficking of minors below the age

of fourteen, in violation of

and 1594 (Counts Five, Six, and

Seven); one count of kidnapping of a minor, in violation of

(Count

Nine); and one count of brandishing a firearm in furtherance of a crime of violence,

2 in violation of

(c)(1)(A) (Count Ten). Following the jury’s verdict,

English moved for judgment of acquittal on Counts Five, Six, Seven, Nine, and

Ten. The district court granted English’s motion as to Count Ten in light of the

Supreme Court’s intervening decision in United States v. Davis,

(2019), but denied the balance of his motion. The district court thereafter

sentenced English to twenty-five years’ imprisonment on each of the remaining

counts, all to run concurrently. On appeal, English raises five principal

challenges to his conviction and sentence, which we address in turn. We assume

the parties’ familiarity with the underlying facts, procedural history, and issues on

appeal.

First, English argues that the trial evidence was insufficient to establish the

specific-intent and interstate-commerce elements of his conviction on Count Nine

for the kidnapping of Tatyana, a fourteen-year-old girl living in New Jersey. “A

defendant challenging the sufficiency of the evidence bears a heavy burden,

because the reviewing court is required to draw all permissible inferences in favor

of the government and resolve all issues of credibility in favor of the jury verdict.”

United States v. Kozeny,

(2d Cir. 2011). On this appeal, the critical

question is whether “any rational trier of fact could have found the essential

3 elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,

(1979).

English argues that no rational juror could have found that he had the

specific intent to kidnap the victim given that he had consumed alcohol and

marijuana before and during the kidnapping. Although a defendant may show

that he was “too intoxicated” to form the requisite specific intent to commit a

crime, that is ultimately “a question for the jury.” United States v. Crowley,

(2d Cir. 2000). Here, while there is evidence that English consumed

alcohol and marijuana before and during the kidnapping, there is no indication in

the record that he consumed such a large amount that he was “too intoxicated [to]

specifically . . . intend to” kidnap the victim.

English’s argument is further

undermined by the deliberate measures he took to restrain the victim for four

hours by taking away her money and cellphone charger, raping her at gunpoint,

and then confining her to the bathroom of his apartment. On this record, we

cannot say that it was irrational for the jury to conclude that English had the

specific intent to kidnap Tatyana.

English also argues that his communications with Shantasia, his assistant,

were insufficient to establish the interstate-commerce element of kidnapping,

4 which requires the government to prove that English “use[d] the mail or any

means, facility, or instrumentality of interstate or foreign commerce in committing

or in furtherance of the commission of” the kidnapping.

(a).

The crux of English’s argument is that his communications with Shantasia were

not in furtherance of the kidnapping, but were “merely descriptions” of that

night’s events. English’s Br. at 32. But given the sequence of the

communications during the kidnapping, English’s representation that Shantasia

“worked for” his sex-trafficking operation, App’x at 74–75, and English’s decision

to delete his text messages with Shantasia after the victim ran away, a rational trier

of fact could have reasonably concluded that the communications were made in

furtherance of the offense, thereby satisfying the jurisdictional element, see, e.g.,

United States v. Giordano,

(2d Cir. 2006); United States v. Perez,

(2d Cir. 2005).

Second, English argues, for the first time on appeal, that the district court

erred in not instructing the jury sua sponte on the affirmative defense of voluntary

intoxication. When, as here, a putative error in the district court’s jury

instructions was not objected to below, we review the claim of error under the

“exacting standard of plain error.” United States v. Grote,

, 114

5 (2d Cir. 2020). For an error to be plain, “it must be a ‘clear’ or ‘obvious’ deviation

from current law that ‘affected the outcome of the district court proceedings.’”

United States v. Crowley,

(2d Cir. 2003) (quoting United States v.

Olano,

(1993)). Given the absence of evidence as to quantities of

intoxicant that English consumed, we cannot conclude that the district court’s

decision not to give such an instruction sua sponte was a plain error.

Third, English challenges the sufficiency of the evidence for his convictions

on Counts Five, Six, and Seven (attempted sex trafficking). To establish liability

for a crime of attempt, “the government must prove that the defendant had the

intent to commit the crime and engaged in conduct amounting to a substantial

step towards the commission of the crime.” United States v. Pugh,

(2d Cir. 2019). For a defendant to have taken a “substantial step,” he must have

engaged in conduct “tended to cause that particular crime to occur,” United States

v. Desposito,

(2d Cir. 2013), conduct that was “more than ‘mere

preparation,’ but may have stopped short of ‘the last act necessary’ for the actual

6 commission of the substantive crime,” United States v. Yousef,

(2d Cir. 2003) (quoting United States v. Rosa,

(2d Cir. 1993)). 1

English argues that his text messages with Oliver Sohngen, a repeat

customer of his sex-trafficking operation, showed nothing more than “fantasy” or

at most “mere planning.” English’s Br. at 41–43. But the trial evidence

established that English messaged Sohngen specifics about trafficking the victims,

including ways to pick up the victims without getting caught, the hotel to which

the victims would be brought, and the location where the victims would be

dropped off after Sohngen was “done.” App’x at 38–40. On this record, a

rational trier of fact could reasonably conclude that the text messages between

1 Although we have stated in dicta that a substantial step “must be necessary to the consummation of the crime,” Pugh, 932 F.3d at 20; United States v. Brand,

(2d Cir. 2006), abrogated on other grounds by United States v. Cabrera,

(2d Cir. 2021); United States v. Manley,

, 987–88 (2d Cir. 1980), in each of those cases we affirmed the attempt convictions in question, even though the acts constituting the criminal attempts were not necessary to the consummation of the crime. Since none of those panels even discussed whether the conduct constituting the attempts was necessary to the consummation of the crimes at issue, we think it unlikely that they intended to articulate the governing standard for attempts. Indeed, if that were the standard, rarely could a prosecution for attempt result in a conviction, as there are typically many ways to commit a crime so that the acts done in an attempt to commit a crime would seldom be necessary to the consummation of the crime. We do not need to rule on this issue in the instant case because English has not argued that conduct constituting an attempt must be necessary to the commission of the offense and that, in his case, it was not. Nonetheless, we raise a warning flag cautioning courts that will face the question to consider carefully whether that language – uttered only in dicta and most commonly omitted from our Circuit’s descriptions of the pertinent standard – truly reflects the standard for this Circuit.

7 English and Sohngen constituted “a substantial step towards the commission of

the crime.” Pugh,

.

Fourth, English argues for the first time on appeal that the government

constructively amended the indictment as to Counts Five, Six, and Seven because

the indictment charged English with “attempt[ing] to recruit, entice, harbor,

transport, provide, [and] obtain” the victims to engage in sexual acts, App’x at 25–

27, whereas “the [g]overnment’s proof at trial consisted solely of evidence that he

had advertised [the victims] to Sohngen,” English’s Br. at 47–48. Relatedly,

English argues – again, for the first time on appeal – that the government

constructively amended the indictment as to Count Nine by relying on English’s

communications with Shantasia – rather than his communications with Tatyana

and his travel with her from New Jersey to New York, as charged in the

indictment – to prove the interstate-commerce element of kidnapping.

A constructive amendment to an indictment occurs where either “an

additional element, sufficient for conviction, is added” or “an element essential to

the crime charged is altered.” United States v. Percoco,

(2d Cir.

2021). We have “consistently permitted significant flexibility in proof, provided

that the defendant was given notice of the core of criminality to be proven at trial.”

8

The core of criminality “involves the essence of a crime, in general terms,” but

not the “particulars of how a defendant effected the crime.” United States v.

D’Amelio,

(2d Cir. 2012).

With respect to Counts Five, Six, and Seven, the text messages that English

sent to Sohngen clearly were evidence of English’s attempt to traffic the victims

and did not constitute an addition or alteration of “an element essential to the crime

charged.” Percoco,

(emphasis added). As for Count Nine, the

indictment gave English fair notice of the core of criminality, which was his

kidnapping of Tatyana through interstate commerce. The method by which the

government sought to prove the interstate-commerce element concerns only “the

particulars of how [English] effected the crime,” which “falls outside [the]

purview” of the core of criminality. D’Amelio,

.

English’s alternative argument – that the government’s reliance on his

communications with Shantasia constituted a prejudicial variance – fares no

better. A variance “occurs when the charging terms of an indictment are

unaltered, but the trial evidence proves facts materially different from those

alleged in the indictment.” United States v. Agrawal,

(2d Cir.

2013). To obtain relief based on a variance, a defendant must show (1) that the

9 variance occurred, and (2) that the variance infringed on the defendant’s

“substantial rights that indictments exist to protect – to inform [the defendant] of

the charges against him so that he may prepare his defense and to avoid double

jeopardy.” United States v. Kaplan,

, 129 (2d Cir. 2007) (internal

quotation marks omitted).

Even if it could be argued that the government’s reliance on English’s

communications with Shantasia constituted a variance, English has failed to show

any prejudice to his substantial rights. English was not at risk of a second

prosecution for the kidnapping of Tatyana, since the indictment unequivocally

specified the “the date and place of the crime, and the crime alleged.” United

States v. Knuckles,

(2d Cir. 1978). Nor did he receive insufficient

notice of the charges against him, as both bases for the interstate-commerce

element involve “a single set of discrete facts consistent with the charge in the

indictment.” D’Amelio,

. On this record, we cannot conclude that

the indictment was constructively amended or prejudicially varied with respect to

Counts Five, Six, Seven, or Nine.

Fifth, and finally, English argues that the district court’s imposition of a

twenty-five-year term of imprisonment – to run concurrently on all counts – was

10 both procedurally and substantively unreasonable. We review procedural and

substantive reasonableness of the district court’s sentence “under a deferential

abuse-of-discretion standard.” United States v. Smith,

(2d Cir.

2020). To establish procedural unreasonableness, English must demonstrate that

the district court committed a “significant procedural error, such as failing to

calculate (or improperly calculating) the Guidelines range, treating the Guidelines

as mandatory, failing to consider the [section] 3553(a) factors, selecting a sentence

based on clearly erroneous facts, or failing to adequately explain the chosen

sentence – including an explanation for any deviation from the Guidelines range.”

Gall v. United States,

(2007); see also United States v. Cavera,

(2d Cir. 2008) (en banc). To establish substantive unreasonableness,

English must show that the sentence was so “shockingly high . . . or otherwise

unsupportable as a matter of law” that it “damage[d] the administration of

justice.” United States v. Rigas,

(2d Cir. 2009).

English has failed to articulate any procedural error committed by the

district court in imposing the sentences, and we are aware of none. As for his

claim of substantive unreasonableness, it bears noting that English's

twenty-five-year sentence – though by no means trivial – was well below the life

11 sentence called for under the advisory Sentencing Guidelines. Moreover, given

the serious nature of the crimes for which English was convicted, it cannot be said

that the sentence imposed by the district court was so “shockingly high” as to be

substantively unreasonable.

We have considered English’s remaining arguments and find them to be

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

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

12