United States v. Benny Smith, Also Known as Bennie
Docket: 1998
Court: Court of Appeals for the Second Circuit; December 2, 1999; Federal Appellate Court
Benny Smith appeals his conviction for eleven counts of extortion, extortionate collection of money, and conspiracy related to a loansharking scheme led by co-defendant Dennis DeBernardis. Smith argues that the government did not establish proper venue for several counts, as payments were made in the Eastern District of New York, not the Southern District. He also contends that the evidence was insufficient for conviction, that a co-conspirator's redacted plea allocution was improperly admitted, that the jury was not charged correctly regarding 'consciousness of innocence,' and that he received ineffective assistance of counsel. The court, however, rejects all of Smith's claims and affirms the district court's judgment. Testimony from four victims during the seven-day jury trial demonstrated Smith's involvement in the loansharking operation, where he collected payments and used intimidation tactics under DeBernardis's direction, with evidence showing that DeBernardis operated from Manhattan while orchestrating collections. Judge Parker dissents in a separate opinion.
Smith filed a motion for judgment of acquittal after the government's case-in-chief, arguing that the government did not establish proper venue in the Southern District for Counts 4, 6, 8, and 10, and claimed insufficient evidence for the eleven counts against him, asserting he was merely an 'instrumentality' of DeBernardis lacking the necessary mental state for conviction. The district court denied this motion. Following the trial, Smith sought a new trial under Fed. R. Crim. P. 33, alleging ineffective assistance of counsel and violations of the Jencks Act, but this motion was also denied. On June 2, 1998, Judge Jones sentenced Smith to 51 months in prison, two years of supervised release, and a $500 special assessment. Smith is appealing the convictions.
In his appeal, Smith contests the venue for Counts 4, 6, 8, and 10—related to extortion against victims Davis and Scott—asserting that the crimes occurred in the Eastern District of New York, where the victims lived. The government counters that venue was proper in the Southern District because conspiracy is a continuing offense, allowing prosecution in any district where the offense was initiated, carried on, or completed, as per 18 U.S.C. 3237(a). The burden lies with the government to prove venue by a preponderance of the evidence, and it must be established for each count charged.
Specifically regarding Count 8, which involved conspiracy to commit extortion of Scott, venue is valid in any district where an overt act in furtherance of the conspiracy occurred, regardless of the defendant's presence in that district. Evidence presented at trial indicated that DeBernardis made phone calls from Manhattan to Scott, which constituted overt acts supporting the conspiracy. As a co-conspirator, Smith is accountable for DeBernardis's actions. Thus, the court affirms Smith's conviction on Count 8.
Smith faced charges of aiding and abetting substantive crimes under Counts 4, 6, and 10, pursuant to 18 U.S.C. § 2, allowing him to be tried in the district where the substantive offense occurred. The law, as established by United States v. Delia, eliminates distinctions in punishment between accessories and principals, allowing both types of defendants to be treated equally. Under common law, an aider and abettor was required to be present at the crime scene, while an accessory before the fact could be absent but still involved. However, 18 U.S.C. § 2(a) unifies these roles, holding all parties equally culpable. Aiding and abetting is not considered a standalone crime but a method of identifying participants in a substantive offense, which remains the actual crime for prosecution.
To convict Smith, the government needed to show that the underlying crime was committed by another and that Smith acted with intent to assist in that crime. Similar to conspiracy law, the government had to prove Smith's active participation in the criminal endeavor. Venue for prosecution is appropriate where the defendant's acts occurred or where the substantive crime took place, as indicated in United States v. Bozza. The evidence suggested Smith contributed to DeBernardis' criminal acts, and even if Smith's acts occurred in the Eastern District, he could still be tried in the Southern District due to DeBernardis’ actions there.
Count 10 specifically charged Smith with aiding and abetting extortion in violation of the Hobbs Act over nearly two years. Venue for Hobbs Act cases is proper in any district impacted by interstate commerce or where the acts occurred. The evidence confirmed that DeBernardis’ scheme involved multiple acts affecting interstate commerce, implicating both the Southern and Eastern Districts.
DeBernardis engaged in extortionate acts in the Southern District by making phone calls from Manhattan to Brooklyn. The question is whether Smith can be tried in the Southern District for DeBernardis's actions. Testimony indicated that DeBernardis sent Smith multiple times to collect payments after calling Scott, establishing that Smith participated in extortionate collections within DeBernardis's broader scheme. As an aider and abettor, Smith is liable for DeBernardis's criminal acts, which allows for venue establishment in the Southern District.
The case also involves Count 10 being classified as a continuing offense under 18 U.S.C. § 3237(a), permitting prosecution in any district where the offense began, continued, or completed. Courts have recognized that Hobbs Act violations involving multiple payments can be regarded as continuing offenses concerning statutes of limitations. A single extortionate act within the limitations period can render a defendant accountable for all acts within the scheme, even if some occurred outside the limitations.
Despite the Sixth Amendment’s venue considerations, it is not a crime element; the government need only demonstrate venue by a preponderance of the evidence. The existing case law allows for the inclusion of all acts within an extortionate scheme in determining venue. This ruling is consistent with but distinct from the recent decision in United States v. Brennan, which addressed mail fraud and emphasized prosecution only in districts where illegal acts occurred. In contrast, Smith and DeBernardis committed acts in the Southern District, validating the venue for Smith's trial. The government demonstrated that DeBernardis and his associates made numerous threats to Scott and collected payments, thus establishing an ongoing offense spanning both the Southern and Eastern Districts. Consequently, the trial of Smith in the Southern District was deemed proper.
Counts 4 and 6 of the indictment against Smith involved charges of using extortionate means to collect and attempt to collect credit extensions, as well as aiding and abetting these crimes, violating 18 U.S.C. § 894 and § 2. The government established by a preponderance of evidence that principal DeBernardis committed criminal acts in the Southern District, which allowed for Smith's prosecution in that venue due to the aiding and abetting charge. The offense was characterized as a continuing one, involving weekly extortionate collections and threats over a year, thus enabling prosecution under 18 U.S.C. § 3237(a) in any district where the offense occurred. The evidence indicated that DeBernardis' calls from Manhattan to Brooklyn were key components of the extortion process. Consequently, Smith's convictions on Counts 4 and 6 were affirmed.
Regarding other arguments, Smith contended that the admission of co-defendant DeBernardis' redacted plea allocution violated his Sixth Amendment right to confront witnesses, citing the Supreme Court's ruling in Gray v. Maryland. Smith asserted that the redacted allocution could lead the jury to improperly infer his involvement. However, the district court exercised its discretion appropriately by admitting the allocution as a statement against interest, which was not directly incriminating to Smith. The court also provided proper jury instructions on the use of this evidence.
Additionally, Smith challenged the sufficiency of the evidence, claiming he lacked the specific intent to aid and abet DeBernardis’ crimes, arguing he was merely an instrument in the loansharking operation. The court found that a rational trier of fact could conclude beyond a reasonable doubt that Smith had the necessary intent, thereby rejecting his sufficiency claim.
In *United States v. Scotti*, 47 F.3d 1237, 1244 (2d Cir. 1995), the court clarified that 18 U.S.C. § 894(a)(1) applies not only to direct threats or acts of violence but also to indirect participation in extortionate means. It is sufficient for the government to demonstrate that Smith's involvement was knowing, without requiring proof of specific intent. Evidence indicated that Smith, a former New York City police officer, was more than a mere tool in DeBernardis' scheme; he was aware of loan terms, collected interest payments, and manipulated victims' fears.
Smith contended that the district court compromised his right to a fair trial by denying his request for a jury instruction on "consciousness of innocence," arguing that his refusal of an immunity offer demonstrated his innocence. The court reviews jury instructions de novo and requires that the requested instruction accurately reflect the law and that the defendant was prejudiced by its omission. The district court found that the trial record did not support Smith's claims regarding immunity and afforded him opportunities to present his theory during trial.
Smith also alleged ineffective assistance of counsel, needing to show that his attorney's performance was below an objective standard and that this affected the trial's outcome. Most claims of ineffective assistance related to trial strategy, which typically do not support such claims. Decisions not to challenge certain evidence or call specific witnesses were deemed reasonable tactics. Smith failed to establish that any alleged errors hindered the jury's ability to consider evidence of his innocence, especially given the government's substantial evidence against him, including his own post-arrest statements and victim testimonies.
The district court correctly determined that Smith did not establish a reasonable probability that the trial's outcome would have differed due to his counsel's alleged deficiencies. The court affirmed the district court's judgment after reviewing all of Smith's claims, finding them meritless. The Second Superseding Indictment charged Smith with multiple counts related to extortionate credit and collection practices, as well as conspiracy and aiding and abetting those offenses. Co-defendant DeBernardis pleaded guilty to most counts, while another co-defendant, Monk, was tried alongside Smith.
Dissenting, Judge Parker partially agreed with the affirmance of Smith's convictions but argued that there was no evidence linking Counts 4, 6, and 10 to the Southern District of New York, which he believed constituted improper venue. He emphasized that the Constitution mandates trials occur where crimes are committed, supported by relevant case law. Parker highlighted the necessity of establishing venue for each specific charge and noted rights to a fair trial in the appropriate jurisdiction, referencing precedents that affirm these principles.
The venue inquiry centers on the definitions of the crimes with which the defendant, Smith, is charged. Smith's convictions under 18 U.S.C. § 894 for extortionate collection and § 1951 for Hobbs Act violations are based on individual acts of extortion, which are treated as separate offenses even if part of a broader scheme. It is acknowledged that Smith did not take any actions outside the Eastern District of New York related to the charges. For the venue to be valid in the Southern District of New York, the government must demonstrate either that DeBernardis committed the extortionate acts in that district or that Smith aided and abetted those acts, at least partially, through actions taken there.
The majority opinion indicates the government failed to prove that DeBernardis's actions in the Southern District were connected to Smith's charges, noting the lack of evidence linking DeBernardis's calls to Smith's collections. Additionally, the government did not establish that Smith aided and abetted DeBernardis's extortionate acts, as there is no proof that Smith was aware of or intended to further those specific crimes. Consequently, without evidence linking Smith's actions in the Eastern District to DeBernardis's crimes in the Southern District, the assertion that Smith aided and abetted any crime in the Southern District cannot stand.
The majority's opinion faces criticism for inadequately proving the necessary elements for venue in the context of Smith's alleged criminal activities. The dissent argues that the majority improperly relies on the notion that Smith's crimes were part of DeBernardis's broader criminal scheme, asserting that statutes 894(a) and 1951(a) specifically target individual acts of extortion rather than general schemes. The dissent emphasizes that, while venue for the conspiracy charge is established, the government must also demonstrate proper venue for each substantive crime separately.
In an attempt to address the requirement for proving venue, the majority adopts a controversial approach by categorizing the separate extortion offenses committed by both DeBernardis and Smith as a single "continuing offense." The dissent points out that this approach is unprecedented and diverges from established legal principles, particularly in how it attempts to create a jurisdictional basis where none exists. The dissent also notes that this method does not hinder the government's ability to prosecute Smith for distinct extortion offenses outside the Southern District, as those could still be pursued in their respective jurisdictions.
Moreover, the dissent raises constitutional concerns, highlighting that the majority's definition of a continuing crime undermines Smith's right to a trial by an impartial jury within the district where the crime was committed, as guaranteed by the Sixth Amendment. The dissent argues that the majority’s lower standard for proving venue does not exempt the government from adhering to constitutional venue requirements. Consequently, the dissent expresses disagreement with the majority's affirmation of the convictions on specific counts, citing both legal and constitutional issues with the majority’s reasoning.
