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United States v. Sampson

United States Court of Appeals, Second Circuit

August 6, 2018

United States of America, Appellee,
v.
John Sampson, Defendant-Appellant.

          Argued: December 7, 2017

         Defendant-Appellant John Sampson ("Sampson") appeals from a January 27, 2017 judgment of the United States District Court for the Eastern District of New York (Irizarry, C.J.), following a jury verdict finding him guilty of obstruction of justice and making false statements to federal agents. On appeal, Sampson argues that: (1) the government prosecuted him improperly for a "witness- tampering" offense under 18 U.S.C. § 1503(a); (2) the district court committed reversible error in its jury instruction concerning whether he "willfully caus[ed]" an obstruction of justice under 18 U.S.C. § 2(b); (3) the evidence was insufficient to support his conviction for making a false statement in violation of 18 U.S.C. § 1001(a)(2); (4) the district court committed reversible error (and violated Sampson's Confrontation Clause rights) by preventing Sampson from introducing an FBI agent's notes into evidence, and by sustaining the prosecution's objection to a question that Sampson's counsel asked at trial; (5) the district court unfairly prejudiced Sampson by allowing the prosecution to introduce evidence of bribes that he allegedly received; and (6) the sentence imposed by the district court was unreasonable. We have examined each of Sampson's arguments and conclude that none of them have merit. The district court's judgment of conviction is therefore AFFIRMED.

          FOR DEFENDANT-APPELLANT: NATHANIEL H. AKERMAN (Joshua Colangelo-Bryan, on the brief), Dorsey & Whitney, New York, NY.

          FOR APPELLEE: PAUL TUCHMANN, Assistant United States Attorney (David C. James, Alexander A. Solomon, and Marisa M. Seifan, Assistant United States Attorneys, on the brief), for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, NY.

          Before: Cabranes, Livingston, and Carney, Circuit Judges.

          Debra Ann Livingston, Circuit Judge.

         On July 24, 2015, following a jury trial in the United States District Court for the Eastern District of New York (Irizarry, C.J.), Defendant-Appellant John Sampson ("Sampson") was convicted of one count of obstruction of justice, in violation of 18 U.S.C. § 1503(a), and two counts of making false statements to federal agents, in violation of 18 U.S.C. § 1001(a)(2). The district court later sentenced Sampson principally to five years of imprisonment. On appeal, Sampson challenges the judgment on numerous grounds. We conclude that none of Sampson's arguments is meritorious. We therefore AFFIRM the district court's judgment of conviction.

         BACKGROUND

         I. Factual Background[1]

         Sampson began serving in the New York State Senate in 1997, representing the 19th Senate District in Brooklyn. Until his expulsion from the Senate in 2015, Sampson was seen as a political "powerhouse." See Alan Feuer, John Sampson, Once a State Senate Powerhouse, Sentenced to Prison, N.Y. Times, Jan. 19, 2017, at A20. He served as leader of the Democratic Conference of the Senate from June 2009 to December 2012, and Minority Leader of the Senate from January 2011 to December 2012.

         Sampson was also licensed to practice law in New York State. As described in more detail in this case's companion appeal, United States v. Sampson, No. 15- 2869-cr (2d Cir. 2018), Justices of the New York State Supreme Court periodically appointed Sampson to serve as a referee in foreclosure actions for properties located in Brooklyn. The government argued at trial that over time, Sampson embezzled hundreds of thousands of dollars from various foreclosure escrow accounts that he oversaw as a referee.

         In July 2006, Sampson asked Edul Ahmad ("Ahmad"), a Queens businessman, to lend him $188, 500 so that he could replace funds he had embezzled before the authorities could discover they were missing. Ahmad agreed to lend Sampson the money. Sampson failed to repay Ahmad. After realizing that Sampson would not repay the loan, Ahmad asked Sampson to use his position in the New York State Senate to provide Ahmad with special favors. Sampson subsequently intervened with New York State regulatory agencies conducting reviews of Ahmad's business, lobbied for Ahmad to receive potentially lucrative brokerships from national financial institutions, and introduced legislation that would have benefited Ahmad as the owner of a minority-owned business.

         In July 2011, Federal Bureau of Investigation ("FBI") agents arrested Ahmad for mortgage fraud, and the United States Attorney's Office for the Eastern District of New York ("the USAO") commenced its prosecution of Ahmad. After Ahmad was released on bail, he met with Sampson "multiple times." App'x at 109. Sampson told Ahmad that Sampson "had a friend that he had gone to school with" who worked in the USAO, "and that he would reach out to this individual and try to get some information as to the strength of [the USAO's] case," including the names of individuals who might testify against Ahmad should Ahmad choose to go to trial. Id. at 110. The government argued to the jury that Sampson's goal was to prevent Ahmad from pleading guilty to the charges, cooperating with the government, and disclosing Sampson's crimes. Ahmad accepted Sampson's offer to help him acquire names of potential witnesses.

         Sampson contacted Samuel Noel ("Noel"), who, at the time, served as a supervisory paralegal at the USAO. Sampson provided Noel with the names of four potential witnesses in Ahmad's case: Leesa Shapiro, Glenn Hirsch, Roger Khan ("Khan"), and Premaj Hansraj ("Hansraj"). Noel understood that Sampson was asking him to conduct an improper search of the USAO's non-public database and determine who was planning to testify at Ahmad's trial. Noel knew that it was a crime for him to provide Sampson with this non-public information.

         Nonetheless, after speaking with Sampson, Noel used his government account to run the names of Ahmad, Sampson, and the relevant witnesses through the Public Access to Electronic Records ("PACER") database. Noel understood at the time that he was forbidden from using PACER for such non-work-related purposes. Next, Noel looked up the names of Ahmad, Sampson, and the relevant witnesses in the Legal Information Office Network System ("LIONS"), a non- public USAO database with confidential information.[2] Noel found results for Ahmad, Khan, and Hansraj, but not for the others. Noel later told Sampson that he did not see his name or come across other relevant information in the LIONS database.

         Noel also contacted two nonsupervisory USAO paralegals, one working on Ahmad's case and the other working in the USAO's public integrity section. During a closed-door meeting, Noel told the paralegal working on Ahmad's case to inform him of information regarding the case, including if she learned that witnesses were speaking about Sampson. During another closed-door meeting in his office, Noel directed the paralegal working in the public integrity section to inform him if she came across any of the named witnesses mentioning Sampson. On November 22, 2011, Sampson assured Ahmad that Sampson was "on top of" Noel, and that Noel was "doing the best he can" to find out information on Ahmad's case. Id. at 914.

         Ahmad also informed Sampson that the FBI had approached Qayaam Farrouq ("Farrouq"), one of Ahmad's co-conspirators in the mortgage fraud. Ahmad told Sampson that he was worried that Farrouq would cooperate with the government. Ahmad therefore suggested that Sampson provide Farrouq with an attorney who would betray attorney-client confidentiality and provide them with information about whether Farrouq would cooperate. Sampson arranged for an attorney to represent Farrouq, instructing Ahmad not to have contact with the attorney directly, but that Sampson himself would communicate with the attorney about Farrouq.

         Sampson followed a similar tack after the government arrested Nazir Gurmohamed ("Gurmohamed"), one of Ahmad's other co-conspirators. Sampson suggested that he and Ahmad obtain an attorney for Gurmohamed who would breach privilege and inform them if Gurmohamed began cooperating with the government. During the meeting with Ahmad at which this conversation took place, Sampson talked to Farrouq's attorney on the phone and solicited information about Farrouq and Gurmohamed's arraignments and bail hearings. As for obtaining a lawyer for Gurmohamed, Sampson instructed Ahmad to pay the attorney in cash so there would be no "money trail." Id. at 923. Later, Sampson sent Ahmad contact information for the attorney Ahmad was to retain for Gurmohamed.

         Sampson also attempted to hire a private investigator, Warren Flagg ("Flagg"), a former FBI agent who worked with the USAO while in that role. Sampson hoped that Flagg could exploit his ties with the USAO to extract information regarding the case against Ahmad. During a meeting, Flagg told Ahmad that it would be illegal for him to secure confidential information about the USAO's potential cooperating witnesses. See id. at 1010 ("[I]f I call up a buddy of mine and say, oh, you know this case? First of all, that's tampering."). Nevertheless, Flagg suggested that Ahmad compile a list of possible cooperating witnesses for Flagg to investigate. Sampson repeatedly urged Ahmad to do so. At the same time, Sampson stated that Ahmad did not need to involve his criminal counsel in any of Flagg's potential work.

         Despite Sampson's efforts, Ahmad began to cooperate with the government in November 2011. Sampson and Ahmad met again in February 2012. In preparation for the meeting, pursuant to instructions from law enforcement, Ahmad copied a page from his check register that showed the $188, 500 he had transferred to Sampson. During the meeting, Ahmad showed Sampson the copy, informed him that it was responsive to a government subpoena, and asked what he should do. Sampson instructed Ahmad not to produce the check register and to lie to the government about its-and the loan's-existence. Sampson then took the copy from Ahmad; he did not return it.

         On July 27, 2012, two FBI agents-Ken Hosey ("Agent Hosey") and Erin Zacher ("Agent Zacher")-interviewed Sampson and questioned him about the check register page. Sampson claimed not to recall anything about the $188, 500 payment that Ahmad had provided him. Agent Hosey then showed Sampson a photocopy of Ahmad's check register page. Sampson told Hosey that the document "didn't ring a bell" and that "he didn't have a recollection from it." Id. at 780. He suggested, however, that he might recall if he checked his files or received more information.

         In the same interview, the agents questioned Sampson about his ownership interest in a Brooklyn liquor store. Sampson had previously failed to disclose this interest when submitting a liquor license application to the New York State Liquor Authority. Responding to FBI questioning, however, Sampson admitted he did have the ownership interest. He claimed that his four business partners in the store awarded him the interest as payment for performing certain legal work, but Sampson failed to identify what work he did. He also denied asking one of his Senate staffers to help with a matter related to the store.

         At the conclusion of the interview, Hosey informed Sampson that he believed Sampson was lying and that it was a felony to lie to federal agents. Sampson responded, "[n]ot everything I told you was false." Trial Transcript ("T.") 2109.

         II. Procedural History

         On April 29, 2013, a grand jury in the United States District Court for the Eastern District of New York returned an indictment against Sampson that contained nine criminal counts. On March 17, 2015, a grand jury returned a fifth superseding indictment, which contained eleven counts. [3] Counts 1 and 2 concerned Sampson's alleged embezzlements from the escrow accounts that he oversaw as a referee.[4] Count 3 charged Sampson with conspiracy to obstruct justice, in violation of 18 U.S.C. § 1512(k), due to his alleged efforts-with Noel, Ahmad, and others-to impede Ahmad's mortgage fraud investigation. Count 4 charged Sampson with obstruction of justice, in violation of 18 U.S.C. § 1503(a), for his individual role in the same conduct. Count 5 charged Sampson with witness tampering, in violation of 18 U.S.C. §§ 1512(b)(2)(A)-(C) and 1512(b)(3), for attempting to induce Ahmad not to provide the check register page to the federal authorities. Count 6 charged Sampson with witness tampering, in violation of 18 U.S.C. § 1512(b)(3), for pressuring Ahmad to lie to the government about the existence of the $188, 500 loan. Count 7 charged Sampson with evidence tampering, in violation of 18 U.S.C. § 1512(c)(1), for his attempt to hide the check register page from the government. Count 8 charged Sampson with concealment of records, in violation of 18 U.S.C. § 1519, regarding the same conduct. Finally, Counts 9, 10, and 11 charged Sampson with making false statements to federal officers, in violation of 18 U.S.C. § 1001(a)(2). Specifically, the indictment alleged that Sampson falsely told Agents Hosey and Zacher that he did not recall seeing the check register page prior to the FBI interview (Count 9), that he never requested nonpublic information from Noel (Count 10), and that he did not direct a Senate staffer to intervene with New York tax authorities on the liquor store's behalf (Count 11).

         A jury trial commenced on June 22, 2015. On July 24, 2015, the jury found Sampson guilty as to Counts 4, 9, and 11. In other words, the jury concluded that Sampson personally obstructed justice in the mortgage fraud investigation and made false statements to Agents Hosey and Zacher regarding his knowledge of the check register page and his use of Senate staff to benefit the liquor store.

         On September 14, 2015, Sampson moved for judgments of acquittal on Counts 4 and 9 (but not Count 11) pursuant to Federal Rule of Criminal Procedure 29. See United States v. Sampson, No. 13-cr-269 (DLI), 2016 WL 756565, at *1 (E.D.N.Y. Feb. 26, 2016) ("Sampson 2016").[5] Sampson argued that the § 1503(a) obstruction conviction (i.e., Count 4) was invalid because it was based solely on conduct that amounted to witness tampering. The district court held that Sampson waived this argument by failing to raise it before trial and that, in any event, Sampson's argument failed on the merits. See id. at *9-13. Sampson also claimed that the check register false statement conviction (i.e., Count 9) was invalid because, inter alia, it was literally true that he had not seen the FBI's photocopy of the check register page prior to the interview. The district court rejected this argument, noting that "[o]f course Special Agent Hosey was not asking if Defendant literally had ever seen the actual photocopy then being displayed; Special Agent Hosey was asking if Sampson had ever seen the image depicted therein." Id. at *17 (emphasis in original).

         In addition, on July 5, 2016, Sampson moved for a new trial due to the Supreme Court's decision in McDonnell v. United States, 136 S.Ct. 2355 (2016). The district court denied this request, concluding that McDonnell was inapplicable because the government had not charged Sampson with bribery or corruption offenses.

         On January 18, 2017, the district court sentenced Sampson to five years of imprisonment on each of the three counts, with the sentences to run concurrently, followed by three years of supervised release. The district court entered judgment on January 27, 2017, and Sampson timely appealed. Sampson is presently serving his sentence.

         DISCUSSION

         I

         Sampson first argues that the government's theory of obstruction under 18 U.S.C. § 1503(a)-i.e., that Sampson sought confidential information in Ahmad's case with the corrupt intent of facilitating witness tampering-ran afoul of our decisions in United States v. Hernandez, 730 F.2d 895 (2d Cir. 1984), and United States v. Masterpol, 940 F.2d 760 (2d Cir. 1991). Accordingly, he contends, his conviction on Count 4 must be vacated. The government counters that Sampson waived this objection by not raising it before trial and, in any event, Sampson's conduct was properly punishable under § 1503(a).

         Because Sampson's argument raises questions of law, our review is de novo. See United States v. Holcombe, 883 F.3d 12, 15 (2d Cir. 2018). We need not address whether Sampson waived this argument, because even assuming arguendo that he did not, we conclude-for the reasons outlined below-that § 1503(a) proscribed his conduct. In doing so, we narrow the potential reach of some of our language in Hernandez and Masterpol-cases whose reasoning "has been rejected by every other federal court of appeals that has considered the issue," United States v. Bruno, 383 F.3d 65, 87 (2d Cir. 2004).[6]

         A. Overview of 18 U.S.C. § 1503(a) and 18 U.S.C. § 1512

         Section 1503(a) of Title 18 criminalizes, inter alia, endeavoring to intimidate, threaten, or injure court officers, commissioners, and jurors. It also contains a residual or "omnibus" clause. See, e.g., United States v. Aguilar, 515 U.S. 593, 598 (1995) (describing § 1503(a)'s structure). This "omnibus" clause broadly prohibits, inter alia, "corruptly . . . endeavor[ing] to influence, obstruct, or impede, the due administration of justice." 18 U.S.C. § 1503(a); see also United States v. Kumar, 617 F.3d 612, 620 (2d Cir. 2010) ("[T]he omnibus clause embraces the widest variety of conduct that impedes the judicial process[.]" (internal quotation marks and citation omitted)). The conduct that the omnibus clause proscribes consists of an actus reus and a mens rea. The actus reus is "endeavor[ing] to influence, obstruct, or impede, the due administration of justice." 18 U.S.C. § 1503(a).[7] The mens rea is acting "corruptly," id.-that is, with "a specific intent to obstruct a federal judicial or grand jury proceeding." United States v. Schwarz, 283 F.3d 76, 109 (2d Cir. 2002). Accordingly,

to convict for obstruction of justice under the omnibus clause of section 1503, the government must establish (1) that there is a pending judicial or grand jury proceeding constituting the administration of justice, (2) that the defendant knew or had notice of the proceeding, and (3) that the defendant acted with the wrongful intent or improper purpose to influence the judicial or grand jury proceeding, whether or not the defendant is successful in doing so-that is, "that the defendant corruptly intended to impede the administration of that judicial proceeding."

United States v. Quattrone, 441 F.3d 153, 170 (2d Cir. 2006) (quoting United States v. Fassnacht, 332 F.3d 440, 447 (7th Cir. 2003)). The government must show, we have said, that the defendant's conduct "ha[d] the natural and probable effect of interfering with a ...


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