14-2179-cr (L)
United States v. Qualls

                               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 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
28th day of May, two thousand fifteen.

Present:    ROSEMARY S. POOLER,
            RAYMOND J. LOHIER, JR.,
            SUSAN L. CARNEY,
                        Circuit Judges.
_____________________________________________________

UNITED STATES OF AMERICA,

                                 Appellee,

                          v.                                           14-2179-cr (L), 14-2236
                                                                       (Con)

THOMAS W. QUALLS,

                        Defendant-Appellant.
_____________________________________________________

Appearing for Appellant:         Zachary Margulis-Ohnuma, (Sharlene Morris, on the brief), New
                                 York, N.Y.

Appearing for Appellee:          David K. Kessler, Assistant United States Attorney, (Jo Ann M.
                                 Navickas, Daniel A. Spector, Assistant United States Attorneys;
                                 Loretta E. Lynch, United States Attorney for the Eastern District of
                                 New York, on the brief), Brooklyn, N.Y.

        Appeal from the United States District Court for the Eastern District of New York
(Irizarry, J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court be and it hereby is AFFIRMED.

        Defendant-Appellant Thomas Qualls appeals from the judgment of conviction and
sentence entered on June 17, 2014, in the United States District Court for the Eastern District of
New York (Irizarry, J.). A jury convicted Defendant in absentia on sixteen counts, including
mail and wire fraud, conspiracy to commit fraud, and obstruction of justice after his jury trial (the
“fraud convictions”). Following his flight and recapture, Defendant pleaded guilty to one count
of failure to appear (the “bail jumping conviction”). The cases were consolidated, and the district
court sentenced Qualls principally to 210 months’ imprisonment, comprising sentences of 150
months’ imprisonment on the fraud convictions, to run consecutively with his sentence of 60
months’ imprisonment on the bail jumping conviction. On appeal, Qualls argues that (1)
admission of testimony during his trial pertaining to third party foreign business records violated
his rights under the Confrontation Clause, and (2) his sentence is procedurally and substantively
unreasonable. We assume the parties’ familiarity with the underlying facts, procedural history,
and specification of issues for review.

        As an initial matter, the government proposes that, under the fugitive disentitlement
doctrine, we should decline to entertain Defendant’s challenge to the fraud convictions because
Defendant fled at the conclusion of his trial and fought extradition after he was reapprehended
six months later, thereby delaying the present appeal by more than three years. “Under the
‘fugitive disentitlement doctrine,’ a court has ‘discretion to refuse to rule on the merits of a
defendant’s postconviction claims of trial error when the defendant has fled from justice.’”
United States v. Morgan, 254 F.3d 424, 426 (2d Cir. 2001) (quoting United States v. Bravo, 10
F.3d 79, 83 (2d Cir. 1993)). Appellate application of the doctrine requires that “a sufficient
nexus exists between the defendant’s fugitive status and the appellate proceedings.” Id. at 427
(citing Ortega-Rodriguez v. United States, 507 U.S. 234, 249 (1993)). For instance, preclusion
of a postconviction assertion of trial error may be warranted “in some instances” where “a long
escape . . . so delay[s] the onset of appellate proceedings that the Government would be
prejudiced in locating witnesses and presenting evidence at retrial after a successful appeal.”
Ortega-Rodriguez, 507 U.S. at 249. Here, the government has suggested a few potential
obstacles it might encounter if it were required to retry this case, but has failed to assert any
prejudice it would suffer as a result of Defendant’s flight or the delay it engendered. Because the
relevant justifications for disentitlement are weak, in this case we decline to apply the doctrine.

        Prior to his trial on the fraud offenses, Defendant requested that the district court preclude
the government from offering into evidence certain foreign business records from IG Markets, a
London-based trading firm, absent a live witness to authenticate the documents. The district
court denied the request, holding that the certification executed by an IG Markets employee was
sufficient to authenticate the records under 18 U.S.C. § 3505. United States v. Qualls, 553 F.
Supp. 2d 241, 246 (E.D.N.Y. 2008). At trial, the certification was not offered into evidence, nor
was it described for or viewed by the jury. On appeal, Defendant nonetheless asserts that his
Sixth Amendment rights under the Confrontation Clause were violated when the government
elicited testimony at trial from its fraud analyst confirming that IG Markets had sent the
government “a business-records certification.” App’x at 66.

                                                  2
        “We review alleged violations of the Confrontation Clause de novo, subject to harmless
error analysis.” United States v. Jass, 569 F.3d 47, 55 (2d Cir. 2009) (internal quotation marks
and alterations omitted). The Supreme Court has explained that, pursuant to the Confrontation
Clause, “an out-of-court statement [that] is testimonial in nature . . . may not be introduced
against the accused at trial unless the witness who made the statement is unavailable and the
accused has had a prior opportunity to confront that witness.” Bullcoming v. New Mexico, 131 S.
Ct. 2705, 2713 (2011). An out-of-court statement is testimonial “when it is made with the
primary purpose of creating a record for use at a later criminal trial.” United States v. James, 712
F.3d 79, 96 (2d Cir. 2013). “Business and public records are generally admissible absent
confrontation, not because they qualify under an exception to the hearsay rules, but
because—having been created for the administration of an entity’s affairs and not for the purpose
of establishing or proving some fact at trial—they are not testimonial.” Id. at 90 (quoting
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009)).

         Fatal to Defendant’s Confrontation Clause argument is his failure to identify any out-of-
court testimonial statement that the government introduced against him at trial. On appeal,
Defendant does not, for instance, question the authenticity of the foreign business records, nor
does he assert that the records were themselves testimonial. Cf. United States v. Yeley-Davis,
632 F.3d 673, 678 (10th Cir. 2011); United States v. Ali, 616 F.3d 745, 752 (8th Cir. 2010).
Defendant also cannot argue that the business records certification was actually offered into
evidence. Cf. United States v. Anekwu, 695 F.3d 967, 977 (9th Cir. 2012) (holding that the
district court did not plainly err by admitting certificates of authentication for foreign public and
business records admitted pursuant to 18 U.S.C. § 3505).1 While Defendant insists that the
government nonetheless introduced the certification through the surrogate testimony of its fraud
analyst, this contention is belied by the trial record. The fraud analyst testified from personal
knowledge that he had received “a business-records certification” from IG Markets, App’x at 66,
but he conveyed none of the content contained in that certification to the jury. Cf.
Melendez-Diaz, 557 U.S. at 311 n.1 (“[I]t is not the case, that anyone whose testimony may be
relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing
device, must appear in person as part of the prosecution’s case. . . . It is up to the prosecution to
decide what steps in the chain of custody are so crucial as to require evidence; but what
testimony is introduced must (if the defendant objects) be introduced live.”).

        Even assuming arguendo that the certification implicated the Confrontation Clause and
that the fleeting reference to its existence was functionally equivalent to introducing it as
evidence against Defendant at trial, we readily conclude that such error would be harmless.


       1
          For this reason, we need not reach the issue of whether the Confrontation Clause would
be implicated by admitting certifications prepared by records custodians solely to authenticate or
lay the foundation for otherwise admissible business records. Cf. Melendez-Diaz, 557 U.S. at
322–23 (explaining that “[a] clerk could by affidavit authenticate or provide a copy of an
otherwise admissible record, but could not . . . create a record for the sole purpose of providing
evidence against a defendant,” nor could “the prosecution . . . admit into evidence a clerk’s
certificate attesting to the fact that the clerk had searched for a particular relevant record and
failed to find it”).

                                                 3
Given the overwhelming evidence of Defendant’s guilt and the meager probability that the jury
would have discerned any significance from the government’s passing reference to a business
records certification, we are “satisfied . . . beyond a reasonable doubt that the error complained of
. . . did not contribute to the verdict obtained.” James, 712 F.3d at 99 (internal quotation marks
omitted).

        Defendant next argues that the district court violated his rights under the Ex Post Facto
clause when, pursuant to the one-book rule, it employed the 2013 Sentencing Guidelines Manual
to determine the appropriate sentence for not only his bail jumping conviction, but his earlier
fraud convictions as well. In United States v. Kumar, this Court held “that the one-book rule set
forth in § 1B1.11(b)(3) does not violate the Ex Post Facto clause when applied to the sentencing
of offenses committed both before and after the publication of a revised version of the
Guidelines.” 617 F.3d 612, 628 (2d Cir. 2010). Despite Defendant’s arguments to the contrary,
nothing in Peugh v. United States, 133 S. Ct. 2072 (2013), contradicts that holding. Compare
Peugh, 133 S. Ct. at 2087 (holding that “retrospective application of a higher Guidelines range
violates the Ex Post Facto Clause.”), with Kumar, 617 F.3d at 626 n.12 (proceeding “on the
assumption that the Ex Post Facto clause applies to the advisory Guidelines.”). It is well
established that we are “bound by the decisions of prior panels until such time as they are
overruled either by an en banc panel of our Court or by the Supreme Court.” United States v.
Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004).

        Defendant argues that the district court also committed procedural error by denying him
an evidentiary hearing pursuant to United States v. Fatico, 579 F.2d 707 (2d Cir. 1978), to
determine whether he suffered from diminished capacity as a result of his delusional disorder at
the time he committed the offenses underlying his fraud convictions. It is well established that
“[t]he district court is not required, by either the Due Process Clause or the federal Sentencing
Guidelines, to hold a full-blown evidentiary hearing in resolving sentencing disputes. All that is
required is that the court afford the defendant some opportunity to rebut the Government’s
allegations.” United States v. Phillips, 431 F.3d 86, 93 (2d Cir. 2005) (quoting United States v.
Slevin, 106 F.3d 1086, 1091 (2d Cir. 1996)). Here, the district court denied Defendant’s request
for a Fatico hearing on the basis that it had already had the opportunity to observe Defendant in
court for over a year and had considered extensive written submissions from Defendant’s family
members, experts, and counsel regarding Defendant’s mental status. The district court did not
abuse its discretion, see United States v. Bonventre, 720 F.3d 126, 128 (2d Cir. 2013), by
deeming it unnecessary to hear live testimony from Defendant’s family members and a third
psychological expert. See also United States v. Morrison, 153 F.3d 34, 54 (2d Cir. 1998) (“A
criminal defendant has no right to demand an evidentiary hearing to present his own witnesses at
sentencing.”).

        Defendant’s argument that he was entitled to a downward departure pursuant to U.S.S.G.
§ 5K2.13 to reflect his diminished capacity is similarly unavailing. “‘[A] refusal to downwardly
depart is generally not appealable,’ and . . . review of such a denial will be available only ‘when a
sentencing court misapprehended the scope of its authority to depart or the sentence was
otherwise illegal.’” United States v. Stinson, 465 F.3d 113, 114 (2d Cir. 2006) (quoting United
States v. Valdez, 426 F.3d 178, 184 (2d Cir. 2005)). Defendant provides no basis for his
conclusory assertion that the district court misunderstood its authority to depart—a contention we

                                                 4
reject upon independent review. At a minimum, the district court correctly recognized that it was
not permitted to depart downward under Section 5K2.13 if “the defendant’s criminal history
indicates a need to incarcerate the defendant to protect the public.” U.S.S.G. § 5K2.13. Here,
the district court found such a need present, based on Defendant’s involvement in several prior
fraudulent schemes and his continued perpetration of fraudulent acts after absconding at the
conclusion of his trial. See United States v. Qualls, 25 F. Supp. 3d 248, 259 (E.D.N.Y. 2014).

        “In reviewing a district court’s decision not to downwardly depart, we review for clear
error the factual findings from which such a decision arose.” Valdez, 426 F.3d at 186.
Defendant argues that the district court clearly erred in concluding that Defendant had not
established a causal link between the delusional disorder from which he suffered at sentencing
and the crimes committed almost a decade earlier, because all the doctors—including two
government experts—agreed that he was mentally ill around the time of his sentencing.
Defendant’s argument misses the mark because, by its express terms, Section 5K2.13 excludes
from consideration for downward departure cases where the defendant’s significantly reduced
mental capacity did not “contribute[ ] substantially to the commission of the offense.” U.S.S.G.
§ 5K2.13 (emphasis added). The district court recognized that Defendant suffered from a mental
illness at the time of sentencing, and noted that it took this fact into account in fashioning an
appropriate sentence. It nonetheless concluded that a downward departure was not warranted
under Section 5K2.13 because Defendant had not established a causal link between his current
mental illness and his prior fraud offenses. See Qualls, 25 F. Supp. 3d at 259. The district
court’s determination in this regard was consistent with the opinions offered by the two
government experts, who reported that Defendant’s delusions were localized and
thematic—centering around his imagined involvement in the independent endeavor of asset
recovery. Furthermore, this Court has held that “[i]n determining whether a downward departure
is warranted on the basis of diminished capacity, a district court is not required to accept
evidence concerning a defendant’s mental and emotional states offered by defendant’s own
expert, but rather may rely on its own assessment of defendant’s mental state based upon its
observations, even when they conflict with those of the expert.” Valdez, 426 F.3d at 186.

         Finally, Defendant asserts that the district court failed to adequately consider “the need to
avoid unwarranted sentence disparities among defendants with similar records who have been
found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). “[T]he requirement that a sentencing
judge consider an 18 U.S.C. § 3553(a) factor is not synonymous with a requirement [that] the
factor be given determinative or dispositive weight in the particular case.” United States v.
Florez, 447 F.3d 145, 157 (2d Cir. 2006) (internal quotation marks omitted) (emphasis in
original). At the sentencing hearing, the district court explicitly considered the disparity between
Defendant’s sentence and the sentences imposed on other white-collar defendants nationwide,
but determined that such disparities were not unwarranted under the circumstances. In
distinguishing Defendant from other offenders who had been sentenced more leniently, the
district court emphasized: (1) Defendant’s repeated pattern of engaging in fraudulent enterprises
over the course of a decade; (2) his Category III criminal history; (3) his major role in organizing
and operating the fraudulent scheme; (4) his repeated acts of obstruction; (5) his victimization of
individuals most harmed by financial loss; and (6) his particular need for incapacitation and
specific deterrence given his continued criminal activity even after criminal proceedings against
him were well under way. The district court therefore acted within its broad discretion in finding

                                                  5
that the seriousness of Defendant’s crimes required a more substantial sentence than the
nationwide averages for the crimes of which he was convicted.

        We have considered the remainder of Defendant’s arguments and find them to be without
merit. Accordingly, the judgment of the district court is hereby AFFIRMED.


                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




                                                6
