     09-3520-cr
     United States v. Boyd




                          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 .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 31 st day of January, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                AMALYA L. KEARSE,
 9                CHESTER J. STRAUB,
10                         Circuit Judges.
11
12
13       - - - - - - - - - - - - - - - - - - - -X
14       UNITED STATES OF AMERICA,
15
16                    Appellee,
17
18                    -v.-                                         09-3520-cr
19
20       CHRISTOPHER BOYD,
21
22                Defendant-Appellant.
23       - - - - - - - - - - - - - - - - - - - -X
24
25       FOR APPELLANT:            ANTHONY J. LANA, Eoannou, Lana & D’Amico,
26                                 Buffalo, NY.
27

                                                  1
 1   FOR APPELLEE:     JOSEPH J. KARASZEWSKI, Assistant United
 2                     States Attorney (KAREN ODDO, Law Clerk,
 3                     on the brief), for William J. Hochul,
 4                     Jr., United States Attorney for the
 5                     Western District of New York, Buffalo,
 6                     NY.
 7
 8        Appeal from a judgment of the United States District
 9   Court for the Western District of New York (Skretny, J.).
10
11        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
12   AND DECREED that the judgment of the district court be
13   AFFIRMED in part and VACATED in part, and the case REMANDED
14   for further proceedings.
15
16        Defendant-appellant Christopher Boyd appeals from a
17   judgment of conviction entered on August 7, 2009. Pursuant
18   to a plea agreement, Boyd pled guilty to criminal copyright
19   infringement and to filing a false tax return, in violation
20   of 18 U.S.C. § 2319(b)(1), 17 U.S.C. § 506(a)(1)(A), and 26
21   U.S.C. § 7206(1). He was sentenced to 46 months of
22   incarceration, three years’ supervised release, and was
23   ordered to pay over $2 million in restitution. We assume
24   the parties’ familiarity with the underlying facts, the
25   procedural history, and the issues presented for review.
26
27        Boyd argues that his trial counsel’s performance was
28   constitutionally ineffective because Boyd was not informed
29   of relevant statutes of limitations, which circumscribed the
30   conduct for which he could be charged. When an ineffective
31   assistance claim is raised on direct appeal, we have three
32   options: “(1) decline to hear the claim, permitting the
33   appellant to raise the issue as part of a subsequent [28
34   U.S.C.] § 2255 petition; (2) remand the claim to the
35   district court for necessary fact-finding; or (3) decide the
36   claim on the record before us.” United States v. Hasan, 586
37   F.3d 161, 170 (2d Cir. 2009) (brackets in original). “[I]n
38   most cases [a habeas claim] is preferable to direct appeal
39   for deciding claims of ineffective-assistance.” Massaro v.
40   United States, 538 U.S. 500, 504-05 (2003). However, we
41   have addressed ineffective assistance claims on direct
42   appeal when their resolution is “beyond any doubt” or to do
43   so is “in the interest of justice.” United States v. Matos,
44   905 F.2d 30, 32 (2d Cir. 1990).
45



                                  2
 1        It is in the interest of justice to consider Boyd’s
 2   claims on direct appeal. Boyd argues in part that he agreed
 3   to pay restitution with respect to time-barred conduct
 4   without knowing that (absent his consent) the district court
 5   could impose restitution only for conduct within the
 6   limitations period. See United States v. Silkowski, 32 F.3d
 7   682, 688-89 (2d Cir. 1994) (interpreting 18 U.S.C. §§ 3663-
 8   3664 as limiting restitution to loss caused by “specific
 9   conduct forming the basis for the offense of conviction,”
10   unless more extensive restitution is agreed to in a plea
11   agreement). Restitution orders cannot be challenged through
12   a habeas petition because a “monetary fine is not a
13   sufficient restraint on liberty to meet the ‘in custody’
14   requirement,” even if raised in conjunction with a challenge
15   to a sentence of imprisonment. See Kaminski v. United
16   States, 339 F.3d 84, 87-88 (2d Cir. 2003) (quoting United
17   States v. Michaud, 901 F.2d 5, 7 (1st Cir. 1990)). To
18   assess the effect on restitution, we must consider Boyd’s
19   claims on direct appeal.
20
21   [1] There is insufficient record for us to decide Boyd’s
22   ineffectiveness claim for the copyright infringement count.
23   We remand to the district court to consider it first, with
24   additional fact-finding on the restitution amount and the
25   representation of Boyd, including: the timing of the acts of
26   infringement; whether Boyd was aware of the statute of
27   limitations; whether the issue was raised during plea
28   negotiations; and whether Boyd would have insisted upon
29   going to trial had he known about the limitations period.
30
31       The following considerations bear upon the remand:
32
33        First, the court must determine whether Boyd had a
34   valid statute of limitations defense for the offense itself.
35   Criminal copyright infringement under 18 U.S.C. § 2319(b)(1)
36   involves ten or more copies of a protected work during any
37   180-day period, and has a five-year statute of limitations.
38   See 18 U.S.C. § 3282(a). It seems unlikely, albeit
39   possible, that Boyd’s infringements all occurred before the
40   limitations period; 1 if Boyd pled guilty to an offense for


         1
           The limitations period is the five years before the
     filing of the information on February 9, 2009. Conduct as
     early as 180 days before February 9, 2004 may have been
     chargeable, however, because of the time period inherent in
     the offense. For example, if the first infringement

                                  3
 1   which he (unknowingly) had a valid affirmative defense, it
 2   is likely that his counsel’s performance was deficient and
 3   that he suffered prejudice, though the performance would not
 4   be per se deficient. See United States v. Hansel, 70 F.3d
 5   6, 8 (2d Cir. 1995) (per curiam). 2
 6
 7        Second, the Guidelines range is the same even if some
 8   acts were time-barred, because Boyd’s infringement was
 9   ongoing. Acts that were “part of the same course of conduct
10   or common scheme or plan as the offense of the conviction”
11   are “relevant conduct” that is included in Guidelines
12   calculations, even if the acts occurred prior to the
13   limitations period. Silkowski, 32 F.3d at 687-88 (quoting
14   U.S.S.G. § 1B1.3(a)(2)).
15
16       Third, an ineffective assistance claimant who pled
17   guilty must show a reasonable probability that, “but for
18   counsel’s errors, he would not have pleaded guilty and would
19   have insisted on going to trial.” Hill v. Lockhart, 474
20   U.S. 52, 59 (1985). Other circuits have interpreted Hill
21   strictly, reasoning that without a reasonable probability of
22   insistence upon trial, a defendant’s claim that he could
23   have negotiated a better plea deal cannot establish the
24   requisite prejudice for an ineffectiveness claim. See,
25   e.g., Short v. United States, 471 F.3d 686, 696-97 (6th Cir.
26   2006); Bethel v. United States, 458 F.3d 711, 720 (7th Cir.
27   2006). We have not yet considered this “better plea deal”
28   argument, but the record should be developed to determine
29   whether Boyd’s claim presents the issue.
30


     occurred 180 days before February 9, 2004 and the tenth
     occurred on February 9, 2004, one could argue that the
     offense was committed within the limitations period--when it
     was completed on February 9. The parties can brief the
     issue on remand if it affects the timeliness of the count.
         2
           For example, Boyd’s counsel may have used the
     (hypothetically) time-barred copyright count as a
     negotiating tool to secure a better overall plea deal, by
     offering excessive restitution (from the time-barred
     copyright count) to minimize the sentence length (from the
     timely tax count). The Hansel court hinted at such a
     possibility, but had no occasion to elaborate because the
     defendant pled guilty without a plea agreement. Hansel, 70
     F.3d at 8.

                                  4
1    [2]   Boyd’s ineffective assistance claim for the false tax
2    return count has no merit. The statute of limitations for
3    filing a false tax return, in violation of 26 U.S.C. §
4    7206(1), is six years. See 26 U.S.C. § 6531(5). The
5    information was filed on February 9, 2009; it alleged that
6    Boyd filed four false tax returns beginning on or around
7    April 15, 2003; therefore, all returns were filed within the
8    six-year limitations period.

 9        We have considered the remainder of Boyd’s contentions
10   on this appeal and have found them to be without merit.
11   Accordingly, the judgment of the district court is AFFIRMED
12   for the false tax return count and VACATED for the copyright
13   infringement count. The case is REMANDED for proceedings
14   consistent with this order.
15
16
17                              FOR THE COURT:
18                              CATHERINE O’HAGAN WOLFE, CLERK
19




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