11-2634-cr
United States v. Desposito



                       UNITED STATES COURT OF APPEALS
                           FOR THE SECOND CIRCUIT



                                August Term 2012

   (Argued:       October 26, 2012           Decided:    January 11, 2013)

                             Docket No. 11-2634-cr



                             UNITED STATES   OF   AMERICA,

                                              Appellee,

                                        v.



                                 SONNY DESPOSITO,

                                              Defendant-Appellant.



Before:
              CABRANES, CHIN, and CARNEY, Circuit Judges.



             Appeal from a judgment of the United States

District Court for the Southern District of New York (Cathy

Seibel, J.), convicting defendant-appellant of, inter alia,

using fire to commit a felony under 18 U.S.C. § 844(h)(1)
and attempting to obstruct an official proceeding under 18

U.S.C. § 1512(c)(2).

           AFFIRMED.



                       SARAH REBECCA KRISSOFF, Assistant United
                            States Attorney (Margery Feinzig,
                            Iris Lan, Assistant United States
                            Attorneys, on the brief), for Preet
                            Bharara, United States Attorney for
                            the Southern District of New York,
                            New York, New York, for Appellee.

                       STEPHEN NEAL PREZIOSI, Law Office of
                            Stephen N. Preziosi PC, New York,
                            New York, for Defendant-Appellant.




CHIN, Circuit Judge:

           On January 23, 2009, defendant-appellant Sonny

Desposito set a car on fire at a residence in Chestnut

Ridge, New York.   Then, with the police distracted by the

fire, he robbed the M&T Bank, stealing approximately

$10,000.   After his arrest, he sent a series of letters from

jail seeking to persuade a relative and a friend to create

falsified evidence he hoped would raise a reasonable doubt

                                - 2 -
at trial.     The letters were intercepted and turned over to

the police.    Desposito was convicted of bank robbery,

"us[ing] fire . . . to commit [a] felony," and attempting to

obstruct an official proceeding, in violation of 18 U.S.C.

§§ 2113(a), (d), 844(h)(1), and 1512(c)(2).       He appeals the

convictions of using fire to commit a felony and attempting

to obstruct an official proceeding.     We affirm.

                      STATEMENT OF THE CASE

A.   The Facts1

     1.     The Bank Robbery

            On January 21, 2009, Desposito performed a test

run of his scheme to rob the M&T Bank in Chestnut Ridge, New

York.     He began by setting fire to a car parked in a

residential driveway in the vicinity and then practiced

driving from that location to the bank.       Because the car did

not fully engulf in flames, the next day he arranged for his

friend Betty Mastrarrigo to buy him a can of lighter fluid

from the A&P grocery store where she worked.


     1
          In reviewing a criminal conviction, we view the
evidence in the light most favorable to the government. See
Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v.
Vitale, 459 F.3d 190, 191 (2d Cir. 2006).
                              - 3 -
         The following day, on January 23, Desposito

carried out his scheme.    First, he set fire to another car

parked in a residential driveway about two minutes away from

the M&T Bank.   Then, as police received 911 calls about the

fire, which completely destroyed the car, Desposito

proceeded to the bank.    Wearing a black ski cap and carrying

what appeared to be a pistol (but turned out to be a pellet

gun), Desposito robbed the bank by threat of force and stole

approximately $10,000.

         He then escaped through the woods to his waiting

car and drove to Pearl River, New York.    Once there, he

pulled over on a side street and burned the lighter fluid

can and the clothes he had worn during the robbery in a pile

on the sidewalk.   After he sped away, a nearby resident

found the fire and put it out.    A black ski cap was found

among the debris; testing later determined that the cap

contained traces of Desposito's DNA.

    2.   The Attempt to Obstruct His Trial

         Desposito was later arrested.    While he was in

jail awaiting trial, he wrote ten letters and mailed them in


                             - 4 -
three sets to his friend Besnick Ljuljanaj, to whom

Desposito had confessed his crime and in whose house he had

hidden the stolen money.2   Ljuljanaj's father intercepted

all of these letters when they were delivered and turned

them over to his attorney, who then delivered them to law

enforcement.

          The first mailing, dated April 9, 2009, contained

six letters.   In one letter addressed to Ljuljanaj,

Desposito asked him, among other things, to deliver the

other five letters to the respective addressees.      He also

suggested that Ljuljanaj read the letter addressed to

Desposito's half-brother Kris Fortier so he would understand

why "the next time I send you mail, it will have a bag with

my prints on it to give to [K]ris."

          In Fortier's letter, Desposito directed his half-

brother to plant a new lighter fluid can that could be

introduced into evidence at his criminal trial.      As part of

the plan, Fortier was supposed to send him some A&P grocery



     2
          As discussed below, Desposito wrote an additional five
letters and mailed them to his own father. Thus, he penned a
total of fifteen letters related to his obstruction scheme.
                              - 5 -
bags in a care package so that he could place his

fingerprints on them.   Desposito would then send the bags

back to Ljuljanaj, who would forward them to Fortier.    Once

he received them, Fortier was supposed to place a new

lighter fluid can, with Betty Mastrarrigo's fingerprints on

it, inside the bags so it would appear that Desposito had

never used the original can of lighter fluid Mastrarrigo had

bought for him.   Desposito's final instruction read:   "Pat

yourself on the back, you just rose reasonable doubt and

saved my life."

         Another enclosed letter was addressed to

Mastrarrigo.   In it, Desposito tried to convince her to put

her fingerprints on the new can of lighter fluid.   Rather

than tell her his plan, however, Desposito lied and told her

that his father had found the original can, but had

contaminated it with his own fingerprints.   He asked her to

touch the can again so a fingerprint analysis would verify

that it was the same can.

         On April 24, 2009, Desposito sent a second

envelope containing three similar, but shorter, letters for


                            - 6 -
Ljuljanaj, Fortier, and Mastrarrigo because he was afraid

the first package had not reached them.      In Ljuljanaj's

letter, Desposito asked him to check at the post office to

see if the first package of letters was awaiting payment of

additional postage because it was too heavy.

           On May 1, 2009, Desposito sent a third envelope

with a single letter for Ljuljanaj.      In it, Desposito asked

Ljuljanaj to write back to confirm that he was receiving his

letters.   He also told Ljuljanaj to disregard everything in

the prior two letters if he had received them.      Desposito

apparently had not abandoned his plan, however, because

police found five more letters addressed to Desposito's

father in the family residence.      These letters contained

messages for his half-brother Fortier, notifying him of the

three mailings to Ljuljanaj and instructing him to find out

whether Ljuljanaj had received them and, if not, to retrieve

them from the post office.

B.   Proceedings Below

           On August 12, 2010, Desposito was indicted for

committing bank robbery in violation of 18 U.S.C. § 2113(a),



                             - 7 -
(d), using fire to commit a felony in violation of 18 U.S.C.

§ 844(h)(1), and attempting to obstruct, influence, or

impede an official proceeding in violation of 18 U.S.C.

§ 1512(c)(2).3

           On November 30, 2010, a jury trial commenced

before Judge Seibel.   Desposito took the stand in his own

defense and intimated that Ljuljanaj had committed the bank

robbery.   When asked about the letters, Desposito admitted

writing them, but explained that he "constructed them in

such a way that [Ljuljanaj] could exonerate [Desposito]

without directly implicating himself, without betraying his

own involvement in any way."    After this testimony, the
     3
           The indictment also accused Desposito of tampering
with evidence, in violation of 18 U.S.C. § 1512(c)(1), and using
fire to tamper with evidence, in violation of 18 U.S.C.
§ 844(h)(1), based on his attempt to burn the items associated
with the robbery. The District Court later dismissed the
tampering with evidence count at trial, pursuant to Federal Rule
of Criminal Procedure 29, because there was no evidence that any
official proceeding was pending at the time. See 18 U.S.C.
§ 1512(c)(1) (prohibiting "alter[ing], destroy[ing],
mutilat[ing], or conceal[ing] a record, document, or other
object, or attempt[ing] to do so, with the intent to impair the
object's integrity or availability for use in an official
proceeding"). The District Court also dismissed, under Rule 29,
the count charging use of fire to tamper with evidence, on the
basis that there was no underlying tampering. See 18 U.S.C. §
844(h)(1) (prohibiting "us[ing] fire or an explosive to commit
any felony which may be prosecuted in a court of the United
States").
                              - 8 -
government asked for a sidebar and sought a ruling in limine

on the admissibility of evidence about a second plan

contained in Desposito’s letters.

          The second plan related to a pending New Jersey

state prosecution against Desposito.   The letters showed

that Desposito was plotting to discourage the victim of the

New Jersey crime from testifying by having Ljuljanaj

impersonate someone from the Witness and Victim Advocacy

Center.   These portions of the letters had been redacted

during the government's case-in-chief.

          Over the defendant's objection, the district court

ruled that such evidence was admissible to impeach

Desposito's character for truthfulness, pursuant to Federal

Rules of Evidence 608(b) and 403.   When the government began

to ask Desposito about the second plan, the district court

immediately instructed the jury about the limited purpose of

the questioning.   Ultimately, Desposito admitted asking

Ljuljanaj to carry out the second plan, even though

Ljuljanaj bore no responsibility for that crime.




                            - 9 -
          On December 8, 2010, the district court delivered

its charge to the jury.   In instructing the jury on the

crime of using fire to commit a felony, the court explained:

               In order to prove that the defendant
          used fire, the government must prove
          beyond a reasonable doubt that the
          defendant actively employed fire to
          commit the felony. To use has its common
          meaning, to employ, to avail oneself of,
          or to carry out a purpose or action by
          means of. To prove that fire was used to
          commit a felony, the government must
          prove beyond a reasonable doubt that the
          fire was a means used by the defendant to
          carry out the felony. It must be an
          integral part of the felony, not
          something incidental or independent or
          that merely happened to facilitate or
          assist it. The fire must be part and
          parcel of the predicate crime.

               So to satisfy this element, you must
          also find the defendant knowingly used
          fire, that means used fire purposely and
          voluntarily and not by accident or
          mistake.

The same day, the jury found Desposito guilty of all three

counts.   The district court subsequently sentenced Desposito

to concurrent 108-month terms of imprisonment on the bank

robbery and attempt to obstruct justice counts, and a

consecutive 120-month term on the use of fire count, as


                            - 10 -
required by 18 U.S.C. § 844(h)(1).4       The judgment of

conviction was filed on June 17, 2011.       This appeal

followed.

                             DISCUSSION

            Desposito challenges his conviction on several

grounds.    First, he argues that the evidence was

insufficient to convict him of using fire to commit a felony

because it only showed that he used fire to facilitate the

robbery, rather than to commit the crime.       Second, even if

§ 844(h)(1) proscribes using fire as he did, Desposito


    4
            The statute requires that:

              in addition to the punishment provided for
              [the] felony, [the person using fire to
              commit that felony] be sentenced to
              imprisonment for 10 years. . . .
              Notwithstanding any other provision of
              law, the court shall not place on
              probation or suspend the sentence of any
              person convicted of a violation of this
              subsection, nor shall the term of
              imprisonment imposed under this subsection
              run concurrently with any other term of
              imprisonment including that imposed for
              the felony in which the explosive was used
              or carried.

18 U.S.C. § 844(h). Accordingly, the district court was required
to impose the 120 months for Desposito's violation of this
statute on a consecutive basis. See Sicurella v. United States,
157 F.3d 177, 178-79 (2d Cir. 1998) (per curiam).
                              - 11 -
argues that convicting him in this case violates his Due

Process rights because he lacked fair warning that his

conduct was illegal.   Third, he argues that the letters he

wrote from jail were an insufficient basis for convicting

him of attempting to obstruct an official proceeding because

his scheme depended on the voluntary cooperation of others

and there was no evidence they ever agreed to assist him.

Finally, Desposito argues that permitting the government to

question him about the pending New Jersey prosecution was

overly prejudicial and warrants a new trial.   We review each

of these claims in turn.

A.   Using Fire to Commit a Felony

     1.   Applicable Law

          We review de novo challenges to the sufficiency of

the evidence underlying a criminal conviction.   See United

States v. Mahaffy, 693 F.3d 113, 123 (2d Cir. 2012).

Section 844(h)(1) of the Criminal Code provides, in relevant

part, that "[w]hoever . . . uses fire or an explosive to

commit any felony which may be prosecuted in a court of the

United States . . . shall, in addition to the punishment


                            - 12 -
provided for such felony, be sentenced to imprisonment for

10 years."    18 U.S.C. § 844(h)(1).   We have not yet had

occasion to construe the phrase "uses fire . . . to commit

any felony."

            In construing a statute, we begin with the plain

language, giving all undefined terms their ordinary meaning.

See Schindler Elevator Corp. v. United States ex rel. Kirk,

131 S. Ct. 1885, 1891 (2011); Smith v. United States, 508

U.S. 223, 228 (1993); 23-34 94th St. Grocery Corp. v. N.Y.C.

Bd. of Health, 685 F.3d 174, 182 (2d Cir. 2012).     Absent an

ambiguity, our analysis also ends with the statutory

language.    See Schindler Elevator Corp., 131 S. Ct. at 1893;

Devine v. United States, 202 F.3d 547, 551 (2d Cir. 2000).

"[W]e must presume that the statute says what it means."

Devine, 202 F.3d at 551.    We will resort to legislative

history and other tools of statutory interpretation only if

we conclude that the text is ambiguous.     See Auburn Hous.

Auth. v. Martinez, 277 F.3d 138, 143-44 (2d Cir. 2002).




                              - 13 -
       2.     Application

              Because the statute does not define the word

"use," we supply it with its ordinary meaning.        The verb

"use" means "to put into action or service," "to avail

oneself of," or "to carry out a purpose or action by means

of."       Merriam-Webster's Collegiate Dictionary 1378 (11th ed.

2004); accord Black's Law Dictionary 1541 (6th ed. 1990);

see also Bailey v. United States, 516 U.S. 137, 145 (1995),

superseded by statute, Act [t]o throttle criminal use of

guns, Pub. L. No. 105-386, § 1, 112 Stat. 3469 (1998)

(amending 18 U.S.C. § 924(c)); United States v. Ruiz, 105

F.3d 1492, 1503-04 (1st Cir. 1997) (interpreting 18 U.S.C.

§ 844(h)(1)).       Because "use" has a variety of meanings, the

surrounding context helps clarify which one Congress

intended.       See Bailey, 516 U.S. at 143, 145.   Here the word

appears in the phrase "uses fire . . . to commit any

felony."       18 U.S.C. § 844(h)(1).   Thus, to "use" fire means

the accused must have carried out the crime by means of

fire.5
       5
          The Supreme Court, relying on the same dictionary
definitions of "use," concluded that "use" in 18 U.S.C. § 924(c)
requires "active employment" and thus did not apply to the
                              - 14 -
            Giving the word this plain meaning, it is obvious

that Desposito "used" fire to commit bank robbery.      Indeed,

as the evidence showed, the use of fire was an integral part

of Desposito's scheme to rob the bank.     He admitted to

Ljuljanaj that his plan was to rob the bank by diverting the

police with the car fire.    Two days before the robbery,

Desposito rehearsed the robbery by setting fire to a car and

driving to the bank to gauge the travel time.     The next day,

he obtained some lighter fluid so the fire would be more

imposing.    On the day of the robbery, he set fire to another

car to divert the police and drove to the M&T Bank just as

they received the first 911 call about the fire.      While the

police were preoccupied with the fire he had set, Desposito

robbed the bank and escaped with $10,000.     This evidence was



passive presence of a weapon during a narcotics sale. See Bailey
v. United States, 516 U.S. 137, 145-47, 150-51 (1995); cf. id. at
147 ("The phrase 'uses a firearm to commit [any felony]'
indicates that Congress originally intended to reach the
situation where the firearm was actively employed during
commission of the crime."). Desposito insists we should use
Bailey's "actively employed" formulation in construing
§ 844(h)(1), but that definition is not instructive here.
Because he concedes that he started the car fire, it is clear
that Desposito "actively employed" fire. The question remains
whether he used it "to commit [the] felony." 18 U.S.C.
§ 844(h)(1).
                              - 15 -
more than sufficient to convict him of using fire to commit

the felony, or in other words, to convict him of carrying

out the bank robbery by means of fire.6

          Desposito argues that the fire only facilitated

his crime and, in reliance on United States v. Hayward, 6

F.3d 1241 (7th Cir. 1993), overruled on other grounds,

United States v. Colvin, 353 F.3d 569 (7th Cir. 2003), he

insists that mere facilitation is beyond the scope of

§ 844(h)(1).   In Hayward, the defendants were convicted of

using fire to commit a conspiracy against civil rights

because they had burned crosses on the lawn of a white

family who had entertained black house guests.      See Hayward,

6 F.3d at 1243-44.   The Seventh Circuit held that the text

of § 844(h)(1) clearly applied to the defendants' use of




     6
          Indeed, others using fire or explosives to distract the
police while they robbed a bank have been convicted under this
statute without challenging its straightforward application to
their crimes. See, e.g., United States v. Tucker, 253 F. App'x
718, 719-20 (10th Cir. 2007) (non-precedential order and
judgment) (conviction by guilty plea based on placing an
explosive under a car as a diversion while robbing a bank);
United States v. Ramsey, No. 01-005-04, 2006 WL 328371, at *1-2
(E.D. Pa. Feb. 10, 2006) (jury conviction based on setting fire
to a school as a diversion while robbing a bank).
                              - 16 -
fire to burn the crosses.7    See id. at 1245-46.   When the

defendants insisted that this interpretation would lead to

absurd results, such as adding ten years to a car thief's

sentence because he used a cigarette lighter as a light

source while he picked the car's lock, the court reasoned

that "there is a significant difference between using fire

to commit a felony and using fire to facilitate or assist in

the commission of a felony."    Id. at 1246.   Using fire to

light the crosses was "an integral part of the threat or

intimidation" at the heart of the conspiracy against civil

rights, which could not be replicated by illuminating the

crosses with another source of light.    Id. at 1247.   Thus,

the Seventh Circuit concluded that "[t]he fire did not

simply facilitate or assist [the defendants] in the

commission of their crime."    Id.

         We conclude that Hayward is of no help to

Desposito.   First, the distinction drawn in Hayward between

committing and facilitating a felony was at best dicta.
    7
          The Seventh Circuit later overruled Hayward on the
ground that conspiracy could not be the predicate felony for a
§ 844(h)(1) conviction unless the crime required proof of an
overt act. See United States v. Colvin, 353 F.3d 569, 576 (7th
Cir. 2003).
                              - 17 -
Despite drawing this contrast, the court did not hold that

using fire to merely "facilitate" a felony was beyond the

scope of the statute.   See id. at 1246-47 & n.7.     Rather,

the court was simply concluding that the defendants'

facilitation argument failed because the use of fire in the

circumstances before it was not mere facilitation.      Thus,

Hayward does not support Desposito's contention that mere

facilitation falls outside the statute's plain meaning.8

     8
          In view of the circumstances here, we need not -- and
do not -- decide whether the statute encompasses the use of fire
to "facilitate" the commission of a felony. Nevertheless, we
note our skepticism that there is any significant difference
between committing a felony and facilitating one's own felony.
When "facilitate" is used to describe an action distinct from
"committing" a crime, its meaning is commonly limited to actions
taken to assist someone else's crime. See Abuelhawa v. United
States, 556 U.S. 816, 820 (2009) (explaining that "common usage
. . . limits 'facilitate' to the efforts of someone other than a
primary or necessary actor in the commission of a substantive
crime" (emphasis added)); id. at 821 (noting that "facilitate"
has an "equivalent meaning" to "aid," "abet," and "assist");
Black’s Law Dictionary 668 (9th ed. 2009) (defining
"facilitation" as "in criminal law, the act of making it easier
for another person to commit a crime" (emphasis added)). Of
course, "facilitate" may also be used more generally to mean "to
make easier" or to "help bring about." Merriam-Webster's
Collegiate Dictionary 447 (11th ed. 2004). When used in this
sense, however, an action effecting the completion of one's own
crime can be said to both "facilitate" and "commit" that crime.
We doubt that Congress intended to exclude actions like
Desposito's from the scope of § 844(h)(1) merely because they
could also be described as facilitating or assisting his own
felony. Cf. Abuelhawa, 556 U.S. at 820 (holding that a cell
phone used to place a call about a drug sale did not "facilitate"
                              - 18 -
          Second, even assuming Hayward stood for that

proposition, Desposito's actions differ significantly from

using a cigarette lighter as a source of light or

illumination.   Here, fire was critical to his scheme and

made the robbery possible.    See Abuelhawa v. United States,

556 U.S. 816, 820 (2009).    Using a cigarette lighter as a

light source is merely incidental to the actual crime; a

flashlight or other non-criminal tool could serve the same

purpose just as well.   The fire from the cigarette lighter

poses no threat.   In contrast, Desposito's fire posed a

threat to life and property, one that demanded the immediate

attention of the police.    This threat was so integral to

Desposito's scheme that he even rehearsed it and decided to

use lighter fluid because the practice fire was not menacing

enough.   Under these circumstances, the Seventh Circuit's

hypothetical is clearly distinguishable.

          Finally, even assuming, arguendo, § 844(h)(1) does

not encompass using fire to "facilitate" a felony, the

district court instructed the jury that mere facilitation


the sale, within the common meaning of the term, even if it
"really [did] make it easier for dealers to break the law").
                              - 19 -
was not sufficient.    The jury still found Desposito guilty.

We must affirm the verdict "if the evidence, when viewed in

its totality and in the light most favorable to the

government, would permit any rational jury to find the

essential elements of the crime beyond a reasonable doubt."

United States v. Geibel, 369 F.3d 682, 689 (2d Cir. 2004).

For the reasons stated above, the jury's conclusion that

Desposito used fire to commit the bank robbery, and not

merely to facilitate it, was entirely reasonable.

         Desposito also asks us to consider the legislative

history behind the Anti-Arson Act of 1982, which added using

"fire" to § 844(h)(1).    See Pub. L. No. 97-298, § 2(b), 96

Stat. 1319 (1982).    Because we find that Desposito's use of

fire falls within the plain language of the statute, we need

not consider any other tools of statutory interpretation.

Even if we did find the statute ambiguous, however, we note

that the legislative history would support our construction

of the statute.   According to the House Report, Congress

intended to eliminate the need to prove that an explosive

was the source of a criminal fire and chose to do so by also


                             - 20 -
criminalizing the use of "fire" to commit felonies.      See

H.R. Rep. No. 97-678, at 2 (1982), reprinted in 1982

U.S.C.C.A.N. 2631, 2632.    In doing so, Congress was well

aware that fire could be used to commit a variety of

different crimes, and not merely arson and insurance fraud

as Desposito contends.     See id. ("Fire is used extensively

not only for the criminal purposes of extortion, terrorism

and revenge, but to conceal other crimes such as homicide,

and for fraud against insurance companies."); see also

United States v. Fiore, 821 F.2d 127, 132 (2d Cir. 1987)

(explaining that fire was added to remove the source-based

limitation imposed on the term "explosive," which was

originally intended "'to include all situations in which an

explosive or material with explosive capacity was used

criminally'" (quoting 128 Cong. Rec. H4957 (daily ed. Aug.

2, 1982) (statement of Rep. Hughes))).     Using fire to divert

the police from a bank robbery is surely comparable to the

uses of fire Congress specifically intended, such as "to

conceal" a homicide.   Thus, even if we considered the

legislative history, it would not support Desposito's narrow


                              - 21 -
reading of the statute.     Accordingly, we apply the statute

as written and affirm the conviction.

B.   Due Process

     1.   Applicable Law

          We review challenges to a statute's

constitutionality de novo.     See United States v. Al Kassar,

660 F.3d 108, 129 (2d Cir. 2011).      Due process provides a

criminal defendant with the right to "fair warning . . . in

language that the common world will understand, of what the

law intends to do if a certain line is passed."      McBoyle v.

United States, 283 U.S. 25, 27 (1931) (Holmes, J.); accord

United States v. Cullen, 499 F.3d 157, 163 (2d Cir. 2007).

In determining whether the defendant's due process rights

were violated, we will consider "whether the statute, either

standing alone or as construed by the courts, made it

reasonably clear at the time of the charged conduct that

defendant's conduct was criminal."      United States v. Lanier,

520 U.S. 259, 267 (1997).




                              - 22 -
    2.      Application

            Because we hold that the plain language of

§ 844(h)(1) proscribes Desposito's use of fire to commit

bank robbery, we also hold that the statute itself provided

him with "fair warning."       If the statutory language alone

provides clear notice that certain conduct is illegal, Due

Process is satisfied and the government may prosecute such

activity without waiting for "every conceivable challenge to

a law's validity."    United States v. Chestman, 947 F.2d 551,

564 (2d Cir. 1991).       Indeed, prior to Desposito's challenge,

the government had prosecuted and convicted others for

similarly using fire or explosives to commit bank robbery.

See, e.g., United States v. Tucker, 253 F. App'x 718, 719-20

(10th Cir. 2007) (non-precedential order and judgment);

United States v. Ramsey, No. 01-005-04, 2006 WL 328371, at

*1-2 (E.D. Pa. Feb. 10, 2006).       Because the application of

§ 844(h)(1) to defendant's conduct was clear from the face

of the statute, Desposito's conviction does not offend Due

Process.9
    9
           Because we conclude there is no ambiguity in the
statute, let alone a "grievous ambiguity," we also decline
Desposito's request to apply the rule of lenity. Chapman v.
                              - 23 -
C.   Attempt to Obstruct an Official Proceeding

     1.   Applicable Law

          We also review de novo the defendant's challenge

to the sufficiency of the evidence underlying his conviction

for attempt to obstruct an official proceeding.      See

Mahaffy, 693 F.3d at 123.    To convict Desposito of an

attempt, the government had to prove that he "had the intent

to commit the object crime and . . . engaged in conduct

amounting to a substantial step towards its commission."

United States v. Farhane, 634 F.3d 127, 145 (2d Cir. 2011).

          Here, the object crime was "corruptly . . .

obstruct[ing], influenc[ing], or imped[ing] any official

proceeding."   18 U.S.C. § 1512(c)(2).    In construing the

similar "Omnibus Clause" in 18 U.S.C. § 1503(a),10 the

Supreme Court has held that "'a person is not sufficiently

charged with obstructing or impeding the due administration

United States, 500 U.S. 453, 463 (1991); United States v. Cullen,
499 F.3d 157, 164 (2d Cir. 2007).
     10
          The so-called Omnibus Clause makes it a crime to
"corruptly or by threats or force, or by any threatening letter
or communication, influence[], obstruct[], or impede[], or
endeavor[] to influence, obstruct, or impede, the due
administration of justice." 18 U.S.C. § 1503(a); see United
States v. Aguilar, 515 U.S. 593, 598-99 (1995).
                              - 24 -
of justice in a court unless it appears that he knew or had

notice that justice was being administered in such court'"

because, in the absence of such knowledge, that person

"necessarily lacked the evil intent to obstruct."    United

States v. Aguilar, 515 U.S. 593, 599 (1995) (quoting

Pettibone v. United States, 148 U.S. 197, 206 (1893)).

Thus, to satisfy the element of intent, the government must

show a "nexus" between the defendant's act and the judicial

proceedings; that is, there must be "a relationship in time,

causation, or logic" such that the act has "the natural and

probable effect of interfering with the due administration

of justice."    Id. at 599-600 (internal quotation marks

omitted).   Because of its similarity to § 1503(a), we have

previously incorporated Aguilar's "nexus requirement" into

§ 1512(c)(2).    See United States v. Reich, 479 F.3d 179,

185-86 (2d Cir. 2007) (citing Aguilar, 515 U.S. at 600).

Thus, to satisfy the first element of attempt in this case,

the government had to show that Desposito's letters had the

natural and probable effect of obstructing his criminal

trial.


                             - 25 -
         To satisfy the second element, the government had

to show that the defendant took a substantial step toward

committing the crime that was "'strongly corroborative of

the firmness of the defendant's criminal intent.'"     Farhane,

634 F.3d at 146-47 (quoting United States v. Stallworth, 543

F.2d 1038, 1040 & n.5 (2d Cir. 1976)).    By utilizing the

"substantial step" formulation, we have effectively adopted

the Model Penal Code's more liberal approach to punishing

attempt crimes, rather than the narrower common law approach

that waited until the defendant was within dangerous

proximity to completing the crime.    See id. at 146 (citing

Stallworth, 543 F.2d at 1040-41).    A "substantial step" must

be "'something more than mere preparation, yet may be less

than the last act necessary before the actual commission of

the substantive crime.'"   Id. at 147 (quoting United States

v. Manley, 632 F.2d 978, 987 (2d Cir. 1980)).   Whether

specific conduct constitutes a substantial step depends on

"'the particular facts of each case' viewed in light of the

crime charged."   Id. (internal quotation marks omitted)




                            - 26 -
(quoting United States v. Ivic, 700 F.2d 51, 66 (2d Cir.

1983)).

    2.      Application

            a.   Nexus

            The letters sufficiently demonstrate a nexus

between Desposito's actions and his criminal trial.

Throughout these letters, Desposito indicated that the

purpose of his plan was to create fraudulent evidence --

grocery bags and a can of lighter fluid bearing planted

fingerprints -- that would be admitted into evidence to

raise a reasonable doubt as to his guilt.    In his initial

letter to Fortier, postmarked April 9, Desposito explained

that he wanted to plant the fake lighter fluid can "so later

on in my trial we can enter [it] into evidence and show the

can that was found ain't the one I bought.    Ha ha!"

Desposito then included a "to-do made easy list" for

Fortier, in which the last direction was:    "Pat yourself on

the back, you just rose reasonable doubt and saved my life."

In his second letter, postmarked April 24, he again

repeated:    "[I]f you follow my instructions to a T, you'll


                              - 27 -
raise enough reasonable doubt to save my life."   Thus, the

letters clearly demonstrate Desposito's intent that the

fabricated evidence would influence his criminal trial.

         Desposito argues that the evidence fails to

establish the required nexus because his plan relied on the

voluntary cooperation of others and thus obstruction was not

the "natural and probable effect" of his letters.    See

Reich, 479 F.3d at 185.   This argument is flawed because it

focuses on factual causation and the likelihood that

Desposito's plan would succeed, even though it is well-

established that success is not required to show the

required nexus.   See Aguilar, 515 U.S. at 599.   As a

component of the intent element, the proper inquiry is

whether the defendant knew his actions would result in the

obstruction of a specific judicial proceeding.    See id. at

601; Reich, 479 F.3d at 185-86; United States v. Quattrone,

441 F.3d 153, 171 (2d Cir. 2006) ("[T]his rule limits

criminal liability to cases where the defendant has notice

that his wrongful conduct will affect the administration of

justice . . . .").   Thus we have found the nexus requirement


                            - 28 -
satisfied in situations where "the discretionary actions of

a third person are required to obstruct the judicial

proceeding" if it was "foreseeable to [the defendant] that

the third party . . . would act on the [communication] in

such a way as to obstruct the judicial proceeding."     Reich,

479 F.3d at 185.

         Here, there was abundant evidence from which the

jury could infer that Desposito intended and believed that

the recipients of his letters would follow his instructions

and obstruct his criminal trial.    When Desposito wrote to

Ljuljanaj, "I know it's asking . . . a lot, but you would be

saving my life," the jury could reasonably infer that

Desposito expected Ljuljanaj to do what he asked because

Desposito advised Fortier in another letter that "you can

trust [Ljuljanaj] with your life."    That Desposito had

previously confided in Ljuljanaj about his crime and stored

the stolen money in his bedroom corroborates this inference.

Thus, a jury could reasonably conclude that it was

foreseeable to Desposito that Ljuljanaj would help him when

he sent the letters.


                           - 29 -
         Even if the letters suggest that Desposito had

some doubts about Ljuljanaj's cooperation, they reveal no

such reservations about Fortier, his half-brother.    The

letters to Fortier have a clearly different tone than those

to Ljuljanaj, which include disclaimers such as:

         I [am] sorry to put this much on you, and
         I'll have no choice but to understand if
         you don't do any of this [stuff] for
         me. . . . You're a great friend and a no
         to everything I'm asking of you can't
         change that.

In contrast, Desposito's letters to Fortier dispense with

such niceties, beginning: "I got to keep this short and

sweet because I need you to focus on saving my life."       They

then proceed to list directions in the imperative voice,

along with words of encouragement such as:   "You got this.

I know you do."

         These letters demonstrate that Desposito believed

Fortier would comply upon receiving his letters.     Because

the letter to Fortier in the first mailing instructed him to

send Desposito a care package containing A&P grocery bags,

Desposito advised Ljuljanaj in an accompanying letter that

"the next time I send you mail, it will have a bag with my
                           - 30 -
prints on it to give to [K]ris."     When he did not receive

the bags, Desposito apparently assumed Fortier never

received his instructions as he sent nine more letters

directing either Ljuljanaj to deliver the instructions to

Fortier or Fortier to retrieve them.     Even after Desposito

wrote in his third letter to Ljuljanaj to "just disregard

everything," he still believed Fortier would carry out the

plan because he sent at least one more letter to his father,

containing a message for Fortier to "contact Besni[c]k, see

if he's gotten any of the three letters I sent him."    Based

on this evidence, a jury could conclude beyond a reasonable

doubt that Desposito knew the natural and probable

consequence of sending his letters was that Fortier would

create false evidence that would obstruct his criminal

trial.   Thus, the nexus requirement was satisfied.

          b.   Substantial Step

          Desposito argues that, under our precedent, merely

communicating a plan to others cannot constitute a

"substantial step."   Desposito points primarily to our

holding in United States v. Delvecchio, 816 F.2d 859 (2d


                            - 31 -
Cir. 1987), that "a verbal agreement alone, without more, is

insufficient as a matter of law to support an attempt

conviction."   Id. at 862.   Based on this holding, Desposito

argues that he cannot be convicted unless the government

shows both that the letter recipients agreed to carry out

the plan and that he then took an additional "substantial

step" beyond that agreement.

           Desposito takes our holding in Delvecchio out of

context.   There are no bright line rules for determining

what actions amount to a "substantial step" and thus no

requirement that the government show an agreement or any

other specific circumstance.11   See Farhane, 634 F.3d at

147; see also Delvecchio, 816 F.2d at 861 ("Although the

verbal formula for what constitutes a substantial step is

clear, courts have not always found it easy to decide

whether a defendant's conduct has crossed over the line from

'preparation' to 'attempt.'").    The analysis depends on the


     11
          Indeed, in this case, to require the government to show
an agreement plus an additional step would convert the crime of
attempt into the crime of conspiracy. See United States v.
Mahaffy, 693 F.3d 113, 123 (2d Cir. 2012) (outlining elements of
conspiracy as, generally, the intent to commit the object crime,
an agreement, and an overt act in furtherance of the agreement).
                              - 32 -
crime charged and whether the act tended to cause that

particular crime to occur.    See Farhane, 634 F.3d at 147.

Thus, as we have previously clarified, the agreement to

purchase heroin in Delvecchio did not amount to a

substantial step towards possessing heroin only because

there was no "act to effect possession, such as acquisition,

or attempted acquisition, of the purchase money, or travel

to the agreed-on purchase site."       Id. (emphasis added).

          Thus, our inquiry here turns on whether Desposito

took any substantial steps to effect the obstruction of his

criminal trial.   The evidence clearly established that he

did.   First, Desposito wrote fifteen letters, ten sent to

Ljuljanaj and five sent to his family, to implement his

scheme to obstruct justice.    In these letters, Desposito not

only set out directions for Fortier and Ljuljanaj to falsify

evidence, but he attempted to deceive Mastrarrigo into

putting her fingerprints on the new can of lighter fluid.

Second, Desposito mailed these letters from jail in at least

four sets of mailings.   When nothing resulted from his

initial mailing to Ljuljanaj, he sent a second, lighter


                              - 33 -
envelope, believing the first package had never been

delivered because it was too heavy.   When nothing came of

the second mailing, Desposito changed course by sending

another letter to Ljuljanaj, telling him to disregard his

prior letters, and sending five additional letters directly

to his family, instructing Fortier to retrieve the plans

from Ljuljanaj.   As a whole, these actions demonstrate that

Desposito tried to do everything he possibly could from jail

to bring his plan to fruition and effect the obstruction of

his trial.   Thus, a rational jury could find beyond a

reasonable doubt that his persistent writing and mailing of

letters constituted substantial steps toward obstructing his

criminal trial.   As the evidence demonstrated both a nexus

with the criminal trial and substantial steps, we affirm

Desposito's conviction for attempting to obstruct an

official proceeding.

D.   Admissibility of Evidence

     1.   Applicable Law

          Finally, we review the district court's

evidentiary ruling for abuse of discretion.   See United


                            - 34 -
States v. Cadet, 664 F.3d 27, 32 (2d Cir. 2011).    Under Rule

608(b) of the Federal Rules of Evidence, during cross-

examination, district courts may permit questioning about

"specific instances of a witness's conduct . . . if they are

probative of the [witness's] character for truthfulness or

untruthfulness."   Fed. R. Evid. 608(b)(1); see Lewis v.

Baker, 526 F.2d 470, 475 (2d Cir. 1975).    Even if the

specific instance is probative of the witness's veracity,

the court still must balance that probative value against

the risk of unfair prejudice to the defendant, pursuant to

Rule 403.   See Fed. R. Evid. 608 advisory committee's note;

United States v. Weichert, 783 F.2d 23, 25 (2d Cir. 1986).

Under Rule 403, the evidence may be excluded if its

prejudicial effect substantially outweighs its probative

value.   See Fed. R. Evid. 403.   We afford great deference to

the district court's balancing under Rule 403, see United

States v. Contorinis, 692 F.3d 136, 144 (2d Cir. 2012), and

we will disturb it only if we find the decision to be

arbitrary and irrational, see United States v. Mercado, 573

F.3d 138, 141 (2d Cir. 2009).


                            - 35 -
    2.   Application

         Although there was a risk the jury would consider

Desposito's pending New Jersey state criminal trial as

evidence of his criminal propensity, we cannot say that the

district court abused its discretion in concluding that this

risk did not substantially outweigh the probative value of

the evidence in light of Desposito's testimony during his

direct examination.    When a defendant offers an exculpatory

explanation for the government's evidence, he "opens the

door" to impeachment of his credibility, even by previously

inadmissible evidence.    See United States v. Elfgeeh, 515

F.3d 100, 128 (2d Cir. 2008).    Because the plan to dissuade

a witness from testifying in the New Jersey prosecution

severely undermined Desposito's innocent explanation for the

plan to fabricate evidence in this case, it became highly

probative of his credibility after his testimony on direct

examination.   At the same time, any risk of prejudice was

mitigated because the district court issued a timely and

appropriate limiting instruction and the government never

revealed what the underlying New Jersey crime was.    See


                             - 36 -
United States v. Williams, 205 F.3d 23, 34 (2d Cir. 2000)

(finding no undue prejudice where the other criminal charges

are less serious than the charged crime and the district

court issued a proper limiting instruction); United States

v. Livoti, 196 F.3d 322, 326 (2d Cir. 1999) (same).    We

cannot say that the district court's Rule 403 balancing was

arbitrary or irrational.    Therefore, the district court did

not abuse its discretion by permitting impeachment on this

topic.

                           CONCLUSION

           We conclude that the evidence was sufficient to

prove that Desposito used fire to commit the bank robbery,

and we are satisfied that his conviction did not offend Due

Process.   We also conclude there was sufficient evidence to

support his conviction for attempting to obstruct an

official proceeding.    Finally, the district court did not

abuse its discretion by allowing the government to cross-

examine Desposito about his plan to obstruct his New Jersey

state criminal trial.   Accordingly, the judgment of

conviction is AFFIRMED.


                             - 37 -
