09-0683-cr
USA v. Pickett



                                    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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the twentieth day of July, two thousand and ten.


PRESENT:

          RALPH K. WINTER,
          JOSÉ A. CABRANES,
          RICHARD C. WESLEY ,
                       Circuit Judges.

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UNITED STATES OF AMERICA ,

                               Appellee,

          v.                                                                               No. 09-0683-cr

GORDON PICKETT ,

                               Defendant-Appellant.

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FOR DEFENDANT-APPELLANT:                                 KATHERINE ALFIERI, Law Offices of
                                                         Katherine Alfieri, New York, NY.

FOR APPELLEE:                                            WINSTON M. PAES, Assistant United States
                                                         Attorney (Benton J. Campbell, United States
                                                         Attorney, Jo Ann M. Navickas, Assistant
                                                         United States Attorney, on the brief), Office of
                                                         the United States Attorney for the Eastern
                                                         District of New York, Brooklyn, NY.

       Appeal from a judgment of the United States District Court for the Eastern District of New
York (John Gleeson, Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

         Defendant-appellant Gordon Pickett (“defendant” or “Pickett”) appeals from a judgment of
the District Court entered on February 18, 2009. Defendant was convicted on eight counts—all
relating to his production and possession of counterfeit credit cards and identification cards—and
sentenced principally to 168 months’ imprisonment. On appeal he argues as follows: (1) that the
District Court erred in denying his motion to proceed pro se at trial; (2) that there was insufficient
evidence to sustain a conviction on each of the eight counts; (3) that the District Court erred in
denying his motion for blanket suppression of all items seized during the execution of a search
warrant; (4) that the District Court erred in admitting evidence of his prior conviction pursuant to
Fed. R. Evid. 404(b); (5) that the District Court gave an erroneous jury instruction; (6) that his
sentence is substantively unreasonable; and (7) that the District Court made errors in ordering
restitution. We assume the parties’ familiarity with the remaining factual and procedural history of
the case.

        We address whether the District Court retained authority to order restitution more than
ninety days after defendant’s sentencing hearing in a separate opinion filed on the same day as this
order. We consider defendant’s remaining arguments in this summary order and find them to be
without merit.

          First, we find no error in the District Court’s denial of defendant’s request—made eight days
after the jury was empaneled and during the second day of the government’s case—to proceed pro se.
After a trial has begun, a criminal defendant’s right to represent himself “is sharply curtailed.” United
States v. Stevens, 83 F.3d 60, 67 (2d Cir. 1996) (internal quotation marks omitted). A district court
considering such a request “must weigh ‘the prejudice to the legitimate interests of the defendant’
against the ‘potential disruption of proceedings already in progress.’” Id. (quoting United States ex rel.

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Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir. 1965)). In weighing the prejudice to the legitimate
interests of the defendant, the court should consider “the defendant’s reasons for the self-
representation request, the quality of counsel representing the party, and the party’s prior proclivity
to substitute counsel.” United States v. Matsushita, 794 F.2d 46, 51 (2d Cir. 1986).

         We have no trouble concluding that the District Court acted well within its discretion in
denying defendant’s request to proceed pro se. Defendant’s reasons for seeking to represent himself
were expressed in what the District Court accurately described as a “barely comprehensible
diatribe,” during which defendant asserted that the District Court lacked jurisdiction over him based
on, among other things, the Administrative Procedure Act. Appellant’s App. 164-65. Defendant
also asserted, without explanation, that he was “without competent counsel.” Id. at 164.

        Against those “reasons” for the request, the District Court was required to weigh the
potential disruption of the trial. In our view, the potential for disruption was self evident from
defendant’s request. In sum, we detect no error in the District Court’s denial of defendant’s motion
to represent himself for the remainder of the trial.

        Defendant next challenges the sufficiency of the evidence produced to demonstrate his guilt
on each of the eight counts charged in the indictment. Upon review of the record, we conclude that
there was ample evidence to sustain the jury’s verdict on each count. See United States v. Gagliardi,
506 F.3d 140, 149-50 (2d Cir. 2007) (explaining that a jury’s verdict must be affirmed “unless no
rational trier of fact could have found all of the elements of the crime beyond a reasonable doubt”
(internal quotation marks omitted)).

        We also find no merit in defendant’s argument that the search of his residence so exceeded
the scope of the search warrant as to require blanket suppression of all evidence seized. The District
Court concluded that the search of defendant’s basement exceeded the scope of the warrant but
excluded only the evidence seized from the basement itself. Defendant argues that all evidence
seized during the search should have been suppressed because government agents “flagrantly
disregard[ed]” the scope of the warrant. See United States v. Shi Yan Liu, 239 F.3d 138, 140 (2d Cir.
2000). The District Court, however, found that the search of the basement was conducted in good
faith and that blanket suppression was unwarranted. See id. (noting that blanket suppression is
appropriate only where government agents (1) “effect a widespread seizure of items that were not
within the scope of the warrant and (2) do not act in good faith” (internal quotation marks and
citation omitted)). We conclude that the District Court’s good faith finding was not clearly
erroneous.

        Defendant next argues that the District Court erred in admitting evidence of his prior
conviction pursuant to Fed. R. Evid. 404(b). We disagree. Defendant placed his intent at issue
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during trial, thereby making his prior conviction relevant. See Fed. R. Evid. 404(b) (explaining that
evidence of other crimes may be admissible as proof of intent). The prior conviction demonstrated
that defendant was aware that counterfeit credit cards are used to commit fraud. A reasonable juror
could therefore infer from defendant’s possession of counterfeit credit cards and card-making
equipment that he had the requisite intent to defraud. Moreover, the District Court gave a forceful
limiting instruction reducing any risk that the jury might consider defendant’s prior conviction as
evidence of his propensity to commit crime.

        We also disagree that the District Court’s jury instruction on aggravated identity theft was
erroneous. The District Court instructed the jury that, to find defendant guilty of aggravated
identity theft, it must, among other things, find that defendant knew at the time he committed bank
fraud that the persons whose identities he was using “were actual as opposed to fictitious persons.”
Appellant’s App. 232. Defendant argues that the District Court was required to instruct the jury that
“defendant knew that the means of identification at issue belonged to another person,” Flores-
Figueroa v. United States, 129 S. Ct. 1886, 1894 (2009), not just that he knew that the other persons
were actual as opposed to fictitious. Because defendant did not object to the instruction at trial, we
review the instruction for plain error. See Fed. R. Crim. P. 52(b).

         We discern no error, much less plain error, in the District Court’s jury instruction. The
District Court instructed the jury that it must find both (1) that defendant “knowingly used . . . a
means of identification of another person” and (2) that he knew that that other person “w[as an]
actual as opposed to [a] fictitious person[ ].” Appellant’s App. 231-32. That instruction is fully
consistent with the Supreme Court’s interpretation of the statute as “requir[ing] the Government to
show that the defendant knew that the means of identification at issue belonged to another person.”
Flores-Figueroa, 129 S. Ct. at 1894.

        With respect to sentencing, we reject defendant’s argument that his sentence of 168 months’
imprisonment is substantively unreasonable. See United States v. Cavera, 550 F.3d 180, 189 (2d Cir.
2008) (en banc) (noting that we will “set aside a district court’s substantive determination only in
exceptional cases where the trial court’s decision cannot be located within the range of permissible
decisions” (internal quotation marks omitted)); see also United States v. Rigas, 583 F.3d 108, 123 (2d
Cir. 2009) (explaining that substantive unreasonableness is akin to the “manifest-injustice,” and
“shocks-the-conscience” standards employed in other contexts).

         Defendant’s final argument is that the District Court committed several errors in ordering
restitution in the amount of $2,400,800. Specifically, defendant maintains that (1) the record fails to
demonstrate that the District Court considered the factors set forth in 18 U.S.C. § 3664(f)(2); (2) the
government failed to meet its burden of proving the amount of loss by a preponderance of the
evidence; and (3) the restitution order must be vacated because it was entered more than ninety days
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after the sentencing hearing in contravention of 18 U.S.C. § 3664(d)(5). We address defendant’s
third argument in a separately filed opinion. We find the remaining two arguments to be without
merit.

        First, with respect to the factors set forth in 18 U.S.C. § 3664(f)(2), we have held that “we
will not vacate and remand [restitution orders] solely by reason of the sentencing judge’s failure to
indicate consideration of the mandatory factors.” United States v. Walker, 353 F.3d 130, 134 (2d Cir.
2003). Thus, the District Court’s failure to recite those factors in the record does not require
vacatur.

        Second, with respect to the proof of loss, we reject defendant’s suggestion that the
government was required to establish the loss amounts for each victim by affidavit. Section 3664
provides only that “to the extent practicable” victims shall be notified of the opportunity to file “a
separate affidavit relating to the amount of the victim’s losses subject to restitution.” 18 U.S.C.
§ 3664(d)(2)(A)(vi). Nothing precludes a court from ordering restitution in the absence of such
affidavits. Here, although affidavits from each of the victims were not produced, the District Court
relied on the trial testimony of a case agent along with a chart prepared by that agent summarizing
the losses incurred by the victim banks. That evidence was sufficient to establish the amount of loss
by a preponderance of the evidence. See 18 U.S.C. § 3664(e) (providing that the government bears
the burden of proving the amount of restitution by preponderance of the evidence).

                                          CONCLUSION

        We have considered all of defendant’s arguments and find them to be without merit. We
affirm District Court’s imposition of restitution ninety-eight days after defendant’s sentencing
hearing in a separately filed opinion. In all other respects, the judgment of the District Court is
AFFIRMED.


                                               FOR THE COURT,
                                               Catherine O’Hagan Wolfe, Clerk of Court




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