     14-4573-cr
     United States v. Solomon-Eaton

                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 15th day of January, two thousand sixteen.
 5
 6       PRESENT: AMALYA L. KEARSE,
 7                DENNIS JACOBS,
 8                CHESTER J. STRAUB,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               14-4573-cr
16
17       CAMILLE SOLOMON-EATON,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        EDWARD S. ZAS, Federal Defenders
22                                             of New York, Inc., Appeals
23                                             Bureau, New York, NY.
24
25       FOR APPELLEE:                         SARITHA KOMATIREDDY (Peter A.
26                                             Norling, on the brief), for
27                                             Robert L. Capers, United States
28                                             Attorney for the Eastern
29                                             District of New York, Brooklyn,
30                                             NY.

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 1        Appeal from a judgment of the United States District
 2   Court for the Eastern District of New York (Matsumoto, J.).
 3
 4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 5   AND DECREED that the judgment of the district court be
 6   AFFIRMED.
 7
 8        Camille Solomon-Eaton appeals from the judgment of the
 9   United States District Court for the Eastern District of New
10   York (Matsumoto, J.) convicting her of (i) sexually
11   exploiting her minor child and (ii) distributing or
12   receiving child pornography. Solomon-Eaton was sentenced
13   chiefly to 17 years’ imprisonment. Solomon-Eaton seeks a
14   new trial on the grounds that (i) her Sixth Amendment right
15   to counsel was violated when a child protective service
16   caseworker elicited self-incriminating statements from the
17   defendant, and (ii) the government made prejudicial and
18   improper arguments during rebuttal summation. She also
19   contends that her sentence was unconstitutional and
20   substantively unreasonable. We assume the parties’
21   familiarity with the underlying facts, the procedural
22   history, and the issues presented for review.
23
24        1. An individual who is not a law enforcement agent
25   can become one for Sixth Amendment purposes if he or she
26   acts as a “government agent” who “deliberately elicit[s]”
27   the incriminating information. United States v. Whitten,
28   610 F.3d 168, 193 (2d Cir. 2010) (internal quotation marks
29   omitted). Such incriminating information is thereby
30   suppressible only if obtained as a result of intentional
31   effort by the government. United States v. Stevens, 83 F.3d
32   60, 64 (2d Cir. 1996) (discussing Massiah v. United States,
33   377 U.S. 201 (1964)). We review the factual findings of a
34   district court’s ruling on a suppression motion for clear
35   error, viewing the evidence in the light most favorable to
36   the government, and the legal conclusions de novo. See,
37   e.g., United States v. Rodriguez, 356 F.3d 254, 257 (2d Cir.
38   2004).
39
40        New York courts determine whether a child protective
41   services caseworker was an agent of law enforcement for
42   Sixth Amendment purposes by considering “indicia of State
43   involvement,” including “a clear connection between the
44   police and the private investigation,” “completion of the

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 1   private act at the instigation of the police,” “close
 2   supervision of the private conduct by the police,” and “a
 3   private act undertaken on behalf of the police to further a
 4   police objective.” People v. Greene, 760 N.Y.S.2d 769, 772
 5   (App. Div. 3d Dep’t 2003) (quoting People v. Ray, 491
 6   N.Y.S.2d 283, 286 (N.Y. 1985)). While a social worker is
 7   generally not an agent of the police, id., when a child
 8   protective services caseworker has extensive interaction
 9   with law enforcement before and after interrogating the
10   defendant, particularly when part of a formal
11   multidisciplinary team or joint venture, New York courts
12   tend to find that the caseworker is a law enforcement agent.
13   See, e.g., id.; People v. Wilhelm, 822 N.Y.S.2d 786, 793-94
14   (App. Div. 3d Dep’t 2006).
15
16        The child protective specialist here, Kerlyne Deriscar-
17   Hinds, was not part of a multidisciplinary team or joint
18   venture with the government. Hinds did not even learn of
19   the case until after Solomon-Eaton was arrested. Only weeks
20   later, on her own initiative, did Hinds seek to interview
21   Solomon-Eaton for the purposes of her child abuse and
22   neglect investigation. Hinds did not receive instructions
23   from law enforcement regarding her interview beforehand, or
24   conduct the interview with law enforcement present, or
25   volunteer the results of her interview to the government.
26   Because Hinds was not a government agent when she conducted
27   her interview with Solomon-Eaton, Solomon-Eaton’s Sixth
28   Amendment claim fails.
29
30        2. To succeed on a claim of prosecutorial misconduct
31   premised on statements made during summation, a defendant
32   must show that the prosecutor’s comments caused “substantial
33   prejudice” such that the defendant was deprived of a fair
34   trial. United States v. Tocco, 135 F.3d 116, 130 (2d Cir.
35   1998); see also United States v. Locascio, 6 F.3d 924, 945-
36   46 (2d Cir. 1993). To assess whether substantial prejudice
37   exists, we weigh “the severity of the misconduct, the
38   measures adopted to cure [it], and the certainty of
39   conviction absent the misconduct.” United States v. Elias,
40   285 F.3d 183, 190 (2d Cir. 2002).
41
42        The prosecutor’s rebuttal summation was a fair response
43   to the defense summation. After defense counsel urged the
44   jury to show “mercy” in considering Solomon-Eaton’s insanity

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 1   defense, the prosecutor had “wide latitude,” Tocco, 135 F.3d
 2   at 130, to characterize defense counsel’s closing as a
 3   “sympathy pitch.” The prosecutor was also permitted to
 4   rebut defense counsel’s arguments about “justice,” provided
 5   she did so in a fair, limited way. The rebuttal summation’s
 6   brief discussion of “justice” did not substantially
 7   prejudice Solomon-Eaton.
 8
 9        3. Our review of the substantive reasonableness of a
10   sentence is “particularly deferential”: we will set aside
11   sentences as substantively unreasonable “only in exceptional
12   cases where the trial court’s decision cannot be located
13   within the range of permissible decisions”; that is, if the
14   sentence “shocks the conscience,” if it “constitutes a
15   manifest injustice,” or if “allowing [it] to stand would
16   damage the administration of justice.” United States v.
17   Aldeen, 792 F.3d 247, 255 (2d Cir. 2015) (internal quotation
18   marks omitted).
19
20        A sentence violates the Eighth Amendment prohibition
21   against “cruel and unusual punishment” only when it is
22   “grossly disproportionate to the crime;” outside the context
23   of capital punishment, that is “exceedingly rare.” United
24   States v. Yousef, 327 F.3d 56, 163 (2d Cir. 2003) (internal
25   quotation marks omitted). To determine whether a sentence
26   is “grossly disproportionate,” a court must consider the
27   legitimacy of a legislature’s basis for prescribing a
28   certain punishment for a certain offense, and compare the
29   gravity of the particular offense to the severity of the
30   particular sentence. Ewing v. California, 538 U.S. 11, 23-
31   30 (2003).
32
33        The statutory range for Solomon-Eaton’s offenses (six
34   counts of sexually exploiting her minor child and seven
35   counts of distributing and receiving child pornography) is
36   15 to 320 years’ imprisonment. In imposing a 17-year
37   sentence, the district court explicitly considered (i)
38   Solomon-Eaton’s mental history and health, (ii) her lack of
39   diagnosed pedophilia, and (iii) her progress in mental
40   health treatment. Against these factors, the district court
41   weighed (i) the gravity of the offenses, (ii) the likely
42   future psychological and emotional harm the offenses will
43   cause the victims, and (iii) the moral culpability of
44   Solomon-Eaton as the parent of one of the victims. The

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 1   district court’s sentence of 17 years is well “within the
 2   range of permissible decisions.” Aldeen, 792 F.3d at 255
 3   (internal quotation marks omitted).
 4
 5        Nor is Solomon-Eaton’s sentence “grossly
 6   disproportionate to the crime.” Yousef, 327 F.3d at 163
 7   (internal quotation marks omitted). The gravity of her
 8   offenses (a combined thirteen counts of sexually exploiting
 9   a minor child and distributing and receiving child
10   pornography) warrants the severity of her sentence (barely
11   over the statutory mandatory minimum).
12
13        Accordingly, and finding no merit in Solomon-Eaton’s
14   other arguments, we hereby AFFIRM the judgment of the
15   district court.
16
17                              FOR THE COURT:
18                              CATHERINE O’HAGAN WOLFE, CLERK
19




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