     05-5522-cr(L)
     United States v. Dupes


 1                        UNITED STATES COURT OF APPEALS
 2                            FOR THE SECOND CIRCUIT
 3
 4                            August Term 2007
 5       (Argued: November 19, 2007      Decided: January 9, 2008)
 6               Docket Nos. 05-5522-cr(L) 06-1337-cr(CON)
 7   -------------------------------------------------x
 8   UNITED STATES OF AMERICA,
 9
10               Appellee,
11
12                            -- v. --
13
14   ROBERT H. DUPES and HURSON BELIZAIRE*,
15
16             Defendants-Appellants.
17   -------------------------------------------------x
18
19   B e f o r e :     WALKER and CALABRESI, Circuit Judges, and KEENAN,
20                     District Judge.**

21               Defendant appeals from a sentence imposed in the United

22   States District Court for the Southern District of New York

23   (Pauley, Judge) following a guilty plea to securities fraud and

24   conspiracy to commit securities fraud, including an order of

25   restitution pursuant to the Mandatory Victim Restitution Act and

26   special conditions of supervised release relating to defendant’s

27   prior sex offenses.

28         AFFIRMED

29
30
31



          * 06-1337-cr(CON)CLOSED-withdrawn by stipulation filed May
     30, 2006.
          ** The Honorable John F. Keenan, United States District
     Judge for the Southern District of New York, sitting by
     designation.
 1                                         STEVEN D. FELDMAN, Assistant
 2                                         United States Attorney
 3                                         (Katherine Polk Failla,
 4                                         Assistant United States
 5                                         Attorney, on the brief), for
 6                                         Michael J. Garcia, United
 7                                         States Attorney for the
 8                                         Southern District of New York,
 9                                         New York, N.Y., for Appellee.
10
11                                         DAVID SAMEL, New York, N.Y.,
12                                         for Defendant-Appellant.
13
14

15   KEENAN, District Judge:

16                               Introduction

17              This is an appeal from a sentence imposed by William H.

18   Pauley III, United States District Judge for the Southern

19   District of New York.    Following a guilty plea to securities

20   fraud and conspiracy to commit securities fraud, the district

21   court sentenced defendant-appellant Robert H. Dupes to prison for

22   thirty-eight months, to be followed by three years of supervised

23   release.   The court also ordered Dupes to make full restitution

24   to his victims in an amount determined by the court pursuant to

25   the Mandatory Victim Restitution Act.      On appeal, Dupes claims

26   that the imposition of special conditions of supervised release

27   relating to his prior sex offenses exceeded the district court’s

28   statutory authority and violated the Double Jeopardy Clause and

29   the Tenth Amendment.    Dupes also challenges his order of

30   restitution under the Sixth Amendment.      For the reasons stated

31   below, we affirm the sentence imposed by the district court.

                                       2
 1                               Background

 2              Around June of 1999, Dupes and a co-conspirator founded

 3   a company called Internet Holdings.com (“Internet Holdings”), a

 4   Delaware limited liability company headquartered in New York.

 5   Internet Holdings was purportedly organized to raise capital to

 6   acquire privately held companies and take them public through

 7   initial public offerings and other transactions.     From the

 8   company’s establishment until September 2000, it issued

 9   securities to investors from its Manhattan offices through

10   private placement memoranda and other solicitations that

11   contained material misrepresentations.    Dupes, the President and

12   Chief Operating Officer of the company, and his co-conspirators

13   converted nearly all of the proceeds of the securities offering

14   to their own personal use, defrauding twenty-four investors of

15   approximately $765,000.

16              Dupes was arrested in Colorado in August of 2000 on

17   unrelated federal charges of interstate travel to have sex with a

18   minor.   Following that arrest, the federal government initiated

19   an investigation of him in New York.     Officials executed a search

20   warrant at his Manhattan apartment and seized a home computer

21   containing child pornography.   Dupes pled guilty to possession of

22   child pornography and received a sentence of twenty-seven months’

23   imprisonment.   He also pled guilty to the charges stemming from

24   his Colorado arrest for interstate travel to have sex with a


                                      3
 1   minor and received a sentence of twelve months’ imprisonment, to

 2   run consecutively with the child pornography sentence.   In

 3   October of 2003, Dupes was released from prison and began serving

 4   a term of supervised release.

 5               In May of 2004, Dupes and five of his co-conspirators

 6   in the Internet Holdings scheme were charged by indictment with

 7   securities fraud and conspiracy to commit securities fraud. Dupes

 8   pled guilty to both counts.   At an October 2005 sentencing

 9   hearing, Judge Pauley sentenced Dupes to thirty-eight months’

10   imprisonment to be followed by three years of supervised release,

11   running concurrently on both counts.1   In addition to the

12   mandatory and standard conditions of supervised release, the

13   court imposed several special conditions relating to Dupes’s

14   prior sex offenses.   The court adopted these special conditions

15   from the presentence report that the probation office had

16   prepared.   Special Condition 8 required Dupes to “undergo a sex-

17   offense-specific evaluation and participate in a sex offender

18   treatment/and or [sic] mental health treatment program approved

19   by the probation officer.”    It further required him to “waive his

20   right of confidentiality in any records for mental health
          1
            It could be argued that this appeal highlights the old
     adage that “no good deed remains unpunished.” The district court
     imposed a sentence below the advisory Guidelines range of fifty-
     seven to seventy-one months because of Dupes’s distinguished
     record of military service, because the delay in prosecuting him
     allowed sex offenses committed after the Internet Holdings
     conspiracy to enhance his Guidelines range, and because Dupes’s
     co-conspirator, the architect of several fraudulent securities
     schemes, received only a thirty-seven month sentence.
                                     4
 1   assessment and treatment imposed as a consequence of this

 2   judgment to allow the probation officer to review the defendant’s

 3   course of treatment and progress with the treatment provider.”

 4   Special Condition 9 directed Dupes to

 5        register with the state sex offender registration agency in
 6        any state in which [he] resides, is employed, carries on a
 7        vocation or is a student, as directed by the probation
 8        officer. The defendant shall adhere to the registration and
 9        notification procedures of the state in which [he] resides.
10

11   The presentence report had limited the registration requirement

12   with the words “if applicable.”       Special Condition 10 barred

13   Dupes from having deliberate contact with any child under the age

14   of seventeen and required him to stay more than one hundred feet

15   from places primarily used by children such as schoolyards,

16   playgrounds and arcades.   Special Condition 11 forbade the use of

17   a computer to access child pornography or to communicate with

18   other individuals or groups for the purpose of promoting sexual

19   relations with children, and provided for monitoring of Dupes’s

20   computer usage by the probation office.       At sentencing, the

21   district court informed Dupes that it had “crafted this sentence

22   in an effort to take account of the good things that you have

23   done and also to protect the community from the bad things that

24   you have done.”

25             The district court also imposed restitution against

26   Dupes in the amount of $765,000, the amount recommended in the

27   presentence report as the total loss caused by the Internet

                                       5
 1   Holdings scheme to its twenty-four victim-investors.     Dupes’s

 2   counsel confirmed at an earlier hearing that he had reviewed the

 3   presentence report with his client and had no objections to the

 4   factual matters set forth therein.    Prior to this appeal, Dupes

 5   never objected to the special conditions of supervised release or

 6   the amount of restitution recommended in the presentence report.

 7                                Discussion

 8             Dupes challenges his special conditions of supervised

 9   release on three grounds.   First, he claims that the imposition

10   of special conditions of supervised release relating to his prior

11   sex offenses violates the Double Jeopardy Clause.    Second, he

12   asserts that the requirement that he waive therapeutic

13   confidentiality in connection with court-ordered sex offender

14   treatment exceeds the sentencing court's authority under 18

15   U.S.C. § 3583(d) and section 5D1.3(b) of the U.S. Sentencing

16   Guidelines (“U.S.S.G.”).    Third, he argues that the condition

17   requiring his registration as a sex offender with state agencies

18   violates the Tenth Amendment.   Dupes also attacks the

19   constitutionality of his restitution order, claiming that the

20   Mandatory Victim Restitution Act (“MVRA”) violates the Sixth

21   Amendment under the principles established in the Apprendi-Ring-

22   Booker-Blakely line of cases.   Finally, Dupes has submitted a

23   supplemental pro se brief raising various other challenges to his

24   conviction and sentence.


                                       6
 1

 2        I.   Conditions of Supervised Release

 3              A.     Standard of Review

 4              The propriety of conditions of supervised release are

 5   judged by an abuse of discretion standard. United States v.

 6   Brown, 402 F.3d 133, 136 (2d Cir. 2005).     Although the district

 7   court enjoys broad discretion in imposing these conditions, its

 8   discretion is not “untrammeled” and “our Court will carefully

 9   scrutinize unusual and severe conditions.” United States v.

10   Myers, 426 F.3d 117, 124 (2d Cir. 2005) (internal citations and

11   quotation marks omitted).    Any error of law constitutes an abuse

12   of discretion. See United States v. Johnson, 446 F.3d 272, 277

13   (2d Cir. 2006).    A challenge to conditions of supervised release

14   that presents an issue of law is generally reviewed de novo, id.,

15   but we review Dupes’s claims for plain error because he failed to

16   raise them before the district court at sentencing. United States

17   v. Sofsky, 287 F.3d 122, 125 (2d Cir. 2002).2    Under the plain

18   error standard, before an appellate court can correct an error
          2
            Dupes argues that we should relax the plain error standard
     of review as we did in United States v. Sofsky, 287 F.3d 122,
     125 (2d Cir. 2002). In Sofsky, we noted that “in the sentencing
     context there are circumstances that permit us to relax the
     otherwise rigorous standards of plain error review to correct
     sentencing errors.” Id. We applied plain error standards less
     rigorously because the presentence report failed to give the
     defendant notice that the condition of supervised release might
     be imposed. Id. at 125-26. In this case, the presentence report,
     which Dupes reviewed with counsel, recommended the conditions to
     which he failed to object and now challenges on appeal. We see
     no circumstances warranting the relaxation of the plain error
     standard in this case.
                                     7
 1   not raised below, there must be (1) an error, (2) that is plain

 2   and (3) that affects substantial rights.    If these conditions are

 3   met, an appellate court may then exercise its discretion to

 4   correct the error, but only if it seriously affects the fairness,

 5   integrity or public reputation of judicial proceedings. See id.

 6   at 125 n.2 (citing Jones v. United States, 527 U.S. 373, 389

 7   (1999)).

 8              B.   Merits

 9                    1. The Double Jeopardy Claim

10              The Double Jeopardy Clause protects a defendant from

11   successive punishments for the same criminal offense. United

12   States v. Dixon, 509 U.S. 688, 696 (1993).      Dupes claims that the

13   district court violated the prohibition against double jeopardy

14   by imposing a punishment relating to the two sex offenses for

15   which he previously had been sentenced.    We cannot agree.   The

16   challenged conditions of supervised release are an authorized

17   punishment for Dupes’s securities fraud conviction, not a

18   successive punishment for his prior sex offense convictions.

19              The district court has broad authority pursuant to 18

20   U.S.C. § 3583(d) to impose any condition of supervised release

21   that it considers to be appropriate, provided such condition

22   ;4107;4108;4107;4108is “reasonably related” to certain statutory

23   sentencing factors listed in section 3553(a)(1) and (a)(2) of

24   that title, “involves no greater deprivation of liberty than is

25   reasonably necessary” to implement the statutory purposes of
                                     8
 1   sentencing, and is consistent with pertinent Sentencing

 2   Commission policy statements. 18 U.S.C. § 3583(d); Myers, 426

 3   F.3d at 123-124.   The factors of section 3553(a)(1) and (a)(2) to

 4   which conditions of supervised release must be reasonably related

 5   are also set forth in U.S.S.G. § 5D1.3(b)(1):

 6        (A) the nature and circumstances of the offense and the
 7        history and characteristics of the defendant; (B) the
 8        need for the sentence imposed to afford adequate
 9        deterrence to criminal conduct; (C) the need to protect
10        the public from further crimes of the defendant; and
11        (D) the need to provide the defendant with needed
12        educational or vocational training, medical care, or
13        other correctional treatment in the most effective manner.
14
15   U.S.S.G. § 5D1.3(b)(1);4152;4152.    A condition of supervised

16   release need only be reasonably related to any one of these

17   factors. United States v. Abrar, 58 F.3d 43, 46 (2d Cir. 1995).

18             It was within the district court’s authority to impose

19   the challenged special conditions as part of Dupes’s sentence for

20   his securities fraud offense.   Each of the conditions—that Dupes

21   attend sex offender treatment, register as a sex offender, keep a

22   distance from children and the places where they usually

23   congregate, and refrain from using the internet to download child

24   pornography or promote sexual relations with children—is

25   reasonably related to Dupe’s history and characteristics as a sex

26   offender, his need for treatment, and the public’s need for

27   protection from him.   Moreover, the conditions are neither

28   excessively restrictive nor inconsistent with the statutory

29   purposes of sentencing.   We have previously found section 3583(d)

                                      9
 1   to authorize the imposition of similar conditions following a

 2   conviction for a non-sex offense, provided such conditions are

 3   not overly broad or vague.    In United States v. Peterson, 248

 4   F.3d 79, 84-86 (2d Cir. 2001), we stated that a district court

 5   had authority to require a defendant, following his conviction

 6   for bank larceny, to undergo sex offender treatment and to stay

 7   away from places where children typically congregate, based on

 8   the defendant’s prior conviction for sexually abusing a child.3

 9   Similarly, in United States v. Rosario, 386 F.3d 166 (2d Cir.

10   2004), we affirmed a special condition requiring sex offender

11   registration following the defendant’s conviction for a drug-

12   related offense where he had previously been convicted of

13   sexually abusing a child.    Because the conditions imposed upon

14   Dupes are a lawful punishment for his current securities fraud

15   offense, the conditions cannot be considered a successive

16   punishment for his prior sex offense convictions and there is no

17   Double Jeopardy violation. Accord United States v. Sines, 303

18   F.3d 793, 801 (7th Cir. 2002).

19             2.   Waiver of Therapeutic Confidentiality

20             In connection with the requirement that Dupes attend a

21   sex offender and/or mental health treatment program approved by

22   his probation officer, the district court ordered him to waive
          3
            In Peterson, we nonetheless vacated the conditions on
     grounds that they delegated too much discretion to the probation
     officer and contained ambiguous language making them potentially
     over-broad. 248 F.3d at 84-86. These infirmities are not present
     in the conditions imposed upon Dupes.
                                     10
 1   therapeutic confidentiality in “any records for mental health

 2   assessment and treatment . . . to allow the probation officer to

 3   review the defendant’s course of treatment and progress with the

 4   treatment provider.”   Dupes claims that the court abused its

 5   discretion by ordering this waiver pursuant to section 3583(d)

 6   because it is not reasonably related to his rehabilitation or the

 7   protection of the public.   Treatment will not be effective

 8   without the assurance of confidentiality, Dupes asserts, and the

 9   public will not be protected by requiring him to undergo

10   ineffective treatment. See generally Jaffee v. Redmond, 518 U.S.

11   1 (1996) (recognizing the psychotherapist-patient privilege and

12   noting that effective psychotherapy depends upon

13   confidentiality).

14             While it could be argued that the waiver condition may

15   retard Dupes’s treatment, it very well may advance his treatment

16   by allowing the probation officer to monitor Dupes’s progress

17   and, if necessary, make adjustments to his court-ordered therapy

18   program. See United States v. Lopez, 258 F.3d 1053, 1057 (9th

19   Cir. 2001) (upholding a condition requiring release of records of

20   mental health evaluations and treatment because “[t]he sentencing

21   judge could well conclude that disclosure to the court and to the

22   probation officer of information about [defendant’s] status was

23   necessary for successfully supervising his reintegration into

24   society”).   Moreover, allowing the probation officer access to

25   information about Dupes’s treatment could reasonably further
                                     11
 1   public safety regardless of whether the treatment is effective or

 2   not. Cf. United States v. Cooper, 171 F.3d 582, 587 (8th

 3   Cir.1999) (upholding condition granting probation officer full

 4   access to defendant’s psychiatric and medical records because it

 5   “reasonably amplifie[d]” the standard condition of answering the

 6   probation officer’s questions truthfully).   Therefore, we cannot

 7   conclude that the district court’s determination that the waiver

 8   reasonably relates to Dupes’s rehabilitation and the public

 9   safety is an abuse of discretion seriously affecting the

10   fairness, integrity or public reputation of the judicial

11   proceedings.

12             3.   The Tenth Amendment Claim

13             We have recognized that a federal court in the exercise

14   of its considerable discretion to impose sentence may not

15   transgress the principles of federalism inherent in the Tenth

16   Amendment. United Stated v. Rosario, 386 F.3d 166, 171 (2d Cir.

17   2004) (citing United States v. A-Abras, Inc., 185 F.3d 26, 33 (2d

18   Cir. 1999)).   In Rosario, we held that a condition of supervised

19   release requiring registration as a sex offender with state

20   registration agencies “where applicable” does not violate the

21   Tenth Amendment because it merely required the defendant to meet

22   his state-imposed obligations and involved no undue intrusion

23   upon state authority. Id. at 172.   In this case, the absence of

24   the words “where applicable” in the condition requiring Dupes’s

25   registration creates no conflict with federalism.   The condition
                                     12
 1   orders Dupes to register as directed by his probation officer and

 2   to “adhere to the registration and notification procedures of the

 3   state in which [he] resides.”    We interpret this to mean, as does

 4   the Government, that Dupes must notify the relevant agencies of

 5   his status as a convicted sex offender.    The condition imposes no

 6   obligation upon state agencies to maintain Dupes on their

 7   registries if applicable state law would not so require.    If a

 8   state has no sex offender registration agency, the condition

 9   obviously would not require that state to set one up just for

10   Dupes.     Because the condition merely directs Dupes to take action

11   to register and demands no action of any state beyond that which

12   the state has elected to undertake whenever a sex offender

13   complies with its registration laws, the condition does not run

14   afoul of the Tenth Amendment. See id.

15        II.    The Sixth Amendment Challenge to the Restitution Order

16        The MVRA makes full restitution mandatory for certain

17   crimes, including securities fraud, 18 U.S.C. § 3663A, and

18   requires a court to determine the total amount of loss to each

19   victim. Id. § 3664 (f)(1)(A).     Dupes argues that the Sixth

20   Amendment, as interpreted in the line of cases from Apprendi

21   through Booker, requires that the amount of loss serving as the

22   basis of a restitution order be found by a jury beyond a

23   reasonable doubt or admitted by the defendant.    We have already

24   held in United States v. Reifler, 446 F.3d 65, 116 (2d Cir. 2006)

25   that “there is no constitutional requirement that the facts
                                     13
 1   needed for the district court’s fashioning of a restitution order

 2   be found by a jury beyond a reasonable doubt.”    Dupes concedes

 3   that Reifler “squarely rejected” his Sixth Amendment claim but

 4   urges us to reconsider our holding in that case. Pet’r Br. at 16.

 5    As no intervening Supreme Court decision has called our decision

 6   in Reifler into doubt, we are without authority to overrule it.

 7   See Veltri v. Bldg. Serv. 32B-J Pension Fund, 393 F.3d 318,

 8   327 (2d Cir. 2004).

 9                            Conclusion

10             We have considered the additional challenges to his

11   conviction and sentence that Dupes has raised in a pro se brief

12   and find them to be without merit.    For the reasons stated above,

13   the district court is affirmed in all respects.

14

15

16




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