15-1676-cr
United States v. Charles Huggins


                                                  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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 19th day of December, two thousand sixteen.

PRESENT:                     RALPH K. WINTER,
                             JOSÉ A. CABRANES,
                                          Circuit Judges,
                             JANE A. RESTANI,
                                          Judge.*

_____________________________________

UNITED STATES,

                                            Appellee,

                                            v.                        No. 15-1676-cr

CHARLES HUGGINS, AKA SEALED DEFENDANT 1,

                                            Defendant-Appellant,

CHRISTOPHER BUTCHKO,

                                            Defendant,


                                                            
*
   The Honorable Jane A. Restani, Judge for the United States Court of International Trade,
sitting by designation.
ANNE THOMAS,

                                            Defendant.**

_____________________________________

FOR DEFENDANT-APPELLANT:                                           JONATHAN T. SAVELLA (Marc Fernich, on
                                                                   the brief), Law Office of Marc Fernich, New
                                                                   York, New York.

FOR APPELLEE:                                                      EDWARD IMPERATORE, Assistant United
                                                                   States Attorney (Karl Metzner, Assistant
                                                                   United States Attorney; Preet Bharara,
                                                                   United States Attorney, on the brief),
                                                                   Southern District of New York, New York,
                                                                   New York, for Appellee.

              Appeal from a judgment of the United States District Court for the Southern District of

New York (Sidney H. Stein, Judge).

              UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the May 14, 2015, judgment of the district court is

AFFIRMED in part and VACATED in part, and REMANDED for resentencing.

              Defendant-Appellant Charles Huggins (“Huggins”) was convicted on May 14, 2015, after

a two-week jury trial for wire fraud and conspiracy to commit wire fraud in violation of 18 U.S.C.

§§ 1343 and 1349. The district court sentenced him to a term of imprisonment of 120 months,

entered an order of forfeiture in the amount of $2.4 million, and ordered restitution in the amount

of $2.4 million.




                                                            
**
     The Clerk of Court is directed to amend the official caption as set forth above.

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          On appeal, Huggins argues that the indictment lacked specificity and failed to inform him

of the nature and cause of the accusations against him in violation of the Fifth and Sixth

Amendments. He also contends that his sentencing counsel provided ineffective assistance and

that the district court incorrectly applied sentencing enhancements based on a loss figure of $8.1

million, abuse of a position of trust, and gross receipts from a financial institution in excess of $1

million. For the reasons set forth below, we affirm the judgment of conviction and we find no

error in the loss calculation. We decline to resolve the limited ineffective assistance of counsel

claim raised before us, and dismiss it without prejudice to Huggins raising it in a petition for a

writ of habeas corpus under 28 U.S.C. § 2255. We resolve the other two sentencing

enhancements in an opinion published contemporaneously with the summary order. We assume

the parties’ familiarity with the underlying facts, procedural history of the case, and issues on

appeal.

                                                  A.

          As Huggins preserved the issue for appeal in the district court, we review de novo the

sufficiency of his indictment. See United States v. Pirro, 212 F.3d 86, 92 (2d Cir. 2000). An

indictment is sufficient if it alleges all of the statutory elements essential for conviction. See

United States v. Yousef, 750 F.3d 254, 259 (2d Cir. 2014). Typically, if the indictment tracks the

language of the statute and, as necessary, “state[s] time and place in approximate terms,” it is

deemed sufficient. United States v. Frias, 521 F.3d 229, 235 (2d Cir. 2008); see also United

States v. Walsh, 194 F.3d 37, 45 (2d Cir. 1999) (“[W]e have repeatedly refused, in the absence of

any showing of prejudice, to dismiss . . . charges for lack of specificity.”) (quoting United States

v. McClean, 528 F.2d 1250, 1257 (2d Cir. 1976)).


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              Huggins argues that his indictment was “ambiguous” because it presented alternative

theories of fraud including false statements to investors, misuse of investor funds for personal

benefit, and an advance fee or “ponzi” scheme. See Def. Br. 25. We find this argument meritless.

Although United States v. Shellef, 507 F.3d 82, 107–09 (2d Cir. 2007), cautions the government

against presenting alternative theories to the jury, that case concerned distinct “no sale” and “tax

liability” theories of fraud. Here, the indictment presented a single theory of the case: Huggins

“devise[d] a scheme and artifice to defraud” investors from “at least in or about 2008 through in

or about September 2011” that involved “misleading representations” to at least three investors

“that their investments would be used exclusively to further the mining of diamonds and gold in

West Africa.” Gov’t Br. Add. 86–87, 89 (Indictment Mar. 6, 2013). The indictment specified the

companies in question, JYork and Urogo, and the approximate sum solicited from investors, $2.4

million dollars. Id. Furthermore, the government clarified any ambiguities concerning its theory

of the case through repeated on-the-record representations of the charged scheme. At pre-trial

conference, the district court gave Huggins the opportunity to raise questions and clarify which

emails and bank records would be presented. See A:69–74. Indeed, Huggins concedes that

counts one and two of the superseding indictment tracked the language of the wire fraud statute,

as required under United States v. Frias.1 See 521 F.3d at 235; see also Gov’t Br. Add. 86–99

(Indictment Mar. 6, 2013).



                                                            
1
  Under Fountain v. United States, 357 F.3d 250, 255 (2d Cir. 2004), “the essential elements of
a mail or wire fraud violation are (1) a scheme to defraud, (2) money or property as the object of
the scheme, and (3) use of the mails or wires to further the scheme.” (quoting United States v.
Dinome, 86 F.3d 277, 283 (2d Cir. 1996)). All three elements are set forth in the indictment,
thereby meeting the minimal requirements of Federal Rule of Criminal Procedure 7(c).

                                                               4
 
              The district court thus concluded that the government’s indictment, subsequent

disclosures, and discovery materials sufficiently apprised Huggins of the charges against him and

enabled him to prepare his defense. We agree.

                                                               B.

              We review sentences for reasonableness, which “amounts to review for abuse of

discretion.” United States v. Cavera, 550 F.3d 180, 187 (2d Cir. 2008) (en banc); see also United

States v. Messina, 806 F.3d 55, 61 (2d Cir. 2015). “A district court commits procedural error

where it . . . selects a sentence based on clearly erroneous facts [.]” United States v. Robinson,

702 F.3d 22, 38 (2d Cir. 2012). Huggins argues that the district court incorrectly applied a

twenty-level enhancement for a loss figure of $7,000,001 or greater under U.S.S.G.

§ 2B1.1(b)(1)(K) (2014). The district court adopted the loss figure of $8.1 million proven at trial

and calculated in the presentence report. See A:246–48. The district court included in this loss

figure $5.5 million in loss caused by Huggins’s earlier oil company fraud. Sentencing Tr. 24,

DE2 358. Huggins’s sentencing counsel objected to the inclusion of this $5.5 million. Sentencing

Submission 5, DE 316. The district court then imposed a sentence of 120 months’

imprisonment—nearly twelve years below the low end of the U.S. Sentencing Guidelines range.

Before us, Huggins does not contest the district court’s inclusion of the $5.5 million in the $8.1

million loss figure. Def. Br. 29 n.7. Huggins does contend that certain investors in Huggins’s

fraudulent mining companies did not invest as much as the district court found that they did.

Defense counsel did not raise this challenge before the district court. We see no indication that

the district court based its application of the enhancement on clearly erroneous loss amounts for

                                                            
2
    “DE” refers to trial court docket entry numbers for court number 1:13-cr-00155-SHS.

                                                               5
 
investors in Huggins’s fraudulent mining companies, or otherwise plainly erred with regard to the

enhancement.

                                                 C.

         Finally, Huggins contends that he was denied his Sixth Amendment right to effective

assistance of counsel because his sentencing counsel failed to review or object to loss amounts for

certain investors in Huggins’s mining company fraud, which losses were included in $2.6 million

of the $8.1 million loss figure. See Def. Br. 28–29. “[T]his court has expressed a baseline

aversion to resolving ineffectiveness claims on direct review,” United States v. Lee, 549 F.3d 84,

95 (2d Cir. 2008) (quoting United States v. Khedr, 343 F.3d 96, 99–100 (2d Cir. 2003)); see also

United States v. Iodice, 525 F.3d 179, 186 (2d Cir. 2008), in part, because the district court “may

take testimony from witnesses for the defendant and the prosecution and from the counsel alleged

to have rendered the deficient performance,” and is thus “the forum best suited to developing the

facts necessary to determining the adequacy of representation during an entire trial,” Massaro v.

United States, 538 U.S. 500, 505 (2003); see also Sparman v. Edwards, 154 F.3d 51, 52 (2d Cir.

1998).

         We have “entertained ineffective assistance claims for the first time on direct appeal when

their resolution is beyond any doubt or to do so would be in the interest of justice.” Khedr, 343

F.3d at 100 (2d Cir. 2003) (internal quotation marks omitted). As noted above, Huggins has not

shown that the district court clearly erred in its loss figure calculation. This conclusion does not

necessarily preclude Huggins’s ineffectiveness claim because it is unclear what evidence might

have been presented to the district court. Given the court’s aversion to resolving ineffectiveness

claims on direct review, we decline to address this question. Should Huggins so choose, he may


                                                  6
 
seek relief under 28 U.S.C. § 2255, the “preferable” mechanism “for deciding claims of

ineffective assistance.” Massaro, 538 U.S. at 504.

                                          CONCLUSION

       We have considered the remainder of Huggins’s arguments on appeal that are not the

subject of the accompanying opinion, and find them to be without merit. In the accompanying

opinion we conclude that the district court erred in applying sentencing enhancements for

receiving gross receipts from a financial institution in excess of $1 million and for abuse of a

position of trust. Accordingly, the judgment of the district court is AFFIRMED, but the district

court’s sentence is VACATED and REMANDED for resentencing.


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk
 




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