Filed: Dec. 14, 2010
Latest Update: Feb. 21, 2020
Summary: 08-6020-cr United States v. Feuer UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTA
Summary: 08-6020-cr United States v. Feuer UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTAT..
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08-6020-cr
United States v. Feuer
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 14 th day of December, two thousand and ten.
5
6 PRESENT: WILFRED FEINBERG,
7 BARRINGTON D. PARKER,
8 RICHARD C. WESLEY,
9 Circuit Judges.
10
11
12
13 UNITED STATES OF AMERICA,
14
15 Appellee,
16
17 -v.- 08-6020-cr
18
19 EDWARD C. FEUER,
20
21 Defendant-Appellant,
22
23
24
25 FOR APPELLANT: KIM P. BONSTROM, Bonstrom & Murphy,
26 Shelter Island, NY.
27
28 FOR APPELLEE: MARK LANPHER, Assistant United States
29 Attorney, (Katherine Polk Failla,
30 Assistant United States Attorney, on the
31 brief), for Preet Bharara, United States
32 Attorney for the Southern District of New
33 York, New York, NY.
1 Appeal from the United States District Court for the
2 Southern District of New York (Pauley, 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 Edward C. Feuer appeals from a judgment entered on
8 November 3, 2008 by the United States District Court for the
9 Southern District of New York (Pauley, J.) sentencing Feuer
10 to 84 months’ imprisonment following a jury verdict finding
11 Feuer guilty of receiving child pornography in violation of
12 18 U.S.C. § 2252A(a)(2). We assume the parties’ familiarity
13 with the underlying facts, the procedural history, and the
14 issues presented for review.
15 Feuer argues that his Sixth Amendment rights were
16 violated because the district court excluded evidence and
17 argument regarding the consequences of conviction and
18 instructed the jury that it could not consider sentencing
19 consequences. Except in certain limited circumstances, a
20 defendant has “no legal right to a charge informing the jury
21 of the sentencing consequences of its decision.” United
22 States v. Pabon-Cruz, 391 F.3d 86, 94 (2d Cir. 2004). See
23 also Shannon v. United States,
512 U.S. 573, 579 (1994);
24 United States v. Polouizzi,
564 F.3d 142, 160-61 (2d Cir.
2
1 2009). Likewise, except in certain limited circumstances, a
2 defendant has no legal right to introduce evidence or
3 argument regarding sentencing consequences. Feuer makes no
4 showing of exceptional circumstances here and, accordingly,
5 we find no Sixth Amendment violation. See Shannon, 512 U.S.
6 at 587 (explaining such circumstances).
7 Similarly, Feuer argues that the district court
8 misunderstood and abused its discretion by excluding
9 argument on, and jury consideration of, sentencing
10 consequences. In Polouizzi, our Court held that declining
11 to inform a jury of sentencing consequences is "certainly
12 within [a district court’s] discretion." Polouizzi,
564
13 F.3d at 160. In this case, the district court explained that
14 "providing jurors with sentencing information invites them
15 to ponder matters that are not within their province,
16 distracts them from their fact-finding responsibilities and
17 creates a strong possibility of confusion, as the Supreme
18 Court held in Shannon . . . ." The district court thus
19 reasonably discussed the factors that persuaded it why the
20 jury should not learn of sentencing consequences in this
21 case. Based on this record, we find no suggestion that the
22 district court either misunderstood or abused its
3
1 discretion.
2 Feuer next argues that the district court erred in
3 denying his application for a psychiatric examination and
4 determining that Feuer was competent to stand trial and
5 proceed to sentencing. A competency hearing is not required
6 every time a defendant requests one. United States v.
7 Nichols, 56 F.3d 403, 414 (2d Cir. 1995); 18 U.S.C. §
8 4241(a). Due process requires a court to order a competency
9 hearing "if the court has reasonable cause to believe that
10 the defendant has a mental defect rendering him
11 incompetent."
Nichols, 56 F.3d at 414 (internal quotation
12 marks and citations omitted). We review a district court's
13 determination that there was no reasonable cause to believe
14 that a defendant is mentally incompetent for abuse of
15 discretion. United States v. Quintieri,
306 F.3d 1217,
16 1232-33 (2d Cir. 2002); United States v. Vamos,
797 F.2d
17 1146, 1150 (2d Cir. 1986) (explaining that our review should
18 be with "deference . . . to the district court's
19 determinations based on observations of the defendant during
20 the proceedings").
21 The district court did not violate Feuer’s due process
22 rights or abuse its discretion by finding that there was no
4
1 reasonable cause to believe that Feuer was incompetent.
2 The district court directly questioned Feuer on multiple
3 occasions and sought to ascertain whether he understood the
4 nature and gravity of the proceedings. Based on these
5 conversations and its observations of Feuer, the court
6 determined that Feuer was competent and reasonably concluded
7 that the concerns expressed by his counsel did not
8 demonstrate incompetence. The district court expressed a
9 reasonable view of the evidence and thus it did not abuse
10 its discretion. Nichols, 56 F.3d at 411 (“[w]here there are
11 two permissible views of the evidence as to competency, the
12 court’s choice between them cannot be deemed clearly
13 erroneous” (citation and internal quotation marks omitted)).
14 In opposition, Feuer relies on the district court's
15 recognition at sentencing that Feuer has mental problems.
16 The district court observed “a terrible, a frightening
17 disconnect between Mr. Feuer and the world around him,”
18 found that “[t]he reports indicate that Mr. Feuer may have
19 certain difficult understanding why what he did was wrong,”
20 and noted that it is “clear that this defendant needs a
21 great deal of psychological help.” None of these
22 observations shows that the district court abused its
5
1 discretion. The district court also concluded, however,
2 despite all of these observations that, "I think that Mr.
3 Feuer is perfectly capable of understanding everything
4 around him." Given that the court based this factual
5 finding on its observations of and discussions with Feuer -
6 and that these exchanges did not suggest that Feuer lacked
7 an ability to understand the proceedings - we defer to the
8 district court's findings.
9 Finally, Feuer argues that his sentence was
10 substantively unreasonable. We disagree. The district
11 court discussed the reasons for Feuer’s sentence and did
12 not, as Feuer contends, exhibit undue disgust with Feuer’s
13 behavior or undue deference to the Guidelines. The district
14 court stated that it considered all of the § 3553(a)
15 factors, and there is no evidence to suggest otherwise. The
16 court then rendered its sentence against the backdrop of
17 "the need for deterrence, the need for this defendant to
18 understand that what he did was wrong, that he has some
19 problems that need to be addressed with extensive and
20 ongoing therapy." Given these proper considerations and
21 the below Guidelines sentence ultimately imposed, we
22 conclude that the sentence was not substantively
6
1 unreasonable.
2 For the foregoing reasons, the judgment of the district
3 court is hereby AFFIRMED.
4
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
7
8
7
