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The Circuit Affirms Public Corruption Conviction, Rejecting A Slew Of Arguments And Narrowing The Reach Of Its Prior Decisions On Witness Tampering

In a lengthy opinion in United States v. Sampson on August 6, 2018, the Second Circuit (Cabranes, Livingston, Carney) affirmed the conviction of former New York State Senator John Sampson for obstruction of justice and false statements.  Sampson challenged his conviction at trial on a variety of different grounds.  The strongest possible basis for reversal was based on two prior decisions of the Second Circuit that limited the reach of Section 1503(a), one of the statutes that prohibits obstruction of justice.  In order for the Court to affirm, it needed to limit the apparent reach of these decisions, coming right up to the line that prohibits one panel of the Second Circuit from revisiting a prior panel decision without an en banc ruling by the Court.  In the end, the Court rejected this claim and the many other claims presented by Sampson, leaving both his conviction and sentence in place.


For many years, Sampson was a political “powerhouse” in the New York State Senate.  From 1997 until his 2015 expulsion, Sampson represented the 19th Senate District in Brooklyn, and also served for a time in the Democratic leadership of the Senate.  Sampson also was an attorney and he served as a referee in foreclosure actions for properties located in Brooklyn. 

The charges brought against him in the Eastern District of New York relate to events that began in 2006, when he asked a Queens businessman named Edul Ahmad for a $188,500 loan.  Sampson purportedly needed the money to replace funds he had embezzled while serving as a referee, hoping to replace the funds before the authorities discovered the crime.  Ahmad made the loan, but eventually realized that Sampson would never repay it.  Ahmad therefore asked Sampson to intervene in his regulatory dealings with New York State government.  Sampson lobbied and advocated for Ahmad on a variety of issues (e.g., intervening with regulators who were reviewing Ahmad’s business, introducing legislation to benefit Ahmad).

In July 2011, Ahmad was arrested for mortgage fraud.  Concerned that the investigation into Ahmad ultimately could reach him, Sampson contacted a friend who worked as a paralegal in the U.S. Attorneys’ Office.  Sampson offered to use that friend’s position to learn confidential information about the Ahmad investigation, purportedly in the hope that doing so would persuade Ahmad not to cooperate with the government.  The paralegal did provide Sampson with some information about the case.  When the government later arrested two of Ahmad’s co-conspirators, Sampson arranged for those individuals to retain counsel who Sampson believed would be willing to share information about their clients’ possible cooperation against Ahmad.

Eventually, in November 2011, Ahmad decided to cooperate with the government, part of which involved him having pre-orchestrated conversations with Sampson about the $188,500 loan.  During one such conversation, Ahmad showed Sampson a copy of a page from his check register reflecting the payment to Sampson.  Ahmad told Sampson that he believed he would need to produce this to the government.  Sampson told Ahmad not to produce the document and said that he should lie about the existence of both the document and the loan.  Sampson took the copy and never returned it to Ahmad.  Later, when FBI agents questioned Sampson in July 2012, showing him a photocopy of the check register page and asking about the loan, Sampson denied all knowledge and said that he didn’t have a recollection of the check register page.  He also made a number of other false statements to the agents, who then confronted Sampson about their belief that Sampson was lying.  Sampson responded that “[n]ot everything I told you was false.”

In April 2013, Sampson was indicted by a grand jury, which thereafter returned a number of superseding indictments.  Ultimately, Sampson was charged with eleven counts.  Two of the counts related to his alleged embezzlement as a referee; these were dismissed as time-barred prior to trial; this dismissal was reversed by the Circuit in another decision, which we have covered here. The other counts of the indictment were tried by a jury, and Sampson was convicted on three counts: that he obstructed justice in the mortgage fraud investigation of Ahmad and that he lied to the agents about two separate issues in his July 2012 interview.  In 2017, Sampson was sentenced to five years of imprisonment.

The Court’s Decision

Sampson presented a host of different legal arguments to the Second Circuit, but to no avail.  We review each of the issues considered by the Circuit.

Obstruction of Justice

Sampson argued that his conviction for obstruction of justice under Section 1503(a) was contrary to the Court’s prior decisions in United States v. Hernandez, 730 F.2d 895 (2d Cir. 1984) and United States v. Masterpol, 940 F.2d 760 (2d Cir. 1991).  The Section 1503(a) prosecution of Sampson was based on this provision’s “omnibus” clause, which makes it a crime to “endeavor[] to influence, obstruct, or impede, the due administration of justice,” so long as the defendant acts with a specific intent to obstruct a federal judicial or grand jury proceeding.  Prior to 1982, Section 1503 expressly prohibited witness tampering, but in 1982 Congress passed a statute that, inter alia, enacted Section 1512 as a witness tampering prohibition and eliminated the references to witness tampering in Section 1503(a). 

The Second Circuit held in Hernandez that based on the amendment to Section 1503, “intimidation and harassment of witnesses should [] henceforth be prosecuted under [Section] 1512” rather than under Section 1503.  In Masterpol, the Circuit addressed a case that involved “corruptly persuading” a witness, rather than physical threats or force, but the Court ruled again that Section 1503 no longer reached this type of witness tampering, given the enactment of Section 1512 and the amendment of Section 1503.

Sampson (who was charged with but acquitted of violations of Section 1512) argued that those two decisions barred the government’s prosecution here, but the Circuit rejected this argument.  Rather than extend its prior decisions to the particular form of “obstructive witness-related conduct” at issue here, the Circuit strictly limited the reach of Hernandez and Masterpol to cases involving substantially similar facts—i.e., cases involving intimidation and threats or “corruptly persuading” a witness to recant.  Given that Sampson’s conduct involved neither intimidation and threats nor corrupt persuasion, his conviction under Section 1503 was affirmed.  Sampson’s case involved trying to obtain information from the disloyal government paralegal in order to tamper with witnesses—which the Court characterized as “endeavoring” to tamper with witnesses.

The Court justified this seeming departure from prior decisions by pointing out that the statute that amended Section 1503 was meant to strengthen existing legal protections for witnesses and that its decision was necessary to prevent a situation in which neither statute would cover “mere endeavors” to tamper with witnesses.  This is because the lower-bound of Section 1512 criminalizes only tampering “attempts,” which require something more than mere preparation, and therefore likely does not reach an “endeavor” that goes no further.  The Court also noted that the Second Circuit is the only federal Circuit to hold that the omnibus clause in Section 1503 does not proscribe endeavors to obstruct justice that involve potential witness tampering.  The Court stated that “quite frankly, our sister circuits’ uniform rejection of our position appears warranted.”  However, since the Court was able to distinguish this appeal based on the factual differences noted above, the Court left for “another day the question of whether our decisions in Hernandez and Masterpol should be overruled by our en banc Court.”

Jury Instruction Error

Sampson also argued that the jury was not correctly instructed on “causing” liability, a legal theory that could have been relied upon for conviction.  Not only was Sampson charged as a principal for violating Section 1503(a), but he was also charged with causing the violation committed by the paralegal in the U.S. Attorney’s Office who assisted Sampson in keeping tabs on that office’s investigation into Ahmad.  Liability under Section 2(b)—the “causing” portion of Section 2 liability—requires that the defendant both (a) cause another person to commit the requisite act and (b) act with the mental state necessary to commit the underlying crime.  It was on this latter point—the mens rea of the offense—that the district court allegedly committed error.  While the district court did not expressly tell the jury that Sampson needed to have acted “corruptly”—with a specific intent to obstruct a proceeding—the jury was told that Sampson was guilty only if he “knowingly, willfully and corruptly” caused another person to obstruct justice.  The jury was also told that Sampson needed to have acted intentionally, which was defined as “deliberately and purposefully.”  Taken as a whole, the Court did not believe that the jury was misled.

False Statement Charge

The Court also rejected Sampson’s arguments that the evidence was insufficient to sustain his conviction for making false statements about the check register document.  Samson’s first argument was that when he told the FBI that he did not recognize the FBI’s photocopy of the check register page, he was referring to that specific photocopy and as such was telling the literal truth—since he had seen a different copy of the same check register document.  From the context, however, it was clear that Sampson was asserting (falsely) that he had not seen any document similar to the photocopy.  A second argument—that Sampson did not intend to deceive the agents when he said that the check register photocopy “didn’t ring a bell”—was also rejected based on the other evidence about Sampson’s intentions.  Last, the Court rejected Sampson’s claim that the agents’ questions were too ambiguous to serve as the basis for a conviction under Section 1001.  Again, the context was dispositive—the jury had no trouble concluding that Sampson understood the question and gave a false answer.

Limitations on Cross-Examination

Sampson sought to offer into evidence the notes taken by one of the case agents during the FBI’s interview of Sampson in July 2012; the district judge rejected this proffered evidence as hearsay.  Also, the court sustained the government’s objection to a question asked to the other case agent on cross-examination.  On both of these grounds, the Court affirmed.  With respect to the notes, they were hearsay, offered by the defense to provide the truth of their contents.  Sampson was permitted to call as a witness the author of the notes and to ask the other case agent questions based on the notes, but not to offer the notes themselves.  Nor were Sampson’s rights under the Confrontation Clause violated by the district court sustaining the objection to the cross-examination question, which looked to all concerned to be an effort to put hearsay before the jury.

Bribery Evidence

The Court also rejected Sampson’s argument that the district court should not have admitted evidence that Sampson allegedly engaged in bribery—that he performed political favors for Ahmad in lieu of repaying the loan.  The district court allowed this evidence to be admitted in order to show why Sampson wanted to obstruct Ahmad’s prosecution—to prevent Ahmad from cooperating against Sampson—and to establish that Sampson’s witness tampering was aimed at obstructing a federal investigation.  The evidence was admitted with an instruction that Sampson was not on trial for bribery, and that the evidence should be considered only for the permitted purposes.  On appeal, Sampson argued that in light of the Supreme Court’s decision in McDonnell v. United States, 136 S. Ct. 2355 (2016), his conduct with respect to Ahmad no longer was a federal offense and that the evidence of his bribery was unfairly prejudicial.  The Circuit disagreed:  even if Sampson’s conduct was ultimately not prohibited under McDonnell, Sampson might have thought that he was committing a federal offense (a reasonable assumption given pre-McDonnell decisional law).  The district court’s weighing of the prejudicial and probative aspects of this evidence was not an abuse of its discretion.


Finally, the district court rejected several sentencing arguments.  First, Sampson challenged the district court’s application of a16-level enhancement based on its finding that Sampson knew or should have known that Ahmad’s fraudulent conduct involved an intended or actual loss of $1.5 million.  The Court held that this enhancement was not clear error.  Sampson knew broadly that Ahmad was engaged in a significant fraud involving considerable money.  Second, the Court affirmed the imposition of an abuse-of-trust enhancement because Sampson’s special skill as an attorney aided him in the commission of this offense.  Third, the district court’s imposition of a sentence of 60 months—an upward variance from the Guidelines range of 37 to 46 months—was affirmed as having been based on a sufficient rationale.  Finally, the Circuit rejected an argument that his five-year sentence reflected an unwarranted disparity between his case and that of former New York State Senator Dean Skelos. 


Sampson’s appeal raised a veritable grab bag of claims.  Some of the arguments seemed less likely to be successful, such as the idea that Sampson was telling the truth when he said that he had not seen the check register page because in reality he had seen a different photocopy of the same document.  Other arguments seemed to have some merit, but asked the court to re-do certain decisions made by the trial court that are entitled to substantial deference.  Here, there were many close calls on evidentiary matters; in some trials, the defense might have had more latitude to cross-examine the case agent or the district court might have placed more limits on the admission of bribery-related evidence.  In addition, the enhancement for loss amount seems to be based more on the general circumstances of Ahmad’s finances than on specific information known to Sampson.  As some have said about our criminal justice system, a defendant is entitled to a fair trial, not a perfect trial, and many of the alleged errors here were in areas committed to the discretion of the district court and reviewable only on demanding standards of review. 

However, his argument that the Circuit’s prior interpretation of Section 1503 could not be reconciled with his conviction had real potential to lead to a reversal.  In order to affirm, the Circuit had to narrow its prior decisional law to an extent that seems in tension with the broader holdings of the earlier decisions.  The Court admits that its ruling is colored by the fact that the Circuit’s prior rulings are out of step with the national trend on the underlying question of law, and may have been wrongly decided.  An en banc might have been the more direct way of addressing the problem identified by the panel, and it will be interested to see if Sampson seeks an en banc hearing on this issue.  Given the Court’s parallel ruling reinstating the embezzlement counts that were dismissed by the district court prior to trial, it seems possible that the government may offer Sampson a trade:  no trial on the embezzlement counts if Sampson agrees not to litigate further the obstruction of justice and false statement counts.

Of the other arguments, the bribery evidence argument, premised on McDonnell, is the most interesting.  We have seen already how McDonnell has led to reversal of convictions and retrials in Silver, Skelos and other cases across the country.  Here, Sampson argued that he could not have been trying to interfere with a federal investigation since there could be no investigation into his conduct, which he alleged was not a crime under McDonnell.  The Circuit had no appetite for this argument, recognizing that whatever the state of the law might be, it appeared that Sampson thought he could face exposure and prosecution based on his dealings with Ahmad.  McDonnell has reached far,[1] but not this far.

-By Jason Vitullo and Harry Sandick

[1] Corinne Ramey, “Former New York State Lawmakers Face Retrials on Corruption Charges,” Wall Street Journal (Apr. 8, 2018).