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Criminal Copyright Infringement - United States v Boyd

Criminal Copyright Infringement - United States v Boyd

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Published by Ray Dowd
Claim of ineffective assistance of counsel in criminal copyright infringement case remanded for finding as to whether counsel knew of five year statute of limitations and whether underlying claims were time-barred.
Claim of ineffective assistance of counsel in criminal copyright infringement case remanded for finding as to whether counsel knew of five year statute of limitations and whether underlying claims were time-barred.

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Categories:Business/Law
Published by: Ray Dowd on Feb 05, 2011
Copyright:Attribution Non-commercial

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02/06/2011

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1
09-3520-crUnited States v. Boyd
UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT
SUMMARY ORDER 
ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT
.
 
C
ITATION TO A SUMMARY ORDER FILEDON OR AFTER 
 ANUARY
1,
 
2007,
IS PERMITTED AND IS GOVERNED BY
F
EDERAL
ULE OF
 A 
PPELLATE
P
ROCEDURE
32.1
AND THIS COURT
S
L
OCAL
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 ANELECTRONIC DATABASE
(
 WITH THE NOTATION
SUMMARY ORDER 
”).
 
 A 
PARTY CITING A SUMMARY ORDER MUSTSERVE 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 31 day of January, two thousand eleven.
st
5
PRESENT:DENNIS JACOBS,
67
Chief Judge,
8
 AMALYA L. KEARSE,
9
CHESTER J. STRAUB,
10
Circuit Judges.
111213
- - - - - - - - - - - - - - - - - - - -X
UNITED STATES OF AMERICA,
1415
 Appellee,
161718
-v.-09-3520-cr
1920
CHRISTOPHER BOYD,
2122
Defendant-Appellant.
23
- - - - - - - - - - - - - - - - - - - -X
24
FOR APPELLANT:
ANTHONY J. LANA, Eoannou, Lana & D’Amico,
25
Buffalo, NY.
2627
 
2
1
FOR APPELLEE:
JOSEPH J. KARASZEWSKI, Assistant United
2
States Attorney (KAREN ODDO, Law Clerk,
3
on the brief), for William J. Hochul,
4
Jr., United States Attorney for the
5
Western District of New York, Buffalo,
6
NY.
78
Appeal from a judgment of the United States District
9
Court for the Western District of New York (Skretny, J.).
1011
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
12
 AND DECREED
that the judgment of the district court be
13
 AFFIRMED
in part and
 VACATED
in part, and the case
REMANDED
14
for further proceedings.
1516
Defendant-appellant
Christopher Boyd
appeals from a
17
judgment of conviction entered on August 7, 2009. Pursuant
18
to a plea agreement, Boyd
pled guilty to criminal copyright19infringement and to filing a false tax return, in violation20of 18 U.S.C. § 2319(b)(1), 17 U.S.C. § 506(a)(1)(A), and 2621U.S.C. § 7206(1). He was sentenced to 46 months of22incarceration, three years’ supervised release, and was23ordered to pay over $2 million in restitution.
We assume
24
the parties’ familiarity with the underlying facts, the
25
procedural history, and the issues presented for review.
2627
Boyd argues that his trial counsel’s performance was
28
constitutionally ineffective because Boyd was not informed
29
of relevant statutes of limitations, which circumscribed the
30
conduct for which he could be charged. When an ineffective
31
assistance claim is raised on direct appeal, we have three
32
options: “(1) decline to hear the claim, permitting the
33
appellant to raise the issue as part of a subsequent [28
34
U.S.C.] § 2255 petition; (2) remand the claim to the
35
district court for necessary fact-finding; or (3) decide the
36
claim on the record before us.” United States v. Hasan, 586
37
F.3d 161, 170 (2d Cir. 2009) (brackets in original).
“[I]n38most cases [a habeas claim] is preferable to direct appeal39for deciding claims of ineffective-assistance.” Massaro v.40United States, 538 U.S. 500, 504-05 (2003). However, we41have addressed ineffective assistance claims on direct42appeal when their resolution is “beyond any doubt” or to do43so is “in the interest of justice.United States v. Matos,44905 F.2d 30, 32 (2d Cir. 1990).45
 
The limitations period is the five years before the
1
filing of the information on February 9, 2009. Conduct asearly as 180 days before February 9, 2004 may have beenchargeable, however, because of the time period inherent inthe offense. For example, if the first infringement
3
1It is in the interest of justice to consider Boyds2claims on direct appeal. Boyd argues in part that he agreed3to pay restitution with respect to time-barred conduct4without knowing that (absent his consent) the district court5could impose restitution only for conduct within the6limitations period. See United States v. Silkowski, 32 F.3d7682, 688-89 (2d Cir. 1994) (interpreting 18 U.S.C. §§ 3663-83664 as limiting restitution to loss caused by “specific9conduct forming the basis for the offense of conviction,10unless more extensive restitution is agreed to in a plea11agreement). Restitution orders cannot be challenged through12a habeas petition because a “monetary fine is not a13sufficient restraint on liberty to meet the ‘in custody’14requirement,even if raised in conjunction with a challenge15to a sentence of imprisonment. See Kaminski v. United16States, 339 F.3d 84, 87-88 (2d Cir. 2003) (quoting United17States v. Michaud, 901 F.2d 5, 7 (1st Cir. 1990)). To18assess the effect on restitution, we must consider Boyd’s19claims on direct appeal.2021
[1]
There is insufficient record for us to decide Boyd’s
22
ineffectiveness claim for the copyright infringement count.
23
We remand to the district court to consider it first, with
24
additional fact-finding on the restitution amount and the
25
representation of Boyd, including: the timing of the acts of
26
infringement; whether Boyd was aware of the statute of
27
limitations; whether the issue was raised during plea
28
negotiations; and whether Boyd would have insisted upon
29
going to trial had he known about the limitations period.
30
 
31
The following considerations bear upon the remand:
3233
First, the court must determine whether Boyd had a
34
valid statute of limitations defense for the offense itself.
35
Criminal copyright infringement under 18 U.S.C. § 2319(b)(1)
36
involves ten or more copies of a protected work during any
37
180-day period, and has a five-year statute of limitations.
38See 18 U.S.C. § 3282(a)
. It seems unlikely, albeit
39
possible, that Boyd’s infringements all occurred before the
40
limitations period; if Boyd pled guilty to an offense for
1

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