A man who started a car fire to distract police while he robbed a bank has had his conviction upheld by a federal appeals court.
Defendant Sonny Desposito tried to win a reversal of his conviction, arguing he didn’t “use” fire to commit a felony. But the U.S. Court of Appeals for the Second Circuit said the car fire he started to provide cover for his robbery counts under the statute as it was “integral” to his scheme.
Desposito used a can of lighter fluid purchased by a friend to set fire to a car in Chestnut Ridge, N.Y., on Jan. 23, 2009. While police were responding to the fire, he entered an M&T Bank a few minutes away wearing a black ski cap and carrying a pellet gun.
He robbed the bank of $10,000, escaped to his car through the nearby woods, drove to Pearl River, then pulled over and burned the lighter fluid can and the clothes he wore in the robbery on a sidewalk.
But a neighbor saw the fire and put it out. Samples from the burned ski cap were later found to contain traces of Desposito’s DNA.
Desposito was arrested, and while awaiting trial in jail he wrote 10 letters and mailed them in three sets to Besnick Ljuljanaj, a friend in whose home he had hidden the stolen money. The letters outlined a plan to have associates get a replacement can of lighter fluid, put new fingerprints on it, place the can in shopping bags and somehow raise the possibility he never used the original can of lighter fluid.
But the letters were intercepted by Ljuljanaj’s father, who turned them over to his attorney, who, in turn, handed them over to police.
Desposito was indicted in August 2010 and went on to testify in his own defense at his November 2010 trial before Southern District Judge Cathy Seibel in White Plains (See Profile).
It took a White Plains jury less than one day to convict Desposito of using fire to commit a felony under 18 U.S.C. §844 (h)(1), attempting to obstruct an official proceeding pursuant to 18 U.S.C. §1512 (c)(2) and bank robbery in violation of 18 U.S.C. §2113(a), (d).
Seibel sentenced him to 19 years in prison, 10 of those years being a mandatory consecutive sentence under the fire statute.
Desposito appealed to the Second Circuit, where Judges Jose Cabranes (See Profile), Denny Chin (See Profile) and Susan Carney (See Profile) heard oral arguments in United States v. Desposito, 11-2634-cr, on Oct. 26, 2012.
Represented by Stephen Neal Preziosi, Desposito contended that he did not “use” fire to commit the robbery within the meaning of the statute and the evidence only showed that he employed fire to “facilitate” the crime.
Even if the court declined to accept that argument, he argued that his conviction violated due process because he lacked fair warning that his conduct was illegal.
Chin, writing for the panel, said the fire statute does not provide a definition of the word “use,” but this didn’t help Desposito, as the plain meaning of the word, in the context employed by Congress, “means the accused must have carried out the crime by means of fire.”
“Giving the word this plain meaning, it is obvious that Desposito ‘used’ fire to commit bank robbery,” Chin said. “Indeed, as the evidence showed, the use of fire was an integral part of Desposito’s scheme to rob the bank.”
Desposito cited the Seventh Circuit case of United States v. Hayward, 6 F.3d 1241 (1993), where defendants were convicted of using fire to commit a conspiracy against civil rights because they burned crosses on the lawn of a white family who entertained black house guests.
The Hayward defendants argued that the logic underpinning their convictions would lead to absurd results—such as a thief being convicted under the law for using a cigarette lighter as a light source while picking a lock.
The Hayward court rejected the argument, noting that the lighting of the crosses was an “integral part of the threat or intimidation,” and the fire “did not simply facilitate or assist” the defendants.
Desposito seized on the use of the word “facilitate” by the Seventh Circuit, but Chin was not persuaded, saying the comment was “at best, dicta” and, “Despite drawing this contrast, the court did not hold that using fire to merely ‘facilitate’ a felony was beyond the scope of the statute.”
Chin added, “Second, even assuming Hayward stood for that proposition, Desposito’s actions differ significantly from using a cigarette lighter as a source of light or illumination. Here, fire was critical to his scheme and made the robbery possible.”
And Desposito, he said, had plenty of “fair warning” that his conduct was illegal under the law.
Desposito also argued on appeal that the letters from jail were insufficient to convict him of attempting to obstruct an official proceeding.
Chin disposed of this argument by saying the letters “sufficiently demonstrate a nexus between Desposito’s actions and his criminal trial.”
“Throughout these letters, Desposito indicated that the purpose of his plan was to create fraudulent evidence—grocery bags and a can of lighter fluid bearing planted fingerprints—that would be admitted into evidence to raise a reasonable doubt as to his guilt,” he said.
Assistant U.S. Attorney Sarah Rebecca Krisoff argued for the government.
Preziosi said he intended to petition the U.S. Supreme Court to hear the case.
“I feel very strongly about the issues in the case,” Preziosi said. “First and foremost, on the use of fire, there is a little bit of a split in the circuits on this issue. The fire has to be a necessary predicate to the commission of the act.”
Preziosi said he also plans to press the obstruction issue, as he believed his client’s letters from jail fell short under the case law of amounting to a “substantial step” towards obstructing a proceeding.
@|Mark Hamblett can be contacted at email@example.com.