United States v. Smutek ( 2018 )

17-714-cr
United States v. Smutek
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
5th day of April, two thousand eighteen.
PRESENT: PETER W. HALL,
CHRISTOPHER F. DRONEY,
Circuit Judges,
TIMOTHY C. STANCEU,
Judge.
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 17-714-cr
ROBERT SMUTEK,
Defendant-Appellant.
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For Appellant: Russell L. Penzer, Lazer, Aptheker, Rosella &
Yedid, P.C., Melville, New York.
For Appellee: Maurene Comey, Daniel B. Tehrani, Assistant
United States Attorneys, for Geoffrey S. Berman,
United States Attorney for the Southern District of
New York, New York, New York.

Timothy C. Stanceu, Chief Judge, United States Court of International Trade, sitting by
designation.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Karas, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment entered on February 17, 2017 is AFFIRMED.
Defendant Robert Smutek (“Smutek”) owned and operated a website called Online Coral
Calcium where he marketed and sold a variety of products, including mood enhancers, weight-loss
supplements, and male enhancement products. Between 2009 and 2014, Smutek sold a mood
enhancer called Potion 9. Potion 9 was a one ounce pink beverage that was advertised as inducing
a feeling of euphoria. Potion 9 contained 1,4 butanediol, which was not listed as an ingredient
on the product’s label. 1,4 butanediol is an industrial solvent that is an analogue to the controlled
substance gamma hydroxybutyric acid (“GHB”). See 21 C.F.R. § 1308.13; App’x at 1052–53.
GHB is a substance commonly used on victims to facilitate sexual assault. App’x at 1052–53.
Smutek was charged with four counts of possessing and distributing 1,4 butanediol and
one count of unlawful possession of a firearm. The four possession with intent counts were
severed from the firearm count and tried before a jury. Smutek was convicted on all counts.
The primary issue at trial was whether Smutek knew Potion 9 contained a controlled substance
analogue. We assume the parties’ familiarity with the underlying facts, procedural history, and
issues on appeal.
I. Substantial Evidence
Smutek argues that the government did not introduce sufficient evidence to prove he knew
Potion 9 contained a controlled substance analogue or that he knew Potion 9 contained 1,4
butanediol. We review de novo sufficiency of the evidence claims. United States v. Harvey,
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746 F.3d 87, 89 (2d Cir. 2014). In challenging the sufficiency of the evidence, the defendant
“bears a ‘heavy burden.’” United States v. Si Lu Tian, 339 F.3d 143, 150 (2d Cir. 2003) (quoting
United States v. McCarthy, 271 F.3d 387, 394 (2d Cir. 2001)). A jury’s verdict must be upheld
if, viewing the evidence in the light most favorable to the government, “any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” United States
v. Espaillet, 380 F.3d 713, 718 (2d Cir. 2004) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)).
To prove that a defendant knowingly manufactured, distributed, or possessed a controlled
substance analogue, the government must prove beyond a reasonable doubt that (1) the defendant
knew he was dealing with a controlled substance, i.e., a substance “actually listed on the federal
drug schedules or treated as such by operation of the Analogue Act—regardless of whether he
knew the particular identity of the substance” or (2) the defendant “knew the specific analogue he
was dealing with, even if he did not know its legal status as a an analogue.” McFadden v. United
States, 135 S. Ct. 2298, 2305 (2015).
There is substantial evidence in the record that Smutek knowingly possessed and
distributed a substance containing a controlled substance analogue. For instance, at the direction
of law enforcement, Potion 9’s manufacturer, Tayfun Karauzum (“Karauzum”), recorded a phone
call with Smutek. Karauzum warned him that another Potion 9 distributor “got busted because
Potion 9 had the 1,4 butanediol in it,” to which Smutek responded, “No s**t, I thought he got rid
of that product.” App’x at 1608. Smutek expressed no surprise or concern that Potion 9
contained 1,4 butanediol, nor did he ask Karauzum any follow up questions about 1,4 butanediol
in Potion 9. Rather, Smutek and Karauzum discussed repackaging Potion 9 and calling it “Tiger
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Blood,” so that they could keep selling Potion 9 while avoiding detection. Id. at 1609.
Smutek also suggested that Potion 9 could be used to facilitate sexual assault. On April
22, 2014, Smutek engaged in a vulgar conversation with a man named Karl Ulrich (“Ulrich”) in
which Smutek instructed Ulrich to use Potion 9 to engage in sexual acts with an unidentified
female. At trial, Smutek acknowledged that he told Ulrich to give the woman Potion 9 because
“[h]e’s not the most handsome of people.” Id. at 1260.
Smutek disagrees with the jury’s assessment of his credibility, but that is not a basis to
upset the jury’s verdict. United States v. Triumph Capital Grp., Inc., 544 F.3d 149, 158–59 (2d
Cir. 2008) (“In order to avoid usurping the role of the jury, courts must defer to the jury’s
assessment of witness credibility and the jury’s resolution of conflicting testimony when reviewing
the sufficiency of the evidence.” (internal citations and quotation marks omitted)). The jury
reviewed the evidence and ultimately concluded that Smutek’s explanations were not credible.
II. Knowledge Instruction
Smutek argues that the district court committed plain error by crafting an instruction on
proof of knowledge “almost verbatim” from the language in McFadden v. United States, 135 S.
Ct. 2298 (2015). Appellant’s Br. at 18. In his view, the language in that instruction likely
confused the jury on what evidence the government was required to provide to demonstrate
Smutek knew he was selling a controlled substance analogue or 1,4 butanediol.
Smutek, however, did not object to the instruction, and we thus review for plain error.
United States v. Middlemiss, 217 F.3d 112, 121 (2d Cir. 2000). On plain error review, the
defendant must show:
(1) there is an error; (2) the error is clear or obvious, rather than subject to
reasonable dispute; (3) the error affected the appellant’s substantial rights, which
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in the ordinary case means it affected the outcome of the district court proceedings;
and (4) the error seriously affects the fairness, integrity or public reputation of
judicial proceedings.
United States v. Marcus, 560 U.S. 258, 262 (2010) (internal quotation marks omitted). There
was no error in the district court’s instruction on proof of knowledge, much less plain error.
“[A] jury instruction is erroneous if it misleads the jury as to the correct legal standard or
does not adequately inform the jury on the law.” United States v. Bok, 156 F.3d 157, 160 (2d
Cir. 1998) (quoting United States v. Dinome, 86 F.3d 277, 282 (2d Cir. 1996)). We review “the
instructions as a whole to see if the entire charge delivered a correct interpretation of the law.”
United States v. Al Kassar, 660 F.3d 108, 127 (2d Cir. 2011) (quoting United States v. Bala, 236
F.3d 87, 94–95 (2d Cir. 2000)). Reversal is required only if the “error was prejudicial or the
charge was highly confusing.” United States v. Kopstein, 759 F.3d 168, 172 (2d Cir. 2014)
(quoting Hudson v. New York City, 271 F.3d 62, 67 (2d Cir. 2001)).
The district court correctly instructed the jury that the government was required to prove
beyond a reasonable doubt that Smutek knew: (1) that Potion 9 contained a controlled substance
analogue, even if he did not know the identity of the substance, or (2) that Potion 9 contained 1,4
butanediol, even if he did not know that 1,4 butanediol was a controlled substance analogue.
McFadden, 135 S. Ct. at 2305.1 These instructions were sufficient to adequately inform the jury
of the law.
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Moreover, any perceived confusion attributed to this instruction did not affect Smutek’s
substantial rights. See United States v. Marcus, 560 U.S. 258, 262 (2010). As described, the
government provided ample evidence supporting the jury’s finding that Smutek knew Potion 9
contained a GHB analogue.
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III. Drug Quantity Calculation
Smutek submits that at sentencing the district court erroneously held him responsible for
200,000 bottles of Potion 9 containing 1,4 butanediol where the government only tested 45 of the
Potion 9 bottles seized during the investigation. Likewise, Smutek faults the government for not
presenting evidence of who manufactured Potion 9 and whether the manufacturer’s methods of
production were constant or changed over time.
“When a district court makes a finding of fact with respect to the amount of drugs
attributable to a defendant, we review that finding for clear error.” United States v. Batista, 684
F.3d 333, 344 (2d Cir. 2012) (quoting United States v. Ramirez, 609 F.3d 495, 503 (2d Cir. 2010)).
“Where there is no drug seizure or the amount seized does not reflect the scale of the offense,” the
Guidelines direct courts to “approximate the quantity of the controlled substance.” U.S.S.G.
§ 2D1.1 app. n.5. The district court’s drug quantity findings must be supported by a
preponderance of the evidence. United States v. Jones, 531 F.3d 163, 175 (2d Cir. 2008) (“[I]f
the evidence—direct or circumstantial—supports a district court’s preponderance determination
as to drug quantity, we must sustain that finding.”).
The district court’s calculation of the amount of 1,4 butanediol Smutek was responsible for
possessing and distributing is not clearly erroneous. Smutek testified that Karauzum sold him
approximately 140,000 bottles between 2011 and 2014 and a “couple of hundred thousand” bottles
in total. App’x at 1214–15. Smutek testified that he understood that Karauzum manufactured
Potion 9 and that Karauzum was his only supplier. Every bottle of Potion 9 the government tested
contained 1,4 butanediol. Smutek’s correspondence, moreover, demonstrated that he began
selling Potion 9 because it contained the same ingredients and induced the same effects as Bliss
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Shots and Koi Bombs. Furthermore, Smutek reported experiencing the same effects from Potion
9 over the approximately five years he sold the product. This evidence adequately supports the
district court’s conclusion that all 200,000 bottles of the Potion 9 Smutek purchased and distributed
between 2009 and 2014 contained 1,4 butanediol.
IV. Obstruction Enhancement
Citing United States v. Dunnigan, 507 U.S. 87 (1993), Smutek argues that the district court
erred by failing to make specific findings that he acted with the specific intent to obstruct justice.
He contends that by opining that Smutek buried his head in the sand regarding whether Potion 9
contained 1,4 butanediol, the district court merely found that Smutek’s behavior was negligent or
reckless.
“We review de novo a ruling that the established facts constitute obstruction of justice,
giving ‘due deference to the district court’s application of the [G]uidelines to the facts.’” United
States v. Agudelo, 414 F.3d 345, 348 (2d Cir. 2005) (quoting United States v. Lincecum, 220 F.3d
77, 80 (2d Cir. 2000)). Section 3C1.1 of the Guidelines provides for a two-level increase in the
defendant’s offense level when:
(1) the defendant willfully obstructed or impeded, or attempted to obstruct or
impede, the administration of justice with respect to the investigation, prosecution,
or sentencing of the instant offense of conviction, and (2) the obstructive conduct
related to (A) the defendant’s offense of conviction and any relevant conduct; or
(B) a closely related offense[.]
U.S.S.G. § 3C1.1. Perjury can be the basis for an obstruction enhancement. United States v.
Dunnigan, 507 U.S. 87, 93–94 (1993). To enhance a defendant’s sentence for perjury, the district
court must find that “the defendant 1) willfully 2) and materially 3) committed perjury, which is
(a) the intentional (b) giving of false testimony (c) as to a material matter.” United States v.
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Zagari, 111 F.3d 307, 329 (2d Cir. 1997). A perjury enhancement applies to intentional false
testimony rather than false testimony that is a result of “confusion, mistake, or faulty memory.”
U.S.S.G. § 3C1.1 app. n.2. When imposing a perjury enhancement, the district court is not
required to use particular language or “magic words.” United States v. Dundon, 349 F. App’x
588, 590 (2d Cir. 2009) (summary order) (citing United States v. Cavera, 550 F.3d 180, 193 (2d
Cir. 2008)). Rather, a district court may impose a perjury enhancement by making “a general
finding of obstruction that tracks those factual predicates necessary to support a finding of
perjury.” United States v. Shonubi, 998 F.2d 84, 88 (2d Cir. 1993) (citing United States v.
Dunnigan, 507 U.S. 87 (1993)).
Contrary to Smutek’s arguments, the district court made detailed findings supporting its
conclusion that Smutek willfully provided false testimony in an attempt to contradict key
components of the government’s evidence. Specifically, the district court outlined three
instances where Smutek offered false testimony, including: (1) Smutek’s explanation of his
conversation with Ulrich; (2) Smutek’s explanation of his advice to a prospective customer that he
or she research GHB, GBL, and 1,4 butanediol to reproduce the effects of Bliss Shots and Koi
Bombs; and (3) Smutek’s reasoning for disregarding Karauzum’s warning that Potion 9 contained
1,4 butanediol. With respect to each aspect of Smutek’s testimony, the district court also gave
reasons why it concluded Smutek’s testimony was a calculated effort to mislead the jury rather
than the result of confusion, mistake, or faulty memory.
The district court’s comment that Smutek buried his head in the sand regarding whether
Potion 9 contained 1,4 butanediol was not directed at Smutek’s trial testimony or its perjury
findings. Rather, this statement was in response to Smutek’s statement at sentencing that he
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regretted being willfully blind to Potion 9’s ingredients. Nothing in the district court’s response
to Smutek’s plea for leniency, moreover, undercuts its conclusion that Smutek willfully provided
false testimony. The obstruction enhancement was not premised on a general finding that Smutek
lied about knowing Potion 9 contained 1,4 butanediol. Rather, the district court pointed to
specific false statements that Smutek made in an effort to contradict key components of the
government’s case.
V. Ineffective Assistance of Counsel
Finally, Smutek argues he was denied effective assistance of counsel at trial because
counsel did not object to the district court’s knowledge instruction or call an expert witness to
testify that Potion 9’s listed ingredients produced the effects Smutek observed.
When confronted with an ineffective assistance claim on direct appeal, we may: “(1)
decline to hear the claim, permitting the appellant to raise the issue as part of a subsequent petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2255; (2) remand the claim to the district court
for necessary factfinding; or (3) decide the claim on the record before [the Court].” United States
v. Morris, 350 F.3d 32, 39 (2d Cir. 2003). The Supreme Court has emphasized that “in most
cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective
assistance” because the district court is 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, 504–05 (2003).
As discussed, Smutek did not suffer prejudice from his counsel’s failure to object to the
district court’s knowledge instruction. The district court’s knowledge instruction accurately and
unambiguously set out the applicable law. See Strickland v. Washington, 466 U.S. 668, 694
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(1984) (“The defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”).
We decline, however, to adjudicate Smutek’s ineffective assistance claim premised on his
counsel’s failure to call an expert witness. At this juncture, we are not satisfied that the “factual
record is fully developed and resolution of the Sixth Amendment claim on direct appeal is ‘beyond
any doubt’ or ‘in the interest of justice.’” United States v. Gaskin, 364 F.3d 438, 468 (2d Cir.
2004) (quoting United States v. Khedr, 343 F.3d 96, 102 (2d Cir. 2003)).
VI. Conclusion
We have considered Smutek’s remaining arguments and find them to be without merit.
We AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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