Opinion
No. 09-2379-cr.
July 13, 2010.
Appeal from the United States District Court for the Eastern District of New York (Edward R. Korman, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Lawrence Gerzog, New York, NY, on submission, for Appellant.
Andrew E. Goldsmith, Assistant United States Attorney (Emily Berger, on the brief), for Benton J. Campbell, United States Attorney for the Eastern District of New York, on submission, for Appellee.
PRESENT: GERARD E. LYNCH, and DENNY CHIN, Circuit Judges.
The Honorable Reena Raggi, originally a member of the panel, recused herself from this case. The remaining two members of the panel, who are in agreement, decided this case in accordance with Second Circuit Internal Operating Procedure ("IOP") E(b).
SUMMARY ORDER
Antonio Bland appeals from a conviction, following a conditional guilty plea permitting him to appeal the denial of a suppression motion, of one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On appeal, Bland argues that the government failed to establish probable cause for his arrest for patronizing a prostitute that led to the discovery of the firearm. We assume the parties' familiarity with the relevant facts and procedural history of this case, and the issues presented on appeal.
"On an appeal from a ruling on a motion to suppress, we review a district court's findings of historical fact for clear error, but analyze de novo the ultimate determination of such legal issues as probable cause. . . ." United States v. Valentine, 539 F.3d 88, 93 (2d Cir. 2008), quoting United States v. Smith, 9 F.3d 1007, 1011 (2d Cir. 1993).
Bland's suppression motion was heard by a magistrate judge who issued a report and recommendation that was adopted in full by the district court. The magistrate judge credited the testimony of an under-cover police officer that Bland offered her $20 for oral sex. The magistrate judge also credited testimony from an agent of the Bureau of Alcohol Tobacco and Firearms ("ATF") that Bland admitted, during a proffer session, that he had offered the undercover officer money for oral sex. Finally, the magistrate judge found that the discrepancy between the undercover officer's original description of the request for oral sex and an affidavit specifying a request for sexual intercourse arose innocently as the information was passed from the undercover officer to the arresting officer to the District Attorney's Office. Taken together, the magistrate judge found the facts were sufficient to establish probable cause.
"Probable cause exists if a law enforcement official . . . has `knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested.'" United States v. Howard, 489 F.3d 484, 491 (2d Cir. 2007) (citation omitted). Under New York law, "[a] person patronizes a prostitute when . . . [inter alia] [h]e solicits or requests another person to engage in sexual conduct with him in return for a fee." N.Y. Penal Law § 230.02(1)(c) (McKinney 2008) (emphasis added). While Bland claims that the evidence against him fails to establish sufficient probable cause for his arrest, none of the district court's factual findings were clearly erroneous, and taken together they were sufficient to establish probable cause. The credited testimony establishes that the arresting officer had the requisite knowledge, based on the information supplied to him by the undercover officer, to believe that Bland had violated § 230.02(1)(c).
Section 230.02 provides the definition of "patronizing a prostitute" for the purposes of §§ 230.04-230.06 (patronizing a prostitute in the third, second, and first degrees), and for former § 230.03 (patronizing a prostitute in the fourth degree), under which Bland was charged, which has since been repealed.
Bland argues that an "agreement" is an element of the crime of patronizing a prostitute, and that there was insufficient evidence of an agreement to arrest him. Bland is incorrect. An agreement is not required for an arrest for patronizing a prostitute. Under the definition set forth in § 230.02(1), that crime may be committed in several distinct ways. While agreement may be required for a conviction pursuant to § 230.02(1)(b), which applies to someone who " pays or agrees to pay a fee to another person pursuant to an understanding that in return therefore such person or a third person will engage in sexual conduct with him" (emphasis added), no such agreement is required for a conviction pursuant to subsection (c), which requires only that a person "solicit[] or request[]" another person to engage in sexual conduct for money, and not that the person solicited agree to the request.
Bland cites a number of cases to support his argument that an agreement is a necessary element of patronizing a prostitute, but these cases are easily distinguishable. Four of these cases, People v. Polianskaia, 189 Misc.2d 237, 730 N.Y.S.2d 685 (N.Y.C.Crim.Ct. 2001), People v. A.M., NO. 2001CN001284, 2001 WL 1117455 (N.Y.C.Crim.Ct. July 31, 2001), People v. A.S., 179 Misc.2d 569, 685 N.Y.S.2d 573 (N.Y.C.Crim.Ct. 1998), and People v. Hilo, 791 N.Y.S.2d 872 (Table) (N.Y.Sup.App. Term 2004), deal with the crime of prostitution, N.Y. Penal L. § 230.00, not the crime patronizing a prostitute for which Bland was arrested. In two other cases, People v. Richardson, No. 2001KN057369, 2002 WL 977167 (N.Y.C.Crim.Ct. Apr. 5, 2002), and People v. Bah, 180 Misc.2d 39, 688 N.Y.S.2d 397 (N.Y.C.Crim.Ct. 1999), the charging documents specified that the defendant had made an agreement to-engage in sexual conduct for a fee, and the prosecutions were apparently brought under § 230.02(1)(b), which calls for an agreement, and not under § 230.02(1)(c), which does not. Finally, the accusatory statement in People v. Kenrick, 162 Misc.2d 75, 615 N.Y.S.2d 859 (N.Y.C.Crim.Ct. 1994), did not in fact allege an agreement, but stated only that the defendant "requested" that the undercover officer engage in sexual conduct, evincing that no agreement is needed to violate the patronizing a prostitute provision.
According to one New York court, the purpose of the patronizing statute is to punish potential patrons simply for soliciting, "otherwise the patron would be permitted to proceed on his way uncondemned by the law, until he finally finds a person wiling to satisfy him." People v. Bronski 76 Misc.2d 341, 351 N.Y.S.2d 73, 75 (N.Y.C.Crim.Ct. 1973). To read section 230.02(1)(c) to require agreement on the part of the solicited party would defeat this purpose. We decline to adopt Bland's reading, which is contrary to both the plain language and the apparent purpose of the statute.
We also decline Bland's alternative request that we certify the question of whether agreement is an element of the crime of patronizing a prostitute to the New York Court of Appeals. This request was based on Bland's contention that the federal trial court below second-guessed the interpretations of a long line of state trial courts. However, the district court's decision does not conflict with any of the cases Bland cites, and does hot second-guess any state court precedent. Given the clarity of the plain language of section 230.02(1)(c), there is no need to certify the question.
For the; foregoing reasons, the judgment of conviction is AFFIRMED.