The Clerk of Court is directed to amend the caption as set forth above. 10-2994-cr… v. Leslie 1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 6 7 August…

* The Clerk of Court is directed to amend the caption as set
forth above.
10-2994-cr
United States v. Leslie
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UNITED STATES COURT OF APPEALS 2
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FOR THE SECOND CIRCUIT 4
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August Term, 2011 8
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(Argued: September 13, 2011 Decided: October 3, 2011) 10
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Docket No. 10-2994-cr 12
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U NITED S TATES OF A MERICA , 15
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Appellee, 17
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–v.– 19
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S ADIKI K OMUNYAKA L ESLIE , 21
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Defendant-Appellant. *
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Before: 27
C ALABRESI , W ESLEY , and L YNCH , Circuit Judges. 28
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Appeal from a judgment of the United States District 30
Court for the District of Connecticut (Thompson, C.J.), 31
entered on July 12, 2010, sentencing defendant to 51-months 32
imprisonment. Defendant pled guilty to conspiring to commit 33
bank fraud. At sentencing, the district court determined 34
that defendant was responsible for actual losses incurred 35
during the entire period of the charged conspiracy. 36
Defendant argues that the district court should not have 37
attributed any losses to him after he was incarcerated 38
because his incarceration constituted a withdrawal from the 39
conspiracy. We hold that the district court did not err in 40
calculating the appropriate Sentencing Guidelines range 41

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because defendant did not establish that he withdrew from 1
the conspiracy. 2
3
A FFIRMED. 4
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W ILLIAM T. K OCH , J R ., Koch and Koch, Lyme, CT, for 8
Defendant-Appellant. 9
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D AVID T. H UANG , Assistant United States Attorney 11
(Sandra S. Glover, Assistant United States 12
Attorney, on the brief), for David B. Fein, 13
United States Attorney for the District of 14
Connecticut, New Haven, CT, for Appellee. 15
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P ER C URIAM : 19
Defendant-Appellant Sadiki Komunyaka Leslie appeals 20
from a July 12, 2010 judgment of the United States District 21
Court for the District of Connecticut (Thompson, C.J.), 22
following his guilty plea to conspiring to commit bank fraud 23
in violation of 18 U.S.C. § 1349. At sentencing, Leslie 24
argued that he was not responsible for the losses incurred 25
during the time period he was incarcerated because his 26
incarceration was evidence of his withdrawal from the 27
conspiracy. The district court disagreed and attributed the 28
actual losses incurred during the entire conspiracy to 29
Leslie when it calculated his Sentencing Guidelines range. 30
The district court sentenced Leslie to 51-months 31

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imprisonment. On appeal, Leslie argues that his 1
incarceration was prima facie evidence that he withdrew from 2
the conspiracy, which then shifted the burden to the 3
government to prove the contrary. We disagree and find that 4
the defendant failed to meet his burden of proving 5
affirmative conduct necessary to show withdrawal. 6
Background 7
Leslie devised and led a conspiracy to commit bank 8
fraud in the greater Bridgeport, Connecticut area beginning 9
in early 2004. Leslie and his co-conspirators took 10
advantage of a flaw in the Bridgeport-based People’s Bank’s 11
automated teller machine (“ATM”) system. They first 12
obtained checks associated with closed bank accounts or open 13
accounts with little or no balance. They then deposited 14
those checks at ATMs with ATM cards associated with open 15
bank accounts, knowing that the checks would not be honored 16
by the bank from which the check was issued. The 17
fraudulently deposited checks became available for 18
withdrawal before People’s Bank could detect the fraud. 19
During that period, Leslie and his co-conspirators withdrew 20
the ATM maximum daily limit from the respective accounts and 21
made additional cash withdrawals when they used the ATM card 22

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4
for purchases. Leslie devised the scheme and taught others 1
how to execute it. Leslie’s students recruited others to 2
join the conspiracy. 3
Leslie was arrested on state charges and pled guilty in 4
Connecticut Superior Court for bank fraud activity from 2004 5
to April 2005. While Leslie remained free on bond from 6
April 2005 to June 2005, he continued to participate in the 7
bank fraud conspiracy. On July 1, 2005, Leslie began 8
serving his four year state prison sentence. He was 9
released from prison on March 16, 2007, but was incarcerated 10
again on July 24, 2007 for a parole violation. During 11
Leslie’s incarceration, his co-conspirators continued the 12
scheme. In 2009, Leslie was transferred to federal custody; 13
the federal government charged him with the subject federal 14
crime covering the period April 2005 to December 2007. 15
As part of the plea agreement, the parties agreed that 16
the total actual loss from the conspiracy was $310,475 and 17
that the total amount of intended loss from the scheme was 18
$509,447. At sentencing, Leslie argued that he was only 19
responsible for $60,400—the amount of losses from the start 20
of the charged conspiracy in April 2005 to his incarceration 21
on July 1, 2005. This loss amount would have resulted in a 22

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5
six-level enhancement under the Guidelines, see U.S.S.G. § 1
2B1.1(b)(1)(D), and an imprisonment range of 27–33 months. 2
The district court rejected Leslie’s argument that he had 3
withdrawn from the conspiracy when he was incarcerated. 4
Accordingly, the district court agreed with the government 5
that the intended loss from the entire conspiracy was 6
attributable to Leslie, resulting in a fourteen-level 7
enhancement under the Guidelines. See U.S.S.G. § 8
2B1.1(b)(1)(H). The district court, however, determining 9
that it was more appropriate to assess only the actual 10
losses to Leslie, calculated an imprisonment range of 51 to 11
63 months. Leslie now appeals the 51-month sentence imposed 12
by the district court. 13
Discussion 14
Leslie argues that the district court erred when it 15
attributed losses to him that were incurred as a result of 16
the conspiracy after he was incarcerated. We review a 17
sentence for reasonableness, which is “akin to review for 18
abuse of discretion, under which we consider whether the 19
sentencing judge exceeded the bounds of allowable 20
discretion, committed an error of law in the course of 21
exercising discretion, or made a clearly erroneous finding 22

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1 In United States v. Borelli, 336 F.2d 376 (2d Cir. 1964),
we briefly addressed the argument in the context of a defendant
challenging his conviction for conspiring to violate the Narcotic
Drugs and Import and Export Act. Although we did not decide the
issue, we found the proposition that confinement is sufficient to
constitute withdrawal “unless the Government comes forward with
evidence of continued participation” difficult to reconcile with
Supreme Court precedent. Id. at 389.
6
of fact.” United States v. Williams, 475 F.3d 468, 474 (2d 1
Cir. 2007) (internal quotation marks and ellipses omitted). 2
“A finding is clearly erroneous when although there is 3
evidence to support it, the reviewing court on the entire 4
evidence is left with the definite and firm conviction that 5
a mistake has been committed.” United States v. Markle, 628 6
F.3d 58, 63 (2d Cir. 2010) (quoting United States v. Lin 7
Guang, 511 F.3d 110, 122 (2d Cir. 2007)). 8
On appeal, Leslie argues that his incarceration was 9
prima facie evidence that he withdrew from the conspiracy, 10
which then shifted the burden to the government to prove 11
that he remained in the conspiracy. This Court has yet to 12
squarely address this argument in the sentencing context. 1
13
However, our case law counsels that, notwithstanding his 14
incarceration, the burden should remain on Leslie to prove 15
that he affirmatively withdrew from the conspiracy. Leslie 16
failed to meet that burden. 17
As an initial matter, it is well-settled that 18

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withdrawal from a conspiracy is an affirmative defense for 1
which the defendant bears the burden of proof at trial. 2
United States v. Pizzonia, 577 F.3d 455, 466 (2d Cir. 2009); 3
United States v. Flaharty, 295 F.3d 182, 192 (2d Cir. 2002). 4
Mere cessation of the conspiratorial activity by the 5
defendant is not sufficient to prove withdrawal. United 6
States v. Eppolito, 543 F.3d 25, 49 (2d Cir. 2008); 7
Flaharty, 295 F.3d at 192. The defendant “must also show 8
that he performed some act that affirmatively established 9
that he disavowed his criminal association with the 10
conspiracy, either the making of a clean breast to the 11
authorities, or communication of the abandonment in a manner 12
reasonably calculated to reach co-conspirators.” Eppolito, 13
543 F.3d at 49 (citations and internal quotation marks 14
omitted). “Unless a conspirator produces affirmative 15
evidence of withdrawal, his participation in a conspiracy is 16
presumed to continue until the last overt act by any of the 17
conspirators.” United States v. Diaz, 176 F.3d 52, 98 (2d 18
Cir. 1999) (quoting United States v. Greenfield, 44 F.3d 19
1141, 1150 (2d Cir. 1995)). 20
We find no reason why placement of the burden should be 21

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2 Other circuits have similarly held that the defendant
should bear the burden of proving withdrawal from the conspiracy
at sentencing. See United States v. Zimmer, 299 F.3d 710, 723
(8th Cir. 2002); United States v. Schorovsky, 202 F.3d 727, 729
(5th Cir. 2000); United States v. Dale, 991 F.2d 819, 854 (D.C.
Cir. 1993); United States v. Watford, 894 F.2d 665, 670 (4th Cir.
1990).
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any different in the sentencing context. 2 Indeed, we have 1
already noted, in another sentencing context, that 2
incarceration does not create a rebuttable presumption of 3
withdrawal from a conspiracy. United States v. Massino, 546 4
F.3d 123, 136 (2d Cir. 2008) (per curiam). In Massino, the 5
district court used the post-2004 Sentencing Guidelines 6
because it found that the defendant’s involvement in the 7
conspiracy continued beyond his arrest and incarceration in 8
2003. Id. On appeal, we rejected Massino’s argument that 9
the government had to rebut the presumption that he had 10
withdrawn from the conspiracy due to his incarceration. Id. 11
We see no difference between Massino’s argument and 12
Leslie’s. Accordingly, notwithstanding Leslie’s 13
incarceration, the burden remained on Leslie to prove that 14
he withdrew from the conspiracy. 15
Leslie argues that imprisonment may be evidence of an 16
affirmative act of withdrawal from a conspiracy; we agree. 17
But “while arrest or incarceration may constitute a 18

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3 In United States v. Morales, 185 F.3d 74 (2d Cir. 1999),
this Court held that no rational jury could have found, beyond a
reasonable doubt, that a criminal enterprise continued for the
duration charged because, inter alia, the government did not
present sufficient evidence to show that the enterprise continued
during the seven-year period that the defendants were
incarcerated. Id. at 81. That holding, however, was not based
solely on the government’s failure to present sufficient
evidence. Rather, our holding was motivated by the dearth of
evidence of activity during the incarceration and the length of
the incarceration. Id. Morales, therefore, is distinguishable
and does not support Leslie’s argument here.
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withdrawal from a conspiracy, it does not follow that in 1
every instance it must.” Flaharty, 295 F.3d at 192 2
(internal quotation marks omitted). In the trial context, 3
evidence of imprisonment during a conspiracy is merely a 4
relevant fact that entitles the defendant to a jury 5
instruction on withdrawal. See id. at 193; Diaz, 176 F.3d 6
at 98. The jury decides whether imprisonment constitutes a 7
withdrawal “in light of the length and location of the 8
internment, the nature of the conspiracy, and any other 9
available evidence.” United States v. Panebianco, 543 F.2d 10
447, 454 n.5 (2d Cir. 1976). We have never held that a jury 11
must find a withdrawal if the government does not prove that 12
the defendant continued in the conspiracy after 13
imprisonment. 3 For the same reasons we will not require a 14
judge to make a similar finding at sentencing. The burden 15
remains on the defendant to present affirmative evidence 16

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4 Other circuits have similarly held that incarceration
alone is not sufficient evidence of an affirmative act of
withdrawal from a conspiracy. See United States v. Fishman, 645
F.3d 1175, 1196–97 (10th Cir. 2011); United States v. Robinson,
390 F.3d 853, 882 (6th Cir. 2004); United States v. Benabe,
No. 09-1190, 2011 WL 3624961, at *12 (7th Cir. Aug. 18, 2011);
United States v. Lopez, 403 F. App’x 362, 372 (11th Cir. 2010);
Untied States v. Zamudio-Orosco, 405 F. App’x 83, 84–85 (8th Cir.
2010).
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that he withdrew from the conspiracy. The defendant’s 1
imprisonment is but one fact to consider in deciding whether 2
withdrawal occurred. 3
Here, the district court did not err in determining 4
that Leslie failed to meet his burden of proving that he 5
withdrew from the bank fraud conspiracy. Leslie’s 6
imprisonment did not, as a matter of law, constitute a 7
withdrawal from the conspiracy. See United States v. 8
Salameh, 152 F.3d 88, 155 (2d Cir. 1998) (per curiam). He 9
conceded at sentencing that he had no evidence to offer 10
other than the mere fact of his incarceration to suggest 11
that he withdrew from the conspiracy. In the absence of any 12
other evidence of withdrawal, Leslie’s imprisonment was 13
tantamount to a “resignation from a criminal enterprise, 14
[which,] standing alone, does not constitute withdrawal.” 15
United States v. Berger, 224 F.3d 107, 118 (2d Cir. 2000). 4
16
Leslie devised the bank fraud scheme, executed it, and 17

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taught it to others who continued to use the scheme to steal 1
thousands of dollars during Leslie’s incarceration. Leslie 2
never told the authorities how to stop the conspiracy nor 3
did he inform the authorities or his co-conspirators that he 4
had abandoned the conspiracy. See Eppolito, 543 F.3d at 49. 5
Accordingly, the district court did not err in concluding 6
that Leslie remained in the conspiracy during his 7
imprisonment while his co-conspirators continued to defraud 8
the bank. See Diaz, 176 F.3d at 98. 9
Leslie’s reliance on cases from the Third Circuit to 10
support his burden-shifting argument is misplaced. Those 11
cases do not address incarceration at all. See United 12
States v. Steele, 685 F.2d 793 (3d Cir. 1982); United States 13
v. Lowell, 649 F.2d 950 (3d Cir. 1981). Furthermore, both 14
Third Circuit cases support our view that mere cessation of 15
conspiratorial activity is not sufficient to constitute 16
withdrawal from a conspiracy. See Steele, 685 F.2d at 17
803–804; Lowell, 649 F.2d at 955. 18
Finally, there is evidence in the record that Leslie 19
did not withdraw from the conspiracy during his 20
incarceration. While out of prison in 2008, Leslie met with 21
an unindicted co–conspirator who told Leslie that the bank 22

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fraud scheme was still ongoing. See Flaharty, 295 F.3d at 1
193. The evidence before the sentencing court of Leslie’s 2
incarceration; the nature of the bank fraud conspiracy that 3
he formulated, led, and executed; and Leslie’s contact with 4
a co-conspirator upon his release from prison support the 5
district court’s finding that Leslie did not withdraw from 6
the conspiracy during his incarceration. Accordingly, the 7
district court did not err in attributing the actual losses 8
of the entire conspiracy to Leslie. 9
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Conclusion 11
For the foregoing reasons, the judgment of the district 12
court is hereby A FFIRMED. 13

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