Richard Turner was a drug
dealer operating in Chicago Heights, Illinois. He engaged
in two drug sales in 2004 that formed the basis of his
subsequent indictment, conviction, and sentence. The
first occurred on September 30, when, in exchange for
$800, Turner sold approximately 25.4 grams of crack
cocaine to a government informant. The second sale was on
October 7, when Turner sold the same individual approximately
26.4 grams of crack cocaine, again for $800.
Combined, Turner sold a total of slightly less than fiftytwo
grams of crack cocaine to the government informant.
On May 16, 2007, a federal grand jury returned a twocount
indictment charging Turner with knowingly and
intentionally distributing five grams or more of a mixture
or substance containing crack cocaine, in violation of
21 U.S.C. § 841(a)(1). On January 10, 2008, Turner pled
guilty to Count One of the indictment pursuant to a
written plea agreement and admitted the facts contained
in Count Two. The district court later sentenced Turner
to 136 months’ imprisonment and five years’ supervised
release.
On appeal, Turner contends that the district court erred
by not considering various mitigating factors when calculating
his sentence. The list of suggested errors is long
but not particularly impressive. It includes, inter alia,
claims of sentencing manipulation, sentencing entrapment,
disproportionate sentencing, poor conditions of
presentencing confinement, and an overall misapplication
of Turner’s circumstances to the factors established
in 18 U.S.C. § 3553(a).
Our review of sentencing decisions typically proceeds
in two steps. See United States v. Jackson, 547 F.3d 786, 792
(7th Cir. 2008). First, we ensure that the district court did
not commit any “significant procedural error,” examples
of which include failing to calculate, or improperly calculating,
the applicable Guidelines range; treating the
Guidelines as mandatory; or failing to consider the
§ 3553(a) factors. Id.; see also Gall v. United States, 128 S. Ct.
586, 597 (2007) (explaining the procedures a court must
follow during sentencing). Once convinced that the
sentencing judge followed correct procedure, we then
consider the reasonableness of the sentence. Jackson,
547 F.3d at 792.
Turner does not raise any challenges to the procedural
soundness of his sentencing proceedings, nor does our
review of the record reveal any procedural irregularities.
Turner frames his arguments in terms of the court’s
failure to grant “downward departures,” which one
could construe as a procedural challenge, i.e., that the
district court improperly calculated the applicable Guidelines
range. But it is well established that after
United States v. Booker, 543 U.S. 220 (2005), which rendered
the Sentencing Guidelines advisory, “downward departures,”
per se, have become obsolete. United States v.
Simmons, 485 F.3d 951, 955 (7th Cir. 2007) (quoting
United States v. Spano, 476 F.3d 476, 480 (7th Cir. 2007)).
Instead, such arguments should be placed in the context
of the § 3553(a) factors, which a sentencing court must
consider in determining a sentence. See Gall, 128 S. Ct. at
596; see also 18 U.S.C. § 3553(a); cf. United States v. Schroeder,
536 F.3d 746, 755-56 (7th Cir. 2008) (instructing, in the
context of U.S.S.G. § 5H1.6, that a court “ ‘may apply
[obsolete] departure guidelines by way of analogy in
analyzing the section 3553(a) factors’ ” (quoting United
States v. Miranda, 505 F.3d 785, 792 (7th Cir. 2007))).
One claim merits additional explanation regarding the
procedural/substantive distinction. As we will discuss
below, Turner raises a claim based on § 4A1.3(b) of the
Sentencing Guidelines: a “downward departure” provision
that grants sentencing judges the discretion to use a
lower criminal history category to effectuate a lower
sentence when the judge concludes that a defendant’s
otherwise applicable criminal history category “substantially
over-represents” his past transgressions. See also
U.S.S.G. § 1B1.1 cmt. n.1(E). But that is a discretionary
decision that has nothing to do with “correct” Guidelines
calculation. For that reason, it is not a procedural error,
but rather a substantive decision that we will review
for reasonableness.
Thus, we construe all of Turner’s arguments as challenges
to the substantive reasonableness of the imposed
sentence. When, as here, the district court followed
proper procedures in determining a sentence within
the applicable Guidelines range, we presume that the
sentence was reasonable and review only for an abuse
of discretion. See Gall, 128 S. Ct. at 597 (“Regardless of
whether the sentence imposed is inside or outside the
Guidelines range, the appellate court must review the
sentence under an abuse-of-discretion standard.”); Rita v.
United States, 551 U.S. 338, 346 (2007) (concluding that
appellate courts may apply a “presumption of reasonableness”
to “within-Guidelines” sentences); see also
Booker, 543 U.S. at 260-63 (discussing the “reasonableness”
standard under which appellate courts must review
sentences imposed under the now-advisory Sentencing
Guidelines). In conducting this deferential review, we
will set aside factual findings underlying the sentence
only if they are clearly erroneous, United States v. Bothun,
424 F.3d 582, 586 (7th Cir. 2005), and we review questions
of law de novo, United States v. Bonanno, 146 F.3d 502, 510
(7th Cir. 1998). Bearing these issues in mind, we now
turn to the substance of Turner’s arguments, beginning
with his claims under the related doctrines of sentencing
manipulation and sentencing entrapment.
In United States v. Garcia, 79 F.3d 74 (7th Cir. 1996), we
distinguished claims of sentencing manipulation from
those of sentencing entrapment. Sentencing manipulation
arises “when the government engages in improper
conduct that has the effect of increasing a defendant’s
sentence.” Id. at 75. Sentencing entrapment, meanwhile,
“occurs when the government causes a defendant
initially predisposed to commit a lesser crime to commit
a more serious offense.” Id.
In support of his sentencing manipulation claim, Turner
states that the government had enough evidence to
convict him after the first controlled drug buy on September
30, and that the purpose of the second controlled drug
buy was merely to increase his sentence. Turner’s sentencing
entrapment claim is based on his self-proclaimed
status as a small-time, “dime-bag” dealer who was not
predisposed to sell the quantity of drugs requested by
the informant.
We dispatch first with Turner’s sentencing manipulation
claim. As the district judge acknowledged, our
circuit does not recognize the sentencing manipulation
doctrine. Id. at 76; see also United States v. White, 519
F.3d 342, 346 (7th Cir. 2008); United States v. Veazey, 491
F.3d 700, 710 (7th Cir. 2007). Turner concedes this precedent
but encourages us to reconsider the court’s position,
pointing to other circuits that have reached the opposite
conclusion. See, e.g., United States v. Ciszkowski, 492
F.3d 1264, 1270 (11th Cir. 2007) (recognizing sentencing
manipulation as “a viable defense”); United States v. Rizzo,
121 F.3d 794, 801 & n.11 (1st Cir. 1997). We decline Turner’s
invitation. There is no constitutional right to be arrested
at the exact moment that police acquire probable cause.
Garcia, 79 F.3d at 76. We will defer to the discretion of law
enforcement to conduct its investigations as it deems
necessary for any number of reasons, including, for
example, to ensure that there is sufficient evidence to
obtain a conviction, to obtain a “greater understanding of
the nature of the criminal enterprise,” and to ensnare coconspirators.
Id.
Turner’s sentencing entrapment argument suffers the
same fate, albeit for different reasons. Unlike sentencing
manipulation, sentencing entrapment is a doctrine that
our court does recognize. To succeed on such a claim,
however, a defendant must pass a high bar, which Turner
fails to do. The defendant must show (1) that he lacked a
predisposition to commit the crime, and (2) that his will
was overcome by “unrelenting government persistence.”
United States v. Gutierrez-Herrera, 293 F.3d 373, 377 (7th Cir.
2002) (quotations omitted). The government may rebut
such claims by demonstrating that the defendant was
predisposed to violate the law without “ ‘extraordinary
inducements.’ ” White, 519 F.3d at 347 (quoting Veazey,
491 F.3d at 710).
In White, the defendant, Juan White, was the subject of a
drug investigation and sold 57.2 grams of crack to a repeat
customer who, unbeknownst to White, was cooperating
with the government. Id. at 344. On appeal, White argued
that the government instructed the informant to buy a
large amount of cocaine only to trigger a higher sentence.
Id. at 346. We refused to grant relief, stating: “In spite of the
fact that the purchase was a departure from [the informant’s]
previous buying patterns with White, the fact that
White, a drug dealer with a history of dealing crack,
readily acceded to [the informant’s] request undercuts
any possible theory of sentence entrapment in this case.”
Id. at 347.
We see no notable distinctions between this case and
White. Turner has a history of selling crack, which he
has admitted to doing for a number of years prior to his
arrest. He presents no evidence that the government was
unrelenting in its attempts to purchase higher quantities
of drugs than he usually sold or engaged in inducements
that were otherwise extraordinary. In his brief, Turner
offers only that he was “surprised” to receive such a
large order, but surprise is certainly no substitute for a
lack of predisposition. And at oral argument, Turner’s
counsel conceded that there were no examples of extraordinary
inducement or unrelenting pressure. As a result,
we find no merit in Turner’s claims for sentencing entrapment.
Turner’s complaints regarding the conditions of his
presentencing confinement are no more successful. Turner
was housed in the Kankakee County Jail, a county correctional
facility that contracts with the United States
Marshals Service to house federal prisoners. Turner claims,
inter alia, that he was not given nutritious food, reasonable
medical care, clothing, educational classes, or sanitary
conditions in which to live. The district judge found
that none of these conditions rose to a level warranting
sentencing relief. We agree.
Our prior decisions make clear that conditions of
presentencing confinement are not considered as part of
the § 3553(a) factors. See United States v. Campos,
541 F.3d 735, 751 (7th Cir. 2008); United States v. Martinez,
520 F.3d 749, 752-53 (7th Cir. 2008); United States v. Ramirez-
Gutierrez, 503 F.3d 643, 645-46 (7th Cir. 2007).1 And, although
we have not determined whether “extraordinarily
harsh conditions of confinement” could justify a reduced
sentence, Campos, 541 F.3d at 751, we need not make
such a decision here.
Turner has not supported his claims of poor
presentencing confinement with any evidence. See id.
(“[E]ven if unduly harsh conditions could justify a
lower sentence, [the defendant] has not supported his
claims of his pretrial conditions with any evidence.”). And
his claims are similar to those that we have previously
found not to be “unusually harsh.” See Ramirez-Gutierrez,
503 F.3d at 646 (concluding that conditions at Kankakee
County Jail did not merit relief when defendant complained
of lack of medical attention for a broken tooth,
lived in poorly ventilated quarters, and was given inadequate
opportunity to exercise). Even if we accept Turner’s
claims as true, they do not rise to the “truly egregious”
level that would cause us to consider whether sentencing
relief could be an appropriate remedy in such
circumstances. See id. (discussing two examples of what
might be egregious enough to warrant consideration for
sentencing relief). We refuse to grant Turner any relief
based upon his conditions of presentencing confinement.
Next, Turner argues that being placed in criminal
history category VI “substantially over-represent[ed] the
seriousness of the defendant’s criminal history,” quoting
the policy statement in U.S.S.G. § 4A1.3(b)(1). In such
situations, the Guidelines grant sentencing judges the
discretion to utilize a lower criminal history category
than would otherwise be appropriate as a means “to
effect a sentence outside the applicable guideline range.”
Id. § 1B1.1 cmt. n.1(E); see also id. § 4A1.3(b)(1) (specifying
that in appropriate circumstances a downward departure
“may be warranted” (emphasis added)). As an example,
the Guidelines state that “two minor misdemeanor convictions
close to ten years prior to the instant offense [with]
no other evidence of prior criminal behavior in the intervening
period” might over-represent the defendant’s
criminal history and therefore warrant such a reduction.
See id. § 4A1.3(b)(1) cmt. n.3.
The transcript of the sentencing hearing makes it clear
that there was no abuse of discretion here. The judge
discussed Turner’s argument at length and decided
against assigning a lower criminal history category,
commenting on Turner’s “extensive criminal history as
an adult that has indicated a complete disregard for the
law in the past.” Indeed, the record demonstrates that
Turner had thirty-four adult convictions for an array of
offenses, including at least one per year from 2001 to 2006.
Fifteen of these convictions were used for purposes of
calculating Turner’s criminal history points. As the
judge said:
Illegal drug trade causes untold harm to society
and defendant’s participation in that drug trade
even as a buyer or recipient contributed to that
harm. Defendant has also been arrested of drinking
in public, criminal trespass to real property, disorderly
conduct, driving under the influence of
alcohol. In addition to the criminal convictions, the
defendant has numerous other arrests. These
include the manufacture and delivery of controlled
substance, gambling, operating an uninsured
motor vehicle, possession of controlled substance,
violation of bail bond, domestic battery, criminal
trespass to land, delivery of cocaine near school or
public housing. Some of these arrests involve
charges of violence on the part of the defendant.
The judge then proceeded through a lengthy and detailed
discussion of Turner’s criminal history, which is a far cry
from the Guidelines’ example of two misdemeanors ten
years prior to the present offense. See id. § 4A1.3(b)(1)
cmt. n.3; see also United States v. Bradford, 78 F.3d 1216, 1223-
24 (7th Cir. 1996) (“The example makes clear that
the Sentencing Commission considered a departure
warranted only in those instances where defendants had
steered clear of crime for a substantial period of time
and whose prior offenses were relatively minor in terms
of violence or danger to the community.”). The judge
was well within his discretion to decide that Turner’s
criminal history deservedly placed him in category VI.
The district judge went through the remainder of the
issues that Turner now raises on appeal in a similarly
methodical way, discussing and disposing of each in a
lengthy and thorough discourse. In succession, the judge
discussed Turner’s lack of education; his desire to
improve his life, receive education and training, and
obtain meaningful employment; his addiction to drugs
and alcohol; and the remorse he had expressed over his
past actions. The judge expressly considered each of the
issues in the context of the § 3553(a) factors before
reaching what he believed to be an appropriate sentence
within the applicable Guidelines range. We fail to see
how such a deliberate decision could be an abuse of
discretion. There is certainly nothing in the record to
disturb the presumption of reasonableness that we
accord such a decision.
For the foregoing reasons, we AFFIRM Turner’s sentence.
Chicago Criminal Lawyer - Robert J Callahan
Thursday, June 25, 2009
U.S. vs. Douglas
This is a sentencing appeal. On
February 6, 2008, the defendant, Bernard Douglas, pled
guilty to conspiring to distribute more than five kilograms
of cocaine and more than fifty grams of crack in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). Douglas
was serving a three-year term of supervised release for
a prior offense, the terms of which Douglas violated by
his role in the conspiracy. On June 27, 2008, the district
court sentenced Douglas to a total of 258 months in
prison: 240 months for the conspiracy and eighteen
months for the supervised release violation, the two
sentences to be served consecutively. Douglas now challenges
both components of his sentence.
We turn first to his sentence on the drug conspiracy
charge. At sentencing, Douglas objected to the offense
level calculation contained within his Presentence Investigation
Report. Specifically, Douglas questioned two
upward adjustments recommended in the report: the
first for Douglas’s purported leadership role in the conspiracy,
see U.S. Sentencing Guidelines Manual (“U.S.S.G.”)
§ 3B1.1(c); the second for his alleged obstruction of justice,
see id. § 3C1.1. The report recommended an upward
adjustment of two points on each ground, see id.
§§ 3B1.1(c), 3C1.1, for a total adjustment of four points.
After adding these four points to Douglas’s base offense
level of thirty-four, and subtracting three points for
Douglas’s acceptance of responsibility, the report recommended
a total offense level of thirty-five.
The court adopted the recommended enhancements
over Douglas’s objection. An offense level of thirty-five,
combined with Douglas’s category V criminal history,
placed his Guidelines sentencing range between 262 and
327 months in prison. The court, however, went below
the Guidelines range to sentence Douglas to the
statutory minimum of 240 months for his role in the drug
conspiracy.
On appeal, Douglas argues that the district court erred
in applying the leadership and obstruction of justice
enhancements. We need not delve into the details of his
arguments, however, because even assuming that there
were errors, there is nothing we could do to change the
imposed sentence, which the court rendered pursuant to
a statutory minimum. Under these facts, any potential
error was harmless.
Because Douglas had a prior felony drug conviction in
Illinois state court, 240 months was the minimum prison
sentence permitted by statute. See 21 U.S.C. § 841(b)(1)(A)
(“If any person commits such a violation after a prior
conviction for a felony drug offense has become final,
such person shall be sentenced to a term of imprisonment
which may not be less than 20 years . . . .”). As we
have stated, “[a]djustments . . . matter to the Guidelines’
sentencing range but do not affect statutory minimum
sentences.” United States v. Rivera, 411 F.3d 864, 866 (7th
Cir. 2005). Thus, even if we were to remand for
resentencing based on an error in calculating the Guidelines
range, the statutory minimum would still control,
meaning that Douglas’s new sentence could not possibly
be less than his first. See id.; see also U.S.S.G. § 5G1.1(b)
(“Where a statutorily required minimum sentence is
greater than the maximum of the applicable guideline
range, the statutorily required minimum sentence shall
be the guideline sentence.”).
Any error, therefore, would be harmless by definition, a
fact that we have recognized repeatedly. See, e.g., Rivera,
411 F.3d at 867 (“Booker does not confer on district judges
any discretion to give sentences below statutory floors.
Any error the district judge may have made in
resolving factual disputes in order to apply the Guidelines
was harmless.”); United States v. Giacometti, 28 F.3d
698, 704 (7th Cir. 1994) (“In certain cases we know the
error is harmless: when, for example, the district court . . .
erred on the high side but the sentence could not have
been any lower because of a statutory minimum.”);
United States v. Kozinski, 16 F.3d 795, 812 (7th Cir. 1994)
(finding a sentencing error harmless and refusing to
remand for resentencing when “the district court was
obligated to impose the sentence it did”); see also United
States v. Lee, 399 F.3d 864, 866 (7th Cir. 2005) (“Nothing
in Booker gives a judge any discretion to disregard a
mandatory minimum, so there [is] no need to speculate
about prejudice.”). This outcome renders superfluous
any further analysis of Douglas’s attack on his conspiracy
sentence.
We next turn to Douglas’s challenge to his eighteenmonth
prison sentence for violating the terms of his
supervised release. This argument borders on frivolity,
and we reject it out of hand. Douglas does not argue
that the district court miscalculated the appropriate
Guidelines range, which was eighteen to twenty-four
months. See U.S.S.G. § 7B1.4. Nor does he suggest that the
two sentences were not to run consecutively. See id.
§ 7B1.3(f). In fact, aside from the heading in his brief, he
does not appear to contest the eighteen-month portion
of his sentence at all.
Instead, he focuses on a comment made in passing by
the district judge after handing down both sentences:
“[The combined sentence of 258 months] is actually less
than the bottom of the guideline range on the original
sentence [of 262 months on the conspiracy charge alone].”
Douglas tries to cloak this statement in procedural robes,
which would trigger de novo review. See United States v.
Mendoza, 510 F.3d 749, 754 (7th Cir. 2007). But the court’s
commentary was more a mathematical truism—akin to
one plus one is less than five—than a rung in the ladder
of sentencing procedure. Simply characterizing the statement
one way or another does not change its nature.
In essence, Douglas’s challenge, ostensibly to the
“procedure” used to sentence him for violating the
terms of his supervised release, is an attempt at backdoor
review of the conspiracy sentence. If the district court
had correctly calculated the Guidelines range on the
conspiracy charge, Douglas argues, the aforementioned
statement would have been incorrect. But we have
already discarded Douglas’s challenge to the conspiracy
sentence. Douglas’s nonexistent “challenge” to the
eighteen-month sentence fails.1
Douglas’s sentence is AFFIRMED.
Chicago Criminal Lawyer - Robert J Callahan
February 6, 2008, the defendant, Bernard Douglas, pled
guilty to conspiring to distribute more than five kilograms
of cocaine and more than fifty grams of crack in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). Douglas
was serving a three-year term of supervised release for
a prior offense, the terms of which Douglas violated by
his role in the conspiracy. On June 27, 2008, the district
court sentenced Douglas to a total of 258 months in
prison: 240 months for the conspiracy and eighteen
months for the supervised release violation, the two
sentences to be served consecutively. Douglas now challenges
both components of his sentence.
We turn first to his sentence on the drug conspiracy
charge. At sentencing, Douglas objected to the offense
level calculation contained within his Presentence Investigation
Report. Specifically, Douglas questioned two
upward adjustments recommended in the report: the
first for Douglas’s purported leadership role in the conspiracy,
see U.S. Sentencing Guidelines Manual (“U.S.S.G.”)
§ 3B1.1(c); the second for his alleged obstruction of justice,
see id. § 3C1.1. The report recommended an upward
adjustment of two points on each ground, see id.
§§ 3B1.1(c), 3C1.1, for a total adjustment of four points.
After adding these four points to Douglas’s base offense
level of thirty-four, and subtracting three points for
Douglas’s acceptance of responsibility, the report recommended
a total offense level of thirty-five.
The court adopted the recommended enhancements
over Douglas’s objection. An offense level of thirty-five,
combined with Douglas’s category V criminal history,
placed his Guidelines sentencing range between 262 and
327 months in prison. The court, however, went below
the Guidelines range to sentence Douglas to the
statutory minimum of 240 months for his role in the drug
conspiracy.
On appeal, Douglas argues that the district court erred
in applying the leadership and obstruction of justice
enhancements. We need not delve into the details of his
arguments, however, because even assuming that there
were errors, there is nothing we could do to change the
imposed sentence, which the court rendered pursuant to
a statutory minimum. Under these facts, any potential
error was harmless.
Because Douglas had a prior felony drug conviction in
Illinois state court, 240 months was the minimum prison
sentence permitted by statute. See 21 U.S.C. § 841(b)(1)(A)
(“If any person commits such a violation after a prior
conviction for a felony drug offense has become final,
such person shall be sentenced to a term of imprisonment
which may not be less than 20 years . . . .”). As we
have stated, “[a]djustments . . . matter to the Guidelines’
sentencing range but do not affect statutory minimum
sentences.” United States v. Rivera, 411 F.3d 864, 866 (7th
Cir. 2005). Thus, even if we were to remand for
resentencing based on an error in calculating the Guidelines
range, the statutory minimum would still control,
meaning that Douglas’s new sentence could not possibly
be less than his first. See id.; see also U.S.S.G. § 5G1.1(b)
(“Where a statutorily required minimum sentence is
greater than the maximum of the applicable guideline
range, the statutorily required minimum sentence shall
be the guideline sentence.”).
Any error, therefore, would be harmless by definition, a
fact that we have recognized repeatedly. See, e.g., Rivera,
411 F.3d at 867 (“Booker does not confer on district judges
any discretion to give sentences below statutory floors.
Any error the district judge may have made in
resolving factual disputes in order to apply the Guidelines
was harmless.”); United States v. Giacometti, 28 F.3d
698, 704 (7th Cir. 1994) (“In certain cases we know the
error is harmless: when, for example, the district court . . .
erred on the high side but the sentence could not have
been any lower because of a statutory minimum.”);
United States v. Kozinski, 16 F.3d 795, 812 (7th Cir. 1994)
(finding a sentencing error harmless and refusing to
remand for resentencing when “the district court was
obligated to impose the sentence it did”); see also United
States v. Lee, 399 F.3d 864, 866 (7th Cir. 2005) (“Nothing
in Booker gives a judge any discretion to disregard a
mandatory minimum, so there [is] no need to speculate
about prejudice.”). This outcome renders superfluous
any further analysis of Douglas’s attack on his conspiracy
sentence.
We next turn to Douglas’s challenge to his eighteenmonth
prison sentence for violating the terms of his
supervised release. This argument borders on frivolity,
and we reject it out of hand. Douglas does not argue
that the district court miscalculated the appropriate
Guidelines range, which was eighteen to twenty-four
months. See U.S.S.G. § 7B1.4. Nor does he suggest that the
two sentences were not to run consecutively. See id.
§ 7B1.3(f). In fact, aside from the heading in his brief, he
does not appear to contest the eighteen-month portion
of his sentence at all.
Instead, he focuses on a comment made in passing by
the district judge after handing down both sentences:
“[The combined sentence of 258 months] is actually less
than the bottom of the guideline range on the original
sentence [of 262 months on the conspiracy charge alone].”
Douglas tries to cloak this statement in procedural robes,
which would trigger de novo review. See United States v.
Mendoza, 510 F.3d 749, 754 (7th Cir. 2007). But the court’s
commentary was more a mathematical truism—akin to
one plus one is less than five—than a rung in the ladder
of sentencing procedure. Simply characterizing the statement
one way or another does not change its nature.
In essence, Douglas’s challenge, ostensibly to the
“procedure” used to sentence him for violating the
terms of his supervised release, is an attempt at backdoor
review of the conspiracy sentence. If the district court
had correctly calculated the Guidelines range on the
conspiracy charge, Douglas argues, the aforementioned
statement would have been incorrect. But we have
already discarded Douglas’s challenge to the conspiracy
sentence. Douglas’s nonexistent “challenge” to the
eighteen-month sentence fails.1
Douglas’s sentence is AFFIRMED.
Chicago Criminal Lawyer - Robert J Callahan
U.S. vs. Heckel
After auctioning items on the
Internet that he had no intention of delivering, Jeffrey
Heckel was indicted on five counts of wire fraud. He
pleaded guilty to one of those counts and was sentenced
to 30 months in prison. Heckel appeals his sentence;
he contends that the district court erred in calculating
both his offense level and criminal-history score when
it applied a two-level enhancement for mass-marketing
and added three criminal-history points for a statecourt
theft conviction.
We affirm. Application of the mass-marketing enhancement
was appropriate because Heckel used the Internet
to conduct large-scale advertising to attract bidders to
his fraudulent online auctions. Moreover, the district
court did not clearly err when it determined
that Heckel’s previous state conviction had resulted in a
19-month term in prison, which added three criminalhistory
points to his total. Heckel’s recollection that
his sentence was shorter was insufficient to cast doubt on
the reliability and accuracy of the information in the
presentence investigation report (“PSR”), on which the
district court relied. Because the district court correctly
calculated Heckel’s offense level and criminal-history
score and imposed a sentence within the applicable
guidelines range, we presume that the sentence was
reasonsable—a presumption Heckel has failed to rebut.
I. Background
Beginning in March 2002, Jeffrey Heckel used two
Internet auction websites to defraud successful bidders
on items he had listed for sale. The scheme was simple:
He would list an item for auction, accept the highest
bid, cash the check sent to him by the winning bidder,
and ship a product far inferior to the one advertised
on the website. Heckel’s fraud netted him in excess of
$15,000.
Most of the winning bidders cheated by Heckel’s fraud
contacted law-enforcement authorities, and his operation
was shut down just over a year after it had begun. Heckel
was indicted on five counts of mail fraud in violation of
18 U.S.C. § 1341. He agreed to plead guilty to one count
and pay restitution to all five victims. In exchange the
government dismissed the remaining counts and recommended
that he receive a reduction in his offense level
for acceptance of responsibility. The district court
accepted Heckel’s plea.
The probation office calculated a total offense level of 11
under the sentencing guidelines, which included a base
offense level of 7 plus a 4-level increase because the
amount of loss was more than $10,000 but less than
$30,000. U.S.S.G. § 2B1.1(a)(1) & (b)(1)(C) (2006). The PSR
also applied the two-level reduction for acceptance of
responsibility, id. § 3E1.1(a), but then added two levels
because the offense was committed through “mass-marketing,”
id. § 2B1.1(b)(2)(A)(ii). Heckel objected to the application
of the mass-marketing enhancement.
For Heckel’s criminal-history score, the PSR initially
assessed 12 points, placing him in criminal-history Category
V. Heckel made two objections to this total. The
probation office then agreed with one of these objections
and issued an addendum reducing Heckel’s score to 10,
the minimum for Category V. The probation office disagreed
with Heckel’s second objection—relating to his
state conviction for theft—and refused to reduce
Heckel’s total any further.
The district court accepted the reduction from 12 to 10
points, but did not specifically address Heckel’s
objection regarding the treatment of his theft conviction.
As a result, Heckel remained in criminal-history Category
V. The court also rejected Heckel’s challenge to the application
of the mass-marketing enhancement, so the
guidelines recommended a range of 24-30 months. Commenting
on Heckel’s extensive criminal past and the
need to deter any future criminal behavior, the court
sentenced Heckel to 30 months in prison and 3 years of
supervised release. Heckel appealed.
II. Analysis
Our review of a district court’s application of the guidelines
is de novo, but we review findings of fact for clear
error. United States v. Samuels, 521 F.3d 804, 815 (7th Cir.
2008). Sentencing factfinding is entitled to deference
“ ‘unless we have a definite and firm conviction that a
mistake has been made.’ ” Id. (quoting United States v.
Wilson, 502 F.3d 718, 721 (7th Cir. 2001)).
A. Mass-marketing
Heckel first argues that the district court incorrectly
calculated his offense level because the court added
two levels for use of “mass-marketing.” U.S.S.G.
§ 2B1.1(b)(2)(A)(ii). The commentary to this guideline
explains that “mass-marketing” includes “a plan,
program, promotion, or campaign that is conducted
through solicitation by telephone, mail, the Internet, or
other means to induce a large number of persons to . . .
purchase goods or services.” Id. § 2B1.1 cmt. n.4(A).
Because the auction websites Heckel used were
accessible to the general public and Heckel attempted to
increase the price of the items posted by soliciting a
large number of bids over the Internet, the district court
applied the enhancement.
According to Heckel, the district court erred because
Internet auctions are different in kind from mass-marketing
frauds that use telemarketing or other forms of largescale
solicitation. An auction, Heckel argues, can only
have one victim: the winning bidder. The guideline
requires that the scheme “induce a large number of
persons to . . . purchase goods or services.” Heckel maintains
that the limited pool of actual victims defeats the
application of the enhancement.
Caselaw is sparse on this line of argument, but the few
cases that have taken up the issue have been decided in
favor of applying the enhancement. In United States v.
Pirello, the defendant used Internet classifieds to
advertise computers for sale. 255 F.3d 728, 730 (9th Cir.
2001). Three unsuspecting consumers sent Pirello more
than $4,000 for computers that he did not have and could
not provide. Pirello argued that the mass-marketing
enhancement should not apply because only three
people responded to his fraudulent Internet solicitation.
The Ninth Circuit rejected this argument, holding
instead that the limited number of victims “was the
product of chance” that was “in no way indicative of the
breadth of Pirello’s solicitation.” Id. at 732. The court
reasoned that any other consumers who responded also
“would have fallen victim to his plan.” Id.; see also
United States v. Magnuson, 307 F.3d 333, 335 (5th Cir.
2002) (agreeing with Pirello that the mass-marketing
enhancement “merely requires advertising that reaches
a large number of persons”) (internal quotation marks
omitted).
The guideline itself suggests that the mass-marketing
enhancement applies to solicitation schemes reaching a
large number of potential victims regardless of the
number of actual victims. Contained within § 2B1.1(b)(2)
are three other enhancements for frauds involving
more than 10, 50, or 250 victims respectively. U.S.S.G.
§ 2B1.1(b)(2)(A)-(C). Increasing a sentence under the massmarketing
enhancement only when the victim count is
large would render these other provisions superfluous.
Instead of focusing on the actual number of victims, the
mass-marketing enhancement focuses on defendants
who have used a particular solicitation method to
increase the number of potential victims. Indeed, the
Application Notes explain that the enhancement applies
to “cases in which mass-marketing has been used to
target a large number of persons, regardless of the
number of persons who have sustained an actual loss or
injury.” U.S.S.G. app. C, vol. II, amend. 617 (2003); see also
United States v. Olshan, 371 F.3d 1296, 1301 (11th Cir.
2004) (finding that the mass-marketing “enhancement
focuses on the method of inflicting the harm”);
United States v. Fredette, 315 F.3d 1235, 1244 n.4 (10th
Cir. 2003) (“[T]he enhancement for multiple victims goes
to the ultimate harm caused by the defendant’s
conduct, while the enhancement for mass-marketing
concerns the scope and sophistication of the defendant’s
fraud.”).
Here, Heckel’s scheme netted only a small number of
victims, but the loss that those few suffered was exacerbated
by Heckel’s chosen method of solicitation. The
competitive bidding process of an Internet auction often
increases the price that a bidder might otherwise have
to pay. Use of the Internet to advertise and conduct an
auction—like use of telephones in a “telemarketing campaign
that solicits a large number of individuals to purchase”
goods or services—exposes more consumers to
the fraud than otherwise would have been possible, and
potentially increases the price (and therefore the loss) by
expanding the number of bidders. U.S.S.G. § 2B1.1
cmt. n.4(A).
Even though an Internet auction results in just one
winning bidder and thus only one victim, the sheer
scope of the possible bidding drives the price of the
item on the virtual auction block. Posting a rare coin
for sale on the Internet, as Heckel did in the count to
which he pled guilty, invited the vast online public to
bid, and those who did so were trying to purchase the
item by suggesting a price that they believed no
competing online bidder would exceed. That only one
such bidder eventually won the online auction does not
negate the harm of this method of fraudulent solicitation.
Cf. United States v. Blanchett, 41 F. App’x 181, 183 (10th
Cir. 2002) (“[The defendant] never intended to provide
computers to prospective buyers, and thus did not feel
bound to accept only the highest offer, leaving
every Internet user who bid on the computers
potentially vulnerable.”). Heckel’s was exactly the type
of “plan, program, promotion, or campaign” that the mass
marketing enhancement is designed to address. U.S.S.G.
§ 2B1.1 cmt. n.4(A).1
B. Criminal-history Score
Heckel also contends that the district court erred by
assessing three criminal-history points for his 1992 state
conviction for theft. Under U.S.S.G. § 4A1.1(a), a criminal
defendant is assigned three points for each “prior
sentence of imprisonment exceeding one year and one
month.” Two points are added if the sentence was
between 60 days and 13 months. Id. § 4A1.1(b). The PSR
reported that Heckel was sentenced to 19 months for this
offense; Heckel only recalled spending 6 months in a
community-based behavioral modification program
with short stints in prison for probation violations.
Heckel claims that the government had the burden of
proving that the information in the PSR was reliable and
that it failed to do so. He argues that he should have
received only the two-point increase instead of three,
placing him in criminal-history Category IV; the applicable
guidelines range would then have dropped from
24-30 months to 18-24 months. Id. Ch. 5, Pt. A. Heckel
preserved his objection at sentencing, so we review the
court’s decision for clear error. United States v. Newman,
148 F.3d 871, 877 (7th Cir. 1998).
The district court may rely on the information contained
in the PSR so long as it is well supported and appears
reliable. United States v. Salinas, 365 F.3d 582, 587 (7th Cir.
2004). “When the court relies on such information in
sentencing a defendant, the defendant bears the burden
of showing that the presentence report is inaccurate or
unreliable.” Id. The defendant cannot attack the information
in the PSR by making a “bare denial” of its accuracy.
United States v. Mustread, 42 F.3d 1097, 1101-02 (7th Cir.
1994). Only when the defendent’s objection creates real
doubt as to the reliability of the information in the
PSR does the government have the burden of independently
demonstrating the accuracy of the information. Id.
at 1102.
Heckel presented no documentary evidence to
challenge the information in the PSR about his 19-month
theft sentence, and his recollection was far from unambiguous.
His initial claim, made in his objections to the
PSR, was that he served six months’ incarceration and
attended a treatment program for an additional six months
after he violated probation. At sentencing, however, his
counsel simply argued that Heckel “does not recall ever
being told by a judge that he was being sentenced to a
prison sentence.” Heckel’s counsel also said he had
checked the records on which the probation officer had
relied, but the objection remained highly ambiguous:
“I went over there and looked, and I just don’t feel that
the record is clear enough to give him three criminal
history points on this particular conviction.”
Heckel’s tentative and conflicting recollection of his
theft sentence of 15 years earlier was not enough to cast
doubt on the accuracy or reliability of the PSR. At sentencing
Heckel’s counsel suggested only that the documents
used by the probation office to support the information
in the PSR were not completely clear. This amounts
to a “bare denial” of the information in the PSR—not
enough to call the accuracy of the PSR into question. The
PSR reported that Heckel was sentenced to 19 months in
the custody of the Minnesota Department of Corrections,
but that this sentence was stayed and he was placed on
probation for 5 years. The stay was lifted, however, and
the 19-month sentence was reinstated after Heckel committed
a third violation of his probation. Absent any
hard evidence demonstrating that this information was
inaccurate, we cannot say that the district court clearly
erred by relying on the PSR to calculate Heckel’s criminalhistory
category.2
Heckel also asserts that the district court failed to make
a specific ruling on his objection to the three-point assessment
for his theft conviction in violation of the Federal
Rules of Criminal Procedure. The rules require the sentencing
court to rule on “any disputed portion of the
presentence report or other controverted matter . . . or
determine that a ruling is unnecessary.” FED. R. CRIM. P.
32(i)(3)(B). In announcing its sentence, the district court
referred to the PSR’s criminal-history calculation and
noted that the point total was 10 rather than 12 as stated
in the original report. But the court did not directly
address Heckel’s objection to the 19-month theft sentence
and instead placed him in Category V without
further elucidation.
We have characterized Rule 32’s requirement as a
“minimal burden.” United States v. Sykes, 357 F.3d 672, 674
(7th Cir. 2004). The sentencing court must make findings
to resolve a dispute between the defendant and the government,
but a general reference by the court to the
PSR “constitutes sufficient findings even as to controverted
facts when we are assured that the district court
made a decision of design, rather than of convenience, to
adopt the PSR.” United States v. Burke, 148 F.3d 832, 836
(7th Cir. 1998); see also United States v. Cureton, 89 F.3d 469,
473 (7th Cir. 1996) (“[S]o long as it actually resolves the
disputed issue on the record, a sentencing court fulfills
the purposes of Rule 32.”).
Although the district court did not explicitly address
Heckel’s objection to the PSR’s treatment of his theft
conviction, the court referenced the information in the
PSR and specifically adopted the PSR’s findings. After
Heckel objected to the additional criminal-history point
for the theft conviction, the probation office filed an
addendum to the PSR along with its sentencing recommendation.
The addendum detailed the sequence of events
leading to Heckel’s term of imprisonment, including the
three dates upon which his probation was revoked and the
date that the previously stayed 19-month sentence was
reinstated. The court acknowledged and accepted the
addendum when it noted that Heckel’s correct criminalhistory
score was 10, instead of 12 as initially stated in
the PSR, and that he remained in Category V. Rule 32
requires nothing more. See United States v. Cunningham, 429
F.3d 673, 679 (7th Cir. 2005) (“We hesitate to read [Rule 32]
so broadly that the judge is obliged to address
every argument that a defendant makes at the sentencing
hearing.”).
C. Reasonableness of the Sentence
Heckel’s challenge to the reasonableness of his sentence
requires only brief attention. Heckel first contends that the
sentence is unreasonable because it is based on a procedural
error—that is, an incorrect guidelines range. Our
review is for abuse of discretion, Gall v. United States,
128 S. Ct. 586, 597 (2007), and there was no abuse of
discretion here. Heckel’s argument is merely a reiteration
of his two challenges to the guidelines calculation,
which we have rejected above.
Because Heckel’s guidelines range was correctly calculated
and the district court sentenced him within that
range, the sentence is presumed reasonable on appeal.
Rita v. United States, 127 S. Ct. 2456, 2462-63 (2007).
We have he 3 ld that Watts survived United States v. Booker,
543 U.S. 220 (2005), and remains good law. E.g., United States
v. Hurn, 496 F.3d 784, 788 (7th Cir. 2007).
Heckel nonetheless maintains that his sentence is unreasonable
because the district court referenced a May 2007
probation violation for purchasing and selling firearms,
despite being on notice that these charges had been
dropped. But a wide range of conduct is relevant at
sentencing—including uncharged conduct and charges
of which the defendant was acquitted—so long as that
conduct is established by a preponderance of the evidence.
United States v. Watts, 519 U.S. 148 (1997);3 see also
18 U.S.C. § 3661; U.S.S.G. § 1B1.4. Heckel doesn’t argue
that the conduct underlying the probation violation
did not occur—only that the formal charges were dismissed.
Absent evidence to the contrary, the district
court was entitled to rely on this information in the PSR
even though the charges were dropped. Heckel makes
no other challenge to the reasonableness of his sentence,
and as such, has failed to rebut the presumption of reasonableness.
AFFIRMED
Chicago Criminal Lawyer - Robert J Callahan
Internet that he had no intention of delivering, Jeffrey
Heckel was indicted on five counts of wire fraud. He
pleaded guilty to one of those counts and was sentenced
to 30 months in prison. Heckel appeals his sentence;
he contends that the district court erred in calculating
both his offense level and criminal-history score when
it applied a two-level enhancement for mass-marketing
and added three criminal-history points for a statecourt
theft conviction.
We affirm. Application of the mass-marketing enhancement
was appropriate because Heckel used the Internet
to conduct large-scale advertising to attract bidders to
his fraudulent online auctions. Moreover, the district
court did not clearly err when it determined
that Heckel’s previous state conviction had resulted in a
19-month term in prison, which added three criminalhistory
points to his total. Heckel’s recollection that
his sentence was shorter was insufficient to cast doubt on
the reliability and accuracy of the information in the
presentence investigation report (“PSR”), on which the
district court relied. Because the district court correctly
calculated Heckel’s offense level and criminal-history
score and imposed a sentence within the applicable
guidelines range, we presume that the sentence was
reasonsable—a presumption Heckel has failed to rebut.
I. Background
Beginning in March 2002, Jeffrey Heckel used two
Internet auction websites to defraud successful bidders
on items he had listed for sale. The scheme was simple:
He would list an item for auction, accept the highest
bid, cash the check sent to him by the winning bidder,
and ship a product far inferior to the one advertised
on the website. Heckel’s fraud netted him in excess of
$15,000.
Most of the winning bidders cheated by Heckel’s fraud
contacted law-enforcement authorities, and his operation
was shut down just over a year after it had begun. Heckel
was indicted on five counts of mail fraud in violation of
18 U.S.C. § 1341. He agreed to plead guilty to one count
and pay restitution to all five victims. In exchange the
government dismissed the remaining counts and recommended
that he receive a reduction in his offense level
for acceptance of responsibility. The district court
accepted Heckel’s plea.
The probation office calculated a total offense level of 11
under the sentencing guidelines, which included a base
offense level of 7 plus a 4-level increase because the
amount of loss was more than $10,000 but less than
$30,000. U.S.S.G. § 2B1.1(a)(1) & (b)(1)(C) (2006). The PSR
also applied the two-level reduction for acceptance of
responsibility, id. § 3E1.1(a), but then added two levels
because the offense was committed through “mass-marketing,”
id. § 2B1.1(b)(2)(A)(ii). Heckel objected to the application
of the mass-marketing enhancement.
For Heckel’s criminal-history score, the PSR initially
assessed 12 points, placing him in criminal-history Category
V. Heckel made two objections to this total. The
probation office then agreed with one of these objections
and issued an addendum reducing Heckel’s score to 10,
the minimum for Category V. The probation office disagreed
with Heckel’s second objection—relating to his
state conviction for theft—and refused to reduce
Heckel’s total any further.
The district court accepted the reduction from 12 to 10
points, but did not specifically address Heckel’s
objection regarding the treatment of his theft conviction.
As a result, Heckel remained in criminal-history Category
V. The court also rejected Heckel’s challenge to the application
of the mass-marketing enhancement, so the
guidelines recommended a range of 24-30 months. Commenting
on Heckel’s extensive criminal past and the
need to deter any future criminal behavior, the court
sentenced Heckel to 30 months in prison and 3 years of
supervised release. Heckel appealed.
II. Analysis
Our review of a district court’s application of the guidelines
is de novo, but we review findings of fact for clear
error. United States v. Samuels, 521 F.3d 804, 815 (7th Cir.
2008). Sentencing factfinding is entitled to deference
“ ‘unless we have a definite and firm conviction that a
mistake has been made.’ ” Id. (quoting United States v.
Wilson, 502 F.3d 718, 721 (7th Cir. 2001)).
A. Mass-marketing
Heckel first argues that the district court incorrectly
calculated his offense level because the court added
two levels for use of “mass-marketing.” U.S.S.G.
§ 2B1.1(b)(2)(A)(ii). The commentary to this guideline
explains that “mass-marketing” includes “a plan,
program, promotion, or campaign that is conducted
through solicitation by telephone, mail, the Internet, or
other means to induce a large number of persons to . . .
purchase goods or services.” Id. § 2B1.1 cmt. n.4(A).
Because the auction websites Heckel used were
accessible to the general public and Heckel attempted to
increase the price of the items posted by soliciting a
large number of bids over the Internet, the district court
applied the enhancement.
According to Heckel, the district court erred because
Internet auctions are different in kind from mass-marketing
frauds that use telemarketing or other forms of largescale
solicitation. An auction, Heckel argues, can only
have one victim: the winning bidder. The guideline
requires that the scheme “induce a large number of
persons to . . . purchase goods or services.” Heckel maintains
that the limited pool of actual victims defeats the
application of the enhancement.
Caselaw is sparse on this line of argument, but the few
cases that have taken up the issue have been decided in
favor of applying the enhancement. In United States v.
Pirello, the defendant used Internet classifieds to
advertise computers for sale. 255 F.3d 728, 730 (9th Cir.
2001). Three unsuspecting consumers sent Pirello more
than $4,000 for computers that he did not have and could
not provide. Pirello argued that the mass-marketing
enhancement should not apply because only three
people responded to his fraudulent Internet solicitation.
The Ninth Circuit rejected this argument, holding
instead that the limited number of victims “was the
product of chance” that was “in no way indicative of the
breadth of Pirello’s solicitation.” Id. at 732. The court
reasoned that any other consumers who responded also
“would have fallen victim to his plan.” Id.; see also
United States v. Magnuson, 307 F.3d 333, 335 (5th Cir.
2002) (agreeing with Pirello that the mass-marketing
enhancement “merely requires advertising that reaches
a large number of persons”) (internal quotation marks
omitted).
The guideline itself suggests that the mass-marketing
enhancement applies to solicitation schemes reaching a
large number of potential victims regardless of the
number of actual victims. Contained within § 2B1.1(b)(2)
are three other enhancements for frauds involving
more than 10, 50, or 250 victims respectively. U.S.S.G.
§ 2B1.1(b)(2)(A)-(C). Increasing a sentence under the massmarketing
enhancement only when the victim count is
large would render these other provisions superfluous.
Instead of focusing on the actual number of victims, the
mass-marketing enhancement focuses on defendants
who have used a particular solicitation method to
increase the number of potential victims. Indeed, the
Application Notes explain that the enhancement applies
to “cases in which mass-marketing has been used to
target a large number of persons, regardless of the
number of persons who have sustained an actual loss or
injury.” U.S.S.G. app. C, vol. II, amend. 617 (2003); see also
United States v. Olshan, 371 F.3d 1296, 1301 (11th Cir.
2004) (finding that the mass-marketing “enhancement
focuses on the method of inflicting the harm”);
United States v. Fredette, 315 F.3d 1235, 1244 n.4 (10th
Cir. 2003) (“[T]he enhancement for multiple victims goes
to the ultimate harm caused by the defendant’s
conduct, while the enhancement for mass-marketing
concerns the scope and sophistication of the defendant’s
fraud.”).
Here, Heckel’s scheme netted only a small number of
victims, but the loss that those few suffered was exacerbated
by Heckel’s chosen method of solicitation. The
competitive bidding process of an Internet auction often
increases the price that a bidder might otherwise have
to pay. Use of the Internet to advertise and conduct an
auction—like use of telephones in a “telemarketing campaign
that solicits a large number of individuals to purchase”
goods or services—exposes more consumers to
the fraud than otherwise would have been possible, and
potentially increases the price (and therefore the loss) by
expanding the number of bidders. U.S.S.G. § 2B1.1
cmt. n.4(A).
Even though an Internet auction results in just one
winning bidder and thus only one victim, the sheer
scope of the possible bidding drives the price of the
item on the virtual auction block. Posting a rare coin
for sale on the Internet, as Heckel did in the count to
which he pled guilty, invited the vast online public to
bid, and those who did so were trying to purchase the
item by suggesting a price that they believed no
competing online bidder would exceed. That only one
such bidder eventually won the online auction does not
negate the harm of this method of fraudulent solicitation.
Cf. United States v. Blanchett, 41 F. App’x 181, 183 (10th
Cir. 2002) (“[The defendant] never intended to provide
computers to prospective buyers, and thus did not feel
bound to accept only the highest offer, leaving
every Internet user who bid on the computers
potentially vulnerable.”). Heckel’s was exactly the type
of “plan, program, promotion, or campaign” that the mass
marketing enhancement is designed to address. U.S.S.G.
§ 2B1.1 cmt. n.4(A).1
B. Criminal-history Score
Heckel also contends that the district court erred by
assessing three criminal-history points for his 1992 state
conviction for theft. Under U.S.S.G. § 4A1.1(a), a criminal
defendant is assigned three points for each “prior
sentence of imprisonment exceeding one year and one
month.” Two points are added if the sentence was
between 60 days and 13 months. Id. § 4A1.1(b). The PSR
reported that Heckel was sentenced to 19 months for this
offense; Heckel only recalled spending 6 months in a
community-based behavioral modification program
with short stints in prison for probation violations.
Heckel claims that the government had the burden of
proving that the information in the PSR was reliable and
that it failed to do so. He argues that he should have
received only the two-point increase instead of three,
placing him in criminal-history Category IV; the applicable
guidelines range would then have dropped from
24-30 months to 18-24 months. Id. Ch. 5, Pt. A. Heckel
preserved his objection at sentencing, so we review the
court’s decision for clear error. United States v. Newman,
148 F.3d 871, 877 (7th Cir. 1998).
The district court may rely on the information contained
in the PSR so long as it is well supported and appears
reliable. United States v. Salinas, 365 F.3d 582, 587 (7th Cir.
2004). “When the court relies on such information in
sentencing a defendant, the defendant bears the burden
of showing that the presentence report is inaccurate or
unreliable.” Id. The defendant cannot attack the information
in the PSR by making a “bare denial” of its accuracy.
United States v. Mustread, 42 F.3d 1097, 1101-02 (7th Cir.
1994). Only when the defendent’s objection creates real
doubt as to the reliability of the information in the
PSR does the government have the burden of independently
demonstrating the accuracy of the information. Id.
at 1102.
Heckel presented no documentary evidence to
challenge the information in the PSR about his 19-month
theft sentence, and his recollection was far from unambiguous.
His initial claim, made in his objections to the
PSR, was that he served six months’ incarceration and
attended a treatment program for an additional six months
after he violated probation. At sentencing, however, his
counsel simply argued that Heckel “does not recall ever
being told by a judge that he was being sentenced to a
prison sentence.” Heckel’s counsel also said he had
checked the records on which the probation officer had
relied, but the objection remained highly ambiguous:
“I went over there and looked, and I just don’t feel that
the record is clear enough to give him three criminal
history points on this particular conviction.”
Heckel’s tentative and conflicting recollection of his
theft sentence of 15 years earlier was not enough to cast
doubt on the accuracy or reliability of the PSR. At sentencing
Heckel’s counsel suggested only that the documents
used by the probation office to support the information
in the PSR were not completely clear. This amounts
to a “bare denial” of the information in the PSR—not
enough to call the accuracy of the PSR into question. The
PSR reported that Heckel was sentenced to 19 months in
the custody of the Minnesota Department of Corrections,
but that this sentence was stayed and he was placed on
probation for 5 years. The stay was lifted, however, and
the 19-month sentence was reinstated after Heckel committed
a third violation of his probation. Absent any
hard evidence demonstrating that this information was
inaccurate, we cannot say that the district court clearly
erred by relying on the PSR to calculate Heckel’s criminalhistory
category.2
Heckel also asserts that the district court failed to make
a specific ruling on his objection to the three-point assessment
for his theft conviction in violation of the Federal
Rules of Criminal Procedure. The rules require the sentencing
court to rule on “any disputed portion of the
presentence report or other controverted matter . . . or
determine that a ruling is unnecessary.” FED. R. CRIM. P.
32(i)(3)(B). In announcing its sentence, the district court
referred to the PSR’s criminal-history calculation and
noted that the point total was 10 rather than 12 as stated
in the original report. But the court did not directly
address Heckel’s objection to the 19-month theft sentence
and instead placed him in Category V without
further elucidation.
We have characterized Rule 32’s requirement as a
“minimal burden.” United States v. Sykes, 357 F.3d 672, 674
(7th Cir. 2004). The sentencing court must make findings
to resolve a dispute between the defendant and the government,
but a general reference by the court to the
PSR “constitutes sufficient findings even as to controverted
facts when we are assured that the district court
made a decision of design, rather than of convenience, to
adopt the PSR.” United States v. Burke, 148 F.3d 832, 836
(7th Cir. 1998); see also United States v. Cureton, 89 F.3d 469,
473 (7th Cir. 1996) (“[S]o long as it actually resolves the
disputed issue on the record, a sentencing court fulfills
the purposes of Rule 32.”).
Although the district court did not explicitly address
Heckel’s objection to the PSR’s treatment of his theft
conviction, the court referenced the information in the
PSR and specifically adopted the PSR’s findings. After
Heckel objected to the additional criminal-history point
for the theft conviction, the probation office filed an
addendum to the PSR along with its sentencing recommendation.
The addendum detailed the sequence of events
leading to Heckel’s term of imprisonment, including the
three dates upon which his probation was revoked and the
date that the previously stayed 19-month sentence was
reinstated. The court acknowledged and accepted the
addendum when it noted that Heckel’s correct criminalhistory
score was 10, instead of 12 as initially stated in
the PSR, and that he remained in Category V. Rule 32
requires nothing more. See United States v. Cunningham, 429
F.3d 673, 679 (7th Cir. 2005) (“We hesitate to read [Rule 32]
so broadly that the judge is obliged to address
every argument that a defendant makes at the sentencing
hearing.”).
C. Reasonableness of the Sentence
Heckel’s challenge to the reasonableness of his sentence
requires only brief attention. Heckel first contends that the
sentence is unreasonable because it is based on a procedural
error—that is, an incorrect guidelines range. Our
review is for abuse of discretion, Gall v. United States,
128 S. Ct. 586, 597 (2007), and there was no abuse of
discretion here. Heckel’s argument is merely a reiteration
of his two challenges to the guidelines calculation,
which we have rejected above.
Because Heckel’s guidelines range was correctly calculated
and the district court sentenced him within that
range, the sentence is presumed reasonable on appeal.
Rita v. United States, 127 S. Ct. 2456, 2462-63 (2007).
We have he 3 ld that Watts survived United States v. Booker,
543 U.S. 220 (2005), and remains good law. E.g., United States
v. Hurn, 496 F.3d 784, 788 (7th Cir. 2007).
Heckel nonetheless maintains that his sentence is unreasonable
because the district court referenced a May 2007
probation violation for purchasing and selling firearms,
despite being on notice that these charges had been
dropped. But a wide range of conduct is relevant at
sentencing—including uncharged conduct and charges
of which the defendant was acquitted—so long as that
conduct is established by a preponderance of the evidence.
United States v. Watts, 519 U.S. 148 (1997);3 see also
18 U.S.C. § 3661; U.S.S.G. § 1B1.4. Heckel doesn’t argue
that the conduct underlying the probation violation
did not occur—only that the formal charges were dismissed.
Absent evidence to the contrary, the district
court was entitled to rely on this information in the PSR
even though the charges were dropped. Heckel makes
no other challenge to the reasonableness of his sentence,
and as such, has failed to rebut the presumption of reasonableness.
AFFIRMED
Chicago Criminal Lawyer - Robert J Callahan
U.S. vs. Severson
Bryan J. Severson was convicted
of 28 various counts of money laundering, bank
fraud and bank embezzlement and was sentenced to
140 months’ imprisonment. Severson challenges both his
conviction and sentence. With regard to his conviction,
Severson argues that the government failed to
prove his knowledge of illegality on ten counts and that a
deliberate avoidance instruction was improperly given
to the jury. As to his sentence, Severson argues that
the loss was improperly calculated and that prior misdemeanors
erroneously enhanced his criminal history. For
the following reasons, we affirm Severson’s conviction
and sentence.
I. BACKGROUND
Mark Hardyman was the President of the First National
Bank of Blanchardville, Wisconsin (FNBB). FNBB was
an FDIC insured financial institution, regulated by
the Office of the Comptroller of Currency (OCC). In
May 2003, the OCC conducted a regularly scheduled
examination of the bank. The OCC examiners’ review
revealed that there were violations of the bank’s legal
lending limit. The bank examiners determined that the
violations pertained to loans that were not being repaid
but were being renewed, giving the impression that the
loans were not in default. The examiners found that the
violations totaled approximately $14,000,000. The OCC
closed the bank’s doors.
The FBI investigated FNBB’s closing to determine
whether any criminal statutes had been violated. What
this investigation uncovered was a series of rampant
illegalities orchestrated by bank president Hardyman
that, ultimately, had milked the bank dry.
With the bank in financial trouble, Hardyman sought
to mask the bank’s dilapidating condition and to present
the illusion of a financially sound bank. For example, his
activities included, but were not limited to, intentionally
misstating information in internal and external reports,
issuing loans without the required Board of Directors
approval, renewing uncollectible, non-paid loans, and
soliciting bank customers to issue fraudulent checks
on essentially non-existent accounts. Severson was a
reoccurring figure in this fraud; we discuss only the
facts relevant to his appeal.
Severson was the owner of a small tow-truck company
who originally financed his business through FNBB. As
his business grew, Severson started up other small businesses
through similar financing from FNBB. The fact
was, however, that Severson was insolvent, consistently
overdrawn, and yet he repeatedly received loans from
the bank.
To cover up Severson’s overdrawn status and help
reflect a positive balance on the bank’s books, Severson
and Hardyman conspired to defraud FNBB by having
Severson, through his various companies, issue and
deposit checks without sufficient funding into Severson’s
overdrawn accounts. This scheme proved a cover for
Hardyman and Severson: Hardyman’s bank hid its true
condition and reflected a positive balance; and Severson
covered his insolvency and received loans to which he
would never have been entitled.
The scheme was hardly subtle. For example, faced with
the need to cover Severson’s overdrafts from an upcoming
scheduled audit, Hardyman and Severson agreed that
David Boyington, one of Severson’s employees, would
write NSF checks for various amounts to Severson. These
checks were ultimately deposited and Hardyman told
Severson that the checks would be deposited into
Severson’s accounts to cover the overdrafts and reflect
positive balances.
The overdraft coverup continued. Severson wrote nine
NSF checks, drawn on another bank, to cover his overdrafts.
At trial, Hardyman identified a summary chart
listing multiple NSF checks (totaling $824,019.32), drawn
on either Severson’s NSF checks or closed accounts at
the Bank of Cazenovia, that were deposited into
Severson’s accounts at FNBB to cover overdrafts.
As part of the scheme, Hardyman also loaned money
to the insolvent Severson. For example, Severson desired
additional funding to finance the purchase of a limousine
for one of his businesses. Because the amount already
loaned to Severson had exceeded FNBB’s legal limit,
Hardyman testified that he loaned $18,500 to Jason
Schuepbach, another Severson employee. Hardyman
noted that he discussed with Severson why the transaction
had to be structured this way and that all parties
understood that the loan would be for Severson. Ultimately,
Severson took possession of the limousine.
Hardyman also testified that Severson would be paying
on the loan and no inquiry was made into Schuepbach’s
ability to pay.
Since this loan, and other loans, were made to insolvent
Severson companies, Hardyman covered the fraud by
altering quarterly reports, so that Severson’s past-due
loans would not be reflected. Hardyman also concealed
Severson’s loans from the FNBB’s Board by making
changes to monthly Board reports prior to Board meetings.
At one point, FNBB transferred some of Severson’s
debt to Highland Bank. Hardyman informed Severson
that he was selling some loans to Highland. Although
Severson supplied a financial statement to FNBB,
Hardyman directed Severson to fraudulently amend his
financial statements because they could not give
Highland accurate statements since they “did not
look good from a financial standpoint.” Together, they
changed Severson’s financial statements so that several
of Severson’s loans could be sold to the participating bank.
NSF checks were also used to make fraudulent payments
on Severson’s loans with FNBB. Severson made
payments on the many loans issued by the bank with
NSF checks to avoid past-due status. Hardyman testified
that he and Severson agreed that Severson would pay
his loans out of his insolvent checking accounts. Again
both benefitted; on the one hand, the bank did not have
to report Severson’s past-due loan to its regulators, as
required; and, on the other hand, Severson received
more money than his credit allowed.
In January 2003, at the peak of Hardyman and Severson’s
conspiracy, Severson received an unsecured one million
dollar loan from FNBB for the purchase of a racetrack
while his accounts were all overdrawn. The loan was
later secured in May 2003 by a mortgage, prior to an
upcoming audit. OCC examiner Michael Wills testified
that this loan had no viable source of repayment as the
Severson companies that received the loans were insolvent.
Overall, the gross amount loaned to Severson was
approximately $8.7 million. This amount can be generally
put into two categories: (1) approximately $6.6 million as
proceeds attributable to Severson, which were either
money directly loaned or money used to coverup overdrafts;
and (2) approximately $2.1 million as renewed
loans.
The grand jury returned a 28-count superseding indictment
against Severson for his participation in the
collapse of FNBB. The indictment charged various
counts of bank fraud, bank embezzlement, and money
laundering. Severson was found guilty on all counts.
During sentencing, the government argued that the
overall loss should be the intended loss, excluding any
collateral presented by Severson. Severson argued that
the money eventually received from the sale of the laterpledged
mortgage on the racetrack loan should be
applied as collateral to reduce the intended loss. The
district court found that the loss amount would be the
full amount of the intended loss ($7,136,461.29); it also
determined that no credit would be given for any
amount received from the racetrack’s sale.
Ultimately, the district court found that Severson had
a total offense level of 33, with four criminal history
points, and a criminal history category of III. This
history included one point for prior misdemeanor convictions.
The Sentencing Guidelines ranged from 168 to
210 months; the district court sentenced Severson to
140 months’ imprisonment.
This timely appeal followed.
II. DISCUSSION
Severson mounts two attacks on his conviction.
He first argues that the government failed to present
sufficient evidence of his knowledge of illegality at
the time he received three certain loans. Severson
also argues that the district court erred by including a
“deliberate avoidance” or “ostrich” jury instruction, which
allowed the jury to infer that Severson knew of
Hardyman’s fraud when he received the loans.
Severson pursues another two-pronged attack on his
sentence. He argues that the district court miscalculated
the amount at issue when it refused to consider
collateral later pledged as security on a loan and that
the district court improperly calculated his criminal
history level by including prior misdemeanor offenses.
A. Conviction
Severson challenges only 10 counts of his conviction,
which all stem from three particular loans made to
Severson. Severson argues that the government failed to
present sufficient evidence that at the time he received
the loans, he was aware that Hardyman had defrauded
the bank’s directors by not seeking their approval.
A defendant challenging the sufficiency of the evidence
must show that “after viewing the evidence in the light
most favorable to the prosecution,” no rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt. United States v. Farris, 532
F.3d 615, 618 (7th Cir. 2008) (internal citations omitted).
Moreover, “we will overturn a conviction based on insufficient
evidence only if the record is devoid of evidence
from which a reasonable jury could find guilt beyond a
reasonable doubt.” Id. In this inquiry, we do not weigh
the evidence or second-guess the jury’s credibility determinations.
United States v. Stevens, 453 F.3d 963, 965
(7th Cir. 2006).
The 10 appealed counts share a common element.
Counts 9, 10, and 11, which charged bank fraud, required
the government to prove that Severson knowingly aided
and abetted Hardyman in his scheme with the intent to
defraud. 18 U.S.C. § 1344(1) & (2). The second set of
counts (counts 18, 19, and 21) charged Severson with
bank embezzlement. 18 U.S.C. § 656. These three counts
required proof that Severson knowingly aided and
abetted Hardyman’s willful misapplication of bank
money. The last counts (counts 22, 23, 26, and 27) charged
Severson with illegal money laundering. 18 U.S.C. § 1957.
These laundering counts required that Severson
knowingly aided and abetted Hardyman’s unlawful
monetary transactions. Severson’s appeal claims that the
common element of knowledge was not sufficiently
proved.
The details of each loan that led to these counts are
irrelevant because the challenge to each count is the
same: namely, Severson did not knowingly engage in a
criminal scheme with Hardyman when he accepted the
loans. He specifically argues, with great emphasis, that
the government did not present sufficient evidence to
show that when he received each of the three loans, he
was aware that the bank’s Board had not approved the
loans and that Hardyman was defrauding the bank.
We do not understand why Severson places such significance
on whether the Board had approved the loans.
The Board’s knowledge of the illegal loans is not the
issue. The critical issue is Severson’s knowledge and
whether he knew he did not have any funds in his
accounts that would have entitled him to those loans.
If we look at the record, there is no dispute that Severson
knew he was insolvent. Severson knew his corporate
accounts were continuously overdrawn. At trial,
Hardyman testified that he had discussed with Severson
that Severson would deposit NSF checks to cover his
overdrafts. FBI Special Agent Welshinger also testified
that Severson, after the bank was closed, mentioned that
he knew he operated his accounts in an overdrawn
status. Severson, in short, knew he was broke.
Moreover, Severson concedes that he wrote, and had
others write, NSF checks to cover his insolvency, creating
the appearance that he had funds. Hardyman testified
that Severson did this at his request and, during the
criminal investigation, Hardyman stated that Severson
knew the bad checks were “worthless.” Severson, who
only reflected a positive account balance by fraud, kept
receiving loans that could never have been legitimately
repaid. This covered his own insolvency, and covered
Hardyman’s fraud. Hardyman stated that he would
credit Severson’s loan payment, even if the check was
written on an overdraft account, to prevent the loans
from being classified as past-due.
In viewing these facts favorably for the government,
there was enough evidence presented that could lead a
rational trier of fact to find that Severson had an intent
to defraud the bank when he received the three
fraudulent loans that led to his conviction.
Actually, the jury did not have to determine that
Severson, in receiving the loans, had an intent to defraud.
All the jury had to find was that Severson knowingly
participated in a scheme: that he knew he was
helping Hardyman circumvent the bank’s rules and
federal law; and that he knew he was covering his own
insolvency by his involvement. There is enough evidence
in the record to support the jury’s decision.
Severson portrayed himself as being naive on these
three loans. Although Severson acknowledges that all
of his other dealings with Hardyman were knowingly
illegal, he suggests that for these three transactions, he
merely followed Hardyman’s instructions without any
idea that Hardyman was behaving fraudulently. However,
this is why the district court gave the ostrich instruction.
The instruction, which explains to the jury that
guilty knowledge also includes the deliberate avoidance
of knowledge, is appropriate when: (1) the defendant
claims a lack of guilty knowledge; and (2) the facts and
evidence support an inference of deliberate ignorance.
United States v. Carrillo, 269 F.3d 761, 769 (7th Cir. 2001).
Deliberate avoidance is not a standard less than knowledge;
it is simply another way that knowledge may be
proven. United States v. Carani, 492 F.3d 867, 873 (7th Cir.
2007) (citations omitted). We review the district court’s
decision to give the instruction for an abuse of discretion
and, viewing the evidence in the light most favorable
to the government, id., we find no such abuse.
Looking at what Severson knew, the instruction was
proper. From the beginning of the scheme, Hardyman
informed Severson that he was over the legal lending
limit, which prompted one of Severson’s loans to be put
in Schuepbach’s name. Severson routinely kited checks;
Severson, at Hardyman’s request, deposited NSF checks
(totaling $824,019.32) drawn on his account from
another bank to cover his overdraft. Severson solicited
one of his employees to write and deposit NSF checks
into Severson’s accounts. Moreover, without any money,
and knowing that his loans were already over the legal
lending limit, Severson received approximately
$8,744,019.62 in loans from the bank and paid them off
with NSF checks.
With these facts properly supporting the inference of
knowledge, the district court’s instruction was not an
abuse of discretion.
B. Sentence
The district court applied various enhancements in
computing the Advisory range under the 2007 Sentencing
Guidelines; one was a 20 level offense enhancement
because Severson’s conduct culminated in a loss of
more than $7,000,000. See USSG § 2B1.1(b)(1). Severson
claims that the district court erred when it miscalculated
the intended loss by refusing to subtract the sale
amount of later-pledged collateral on his racetrack loan.
We review the district court’s interpretation and application
of the Sentencing Guidelines de novo and its
factual findings for clear error. United States v. Hernandez,
544 F.3d 743, 746 (7th Cir. 2008). “A finding of fact is
clearly erroneous only if, based upon the entire record,
we are left with the definite and firm conviction that a
mistake has been committed.” Carani, 492 F.3d at 875
(internal citations and quotations omitted).
In determining “Loss,” we consider the greater of the
actual or intended loss. United States v. Brownell, 495
F.3d 459, 461 (7th Cir. 2007); see also USSG § 2B1.1, Application
Note 3(A). Because the intended loss is greater
in our case, we look to Application Note 3(A)(ii) which
defines “intended loss” as (I) “the pecuniary harm that
was intended to result from the offense”; which includes
the (II) “intended pecuniary harm that would have been
impossible or unlikely to occur.” At sentencing, the
government argued that the loss attributed to Severson
totaled $7,136,461. Severson countered that this amount
should have been reduced by the value of the laterpledged
mortgage taken out on the million dollar racetrack
loan. After FNBB closed, the FDIC sold the racetrack
note to a third party for $707,293.93. As a credit
against the loss, Severson argued that the loss should
be reduced by the amount of the pledged collateral recovered.
See USSG § 2B1.1, Application Note E (where
collateral has been pledged, loss reduced by the amount
recovered at the time of sentencing from disposition of
the collateral). This, he argued, would result in the loss
totaling $6,429,167.07, enabling only an offense level
enhancement of 18.
The district court rejected Severson’s argument because
it found that in January 2003, Severson received an unsecured
loan for a million dollars with no possibility of
repayment; it determined that the intended loss totaled
$7,136,461 and increased Severson’s offense level by 20.
On appeal, Severson repeats his argument and specifically
argues that for his intended loss, we should not
look at the time the loan was received, but at the time
the fraud was uncovered. If we follow his argument,
Severson did not intend to keep the entire loan because
four months after he received the entire amount, he
pledged collateral to secure the loan and the sale of
the collateral should be reduced from the overall
intended loss.
In support, Severson cites United States v. Mau, 45
F.3d 212, 215-16 (7th Cir. 1995),which held that in a checkkiting
scheme, the moment to determine the loss is the
moment the loss is detected. But, at this juncture, we
are not looking at Severson’s kites, but at what he
intended to keep from the bank when he received an
unsecured million dollar loan. What Severson actually
uses as support is the dicta in Mau, which states that
in calculating the intended loss in a fraudulent loan
case, “the amount of the loan can be offset by the value
of the collateral the bank has or expects to gain at the
time the fraud is discovered.” Id. at 216. But in Mau,
where the bank discovered the fraud and later had the
defendant sign a note, secured by collateral, to cover the
fraudulent overdrafts, we did not consider the value of
the collateral in the intended loss because the secured
note came after the kite had been discovered.
There was no error in finding that, in January 2003, at
the time of the fraud, Severson intended to keep the
entire loan; a mortgage was not filed contemporaneously
with the receipt of the loan proceeds. Although, at sentencing,
Severson’s counsel stated that Severson would
have testified to his intent to repay, the district court
noted that “[i]f he really intended this to be a legitimate
loan that he was going to repay, he would have filled out
a mortgage at the time he signed it then and there, not
months later when an auditor was approaching.” If we
boil it down, Severson received an unsecured one
million dollar loan that he could not repay. Borrowing
money without the intention to repay is akin to theft. See
Mau 45 F.3d at 216 (“as in theft cases, loss is the value
of the money, property or services unlawfully
taken”) (citation omitted). The district court did not just
use the face value of the loan; rather it found that
because the idea of repayment was ridiculous,
Severson intended to walk away with the full fraudulently
obtained amount. See United States v. Johnson, 16
F.3d 166, 172 (7th Cir. 1994). The bank’s risk,
which Severson intended it to risk by knowing he
could not repay, was the total amount.
Finally, Severson argues that the district court erred
when it included two Wisconsin misdemeanor convictions
for dispensing alcohol without a license, see Wis.
Stat. § 125.04(1), in calculating Severson’s criminal history
level. Because this challenge was not made before the
district court, we review the criminal history calculation
only for plain error. United States v. Garrett, 528 F.3d
525, 527 (7th Cir. 2008).
Severson argues that the misdemeanor convictions
should not be counted because they are less serious than
the included, listed crimes in USSG § 4A1.2(c)(1) and
similar to the excluded offenses under USSG § 4A1.2(c)(2).
We can quickly dispose of this argument; the district
court was not absolutely bound by the sentencing commission’s
judgment since the Guidelines are merely
advisory. The district court always has the obligation in
the first instance to apply the Guidelines as written
and properly calculate the advisory sentencing range;
then the court’s discretion kicks in and the district court
has the right to, for whatever reason and despite what
we may think, determine that the unlicensed selling of
liquor at a racetrack was more serious than the trivial
crimes listed in § 4A1.2(c)(2). Moreover, even if the
district court erred by including an extra point in
Severson’s criminal history, his 141 month sentence
would still have been below the revised Guideline range
of 151-188 months. United States v. Mount, 966 F.2d 262,
265 (7th Cir. 1992) (review of misapplied Guidelines
inappropriate if error was harmless).
III. CONCLUSION
For the reasons discussed above, we AFFIRM Severson’s
conviction and sentence.
Chicago Criminal Lawyer - Robert J Callahan
of 28 various counts of money laundering, bank
fraud and bank embezzlement and was sentenced to
140 months’ imprisonment. Severson challenges both his
conviction and sentence. With regard to his conviction,
Severson argues that the government failed to
prove his knowledge of illegality on ten counts and that a
deliberate avoidance instruction was improperly given
to the jury. As to his sentence, Severson argues that
the loss was improperly calculated and that prior misdemeanors
erroneously enhanced his criminal history. For
the following reasons, we affirm Severson’s conviction
and sentence.
I. BACKGROUND
Mark Hardyman was the President of the First National
Bank of Blanchardville, Wisconsin (FNBB). FNBB was
an FDIC insured financial institution, regulated by
the Office of the Comptroller of Currency (OCC). In
May 2003, the OCC conducted a regularly scheduled
examination of the bank. The OCC examiners’ review
revealed that there were violations of the bank’s legal
lending limit. The bank examiners determined that the
violations pertained to loans that were not being repaid
but were being renewed, giving the impression that the
loans were not in default. The examiners found that the
violations totaled approximately $14,000,000. The OCC
closed the bank’s doors.
The FBI investigated FNBB’s closing to determine
whether any criminal statutes had been violated. What
this investigation uncovered was a series of rampant
illegalities orchestrated by bank president Hardyman
that, ultimately, had milked the bank dry.
With the bank in financial trouble, Hardyman sought
to mask the bank’s dilapidating condition and to present
the illusion of a financially sound bank. For example, his
activities included, but were not limited to, intentionally
misstating information in internal and external reports,
issuing loans without the required Board of Directors
approval, renewing uncollectible, non-paid loans, and
soliciting bank customers to issue fraudulent checks
on essentially non-existent accounts. Severson was a
reoccurring figure in this fraud; we discuss only the
facts relevant to his appeal.
Severson was the owner of a small tow-truck company
who originally financed his business through FNBB. As
his business grew, Severson started up other small businesses
through similar financing from FNBB. The fact
was, however, that Severson was insolvent, consistently
overdrawn, and yet he repeatedly received loans from
the bank.
To cover up Severson’s overdrawn status and help
reflect a positive balance on the bank’s books, Severson
and Hardyman conspired to defraud FNBB by having
Severson, through his various companies, issue and
deposit checks without sufficient funding into Severson’s
overdrawn accounts. This scheme proved a cover for
Hardyman and Severson: Hardyman’s bank hid its true
condition and reflected a positive balance; and Severson
covered his insolvency and received loans to which he
would never have been entitled.
The scheme was hardly subtle. For example, faced with
the need to cover Severson’s overdrafts from an upcoming
scheduled audit, Hardyman and Severson agreed that
David Boyington, one of Severson’s employees, would
write NSF checks for various amounts to Severson. These
checks were ultimately deposited and Hardyman told
Severson that the checks would be deposited into
Severson’s accounts to cover the overdrafts and reflect
positive balances.
The overdraft coverup continued. Severson wrote nine
NSF checks, drawn on another bank, to cover his overdrafts.
At trial, Hardyman identified a summary chart
listing multiple NSF checks (totaling $824,019.32), drawn
on either Severson’s NSF checks or closed accounts at
the Bank of Cazenovia, that were deposited into
Severson’s accounts at FNBB to cover overdrafts.
As part of the scheme, Hardyman also loaned money
to the insolvent Severson. For example, Severson desired
additional funding to finance the purchase of a limousine
for one of his businesses. Because the amount already
loaned to Severson had exceeded FNBB’s legal limit,
Hardyman testified that he loaned $18,500 to Jason
Schuepbach, another Severson employee. Hardyman
noted that he discussed with Severson why the transaction
had to be structured this way and that all parties
understood that the loan would be for Severson. Ultimately,
Severson took possession of the limousine.
Hardyman also testified that Severson would be paying
on the loan and no inquiry was made into Schuepbach’s
ability to pay.
Since this loan, and other loans, were made to insolvent
Severson companies, Hardyman covered the fraud by
altering quarterly reports, so that Severson’s past-due
loans would not be reflected. Hardyman also concealed
Severson’s loans from the FNBB’s Board by making
changes to monthly Board reports prior to Board meetings.
At one point, FNBB transferred some of Severson’s
debt to Highland Bank. Hardyman informed Severson
that he was selling some loans to Highland. Although
Severson supplied a financial statement to FNBB,
Hardyman directed Severson to fraudulently amend his
financial statements because they could not give
Highland accurate statements since they “did not
look good from a financial standpoint.” Together, they
changed Severson’s financial statements so that several
of Severson’s loans could be sold to the participating bank.
NSF checks were also used to make fraudulent payments
on Severson’s loans with FNBB. Severson made
payments on the many loans issued by the bank with
NSF checks to avoid past-due status. Hardyman testified
that he and Severson agreed that Severson would pay
his loans out of his insolvent checking accounts. Again
both benefitted; on the one hand, the bank did not have
to report Severson’s past-due loan to its regulators, as
required; and, on the other hand, Severson received
more money than his credit allowed.
In January 2003, at the peak of Hardyman and Severson’s
conspiracy, Severson received an unsecured one million
dollar loan from FNBB for the purchase of a racetrack
while his accounts were all overdrawn. The loan was
later secured in May 2003 by a mortgage, prior to an
upcoming audit. OCC examiner Michael Wills testified
that this loan had no viable source of repayment as the
Severson companies that received the loans were insolvent.
Overall, the gross amount loaned to Severson was
approximately $8.7 million. This amount can be generally
put into two categories: (1) approximately $6.6 million as
proceeds attributable to Severson, which were either
money directly loaned or money used to coverup overdrafts;
and (2) approximately $2.1 million as renewed
loans.
The grand jury returned a 28-count superseding indictment
against Severson for his participation in the
collapse of FNBB. The indictment charged various
counts of bank fraud, bank embezzlement, and money
laundering. Severson was found guilty on all counts.
During sentencing, the government argued that the
overall loss should be the intended loss, excluding any
collateral presented by Severson. Severson argued that
the money eventually received from the sale of the laterpledged
mortgage on the racetrack loan should be
applied as collateral to reduce the intended loss. The
district court found that the loss amount would be the
full amount of the intended loss ($7,136,461.29); it also
determined that no credit would be given for any
amount received from the racetrack’s sale.
Ultimately, the district court found that Severson had
a total offense level of 33, with four criminal history
points, and a criminal history category of III. This
history included one point for prior misdemeanor convictions.
The Sentencing Guidelines ranged from 168 to
210 months; the district court sentenced Severson to
140 months’ imprisonment.
This timely appeal followed.
II. DISCUSSION
Severson mounts two attacks on his conviction.
He first argues that the government failed to present
sufficient evidence of his knowledge of illegality at
the time he received three certain loans. Severson
also argues that the district court erred by including a
“deliberate avoidance” or “ostrich” jury instruction, which
allowed the jury to infer that Severson knew of
Hardyman’s fraud when he received the loans.
Severson pursues another two-pronged attack on his
sentence. He argues that the district court miscalculated
the amount at issue when it refused to consider
collateral later pledged as security on a loan and that
the district court improperly calculated his criminal
history level by including prior misdemeanor offenses.
A. Conviction
Severson challenges only 10 counts of his conviction,
which all stem from three particular loans made to
Severson. Severson argues that the government failed to
present sufficient evidence that at the time he received
the loans, he was aware that Hardyman had defrauded
the bank’s directors by not seeking their approval.
A defendant challenging the sufficiency of the evidence
must show that “after viewing the evidence in the light
most favorable to the prosecution,” no rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt. United States v. Farris, 532
F.3d 615, 618 (7th Cir. 2008) (internal citations omitted).
Moreover, “we will overturn a conviction based on insufficient
evidence only if the record is devoid of evidence
from which a reasonable jury could find guilt beyond a
reasonable doubt.” Id. In this inquiry, we do not weigh
the evidence or second-guess the jury’s credibility determinations.
United States v. Stevens, 453 F.3d 963, 965
(7th Cir. 2006).
The 10 appealed counts share a common element.
Counts 9, 10, and 11, which charged bank fraud, required
the government to prove that Severson knowingly aided
and abetted Hardyman in his scheme with the intent to
defraud. 18 U.S.C. § 1344(1) & (2). The second set of
counts (counts 18, 19, and 21) charged Severson with
bank embezzlement. 18 U.S.C. § 656. These three counts
required proof that Severson knowingly aided and
abetted Hardyman’s willful misapplication of bank
money. The last counts (counts 22, 23, 26, and 27) charged
Severson with illegal money laundering. 18 U.S.C. § 1957.
These laundering counts required that Severson
knowingly aided and abetted Hardyman’s unlawful
monetary transactions. Severson’s appeal claims that the
common element of knowledge was not sufficiently
proved.
The details of each loan that led to these counts are
irrelevant because the challenge to each count is the
same: namely, Severson did not knowingly engage in a
criminal scheme with Hardyman when he accepted the
loans. He specifically argues, with great emphasis, that
the government did not present sufficient evidence to
show that when he received each of the three loans, he
was aware that the bank’s Board had not approved the
loans and that Hardyman was defrauding the bank.
We do not understand why Severson places such significance
on whether the Board had approved the loans.
The Board’s knowledge of the illegal loans is not the
issue. The critical issue is Severson’s knowledge and
whether he knew he did not have any funds in his
accounts that would have entitled him to those loans.
If we look at the record, there is no dispute that Severson
knew he was insolvent. Severson knew his corporate
accounts were continuously overdrawn. At trial,
Hardyman testified that he had discussed with Severson
that Severson would deposit NSF checks to cover his
overdrafts. FBI Special Agent Welshinger also testified
that Severson, after the bank was closed, mentioned that
he knew he operated his accounts in an overdrawn
status. Severson, in short, knew he was broke.
Moreover, Severson concedes that he wrote, and had
others write, NSF checks to cover his insolvency, creating
the appearance that he had funds. Hardyman testified
that Severson did this at his request and, during the
criminal investigation, Hardyman stated that Severson
knew the bad checks were “worthless.” Severson, who
only reflected a positive account balance by fraud, kept
receiving loans that could never have been legitimately
repaid. This covered his own insolvency, and covered
Hardyman’s fraud. Hardyman stated that he would
credit Severson’s loan payment, even if the check was
written on an overdraft account, to prevent the loans
from being classified as past-due.
In viewing these facts favorably for the government,
there was enough evidence presented that could lead a
rational trier of fact to find that Severson had an intent
to defraud the bank when he received the three
fraudulent loans that led to his conviction.
Actually, the jury did not have to determine that
Severson, in receiving the loans, had an intent to defraud.
All the jury had to find was that Severson knowingly
participated in a scheme: that he knew he was
helping Hardyman circumvent the bank’s rules and
federal law; and that he knew he was covering his own
insolvency by his involvement. There is enough evidence
in the record to support the jury’s decision.
Severson portrayed himself as being naive on these
three loans. Although Severson acknowledges that all
of his other dealings with Hardyman were knowingly
illegal, he suggests that for these three transactions, he
merely followed Hardyman’s instructions without any
idea that Hardyman was behaving fraudulently. However,
this is why the district court gave the ostrich instruction.
The instruction, which explains to the jury that
guilty knowledge also includes the deliberate avoidance
of knowledge, is appropriate when: (1) the defendant
claims a lack of guilty knowledge; and (2) the facts and
evidence support an inference of deliberate ignorance.
United States v. Carrillo, 269 F.3d 761, 769 (7th Cir. 2001).
Deliberate avoidance is not a standard less than knowledge;
it is simply another way that knowledge may be
proven. United States v. Carani, 492 F.3d 867, 873 (7th Cir.
2007) (citations omitted). We review the district court’s
decision to give the instruction for an abuse of discretion
and, viewing the evidence in the light most favorable
to the government, id., we find no such abuse.
Looking at what Severson knew, the instruction was
proper. From the beginning of the scheme, Hardyman
informed Severson that he was over the legal lending
limit, which prompted one of Severson’s loans to be put
in Schuepbach’s name. Severson routinely kited checks;
Severson, at Hardyman’s request, deposited NSF checks
(totaling $824,019.32) drawn on his account from
another bank to cover his overdraft. Severson solicited
one of his employees to write and deposit NSF checks
into Severson’s accounts. Moreover, without any money,
and knowing that his loans were already over the legal
lending limit, Severson received approximately
$8,744,019.62 in loans from the bank and paid them off
with NSF checks.
With these facts properly supporting the inference of
knowledge, the district court’s instruction was not an
abuse of discretion.
B. Sentence
The district court applied various enhancements in
computing the Advisory range under the 2007 Sentencing
Guidelines; one was a 20 level offense enhancement
because Severson’s conduct culminated in a loss of
more than $7,000,000. See USSG § 2B1.1(b)(1). Severson
claims that the district court erred when it miscalculated
the intended loss by refusing to subtract the sale
amount of later-pledged collateral on his racetrack loan.
We review the district court’s interpretation and application
of the Sentencing Guidelines de novo and its
factual findings for clear error. United States v. Hernandez,
544 F.3d 743, 746 (7th Cir. 2008). “A finding of fact is
clearly erroneous only if, based upon the entire record,
we are left with the definite and firm conviction that a
mistake has been committed.” Carani, 492 F.3d at 875
(internal citations and quotations omitted).
In determining “Loss,” we consider the greater of the
actual or intended loss. United States v. Brownell, 495
F.3d 459, 461 (7th Cir. 2007); see also USSG § 2B1.1, Application
Note 3(A). Because the intended loss is greater
in our case, we look to Application Note 3(A)(ii) which
defines “intended loss” as (I) “the pecuniary harm that
was intended to result from the offense”; which includes
the (II) “intended pecuniary harm that would have been
impossible or unlikely to occur.” At sentencing, the
government argued that the loss attributed to Severson
totaled $7,136,461. Severson countered that this amount
should have been reduced by the value of the laterpledged
mortgage taken out on the million dollar racetrack
loan. After FNBB closed, the FDIC sold the racetrack
note to a third party for $707,293.93. As a credit
against the loss, Severson argued that the loss should
be reduced by the amount of the pledged collateral recovered.
See USSG § 2B1.1, Application Note E (where
collateral has been pledged, loss reduced by the amount
recovered at the time of sentencing from disposition of
the collateral). This, he argued, would result in the loss
totaling $6,429,167.07, enabling only an offense level
enhancement of 18.
The district court rejected Severson’s argument because
it found that in January 2003, Severson received an unsecured
loan for a million dollars with no possibility of
repayment; it determined that the intended loss totaled
$7,136,461 and increased Severson’s offense level by 20.
On appeal, Severson repeats his argument and specifically
argues that for his intended loss, we should not
look at the time the loan was received, but at the time
the fraud was uncovered. If we follow his argument,
Severson did not intend to keep the entire loan because
four months after he received the entire amount, he
pledged collateral to secure the loan and the sale of
the collateral should be reduced from the overall
intended loss.
In support, Severson cites United States v. Mau, 45
F.3d 212, 215-16 (7th Cir. 1995),which held that in a checkkiting
scheme, the moment to determine the loss is the
moment the loss is detected. But, at this juncture, we
are not looking at Severson’s kites, but at what he
intended to keep from the bank when he received an
unsecured million dollar loan. What Severson actually
uses as support is the dicta in Mau, which states that
in calculating the intended loss in a fraudulent loan
case, “the amount of the loan can be offset by the value
of the collateral the bank has or expects to gain at the
time the fraud is discovered.” Id. at 216. But in Mau,
where the bank discovered the fraud and later had the
defendant sign a note, secured by collateral, to cover the
fraudulent overdrafts, we did not consider the value of
the collateral in the intended loss because the secured
note came after the kite had been discovered.
There was no error in finding that, in January 2003, at
the time of the fraud, Severson intended to keep the
entire loan; a mortgage was not filed contemporaneously
with the receipt of the loan proceeds. Although, at sentencing,
Severson’s counsel stated that Severson would
have testified to his intent to repay, the district court
noted that “[i]f he really intended this to be a legitimate
loan that he was going to repay, he would have filled out
a mortgage at the time he signed it then and there, not
months later when an auditor was approaching.” If we
boil it down, Severson received an unsecured one
million dollar loan that he could not repay. Borrowing
money without the intention to repay is akin to theft. See
Mau 45 F.3d at 216 (“as in theft cases, loss is the value
of the money, property or services unlawfully
taken”) (citation omitted). The district court did not just
use the face value of the loan; rather it found that
because the idea of repayment was ridiculous,
Severson intended to walk away with the full fraudulently
obtained amount. See United States v. Johnson, 16
F.3d 166, 172 (7th Cir. 1994). The bank’s risk,
which Severson intended it to risk by knowing he
could not repay, was the total amount.
Finally, Severson argues that the district court erred
when it included two Wisconsin misdemeanor convictions
for dispensing alcohol without a license, see Wis.
Stat. § 125.04(1), in calculating Severson’s criminal history
level. Because this challenge was not made before the
district court, we review the criminal history calculation
only for plain error. United States v. Garrett, 528 F.3d
525, 527 (7th Cir. 2008).
Severson argues that the misdemeanor convictions
should not be counted because they are less serious than
the included, listed crimes in USSG § 4A1.2(c)(1) and
similar to the excluded offenses under USSG § 4A1.2(c)(2).
We can quickly dispose of this argument; the district
court was not absolutely bound by the sentencing commission’s
judgment since the Guidelines are merely
advisory. The district court always has the obligation in
the first instance to apply the Guidelines as written
and properly calculate the advisory sentencing range;
then the court’s discretion kicks in and the district court
has the right to, for whatever reason and despite what
we may think, determine that the unlicensed selling of
liquor at a racetrack was more serious than the trivial
crimes listed in § 4A1.2(c)(2). Moreover, even if the
district court erred by including an extra point in
Severson’s criminal history, his 141 month sentence
would still have been below the revised Guideline range
of 151-188 months. United States v. Mount, 966 F.2d 262,
265 (7th Cir. 1992) (review of misapplied Guidelines
inappropriate if error was harmless).
III. CONCLUSION
For the reasons discussed above, we AFFIRM Severson’s
conviction and sentence.
Chicago Criminal Lawyer - Robert J Callahan
U.S. vs. Griggs
The defendants were charged
with a variety of federal crimes (wire fraud and conspiracy
to commit wire fraud, money laundering and
conspiracy to commit money laundering, and tax
evasion and failure to file tax returns) committed in
furtherance of a typical Ponzi scheme, in which
investors in the defendants’ enterprises were made
false promises of exorbitant profits and lost more than
$5 million. The defendants, all but Moore, were tried
together to a jury, and convicted; Moore was tried separately,
also to a jury, and was also convicted. The defendants
received sentences ranging from 30 months for
Shroyer to 235 months for Rodger Griggs, the ringleader.
All five defendants challenge the sufficiency of the
evidence to convict them. In the case of Rodger Griggs,
the challenge is frivolous and so requires no discussion.
In the case of the other defendants the challenge
borders on the frivolous and warrants only a brief discussion.
As is typical in fraud cases, most of the participants
claimed not to have known that they were participating
in a fraudulent scheme. Julie Griggs, for example,
Rodger Griggs’s wife, testified that she knew
nothing about her husband’s business, though she was
a trustee of two of the phony enterprises that he used
in executing the Ponzi scheme and the signatory on one
of the bank accounts to which investors wired their
investments. She made efforts to avoid learning of her
husband’s scheme, for example by leaving the room in
which he was discussing it with another of the conspirators.
But avoidance behavior is itself evidence of guilty
knowledge—the classic “ostrich” behavior that elicits
an ostrich instruction, which the judge gave. United States
v. Strickland, 935 F.2d 822, 826-28 (7th Cir. 1991); United
States v. Giovannetti, 919 F.2d 1223, 1228 (7th Cir. 1990);
United States v. Ramsey, 785 F.2d 184, 189 (7th Cir. 1986);
United States v. Azubike, 564 F.3d 59, 66-68 (1st Cir. 2009).
The only other issue that requires discussion concerns
omissions in the instructions given to the jury in Moore’s
trial. The jury was not instructed that to convict him of
conspiracy, in violation of 18 U.S.C. § 371, which
requires proof of an overt act committed by a conspirator
in furtherance of the conspiracy, it had to agree unanimously
on at least one overt act. Nor was it instructed
that to find him guilty of conspiracy to commit wire
fraud it had to find that the fraudulent scheme involved
an interstate or foreign transmission by wire. His lawyer
did not object to these omissions, and so our review is
for plain error.
We don’t think the judge was required (or indeed
permitted) to tell the jury that, to convict Moore, it had
to agree unanimously on an overt act that at least one of
the conspirators had committed. We thus agree with
the only previous appellate case to have answered the
question, United States v. Sutherland, 656 F.2d 1181, 1202
(5th Cir. 1981), though a number of cases have avoided
deciding it because the answer would not have affected
the outcome of the appeal. See United States v. Matthews,
505 F.3d 698, 709-10 (7th Cir. 2007); United States v.
Jorgensen, 144 F.3d 550, 561 (8th Cir. 1998); United States v.
Shaoul, 41 F.3d 811, 817-18 (2d Cir. 1994).
The law distinguishes between the elements of a crime,
as to which the jury must be unanimous, and the means
by which the crime is committed. Richardson v. United
States, 526 U.S. 813, 817-18 (1999); Schad v. Arizona, 501
U.S. 624, 631 (1991) (plurality); id. at 649 (concurring
opinion); United States v. Gibson, 530 F.3d 606, 611-12 (7th
Cir. 2008); United States v. Talbert, 501 F.3d 449, 451-52
(5th Cir. 2007). If the jurors in our case disagreed about
which of the overt acts charged were committed, that
was less momentous than failing to agree on what crime
the defendant had committed. Suppose a person is
charged with Medicare fraud and child molestation,
and half the jury think him guilty of the first crime and
innocent of the second and the other half think him
guilty of the second crime and innocent of the first. The
defendant would have been convicted of a crime—actually
of two crimes—on the basis of a nonunanimous jury
verdict, and the convictions would have to be set aside.
See Schad v. Arizona, supra, 501 U.S. at 633 (plurality
opinion).
The jurors agreed unanimously on what crime Moore
had committed—agreed in other words that he had
taken a step toward accomplishing the goal of the conspiracy,
had gone beyond mere words. Yates v. United
States, 354 U.S. 298, 334 (1957), overruled on other
grounds by Burks v. United States, 437 U.S. 1 (1978).
That they may have disagreed on what step he took
was inconsequential, especially since they didn’t have
to find that the step was itself a crime, Braverman v.
United States, 317 U.S. 49, 53 (1942); United States v. Soy,
454 F.3d 766, 768 (7th Cir. 2006), or even base conviction
on an overt act charged in the indictment. United States
v. McKinney, 954 F.2d 471, 476-77 (7th Cir. 1992); United
States v. Pomales-Lebrón, 513 F.3d 262, 269 (1st Cir. 2008).
The requirement of proving an overt act is a statutory
afterthought. Conspiracy was criminal at common law
without an overt act, United States v. Shabani, 513 U.S. 10,
13-14 (1994), and remains so with regard to conspiracies
to violate the federal drug laws, for example. 21 U.S.C.
§ 846. Although Moore was convicted of conspiracy in
violation of a statute (18 U.S.C. § 371, the general federal
conspiracy statute) that requires proof of an overt act,
two of his codefendants were convicted of violating
18 U.S.C. § 1956(h)—conspiracy to engage in money
laundering—which does not require such proof. Whitfield
v. United States, 543 U.S. 209 (2005). It is no surprise that,
as stated in the plurality opinion in the Schad case, “an
indictment need not specify which overt act, among
several named, was the means by which a crime was
committed.” 501 U.S. at 631.
Failing to agree on the overt act that the defendant
committed is not like failing to agree on the object
of the conspiracy, United States v. Sababu, 891 F.2d 1308,
1325-26 (7th Cir. 1989); United States v. Mauskar, 557 F.3d
219, 227 (5th Cir. 2009); United States v. Pierce, 479 F.3d
546, 552 (8th Cir. 2007), or on which statement is the
basis of a perjury conviction, United States v. Fawley,
137 F.3d 458, 471 (7th Cir. 1998); United States v. Richardson,
421 F.3d 17, 31 (1st Cir. 2005), or on which offenses constitute
the predicate of a continuing criminal enterprise
conviction. Richardson v. United States, supra, 526 U.S. at
824. All those are cases in which the jury fails to agree
on the crime that the defendant committed.
But, turning now to Moore’s second argument, we
discover that the jury may not have been unanimous
about the elements of his crime. It was not instructed that
the prosecution had to prove the interstate use of wire
transmissions, though it is an element of the crime of wire
fraud and not just a jurisdictional prerequisite to be
determined by the judge. 18 U.S.C. § 1343; Hugi v.
United States, 164 F.3d 378, 380-81 (7th Cir. 1999). But the
error was not prejudicial, and so does not merit reversal
on plain-error review. United States v. Olano, 507 U.S.
725, 734 (1993). For that matter, it would not merit
reversal even if it had been objected to, because it was
a harmless error (a more exacting standard than not
prejudicial); and even the error of failing to state in an
instruction an element of the defendant’s crime can if
harmless be forgiven. Neder v. United States, 527 U.S. 1, 15-
16 (1999); United States v. Webber, 536 F.3d 584, 596 (7th
Cir. 2008). There was never doubt that the conspiracy
had involved the use of interstate communications by
wire, which may be why the lawyers and the district
judge didn’t notice the omission from the instructions.
Nor for that matter was there doubt that the conspirators
had committed numerous overt acts; so even
if the judge should have instructed the jury that it had
to agree unanimously about which overt act or acts
had been committed, the error would have been harmless.
AFFIRMED.
Chicago Criminal Lawyer - Robert J Callahan
with a variety of federal crimes (wire fraud and conspiracy
to commit wire fraud, money laundering and
conspiracy to commit money laundering, and tax
evasion and failure to file tax returns) committed in
furtherance of a typical Ponzi scheme, in which
investors in the defendants’ enterprises were made
false promises of exorbitant profits and lost more than
$5 million. The defendants, all but Moore, were tried
together to a jury, and convicted; Moore was tried separately,
also to a jury, and was also convicted. The defendants
received sentences ranging from 30 months for
Shroyer to 235 months for Rodger Griggs, the ringleader.
All five defendants challenge the sufficiency of the
evidence to convict them. In the case of Rodger Griggs,
the challenge is frivolous and so requires no discussion.
In the case of the other defendants the challenge
borders on the frivolous and warrants only a brief discussion.
As is typical in fraud cases, most of the participants
claimed not to have known that they were participating
in a fraudulent scheme. Julie Griggs, for example,
Rodger Griggs’s wife, testified that she knew
nothing about her husband’s business, though she was
a trustee of two of the phony enterprises that he used
in executing the Ponzi scheme and the signatory on one
of the bank accounts to which investors wired their
investments. She made efforts to avoid learning of her
husband’s scheme, for example by leaving the room in
which he was discussing it with another of the conspirators.
But avoidance behavior is itself evidence of guilty
knowledge—the classic “ostrich” behavior that elicits
an ostrich instruction, which the judge gave. United States
v. Strickland, 935 F.2d 822, 826-28 (7th Cir. 1991); United
States v. Giovannetti, 919 F.2d 1223, 1228 (7th Cir. 1990);
United States v. Ramsey, 785 F.2d 184, 189 (7th Cir. 1986);
United States v. Azubike, 564 F.3d 59, 66-68 (1st Cir. 2009).
The only other issue that requires discussion concerns
omissions in the instructions given to the jury in Moore’s
trial. The jury was not instructed that to convict him of
conspiracy, in violation of 18 U.S.C. § 371, which
requires proof of an overt act committed by a conspirator
in furtherance of the conspiracy, it had to agree unanimously
on at least one overt act. Nor was it instructed
that to find him guilty of conspiracy to commit wire
fraud it had to find that the fraudulent scheme involved
an interstate or foreign transmission by wire. His lawyer
did not object to these omissions, and so our review is
for plain error.
We don’t think the judge was required (or indeed
permitted) to tell the jury that, to convict Moore, it had
to agree unanimously on an overt act that at least one of
the conspirators had committed. We thus agree with
the only previous appellate case to have answered the
question, United States v. Sutherland, 656 F.2d 1181, 1202
(5th Cir. 1981), though a number of cases have avoided
deciding it because the answer would not have affected
the outcome of the appeal. See United States v. Matthews,
505 F.3d 698, 709-10 (7th Cir. 2007); United States v.
Jorgensen, 144 F.3d 550, 561 (8th Cir. 1998); United States v.
Shaoul, 41 F.3d 811, 817-18 (2d Cir. 1994).
The law distinguishes between the elements of a crime,
as to which the jury must be unanimous, and the means
by which the crime is committed. Richardson v. United
States, 526 U.S. 813, 817-18 (1999); Schad v. Arizona, 501
U.S. 624, 631 (1991) (plurality); id. at 649 (concurring
opinion); United States v. Gibson, 530 F.3d 606, 611-12 (7th
Cir. 2008); United States v. Talbert, 501 F.3d 449, 451-52
(5th Cir. 2007). If the jurors in our case disagreed about
which of the overt acts charged were committed, that
was less momentous than failing to agree on what crime
the defendant had committed. Suppose a person is
charged with Medicare fraud and child molestation,
and half the jury think him guilty of the first crime and
innocent of the second and the other half think him
guilty of the second crime and innocent of the first. The
defendant would have been convicted of a crime—actually
of two crimes—on the basis of a nonunanimous jury
verdict, and the convictions would have to be set aside.
See Schad v. Arizona, supra, 501 U.S. at 633 (plurality
opinion).
The jurors agreed unanimously on what crime Moore
had committed—agreed in other words that he had
taken a step toward accomplishing the goal of the conspiracy,
had gone beyond mere words. Yates v. United
States, 354 U.S. 298, 334 (1957), overruled on other
grounds by Burks v. United States, 437 U.S. 1 (1978).
That they may have disagreed on what step he took
was inconsequential, especially since they didn’t have
to find that the step was itself a crime, Braverman v.
United States, 317 U.S. 49, 53 (1942); United States v. Soy,
454 F.3d 766, 768 (7th Cir. 2006), or even base conviction
on an overt act charged in the indictment. United States
v. McKinney, 954 F.2d 471, 476-77 (7th Cir. 1992); United
States v. Pomales-Lebrón, 513 F.3d 262, 269 (1st Cir. 2008).
The requirement of proving an overt act is a statutory
afterthought. Conspiracy was criminal at common law
without an overt act, United States v. Shabani, 513 U.S. 10,
13-14 (1994), and remains so with regard to conspiracies
to violate the federal drug laws, for example. 21 U.S.C.
§ 846. Although Moore was convicted of conspiracy in
violation of a statute (18 U.S.C. § 371, the general federal
conspiracy statute) that requires proof of an overt act,
two of his codefendants were convicted of violating
18 U.S.C. § 1956(h)—conspiracy to engage in money
laundering—which does not require such proof. Whitfield
v. United States, 543 U.S. 209 (2005). It is no surprise that,
as stated in the plurality opinion in the Schad case, “an
indictment need not specify which overt act, among
several named, was the means by which a crime was
committed.” 501 U.S. at 631.
Failing to agree on the overt act that the defendant
committed is not like failing to agree on the object
of the conspiracy, United States v. Sababu, 891 F.2d 1308,
1325-26 (7th Cir. 1989); United States v. Mauskar, 557 F.3d
219, 227 (5th Cir. 2009); United States v. Pierce, 479 F.3d
546, 552 (8th Cir. 2007), or on which statement is the
basis of a perjury conviction, United States v. Fawley,
137 F.3d 458, 471 (7th Cir. 1998); United States v. Richardson,
421 F.3d 17, 31 (1st Cir. 2005), or on which offenses constitute
the predicate of a continuing criminal enterprise
conviction. Richardson v. United States, supra, 526 U.S. at
824. All those are cases in which the jury fails to agree
on the crime that the defendant committed.
But, turning now to Moore’s second argument, we
discover that the jury may not have been unanimous
about the elements of his crime. It was not instructed that
the prosecution had to prove the interstate use of wire
transmissions, though it is an element of the crime of wire
fraud and not just a jurisdictional prerequisite to be
determined by the judge. 18 U.S.C. § 1343; Hugi v.
United States, 164 F.3d 378, 380-81 (7th Cir. 1999). But the
error was not prejudicial, and so does not merit reversal
on plain-error review. United States v. Olano, 507 U.S.
725, 734 (1993). For that matter, it would not merit
reversal even if it had been objected to, because it was
a harmless error (a more exacting standard than not
prejudicial); and even the error of failing to state in an
instruction an element of the defendant’s crime can if
harmless be forgiven. Neder v. United States, 527 U.S. 1, 15-
16 (1999); United States v. Webber, 536 F.3d 584, 596 (7th
Cir. 2008). There was never doubt that the conspiracy
had involved the use of interstate communications by
wire, which may be why the lawyers and the district
judge didn’t notice the omission from the instructions.
Nor for that matter was there doubt that the conspirators
had committed numerous overt acts; so even
if the judge should have instructed the jury that it had
to agree unanimously about which overt act or acts
had been committed, the error would have been harmless.
AFFIRMED.
Chicago Criminal Lawyer - Robert J Callahan
U.S. vs. Dodds
A jury convicted Brian Dodds,
whose legal name is Horace Wilson, of unlawfully possessing
a firearm in or affecting commerce following a
felony conviction. See 18 U.S.C. § 922(g)(1). Dodds
appeals, arguing that the district court erred in allowing
the government to elicit testimony concerning his legal
name and in permitting one of the officers who arrested
him to recount the physical description given by an
unidentified witness who had seen Dodds pointing a
gun at people. Because neither evidentiary ruling was
an abuse of discretion or a violation of his constitutional
rights, we affirm Dodds’ conviction.
I.
At approximately 10:15 on the evening of November 10,
2005, Milwaukee’s emergency services center received a
911 call reporting “shots fired” in the vicinity of 37th and
Galena Streets. Police officer Timothy Koestering was
among the police officers dispatched to that location to
investigate. Seeing nothing upon his arrival, Koestering
pulled his vehicle over and contacted the 911 caller to
verify the report. Just after he finished that call, an unidentified
person driving a red Dodge pulled alongside of
Koestering’s vehicle and told him that he had seen an
African American male, wearing a black jacket and a
black knit cap, pointing a gun at people two blocks away
at the corner of 35th and Galena.
Koestering and his fellow officers proceeded at once
to 35th and Galena. Officer James Williams and his
partner, Officer Tony Knox, were among the first to
arrive. As they pulled up, Williams saw a man matching
the description given Koestering emerge from the
gangway between two houses and walk into the Edge
Sports Bar on the corner. Williams and Knox followed the
man into the bar and asked him to step outside. They
patted him down but did not discover a weapon on his
person. When they asked the man to identify himself,
he gave his name as Brian Dodds.
Koestering placed Dodds in the back of his squad car
and then used the vehicle’s computer interface to see if
there were any outstanding warrants for Dodds. He
found none.
Meanwhile, Officer Bradley Schlei was searching the
gangway from which his colleagues had seen Dodds
emerge. He found a Taurus .38-caliber revolver lying on
the ground. The gun was left in place until it could be
properly photographed by crime scene technicians. Schlei
later recovered six spent bullet cartridges from inside
of the gun.
After Schlei reported the discovery of the firearm to
the other officers and while they were awaiting the
arrival of the technicians, Jerry Watkins drove by and
informed the officers that he had seen a man with a gun
at 35th and Galena earlier that same evening while
driving his friend Dawn Woods to work. Although
Dodds was sitting in the back seat of Koestering’s
police car when Watkins spoke to the officers, Williams
would later testify that Watkins was too far away
from Koestering’s vehicle for Watkins to have seen him
in the darkness.
At that point Dodds was placed under arrest and taken
to a police station. Koestering created a sequential photo
array later that evening to show to Watkins and Woods.
When they were shown the array early the next morning,
Woods, but not Watkins, identified Dodds as the man
who had pointed a gun at them. At trial, Woods
thought that the weapon recovered from the gangway
was the one she had seen Dodds carrying, although
she could not be positive.
Dodds was subsequently indicted and tried on the
charge that he had unlawfully possessed a firearm following
a felony conviction. Watkins and Woods were
among the witnesses for the government. Watkins
testified that as they drove by the intersection of 35th and
Galena en route to Woods’ workplace, Dodds had approached
their vehicle and shouted something at them.
His curiosity piqued, Watkins circled the block and
drove back to where Dodds was standing. Woods
testified that when Watkins asked Dodds what was
going on, Dodds briefly pointed a gun at Watkins. But
then, according to Woods, Dodds backed off, put the
gun into his pants pocket, and walked away. “I thought
you was somebody else,” Woods recalled Dodds remarking.
R. 74 at 188.
Milwaukee Police Department (“MPD”) document
examiner Cole Stephens testified that he had examined a
latent partial print recovered from the cylinder of the .38-
caliber revolver that Schlei had discovered near the
intersection of 35th and Galena. In Stephens’ opinion,
the print matched Dodds’ right middle finger.
MPD latent print examiner Douglas Knueppel had
compared a set of fingerprints taken from Dodds in
connection with his November 2005 arrest with prints on
file in Illinois under the name of Horace Wilson. He
concluded that the prints were a match and that
Dodds and Wilson were the same individual.
Sharon Polakowski, a forensic scientist with the Wisconsin
State Crime Laboratory, testified that DNA from
three different individuals had been recovered from the
revolver. However, none of the DNA matched that of
Dodds.
Dodds took the witness stand in his own defense. He
testified that he began using the name Brian Dodds in
2000, after he discovered that the man he had thought
was his father—also named Horace Wilson—was not.
However, Dodds had never legally changed his name
from Horace Wilson. He denied any contact with
Watkins and Woods on the evening of November 10, and
he also denied having possessed, fired, or brandished
the revolver that Schlei discovered in the gangway near
35th and Galena. Dodds testified that he had been at the
Edge Sports Bar from 8:30 onward that evening. He
said that he was one of seven to ten men with black
jackets that the police removed from the bar, placed
against a wall, and searched. According to Dodds, the
police went down the line of men repeatedly asking an
unidentified individual that Dodds could not see, “Is
this him?” Dodds also testified that after the police took
him into custody and transported him to the police station,
he was beaten into unconsciousness after he refused to
have his fingerprints electronically scanned. When asked
by the government how his print might have gotten onto
the revolver that Schlei found, Dodds implied that
police might have placed the gun into his hand while
he was unconscious.
Police officers Koestering, Williams, Schlei, and Kevin
Fellmeth took the stand in rebuttal and denied Dodds’
account of the events surrounding his arrest. Koestering,
Williams, and Schlei each testified that Dodds was the
only man who had been taken from the bar and that no
one, including Dodds, had been shown to a witness for
identification at the scene. Fellmeth was present when
Dodds was booked at the police station and testified
that a struggle occurred when Dodds refused to place
his fingers on an electronic fingerprint scanner. Dodds
had briefly passed out during the struggle. Fellmeth
denied that anyone had hit or punched Dodds or placed
a gun in his hand. Koestering, who was also present for
the struggle, also denied that anyone had struck
Dodds or placed a gun in his hand. Schlei, who had
taken the .38-caliber revolver into his custody at 35th
and Galena, likewise denied that he or any other officer
had placed a gun into Dodds’ hand.
The jury convicted Dodds on the felon-in-possession
charge. The district court later ordered him to serve a
prison term of 120 months, the statutory maximum,
which was below the range of 151 to 188 months advised
by the Sentencing Guidelines.
II.
A. Allowing Reference to Dodds’ Legal Name
In advance of trial, Dodds asked the court to bar any
reference to the fact that his birth name was Horace
Wilson. The government at first posed no objection to
Dodds’ request, but later altered course and opposed
the motion. The government attributed its change of
heart to its belated discovery that Dodds had never
legally changed his name and to its realization that Dodds
had an incentive not to use the name Wilson with the
police because he had two prior felony convictions in
Illinois under that name, but only misdemeanor convictions
in Wisconsin under the name of Dodds. R. 43 at 2-3.
The government argued that the defendant’s use of a
name other than his legal name was proof of his consciousness
of guilt, and so evidence that he had a name
other than the one he gave to police at the time of his
arrest was admissible to put the name “Brian Dodds” in
that context. The court denied Dodds’ motion in limine
on that basis. “[T]here may very well be an innocent
explanation for the use of both names, but . . . the Government
can also infer that there was consciousness of
guilt,” the court reasoned. R. 74 at 13.
Dodds contends that the district court’s decision to
allow reference to the fact that he had a name other
than Dodds was an error that prejudiced him. He argues
that although he had not legally changed his name, he
had used the name Brian Dodds for years. Consequently,
identifying himself to the authorities as Brian Dodds was
consistent with the name he used every day and was not
proof that he was conscious of having committed a
crime (unlawful possession of a firearm by a felon) and
was attempting to evade detection of his offense by
giving the police a false name. Allowing reference to
the fact that he had a different name prejudiced him in
the eyes of the jurors, Dodds contends, because the use
of an alias suggests that one has something to hide. He
believes that the evidence was irrelevant and inadmissible
under Evidentiary Rules 401 and 402, and in any case
should have been excluded as unduly prejudicial pursuant
to Rule 403.
For several reasons, we reject the notion that the district
court abused its discretion in denying Dodds’ motion in
limine. First, whatever name Dodds was using, and for
whatever reason, Horace Wilson was his legal name.
That name was a matter of public record, he had felony
convictions under that name, and one may expect that
one’s legal name, like other matters of record (one’s
age, residence, and place of employment), will be the
subject of inquiry at trial. The use of a name other than
one’s legally-recognized name may or may not be indicative
of wrongdoing, but reference to one’s legal name
is hardly unusual or unexpected, particularly in a legal
proceeding. It is not as if Dodds were in the witness
protection program. As for the probative value of the
fact that he was using a name other than his legal
name, granted, Dodds was not a name that he made up
on the spot when the police hauled him out of the bar:
he had misdemeanor convictions under that name,
which tends to confirm his own account that he had
used that name for some time. Still, we take the government’s
point: knowing that he had a felony conviction
under the name of Wilson, which precluded him from
carrying a firearm, he might have used the name Dodds
in part to disguise his firearms disability. In any case, we
doubt very much that Dodds was unduly prejudiced by
reference to his legal name. The references were not
protracted, the government did not mention it in its
closing arguments, and there was a great deal of evidence
pointing directly to his culpability. There was no error,
and certainly no prejudicial error, in permitting reference
to the name Horace Wilson.1
B. Testimony Concerning Description Given By Unidentified
Witness
As we have noted, Officer Koestering testified at trial
that when officers arrived at the intersection of 37th and
Galena, an unidentified individual told the officers that
a black man in a black jacket and black cap was pointing
a gun at people two blocks away at 35th and Galena.
Because that individual was never identified and did not
testify at trial, Dodds contends that allowing Koestering
to repeat his statement was a violation of his rights
under the confrontation clause of the Sixth Amendment.
See Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354
(2004).
We conclude for two reasons that the admission of the
witness’s out-of-court statement did not violate Dodds’
confrontation rights. First, Davis v. Washington, 547 U.S.
813, 126 S. Ct. 2266 (2006), holds that an out-of-court
statement implicating the defendant may be admissible
as a non-testimonial statement when the statement was
elicited for the primary purpose of helping the police
resolve an ongoing emergency rather than to determine
what had occurred in the past. Id. at 822, 827-28, 126 S. Ct.
at 2273-74, 2276-77. In this case, the police were
responding to a 911 call reporting “shots fired” and had
an urgent need to identify the person with the gun and
to stop the shooting. The witness’s description of the
man with a gun was given in that context, and we
believe it falls within the scope of Davis. Second, the
problem that Crawford addresses is the admission of
hearsay, which is, of course, an out-of-court statement
admitted for its truth. E.g., United States v. James, 487
F.3d 518, 524-25 (7th Cir. 2007). The witness’s statement
to Koestering was not admitted for its truth—that the
witness saw the man he described pointing a gun at
people—but rather to explain why the police proceeded
to the intersection of 35th and Galena and focused
their attention on Dodds, who matched the description
they had been given. This was a permissible, non-hearsay
purpose. United States v. Breland, 356 F.3d 787, 792 (7th
Cir. 2004).
The district court did not give a limiting instruction
advising the jury not to consider the witness’s statement
to Koestering for its truth but solely as an explanation
for why Koestering and the other officers approached
and questioned Dodds. But the court was not asked to
give such an instruction, the lack of such an instruction
has not been raised on appeal, and, in any case, we
doubt that Dodds was prejudiced by the lack of a
limiting instruction. The reference to the witness’s statement
was brief, it was not mentioned in closing argument,
and there was ample direct evidence, including in
particular the testimony of Watkins and Woods, that
Dodds was seen with a gun, and of course the fingerprint
evidence indicating that he had held the gun. See id.
III.
The district court did not abuse its discretion in
allowing testimony concerning Dodds’ legal name or the
out-of-court statement to a police officer describing a
man the witness had seen pointing a gun at individuals.
We therefore AFFIRM Dodds’ conviction.
Chicago Criminal Lawyer - Robert J Callahan
whose legal name is Horace Wilson, of unlawfully possessing
a firearm in or affecting commerce following a
felony conviction. See 18 U.S.C. § 922(g)(1). Dodds
appeals, arguing that the district court erred in allowing
the government to elicit testimony concerning his legal
name and in permitting one of the officers who arrested
him to recount the physical description given by an
unidentified witness who had seen Dodds pointing a
gun at people. Because neither evidentiary ruling was
an abuse of discretion or a violation of his constitutional
rights, we affirm Dodds’ conviction.
I.
At approximately 10:15 on the evening of November 10,
2005, Milwaukee’s emergency services center received a
911 call reporting “shots fired” in the vicinity of 37th and
Galena Streets. Police officer Timothy Koestering was
among the police officers dispatched to that location to
investigate. Seeing nothing upon his arrival, Koestering
pulled his vehicle over and contacted the 911 caller to
verify the report. Just after he finished that call, an unidentified
person driving a red Dodge pulled alongside of
Koestering’s vehicle and told him that he had seen an
African American male, wearing a black jacket and a
black knit cap, pointing a gun at people two blocks away
at the corner of 35th and Galena.
Koestering and his fellow officers proceeded at once
to 35th and Galena. Officer James Williams and his
partner, Officer Tony Knox, were among the first to
arrive. As they pulled up, Williams saw a man matching
the description given Koestering emerge from the
gangway between two houses and walk into the Edge
Sports Bar on the corner. Williams and Knox followed the
man into the bar and asked him to step outside. They
patted him down but did not discover a weapon on his
person. When they asked the man to identify himself,
he gave his name as Brian Dodds.
Koestering placed Dodds in the back of his squad car
and then used the vehicle’s computer interface to see if
there were any outstanding warrants for Dodds. He
found none.
Meanwhile, Officer Bradley Schlei was searching the
gangway from which his colleagues had seen Dodds
emerge. He found a Taurus .38-caliber revolver lying on
the ground. The gun was left in place until it could be
properly photographed by crime scene technicians. Schlei
later recovered six spent bullet cartridges from inside
of the gun.
After Schlei reported the discovery of the firearm to
the other officers and while they were awaiting the
arrival of the technicians, Jerry Watkins drove by and
informed the officers that he had seen a man with a gun
at 35th and Galena earlier that same evening while
driving his friend Dawn Woods to work. Although
Dodds was sitting in the back seat of Koestering’s
police car when Watkins spoke to the officers, Williams
would later testify that Watkins was too far away
from Koestering’s vehicle for Watkins to have seen him
in the darkness.
At that point Dodds was placed under arrest and taken
to a police station. Koestering created a sequential photo
array later that evening to show to Watkins and Woods.
When they were shown the array early the next morning,
Woods, but not Watkins, identified Dodds as the man
who had pointed a gun at them. At trial, Woods
thought that the weapon recovered from the gangway
was the one she had seen Dodds carrying, although
she could not be positive.
Dodds was subsequently indicted and tried on the
charge that he had unlawfully possessed a firearm following
a felony conviction. Watkins and Woods were
among the witnesses for the government. Watkins
testified that as they drove by the intersection of 35th and
Galena en route to Woods’ workplace, Dodds had approached
their vehicle and shouted something at them.
His curiosity piqued, Watkins circled the block and
drove back to where Dodds was standing. Woods
testified that when Watkins asked Dodds what was
going on, Dodds briefly pointed a gun at Watkins. But
then, according to Woods, Dodds backed off, put the
gun into his pants pocket, and walked away. “I thought
you was somebody else,” Woods recalled Dodds remarking.
R. 74 at 188.
Milwaukee Police Department (“MPD”) document
examiner Cole Stephens testified that he had examined a
latent partial print recovered from the cylinder of the .38-
caliber revolver that Schlei had discovered near the
intersection of 35th and Galena. In Stephens’ opinion,
the print matched Dodds’ right middle finger.
MPD latent print examiner Douglas Knueppel had
compared a set of fingerprints taken from Dodds in
connection with his November 2005 arrest with prints on
file in Illinois under the name of Horace Wilson. He
concluded that the prints were a match and that
Dodds and Wilson were the same individual.
Sharon Polakowski, a forensic scientist with the Wisconsin
State Crime Laboratory, testified that DNA from
three different individuals had been recovered from the
revolver. However, none of the DNA matched that of
Dodds.
Dodds took the witness stand in his own defense. He
testified that he began using the name Brian Dodds in
2000, after he discovered that the man he had thought
was his father—also named Horace Wilson—was not.
However, Dodds had never legally changed his name
from Horace Wilson. He denied any contact with
Watkins and Woods on the evening of November 10, and
he also denied having possessed, fired, or brandished
the revolver that Schlei discovered in the gangway near
35th and Galena. Dodds testified that he had been at the
Edge Sports Bar from 8:30 onward that evening. He
said that he was one of seven to ten men with black
jackets that the police removed from the bar, placed
against a wall, and searched. According to Dodds, the
police went down the line of men repeatedly asking an
unidentified individual that Dodds could not see, “Is
this him?” Dodds also testified that after the police took
him into custody and transported him to the police station,
he was beaten into unconsciousness after he refused to
have his fingerprints electronically scanned. When asked
by the government how his print might have gotten onto
the revolver that Schlei found, Dodds implied that
police might have placed the gun into his hand while
he was unconscious.
Police officers Koestering, Williams, Schlei, and Kevin
Fellmeth took the stand in rebuttal and denied Dodds’
account of the events surrounding his arrest. Koestering,
Williams, and Schlei each testified that Dodds was the
only man who had been taken from the bar and that no
one, including Dodds, had been shown to a witness for
identification at the scene. Fellmeth was present when
Dodds was booked at the police station and testified
that a struggle occurred when Dodds refused to place
his fingers on an electronic fingerprint scanner. Dodds
had briefly passed out during the struggle. Fellmeth
denied that anyone had hit or punched Dodds or placed
a gun in his hand. Koestering, who was also present for
the struggle, also denied that anyone had struck
Dodds or placed a gun in his hand. Schlei, who had
taken the .38-caliber revolver into his custody at 35th
and Galena, likewise denied that he or any other officer
had placed a gun into Dodds’ hand.
The jury convicted Dodds on the felon-in-possession
charge. The district court later ordered him to serve a
prison term of 120 months, the statutory maximum,
which was below the range of 151 to 188 months advised
by the Sentencing Guidelines.
II.
A. Allowing Reference to Dodds’ Legal Name
In advance of trial, Dodds asked the court to bar any
reference to the fact that his birth name was Horace
Wilson. The government at first posed no objection to
Dodds’ request, but later altered course and opposed
the motion. The government attributed its change of
heart to its belated discovery that Dodds had never
legally changed his name and to its realization that Dodds
had an incentive not to use the name Wilson with the
police because he had two prior felony convictions in
Illinois under that name, but only misdemeanor convictions
in Wisconsin under the name of Dodds. R. 43 at 2-3.
The government argued that the defendant’s use of a
name other than his legal name was proof of his consciousness
of guilt, and so evidence that he had a name
other than the one he gave to police at the time of his
arrest was admissible to put the name “Brian Dodds” in
that context. The court denied Dodds’ motion in limine
on that basis. “[T]here may very well be an innocent
explanation for the use of both names, but . . . the Government
can also infer that there was consciousness of
guilt,” the court reasoned. R. 74 at 13.
Dodds contends that the district court’s decision to
allow reference to the fact that he had a name other
than Dodds was an error that prejudiced him. He argues
that although he had not legally changed his name, he
had used the name Brian Dodds for years. Consequently,
identifying himself to the authorities as Brian Dodds was
consistent with the name he used every day and was not
proof that he was conscious of having committed a
crime (unlawful possession of a firearm by a felon) and
was attempting to evade detection of his offense by
giving the police a false name. Allowing reference to
the fact that he had a different name prejudiced him in
the eyes of the jurors, Dodds contends, because the use
of an alias suggests that one has something to hide. He
believes that the evidence was irrelevant and inadmissible
under Evidentiary Rules 401 and 402, and in any case
should have been excluded as unduly prejudicial pursuant
to Rule 403.
For several reasons, we reject the notion that the district
court abused its discretion in denying Dodds’ motion in
limine. First, whatever name Dodds was using, and for
whatever reason, Horace Wilson was his legal name.
That name was a matter of public record, he had felony
convictions under that name, and one may expect that
one’s legal name, like other matters of record (one’s
age, residence, and place of employment), will be the
subject of inquiry at trial. The use of a name other than
one’s legally-recognized name may or may not be indicative
of wrongdoing, but reference to one’s legal name
is hardly unusual or unexpected, particularly in a legal
proceeding. It is not as if Dodds were in the witness
protection program. As for the probative value of the
fact that he was using a name other than his legal
name, granted, Dodds was not a name that he made up
on the spot when the police hauled him out of the bar:
he had misdemeanor convictions under that name,
which tends to confirm his own account that he had
used that name for some time. Still, we take the government’s
point: knowing that he had a felony conviction
under the name of Wilson, which precluded him from
carrying a firearm, he might have used the name Dodds
in part to disguise his firearms disability. In any case, we
doubt very much that Dodds was unduly prejudiced by
reference to his legal name. The references were not
protracted, the government did not mention it in its
closing arguments, and there was a great deal of evidence
pointing directly to his culpability. There was no error,
and certainly no prejudicial error, in permitting reference
to the name Horace Wilson.1
B. Testimony Concerning Description Given By Unidentified
Witness
As we have noted, Officer Koestering testified at trial
that when officers arrived at the intersection of 37th and
Galena, an unidentified individual told the officers that
a black man in a black jacket and black cap was pointing
a gun at people two blocks away at 35th and Galena.
Because that individual was never identified and did not
testify at trial, Dodds contends that allowing Koestering
to repeat his statement was a violation of his rights
under the confrontation clause of the Sixth Amendment.
See Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354
(2004).
We conclude for two reasons that the admission of the
witness’s out-of-court statement did not violate Dodds’
confrontation rights. First, Davis v. Washington, 547 U.S.
813, 126 S. Ct. 2266 (2006), holds that an out-of-court
statement implicating the defendant may be admissible
as a non-testimonial statement when the statement was
elicited for the primary purpose of helping the police
resolve an ongoing emergency rather than to determine
what had occurred in the past. Id. at 822, 827-28, 126 S. Ct.
at 2273-74, 2276-77. In this case, the police were
responding to a 911 call reporting “shots fired” and had
an urgent need to identify the person with the gun and
to stop the shooting. The witness’s description of the
man with a gun was given in that context, and we
believe it falls within the scope of Davis. Second, the
problem that Crawford addresses is the admission of
hearsay, which is, of course, an out-of-court statement
admitted for its truth. E.g., United States v. James, 487
F.3d 518, 524-25 (7th Cir. 2007). The witness’s statement
to Koestering was not admitted for its truth—that the
witness saw the man he described pointing a gun at
people—but rather to explain why the police proceeded
to the intersection of 35th and Galena and focused
their attention on Dodds, who matched the description
they had been given. This was a permissible, non-hearsay
purpose. United States v. Breland, 356 F.3d 787, 792 (7th
Cir. 2004).
The district court did not give a limiting instruction
advising the jury not to consider the witness’s statement
to Koestering for its truth but solely as an explanation
for why Koestering and the other officers approached
and questioned Dodds. But the court was not asked to
give such an instruction, the lack of such an instruction
has not been raised on appeal, and, in any case, we
doubt that Dodds was prejudiced by the lack of a
limiting instruction. The reference to the witness’s statement
was brief, it was not mentioned in closing argument,
and there was ample direct evidence, including in
particular the testimony of Watkins and Woods, that
Dodds was seen with a gun, and of course the fingerprint
evidence indicating that he had held the gun. See id.
III.
The district court did not abuse its discretion in
allowing testimony concerning Dodds’ legal name or the
out-of-court statement to a police officer describing a
man the witness had seen pointing a gun at individuals.
We therefore AFFIRM Dodds’ conviction.
Chicago Criminal Lawyer - Robert J Callahan
U.S. vs. Hoke
Robert Hoke was indicted for
the receipt and possession of child pornography in violation
of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(a)(5)(B).
After the Government rested its case, Mr. Hoke pleaded
guilty to both counts. He later moved to withdraw his
guilty plea, but the district court denied his motion. The
court sentenced Mr. Hoke to 121 months’ imprisonment
and five years’ supervised release. In this appeal, Mr. Hoke
contends that the court abused its discretion by not
allowing him to withdraw his guilty plea. He also
claims that the district court denied him his right of
allocution in violation of Federal Rule of Criminal Procedure
32(i)(4)(A). For the reasons set forth in this
opinion, we affirm the judgment of the district court.
A. Motion to Withdraw Guilty Plea
1.
On January 8, 2008, Mr. Hoke was charged with receipt
of child pornography and possession of child pornography.
A jury trial commenced on June 16, 2008, and the Government
rested its case the following day. After Mr. Hoke
heard all of the evidence against him, he pleaded guilty
to both counts. Before accepting the plea, the district
court advised and questioned Mr. Hoke as required by
Rule 11(b)(1) of the Federal Rules of Criminal Procedure.
The district court placed Mr. Hoke under oath and questioned
him to ensure that he understood English and
that he was satisfied with his representation. The court
went through each count of the indictment and, although
the Government already had presented its evidence
during its case-in-chief, required the prosecutor to state,
with respect to each count, the evidence upon which
the Government relied. The court also assured itself
that Mr. Hoke understood the length of the sentence
he could receive and the conditions governing his subsequent
release. The court also advised him of the
rights that he could exercise if he elected to proceed with
the trial. With regard to sentencing, the court told
Mr. Hoke that the United States Sentencing Guidelines
are advisory and that it would consider the Guidelines,
any statutory mandatory minimum and the factors enumerated
under 18 U.S.C. § 3553(a). Throughout the
process, the court ensured that Mr. Hoke understood the
advice given to him. After verifying that no threats or
promises had been made to Mr. Hoke and determining
that his plea was a “free and voluntary act,” the court
accepted his guilty plea. R.94 at 8.
On August 18, Mr. Hoke wrote a letter to the court
seeking to withdraw his plea of guilty. Two days later,
Mr. Hoke’s attorney moved to withdraw as counsel;
the district court granted the motion and appointed
new counsel. On October 1, Mr. Hoke moved to withdraw
his guilty plea under Federal Rule of Criminal
Procedure 11(d)(2)(B).
At a subsequent hearing, Mr. Hoke maintained that
his plea was not made knowingly because he was
confused about the nature of the proceedings and
because he was innocent of the charges under a “technical
defense.”1 Mr. Hoke claimed that his plea was coerced
by his former attorney and that the attorney had told
him that his computer expert could not testify. Mr. Hoke
also said that he had looked to his attorney for direction
on how to answer most of the court’s questions at the
plea hearing. By contrast, the former attorney testified
that he did not instruct Mr. Hoke how to answer the
questions and that, had they proceeded with the trial, he
would have called Mr. Hoke’s computer expert to testify.
The Government questioned Mr. Hoke, who admitted to
having no mental defects and to being clear-minded on
the day that he pleaded guilty.
The court found that Mr. Hoke had not been prompted
by his attorney when he answered its questions and also
found that, during the hearing, Mr. Hoke had understood
the consequences of his actions when he pleaded guilty.
The court therefore denied his motion to withdraw
his plea.
2.
We review the court’s denial of Mr. Hoke’s motion to
withdraw his guilty plea for an abuse of discretion. See
United States v. Bowlin, 534 F.3d 654, 659 (7th Cir. 2008).
Mr. Hoke submits that the court erred in denying his
motion to withdraw his guilty plea because he had a
valid technical defense, which his prior attorney had
failed to raise. He further maintains that he was “stressed
and confused about the various proceedings leading up
to the plea of guilty.” Appellant’s Br. 10.
The district court did not abuse its discretion in
denying Mr. Hoke’s motion to withdraw his plea.
Mr. Hoke did not show “a fair and just reason for requesting
the withdrawal.” United States v. Bryant, 557
F.3d 489, 495 (7th Cir. 2009) (quoting Fed. R. Crim. P.
11(d)(2)(B)). He claims that he is legally innocent because
of a “technical defense.” However, “claims of innocence
alone do not mandate permission to withdraw a plea,” but,
rather, must be substantiated by evidence. United States
v. Groll, 992 F.2d 755, 758 (7th Cir. 1993). Furthermore,
Mr. Hoke has not shown that, at the time of his plea,
he was unaware of the technical defense which he now
invokes. See Bryant, 557 F.3d at 495 (holding that the
district court’s denial of the defendant’s motion to withdraw
his plea was not an abuse of discretion because
the defendant did not present newly discovered
evidence relating to his factual guilt or innocence, and
he did not discover a new legal defense after he
pleaded guilty). Consequently, Mr. Hoke has not established
that a fair and just reason for withdrawal exists.
Mr. Hoke claims that he was confused about the proceedings
leading up to his plea of guilty. We have held,
however, that “[t]he only rational manner in which a
judge may determine whether a plea is knowingly and
voluntarily made, is to observe the defendant’s demeanor
and responses to the court’s questions and to rely on the
defendant’s sworn answers.” United States v. Ellison, 835
F.2d 687, 693 (7th Cir. 1987). The district court had the
opportunity to question and observe Mr. Hoke during
his motion to withdraw plea hearing; it did not find
that Mr. Hoke was confused or unaware of the nature
of his actions at that time. We therefore believe that the
court did not abuse its discretion in denying Mr. Hoke’s
motion to withdraw his guilty plea.
B. Right of Allocution
1.
Mr. Hoke’s sentencing hearing was held on November
7, 2008. Prior to Mr. Hoke’s allocution, the court
addressed an objection raised by the Government regarding
the presentence investigation report (“PSR”). The
Government maintained that the PSR should have
advised a two-level enhancement for obstruction of
justice because, it alleged, Mr. Hoke had made false
statements during the hearing for his motion to withdraw
his guilty plea. The court stated that it was not
going to apply the obstruction of justice enhancement,
but told the Government that “even though it’s not applying
the enhancement, [it] will be taking into account
his testimony when it issues its sentence, which will be
within the advisory guideline range. . . .” R.123 at 5.
The court then explained its guidelines-range
findings and asked whether either side had any objections.
Mr. Hoke’s attorney replied that he would be
objecting to the Guidelines as a whole, and he noted that
the court is not bound by the Guidelines. The court acknowledged
that the Guidelines are advisory and then
noted that it would consider “the [section] 3553(a) factors
as well as the advisory guidelines in issuing its decision
on the appropriate sentence.” Id. at 7. Mr. Hoke then
presented mitigating statements from several witnesses,
and his attorney argued that he should receive
the mandatory minimum sentence of sixty months.
After the attorneys for both sides had spoken, the
court directed Mr. Hoke to stand, and asked: “Is there
anything you wish to say or offer in mitigation before
this Court imposes sentence?” Id. at 26. Mr. Hoke replied
that he had health problems. He admitted to looking
at adult pornography, but denied ever looking at child
pornography. The court then sentenced Mr. Hoke to 121
months’ imprisonment for Count 1 and 120 months’
imprisonment for Count 2, to run concurrently,
followed by five years of supervised release.
2.
Because Mr. Hoke raised no objection regarding his
right of allocution at the district court level, we review
only for plain error. See United States v. Luepke, 495 F.3d
443, 446 (7th Cir. 2007); Fed. R. Crim. P. 52(b). “Plain
error review requires us to determine: (1) that error
occurred; (2) that the error was plain; and (3) that the
error affected the defendant’s substantial rights.” Luepke,
495 F.3d at 448. “If these criteria are met, we may
reverse, in an exercise of discretion, if we determine
that the error ‘seriously affects the fairness, integrity, or
public reputation of judicial proceedings.’ ” Id. (quoting
United States v. Simpson, 479 F.3d 492, 496 (7th Cir. 2007)).
Mr. Hoke submits that the district court foreclosed
any possibility of a below-guidelines sentence, prior to
his opportunity to address the court, when it stated that
his sentence would be “within the advisory guideline
range.” R.123 at 5. Mr. Hoke therefore contends that
the court violated his right of allocution and maintains
that the violation was not cured when the court later
allowed him to present witnesses and to personally
address the court. See Luepke, 495 F.3d at 452; Fed. R.
Crim. P. 32(i)(4).
Federal Rule of Criminal Procedure 32(i)(4)(A), which
codifies the common law right of allocution, states
that, prior to imposing a sentence, the court must
“address the defendant personally in order to permit the
defendant to speak or present any information to
mitigate the sentence.” In Green v. United States, 365
U.S. 301, 304 (1961) (plurality opinion), the Supreme
Court interpreted an earlier version of this rule and
held that a defendant must be afforded the opportunity
to personally address the court. The Court stated that
district courts should “unambiguously address themselves
to the defendant” and “should leave no room
for doubt that the defendant has been issued a personal
invitation to speak prior to sentencing.” Id. at 305.
We must consider the district court’s statement
regarding sentencing Mr. Hoke under the Guidelines in
the context in which it was made. During the sentencing
hearing, the Government objected to the PSR,
maintaining that Mr. Hoke should have received an
obstruction of justice enhancement for making false
statements. The court declined to apply the enhancement
and explained that it would “be taking into
account his testimony when it issues its sentence, which
will be within the advisory guideline range . . . .” R.123
at 5.
When read in context, it is evident that the district court
was merely communicating that it would use the Guidelines
as its baseline, as opposed to the elevated sentencing
range that the Government sought. After the court
stated its intent, Mr. Hoke’s attorney quickly noted that
he would be challenging the applicability of the Guidelines
and stated that the court was not bound by them.
The court agreed, noting that the Guidelines “are advisory.”
R.123 at 7. It further stated that it would be “considering
[section] 3553(a) factors as well as the advisory
guidelines in issuing its decision on the appropriate
sentence.” Id. In this colloquy with counsel, the court
expressed clearly that it had not reached a conclusive
decision regarding Mr. Hoke’s sentence and that it
would consider the relevant sentencing factors and the
advisory nature of the Guidelines. The court, moreover,
gave Mr. Hoke an opportunity to present witnesses and
invited him to address the court. We conclude that the
court did not deny Mr. Hoke his right of allocution
and, therefore, did not commit plain error.2
Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED
Chicago Criminal Lawyer - Robert J Callahan
the receipt and possession of child pornography in violation
of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(a)(5)(B).
After the Government rested its case, Mr. Hoke pleaded
guilty to both counts. He later moved to withdraw his
guilty plea, but the district court denied his motion. The
court sentenced Mr. Hoke to 121 months’ imprisonment
and five years’ supervised release. In this appeal, Mr. Hoke
contends that the court abused its discretion by not
allowing him to withdraw his guilty plea. He also
claims that the district court denied him his right of
allocution in violation of Federal Rule of Criminal Procedure
32(i)(4)(A). For the reasons set forth in this
opinion, we affirm the judgment of the district court.
A. Motion to Withdraw Guilty Plea
1.
On January 8, 2008, Mr. Hoke was charged with receipt
of child pornography and possession of child pornography.
A jury trial commenced on June 16, 2008, and the Government
rested its case the following day. After Mr. Hoke
heard all of the evidence against him, he pleaded guilty
to both counts. Before accepting the plea, the district
court advised and questioned Mr. Hoke as required by
Rule 11(b)(1) of the Federal Rules of Criminal Procedure.
The district court placed Mr. Hoke under oath and questioned
him to ensure that he understood English and
that he was satisfied with his representation. The court
went through each count of the indictment and, although
the Government already had presented its evidence
during its case-in-chief, required the prosecutor to state,
with respect to each count, the evidence upon which
the Government relied. The court also assured itself
that Mr. Hoke understood the length of the sentence
he could receive and the conditions governing his subsequent
release. The court also advised him of the
rights that he could exercise if he elected to proceed with
the trial. With regard to sentencing, the court told
Mr. Hoke that the United States Sentencing Guidelines
are advisory and that it would consider the Guidelines,
any statutory mandatory minimum and the factors enumerated
under 18 U.S.C. § 3553(a). Throughout the
process, the court ensured that Mr. Hoke understood the
advice given to him. After verifying that no threats or
promises had been made to Mr. Hoke and determining
that his plea was a “free and voluntary act,” the court
accepted his guilty plea. R.94 at 8.
On August 18, Mr. Hoke wrote a letter to the court
seeking to withdraw his plea of guilty. Two days later,
Mr. Hoke’s attorney moved to withdraw as counsel;
the district court granted the motion and appointed
new counsel. On October 1, Mr. Hoke moved to withdraw
his guilty plea under Federal Rule of Criminal
Procedure 11(d)(2)(B).
At a subsequent hearing, Mr. Hoke maintained that
his plea was not made knowingly because he was
confused about the nature of the proceedings and
because he was innocent of the charges under a “technical
defense.”1 Mr. Hoke claimed that his plea was coerced
by his former attorney and that the attorney had told
him that his computer expert could not testify. Mr. Hoke
also said that he had looked to his attorney for direction
on how to answer most of the court’s questions at the
plea hearing. By contrast, the former attorney testified
that he did not instruct Mr. Hoke how to answer the
questions and that, had they proceeded with the trial, he
would have called Mr. Hoke’s computer expert to testify.
The Government questioned Mr. Hoke, who admitted to
having no mental defects and to being clear-minded on
the day that he pleaded guilty.
The court found that Mr. Hoke had not been prompted
by his attorney when he answered its questions and also
found that, during the hearing, Mr. Hoke had understood
the consequences of his actions when he pleaded guilty.
The court therefore denied his motion to withdraw
his plea.
2.
We review the court’s denial of Mr. Hoke’s motion to
withdraw his guilty plea for an abuse of discretion. See
United States v. Bowlin, 534 F.3d 654, 659 (7th Cir. 2008).
Mr. Hoke submits that the court erred in denying his
motion to withdraw his guilty plea because he had a
valid technical defense, which his prior attorney had
failed to raise. He further maintains that he was “stressed
and confused about the various proceedings leading up
to the plea of guilty.” Appellant’s Br. 10.
The district court did not abuse its discretion in
denying Mr. Hoke’s motion to withdraw his plea.
Mr. Hoke did not show “a fair and just reason for requesting
the withdrawal.” United States v. Bryant, 557
F.3d 489, 495 (7th Cir. 2009) (quoting Fed. R. Crim. P.
11(d)(2)(B)). He claims that he is legally innocent because
of a “technical defense.” However, “claims of innocence
alone do not mandate permission to withdraw a plea,” but,
rather, must be substantiated by evidence. United States
v. Groll, 992 F.2d 755, 758 (7th Cir. 1993). Furthermore,
Mr. Hoke has not shown that, at the time of his plea,
he was unaware of the technical defense which he now
invokes. See Bryant, 557 F.3d at 495 (holding that the
district court’s denial of the defendant’s motion to withdraw
his plea was not an abuse of discretion because
the defendant did not present newly discovered
evidence relating to his factual guilt or innocence, and
he did not discover a new legal defense after he
pleaded guilty). Consequently, Mr. Hoke has not established
that a fair and just reason for withdrawal exists.
Mr. Hoke claims that he was confused about the proceedings
leading up to his plea of guilty. We have held,
however, that “[t]he only rational manner in which a
judge may determine whether a plea is knowingly and
voluntarily made, is to observe the defendant’s demeanor
and responses to the court’s questions and to rely on the
defendant’s sworn answers.” United States v. Ellison, 835
F.2d 687, 693 (7th Cir. 1987). The district court had the
opportunity to question and observe Mr. Hoke during
his motion to withdraw plea hearing; it did not find
that Mr. Hoke was confused or unaware of the nature
of his actions at that time. We therefore believe that the
court did not abuse its discretion in denying Mr. Hoke’s
motion to withdraw his guilty plea.
B. Right of Allocution
1.
Mr. Hoke’s sentencing hearing was held on November
7, 2008. Prior to Mr. Hoke’s allocution, the court
addressed an objection raised by the Government regarding
the presentence investigation report (“PSR”). The
Government maintained that the PSR should have
advised a two-level enhancement for obstruction of
justice because, it alleged, Mr. Hoke had made false
statements during the hearing for his motion to withdraw
his guilty plea. The court stated that it was not
going to apply the obstruction of justice enhancement,
but told the Government that “even though it’s not applying
the enhancement, [it] will be taking into account
his testimony when it issues its sentence, which will be
within the advisory guideline range. . . .” R.123 at 5.
The court then explained its guidelines-range
findings and asked whether either side had any objections.
Mr. Hoke’s attorney replied that he would be
objecting to the Guidelines as a whole, and he noted that
the court is not bound by the Guidelines. The court acknowledged
that the Guidelines are advisory and then
noted that it would consider “the [section] 3553(a) factors
as well as the advisory guidelines in issuing its decision
on the appropriate sentence.” Id. at 7. Mr. Hoke then
presented mitigating statements from several witnesses,
and his attorney argued that he should receive
the mandatory minimum sentence of sixty months.
After the attorneys for both sides had spoken, the
court directed Mr. Hoke to stand, and asked: “Is there
anything you wish to say or offer in mitigation before
this Court imposes sentence?” Id. at 26. Mr. Hoke replied
that he had health problems. He admitted to looking
at adult pornography, but denied ever looking at child
pornography. The court then sentenced Mr. Hoke to 121
months’ imprisonment for Count 1 and 120 months’
imprisonment for Count 2, to run concurrently,
followed by five years of supervised release.
2.
Because Mr. Hoke raised no objection regarding his
right of allocution at the district court level, we review
only for plain error. See United States v. Luepke, 495 F.3d
443, 446 (7th Cir. 2007); Fed. R. Crim. P. 52(b). “Plain
error review requires us to determine: (1) that error
occurred; (2) that the error was plain; and (3) that the
error affected the defendant’s substantial rights.” Luepke,
495 F.3d at 448. “If these criteria are met, we may
reverse, in an exercise of discretion, if we determine
that the error ‘seriously affects the fairness, integrity, or
public reputation of judicial proceedings.’ ” Id. (quoting
United States v. Simpson, 479 F.3d 492, 496 (7th Cir. 2007)).
Mr. Hoke submits that the district court foreclosed
any possibility of a below-guidelines sentence, prior to
his opportunity to address the court, when it stated that
his sentence would be “within the advisory guideline
range.” R.123 at 5. Mr. Hoke therefore contends that
the court violated his right of allocution and maintains
that the violation was not cured when the court later
allowed him to present witnesses and to personally
address the court. See Luepke, 495 F.3d at 452; Fed. R.
Crim. P. 32(i)(4).
Federal Rule of Criminal Procedure 32(i)(4)(A), which
codifies the common law right of allocution, states
that, prior to imposing a sentence, the court must
“address the defendant personally in order to permit the
defendant to speak or present any information to
mitigate the sentence.” In Green v. United States, 365
U.S. 301, 304 (1961) (plurality opinion), the Supreme
Court interpreted an earlier version of this rule and
held that a defendant must be afforded the opportunity
to personally address the court. The Court stated that
district courts should “unambiguously address themselves
to the defendant” and “should leave no room
for doubt that the defendant has been issued a personal
invitation to speak prior to sentencing.” Id. at 305.
We must consider the district court’s statement
regarding sentencing Mr. Hoke under the Guidelines in
the context in which it was made. During the sentencing
hearing, the Government objected to the PSR,
maintaining that Mr. Hoke should have received an
obstruction of justice enhancement for making false
statements. The court declined to apply the enhancement
and explained that it would “be taking into
account his testimony when it issues its sentence, which
will be within the advisory guideline range . . . .” R.123
at 5.
When read in context, it is evident that the district court
was merely communicating that it would use the Guidelines
as its baseline, as opposed to the elevated sentencing
range that the Government sought. After the court
stated its intent, Mr. Hoke’s attorney quickly noted that
he would be challenging the applicability of the Guidelines
and stated that the court was not bound by them.
The court agreed, noting that the Guidelines “are advisory.”
R.123 at 7. It further stated that it would be “considering
[section] 3553(a) factors as well as the advisory
guidelines in issuing its decision on the appropriate
sentence.” Id. In this colloquy with counsel, the court
expressed clearly that it had not reached a conclusive
decision regarding Mr. Hoke’s sentence and that it
would consider the relevant sentencing factors and the
advisory nature of the Guidelines. The court, moreover,
gave Mr. Hoke an opportunity to present witnesses and
invited him to address the court. We conclude that the
court did not deny Mr. Hoke his right of allocution
and, therefore, did not commit plain error.2
Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED
Chicago Criminal Lawyer - Robert J Callahan
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