United States v. Rahseparian, 99-6050 and 99-6052 (November 7, 2000)

Ardi and Steve Rahseparian were sons of Jack Rahseparian. All were convicted of conspiracy to commit mail fraud, mail fraud, and money laundering. These charges arise out of a telemarketing scheme. They would entice customers over the telephone to buy products such as water purifiers at highly inflated prices in exchange for guaranteed valuable prizes which they never received. Ardi and Steve's defense was that they intended to run a legitimate telemarketing business. Customers were to send their checks via federal express to a mail box located in Shawnee, Oklahoma. Checks were deposited in three separate bank accounts. Although some customers received their products, none received the promised prizes.

HELD: (1) Conspiracy, mail fraud, and money laundering are specific intent crimes. In reviewing their claim of insufficient evidence, the court views the evidence in the light most favorable to the government. The court will not uphold a conviction by piling inference upon inference. The court held the evidence was sufficient to prove mail fraud and conspiracy, as well as money laundering.

(2) During closing arguments the prosecutor told the jurors to use their common sense to infer a criminal agreement because none of the three co-defendants testified. A prosecutor may comment on the lack of evidence in a case as long as he does not comment on the failure of the defendant to provide evidence. The circuits are split on whether a comment like the one here is improper under Griffin or a permissible statement regarding lack of direct evidence. Here, rather than merely arguing the inferences which could reasonably be drawn from the evidence, the prosecutor asserted that the inference should be made precisely because the defendants did not testify. This comment teeters on the fine line between an impermissible comment on failure to testify and a permissible comment on lack of evidence in a case. Given the context of the comment and the evidence against the two defendants, the court was convinced that if there was error, it was harmless beyond a reasonable doubt. The comment here was pointed to the conspiracy charge, the evidence as to which was entirely circumstantial. Nonetheless, the court found the Griffin error harmless.

(3) IRS agent testified that Ardi indicated he was initially reluctant to enter into business with Steve because Ardi indicated he was initially reluctant to enter into business with Steve because Ardi did not trust his brother. The district court asked the jury to leave the courtroom and held the statement was in violation of Bruton. Defense counsel moved for mistrial or an instruction. The court denied the request for mistrial, but struck the statement from the record and instructed the jury to disregard the statement. The Supreme Court has rejected extending the Bruton rule to statements that are not directly inculpatory but only inferentially incriminating. Therefore the district court's curative action cured any possible prejudice.

United States v. Jack Rahseparian, 99-6031 (November 7, 2000)

HELD: (1) Sufficiency of evidence is a question of law reviewed de novo. The court views the evidence in the light most favorable to the government but will not pile inference upon inference.

(2) To convict of mail fraud the government must prove a scheme to defraud, specific intent and use of the mails. To convict of conspiracy, the government must prove an agreement, knowledge of the essential objective of a conspiracy, knowing and voluntary involvement, and interdependent among the alleged co conspirators. Jack argues he did not know that Janis' marketing was defrauding its customers. Knowledge of the purpose of the criminal conspiracy must be shown by clear, unequivocal evidence. None of the evidence proffered by the government supports beyond a reasonable doubt and inference that Jack knew Janis marketing was unlawful. While the evidence presented may raise a suspicion of guilt, that alone is insufficient.

(3) In upholding Jack's convictions, the district court recognized that, without his false exculpatory statements regarding the source of the Janis' marketing deposits, the evidence was insufficient. The circuit held that false exculpatory statements cannot by themselves prove the government's case. False exculpatory statements are admissible to prove circumstantially consciousness of guilt, but such statements cannot be considered by the jury as direct evidence of guilt. Courts have limited the probative value of false exculpatory statement because the most probable inference to be drawn is that the defendant surmised he was implicated in some sort of criminal activity.

(4) Although knowledge of mail fraud need not be proven by direct evidence, it cannot be established by evidence which merely raises a suspicion or by piling inference upon inference. This is what happened here. The court held the evidence was insufficient to support Jack's convictions for conspiracy to commit mail fraud and mail fraud.

(5) To convict of money laundering, the government must prove that Jack engaged in the financial transaction, knowing the property involved in the transaction represented the proceeds of unlawful activity, the property involved was in fact the proceeds of unlawful activity, and he knew the transaction was designed to conceal or disguise the nature, location, source, ownership, or control of the proceeds. The statute does not require the government to prove that a defendant knew what specific illegal activity generated the money. Jack's money laundering conviction must be reversed as well. There are two knowledge inquiries in money laundering -- whether the defendant knew about the illegal nature of the funds, and whether he knew the financial transactions were intended to conceal the illegal source of the funds. Where the defendant is not the source of the illegal funds, the inquiry into whether he knew of an intent to conceal occurs only after it has been established that he knew the funds were illegal. As a non participant in the mail fraud or conspiracy, the mere fact that Jack was handling his sons' banking cannot evidence any intent to conceal. The indictment charged Jack with knowing the proceeds came from telemarketing fraud and did not charge him merely with knowing that the funds were derived illegally. A court cannot permit a defendant to be tried on charges that are not made in the indictment. The government's theory at trial was that Jack knew the proceeds were from the telemarketing scheme and not from some unspecified form of felonious conduct. The jury was instructed it had to find Jack had knowledge of the mail fraud in order to find him guilty of money laundering.

United States v. Siedlik, 00-5025 (November 14, 2000)

(Cindy Hodges Cunningham, FPD, Tulsa, Oklahoma )

Siedlik appeals the denial of his motion to withdraw his plea of guilty to two charges of interstate transportation of a minor with intent to engage in sexual activity.

HELD: (1) The court reviews the denial of a motion to withdraw guilty plea for abuse of discretion. If a motion to withdraw a guilty plea is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason. The plea agreement expressly contemplated that the parties would make a sentencing recommendation to the court, acknowledge the sentencing court retains compete discretion, and that the sentence would be within the sentencing guideline range. Any recommendation would not be binding on the court. A plea agreement would be binding on the court under Rule 11(e)(1)(C) if the court accepts the plea. A sentencing recommendation falls under Ruled 11(e)(1)(B). Notwithstanding the single reference to subsection (C), the language of the plea agreement and the parties statements at the change of plea hearing indicated the parties would recommend a sentence and that the court retained complete discretion. The court sentence Siedlik within the range recommended by the guideline, and that was all that was required by the plea agreement. Therefore Siedlik did not state a fair and just reason for withdrawal of the plea.

(2) The court looks to seven factors to decide whether a defendant has met his burden of showing that the district court acted unjustly in denying withdrawal of the plea. Siedlik has not asserted innocence. Withdrawal of the plea would prejudice the government. Siedlik did not file a motion with the district court to withdraw his plea; instead, the first mentioned came in defense counsel's motion to withdraw as counsel nearly seven months after Siedlik plead guilty. The court would be substantially inconvenienced. Siedlik was represented by skilled counsel. The record reflects that Siedlik's plea was knowing and voluntary. Withdrawal of the plea would lead to expenditure of additional resources.

Gibson v. Klinger, 99-5071 (November 14, 2000)

Gibson appeals the district court's dismissal of his habeas corpus petition as untimely under the one year statute of limitations. In this case the OCCA affirmed the district court's denial of state post conviction relief on June 25, 1997. Gibson did not file a petition for writ of habeas corpus until May 20, 1998. The federal district court dismissed his petition as untimely. Gibson urged that the statute of limitations should be tolled from April 25, 1996, when the state district court denied his application for post conviction relief until June 25, 1997 when the state appellate court affirmed the district court's denial. The circuit granted a COA to address the issue of whether an to what extent the one year limitations period may be tolled in light of the state appellate court's grant of an out of time appeal.

HELD: (1) The circuit granted a COA on the procedural tolling question and did not address substantive issues. The Supreme Court decided Slack v. McDaniel providing guidance on when a COA should issue. When the district court denies a habeas petition on procedural grounds without reaching the merits, a COA should issue when the prisoner shows, at least, the jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and jurists of reason would find it debatable whether the district court was correct in its procedural ruling. The circuit had granted a COA to address the timeliness of the petition and did not determine whether the petition debatable presents a valid claim of the denial of a constitutional right. Because the district court did not address the claims and the parties have not briefed them on appeal, review is limited. But taking a quick look at the habeas petition, the court determined that juris of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right. At least one of Gibson's claims, material breech of his plea agreement, constitutes a violation of his constitutional right to due process. Therefore this case satisfied both prongs of the Slack threshold inquiry.

(2) Because the court must answer a question of law, review of the district court's denial is de novo.

(3) Gibson's conviction was not final before the AEDPA's enactment. Therefore, the one year statute of limitations did not begin to run until the AEDPA's effective date, April 24, 1996. This is without the grace period. The court had to construe the language of the tolling provision that refers to a properly filed application for state post conviction or other collateral review. The statute was tolled for one day until the state court denied the properly filed application for post conviction relief on April 25, 1996. The statute was tolled for the 30 days during which Gibson could have filed an appeal of the state court's denial of his application for post conviction relief. The state court's decision to grant an appeal out of time and decide the merits does not transform all of Gibson's state filings into one properly filed application. The limitations period was tolled on November 12, 1996 when Gibson filed his second motion for leave to appeal out of time, and did not resume running until June 25, 1997 when the state appellate court affirmed.

(4) Regardless of whether a petitioner actually appeals a denial of a post conviction application, the limitations period is tolled during the period in which the petitioner could have sought an appeal.

(5) The term "pending" encompasses all of the time during which a state prisoner is attempting through proper use of state court procedures, to exhaust state court remedies with regard to a particular post conviction application. The clock does not run during this time even if the petitioner appeals. The AEDPA strongly encourages petitioners to exhaust state court remedies. This definition of "pending" that encompasses statutory grace periods for appeal furthers that objective.

(6) The state court's grant of leave to appeal out of time cannot erase the time during which nothing was pending before a state court.

(7) A state court's decision dismissing a prisoners post conviction application as procedurally barred does not determine whether an application is properly filed for the purposes of tolling under the AEDPA.

(8) State procedural law determines whether an application is properly filed. The courts are divided over whether to consider a state court's decision to dismiss a petition as procedurally barred or to proceed to the merits. Some courts have concluded that an application can not be considered properly filed if a state court dismissed it on procedural grounds. But the majority approach, adopted by the Tenth Circuit, looks only to state procedural filing requirements and not whether the state court ultimately determined the application to be procedurally barred. The Ninth Circuit has reached a different result, deciding the limitations period was tolled during th entire period between the initial application for state post conviction relief and the State Supreme Court denial of a second untimely petition on the merits. The Seventh Circuit excluded the time between the filing for leave to appeal and the final state disposition. The Tenth Circuit's approach is more narrow confining the inquiry to state filing requirements, and is more consistent with the plain language of the statute and congressional intent. A state court's decision to look beyond procedural deficiencies or to grant an appeal out of time does not transform all fo a petitioner's state filings into one properly filed application.

(9) Because the state appellate court did not dismiss his appeal out of time until June 1997, Gibson contends that the circuit's definition of pending in Barnett supports tolling the limitations period from his initial filing for post conviction relief in 1995 to the denial of his appeal in June 1997. This approach ignores an important element of the definition, that the state prisoner must be attempting to exhaust state remedies. The circuit looks to state law to determine whether an application is properly filed but applies its own definition of "pending" as a matter of federal law. However, that still requires some inquiry into relevant state procedural laws. After Gibson's 30 days to appeal expired, the limitations period was not tolled until he filed his second application for leave to appeal in the state district court. This definition of "pending" is most consistent with Congress' intent to encourage exhaustion of state remedies without allowing prisoners to toll the limitations period indefinitely. The limitations period therefore resumed running on May 25, 1996 and continued until November 12, 1996 when Gibson filed his second application for leave to appeal out of time. After the state appellate court gave Gibson permission to file an appeal, Gibson had 30 days to file that appeal which she did indeed timely file on May 15, 1997. Gibson's application was then pending through state statutory time to appeal. Once Gibson filed a timely appeal, the limitations period did not resume until the state appellate court affirmed on June 25, 1997. Gibson had 185 days to file his federal habeas petition. But he waited for almost one year and therefore his petition is clearly time barred.

(10) Gibson argues the limitations period should be equitably tolled because he was unable to secure a copy of AEDPA and because the state court concluded his failure to appeal the denial of post conviction relief within the statutory time limit was not his fault. AEDPA's one year statute of limitations is subject to equitable tolling but only in rare and exceptional circumstances. These may be when a prisoner is actually innocent, or when an adversary prevents a prisoner from timely filing. Simple excusable neglect is insufficient. Gibson did not exercise due diligence in pursuing his federal claims.

United States v. Austin, 00-4061 (November 7, 2000)

Austin was convicted of possessing stolen mail in violation of 18 U.S.C. § 1708. He moved for a new trial and judgment of acquittal which the court denied.

HELD: (1) The court reviews the denial of a motion for new trial under an abuse of discretion standard. A decision will be overturned only if it is arbitrary, capricious, whimsical, or manifestly unreasonable. When the denial of a new trial turns on an issue of law, the determination is reviewed de novo. Austin claims the district court violated his Sixth Amendment rights by its response to the jury's request to express an opinion in addition to rendering a verdict. Upon receiving the jury's request, the district court followed the proper course of action, in forming both parties and providing an opportunity to be heard. The Sixth Amendment does not prohibit the kind of response given by the judge. The judge instructed the jury that any comments it appends to its verdict must be consistent with the verdict. A jury's recommendation of leniency does not affect the validity of the verdict. But when there is doubt cast upon the unqualified nature of the verdict, the court must take a closer look at the circumstances of the jury's recommendation. No such doubt exists in this case. The judge had polled the jurors.

(2) The court reviews a denial of a motion for judgment of acquittal de novo viewing th evidence in the light most favorable to the government. There was sufficient evidence from which a reasonable jury could find Austin guilty beyond a reasonable doubt.

United States v. Garcia, 98-1334 (November 16, 2000)

(Brian K. Holland, Denver, Colorado)

Garcia appeals the district court's denial of his motion to suppress evidence obtained through two court ordered wiretaps. He urges that the district court erred in finding the wiretaps were necessary and appropriately minimized.

HELD: (1) Under Title 3, a law enforcement officer must obtain approval from the attorney general or her designee to seek the appropriate order from a federal judge. The officer must submit to the judge a written application for wiretap, the judge must issue an ex parte order granting the application and making specific supporting findings. A judge must determine whether normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous. This is known as the necessity requirement. The statute also requires that the wiretap order contained a provision that the interception be conducted in such a way as to minimize interception of communications not otherwise subject to interception.

(3) On appeal from denial of a motion to suppress the court accepts district court fact findings unless clearly erroneous, reviews questions of law de novo, and views the evidence in the light most favorable to the prevailing party.

(4) To obtain an electronic surveillance order the government must fully explain what investigative techniques have been tried. If any one of the four categories are not tried, the government must explain why. These techniques include standard visual and aural surveillance, questioning an interrogation of witnesses or participants, use of search warrants, and infiltration of conspiratorial groups by undercover agents or informants. Under the facts of the case the Chavez wiretaps were necessary. As to minimization, all the calls directly reference criminal activity or other matters relevant to the government's investigation.

United States v. Cryar, 00-6053 (November 20, 2000)

(William P. Earley, FPD, Oklahoma City, Oklahoma)

Cryar was convicted on sexual abuse counts and sentenced to 144 months.

HELD: (1) Article III of the Constitution generally requires that the trial of any crime be held in the state where the crime was committed. The Sixth Amendment requires that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. The statute at issue does not contain the specific venue provision. In that situation the place at which the crime was committed must be determined from the nature of the crime and the location of the act or acts constituting it. The sexual assault statute, 18 U.S.C. § 2241(a) is aimed, not at crossing state lines, but instead the nature of the offense to be criminalized is the performance of sexual acts with children. The government had to prove that Cryar crossed state lines with intent to engage in a sexual act with a child under 12 and that he attempted to do so. The circuit interpreted § 2241(c) to contain distinct conduct elements relevant here -- the crossing of state lines and the intent to engage in the sexual act and attempt to do so. These discrete conduct elements compelled the circuit to conclude that Congress intended the criminal statute to be treated as a continuing offense rather than as an offense that can occur only at one point in time.

(2) Venue need be proved only by a preponderance of the evidence. Failure to instruct on venue is not reversible if the jury verdict by necessity incorporated the findings of venue. The defendant's proposed jury instructions were improper. The defendant urged that the offense includes that the offense of crossing the state line occurred in the Western District of Oklahoma. But the district court was correct to refuse giving the erroneous instruction.

(3) As to sufficiency of the evidence, the court views this in the light most favorable to the government. Cryar's challenge to the offense level is dictated by the interpretation of § 2241(c) crimes. Cryar's challenge to the application of §2A3.1(b) stems from the faulty premise that § 2241(c) criminalizes behavior at the point in time of the crossing of the state lines.

United States v. Ortega-Jimenez, 00-4025 (November 22, 2000)

The United States appeals the district court's order suppressing evidence and the circuit reversed.

HELD: (1) The scope of a warrant is a question of law reviewed de novo. The court has adopted a standard of practical accuracy rather than technical precession. In the Simpson case, the court addressed whether a particular warrant was invalid by being insufficiently particular. The court looked to the affidavit to clarify the meaning of the warrant even though the affidavit was not specifically incorporated or physically attached. Important to the holding of Simpson was the fact that the same officer both produced the affidavit and executed the warrant. An affidavit can be used to demonstrate that a warrant is not constitutionally invalid for lack of particularity. Also, an affidavit may be used to clarify with practical accuracy the meaning of a disputed term in a warrant when the same person is both affiant and executing officer.

(2) Given the specificity of the affidavit, the judge knew that the defendants were present at the storage unit at the time the warrant was issued. A practical reading of the term "present" must include those the judge knew actually were present at the time.

United States v. Martinez-Villalva, 00-1134 (November 24, 2000)

(Warren R. Williamson, FPD, Denver, Colorado)

Defendant was convicted of one count of illegal reentry following deportation in violation of 8 U.S.C. § 1326. He was sentenced to 77 months imprisonment followed by three years supervised release. He had objected to the presentence report, arguing he was not subject to the 16 level enhancement because his prior felony conviction was not an aggravated felony as defined in § 1101(a)(43)(G). He urges on appeal that his conviction in Kansas State Court was not an aggravated felony and the enhancement was improper. In addition he raises an Apprendi issue.

HELD: (1) In Apprendi the Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. The Apprendi holding is not applicable when a sentence enhancing fact is a prior conviction. This exception was carved out of the Apprendi holding in light of Armendarez-Torrez. This case falls squarely within the exception to the Apprendi holding. The court reviews the district court's interpretation and application of the guidelines de novo. Defendants challenge that the district court erred in enhancing his sentence is a challenge to the district court's application of the guidelines and review is de novo.

(2) An aggravated felony includes a theft offense for which the term of imprisonment is at least one year. Any reference to term of imprisonment includes the period of incarceration ordered by law regardless of any suspension of sentence. It is the government's burden to prove the facts supporting a sentence enhancement by a preponderance. The district court held that the legal effect of the Kansas State Court's journal entry was a suspended sentence of one to two years confinement and two years probation. If the Kansas court imposed a suspended sentence of at least one years imprisonment followed by Probation, the conviction would constitute an aggravated felony under federal law. If the legal affect of the state court's sentence was an original sentence of probation, the conviction would not be an aggravated felony under federal law. After de novo review, the circuit could not say that the state court journal entry established by a preponderance that the defendant's prior conviction was for an aggravated felony. Reading the journal entry in light of Kansas law indicates that the court imposed a statutory presumptive sentence of probation. It appears the legal affect of the state court action was an original sentence of probation, but the court need not go that far. At the very least the court could say the government did not establish by a preponderance that the legal affect of the state court's action was a suspended term of imprisonment and therefore did not establish that the defendant was sentenced to a term of imprisonment of at least one year. Thus the government failed to carry its burden of establishing a conviction for an aggravated felony.

United States v. Metzger, 00-5055 (November 28, 2000)

(Stephen J. Knorr, FPD, Tulsa, Oklahoma)

This case presents the question of whether a bodily injury enhancement may be applied under §2B3.1(b)(3)(B) to increase a defendant's sentence where the relevant injury was inflicted by a police officer. Metzger was convicted of robbing a police credit union. After he received the money, a uniformed police officer, there transacting personal business, learned of the robbery. He was mistakenly told that the robber was still in the parking lot in a blue vehicle. He approached the blue car with a single occupant. When the driver began to reach for the floor and drive away, Edwards believed the driver was reaching for a gun and fired a shot. He shot Myers, a bank customer and innocent bystander in the shoulder. Meanwhile, Metzger peddled away on a bicycle.

HELD: (1) Review of the district court's application of §2B3.1(b)(3)(B) is de novo. That guideline requires a sentencing court to increase the offense level by four levels if "any victim" sustained "serious bodily injury." Metzger contends that the four level enhancement for Meyers' was improper because her injury was not a reasonably foreseeable result of his criminal conduct. Pursuant to §1B1.3(a)(1)(A) and (a)(3) Meyers' injury is attributable to Metzger's conduct if it is harm that resulted from the acts and omissions that were committed, induced, procured, or willfully caused by Metzger. Courts allow increases where the harm was a reasonably foreseeable consequence of the defendant's conduct. The court asked whether it was foreseeable that, given the inherently dangerous nature of bank robbery, a bystander might be seriously injured. The court held that Meyers' injury was a reasonably foreseeable result of Metzger's criminal conduct and the enhancement was proper.