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dismissing claims based on failure by FBI to investigate allegations of civil rights violations, and noting that "[t]he court can find no binding authority requiring the FBI to investigate every complaint it receives. To the contrary, courts have consistently described the FBI's mandate as a 'discretionary rather than mandatory authority.'"
Summary of this case from Morrison v. U.S. Dep't of JusticeOpinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted, Feb. 1, 1999.
Appeal from the United States District Court for the Western District of Washington, John C. Coughenour, District Judge, Presiding.
Before ALARC§N, RYMER, and KLEINFELD, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
1. Sufficiency of evidence in mail fraud convictions.
Appellants argue that the evidence was insufficient to sustain Gilson's mail fraud conviction, or the other appellants' convictions to the extent they were based on Gilson's conduct.
To prove that a defendant's actions constituted mail fraud, the prosecution must show: (1) the existence of a scheme to defraud; and (2) that the defendant used or caused the use of the mails in furtherance of the scheme. United States v. Hubbard, 96 F.3d 1223, 1227-28 (9th Cir.1996). The Supreme Court stated that "[t]he relevant question at all times is whether the mailing is part of the execution of the scheme as conceived by the perpetrator." Schmuck v. United States, 489 U.S. 705, 715 (1989).
Gilson argues that the evidence presented by the prosecution does not meet the above standard because the letters were not in furtherance of any scheme to defraud Park Place. Park Place's general manager testified that the dealership asked for "five or six weeks" to respond to Gilson's first letter because the dealership "didn't want to get into any legal problems with Mr. Gilson." A jury could reasonably conclude that Gilson's letters deterred Park Place from contacting the authorities for fear of legal problems with Gilson, thereby perpetuating the conspiracy. The jury could permissibly reach the verdict it did on this evidence.
2. Instructional error on "knowingly"
Appellants argue that the district court committed plain error in utilizing a general jury instruction concerning the proper legal standard of "knowingly." Citing to the Ninth Circuit's holdings in United States v. Stein, 37 F.3d 1407 (9th Cir.1993), and United States v. Aguilar, 80 F.3d 329 (9th Cir.1996), Gilson claims that the "knowingly" instruction "diluted" the specific intent element of conspiracy, bank fraud, and mail fraud.
Because none of the defendants objected to this instruction at the district court level, we review for plain error. United States v. Klinger, 128 F.3d 705, 710 (9th Cir.1997). The district judge's instructions in the case at bar do not constitute plain error. The instruction at issue was copied verbatim from the Ninth Circuit Model Jury Instructions § 5.6, and provided a good general definition of "knowingly." Nor is there the type of error that led to our rulings in Stein and Aguilar. In both of those cases, but not this one, the general "knowingly" instruction directly conflicted with parts of another instruction. In the absence of such conflict or other plain error, the instruction does not justify reversal. See United States v. Gravenmeir, 121 F.3d 526, 530 (9th Cir.1997).
3. Failure to provide "reasonable foreseeability" conspiracy instruction
Appellants claim that the district judge committed plain error in failing to include a "reasonable foreseeability" element in its conspiracy instructions.
Because none of the defendants objected to this instruction at the district court level, we review the instruction for plain error, United States v. Klinger, 128 F.3d 705, 710 (9th Cir.1997), "in the context of the entire trial to determine if they were misleading or inadequate to guide the jury's deliberations." United States v. Moore, 109 F.3d 1456, 1465 (9th Cir.) (en banc), cert. denied, 118 S.Ct. 108 (1997). In United States v. Montgomery, 150 F.3d 983, 996-97 (9th Cir.1998), we upheld a jury instruction nearly identical to the one used in the instant case. We are bound by Montgomery to reject appellants' argument.
Gilson appeals his conviction on the ground that the district court abused its discretion in denying his motion to sever his trial from the trials of the other three appellants. The denial of a motion for severance is reviewed for an abuse of discretion. United States v. Cruz, 127 F.3d 791, 798 (9th Cir.1997), cert. denied, 118 S.Ct. 896 (1998). "Severance should be granted only if a serious risk exists that a joint trial would compromise a particular trial right of a properly joined defendant or prevent the jury from reliably determining guilt or innocence." Id. Here, nothing indicates that the court abused its discretion in denying Gilson's motion for severance. A reasonable judge could have weighed the burdens of conducting two separate trials--in which much of the same information (dozens of witnesses, several hundred exhibits) would be presented twice--and have concluded that Gilson's fears of prejudice were less compelling in comparison. Although other defendants acted in ways that might have prejudiced Gilson during the trial, the record does not show that Gilson warned that they would do so or that the judge should have foreseen it. The trial judge did not abuse his discretion in denying the motion to sever.
5. Cottam's testimony should be inadmissible because she was promised leniency.
Miller and Knowles argue that their convictions should be reversed because of the decision of the United States Attorney's office to grant leniency to Cottam. They rely solely on the Tenth Circuit's decision in United States v. Singleton, 144 F.3d 1343 (10th Cir.1998).
Because the Singleton issue was not raised at trial, and the only authority of appellant's position has been overturned by the Tenth Circuit, see United States v. Singleton, 165 F.3d 1297 (10th Cir.1999) (en banc), it was not plain error for the district judge not to take account of the as-yet undecided Singleton panel decision on his own motion. See United States v. Turman, 122 F.3d 1167, 1170 (9th Cir.1997).
6. Error on four-level upward adjustment under USSG § 3B1.1(a)
Miller and Knowles each received four-level upward adjustments for being a "leader or organizer" of the offense under USSG § 3B1.1(a). They both appeal the adjustment on the ground that the prosecution produced insufficient evidence to indicate that either played a leadership role in the conspiracy. We review a district court's finding that a defendant was an organizer or leader under U.S.S.G. § 3B1.1(a) for clear error. See United States v. Avila, 95 F.3d 887, 889 (9th Cir.1996). The district court did not clearly err in this case. There was ample evidence to support the district court's finding that Miller was among the leaders or organizers.
There was evidence from which the judge could exercise his discretion to infer that Miller was among the leaders or organizers. Miller and Cottam attended a series of seminars in Montana, where they learned how to create fake bank drafts off of the Washington assignments, and then taught what they had learned. Miller was influential in bringing in Gilson. Gilson received his Certified Banker's Check at a meeting at Cottam's house, where Gilson met Miller. Miller spoke to a group of over 40 people at Cottam's house, telling them how to get money from Goosman's assignments.
Likewise for Knowles. Knowles was also a member of the original meeting establishing the conspiracy. He played an integral role in the printing and distribution of the Certified Banker's Checks, as the police confiscated from Knowles' home check paper, computer equipment, fraudulent Certified Banker's Checks in various states of preparation, and copies of many of the previously-tendered fraudulent instruments. Knowles also helped the conspiracy recruit and involve new members. On at least two occasions, Knowles spoke at Cottam's meetings concerning Goosman's assignments.
Miller argues that the district court failed to make required factual findings on the adjustment under USSG § 3B1.1(a). In United States v. Govan, 152 F.3d 1088, 1095-96 (9th Cir.1998), we rejected the argument that a court must make express factual findings, beyond its adoption of the findings in the presentence report, to support an adjustment under § 3B1.1(a).
Knowles argues that his conspiracy conviction should be reversed on the ground that he did not knowingly participate in any interstate transportation of stolen property. He offers no citation in point, and we have found none.
8. Illegal search and seizure of Knowles' residence
Knowles argues that the search of his house performed pursuant to Ahola's consent was illegal, and all evidence stemming from that search should be deemed inadmissible. Knowles first asserts that Ahola, a co-resident, did not have authority to consent to the search. Alternatively, Knowles claims that Ahola is his landlord, and thus could not consent to the search. Finally, Knowles claims that the search is invalid because his arrest was illegal. We reject all of these claims.
First, Ahola's statements to police at the time of the search indicate that Ahola was a co-resident, not a landlord. In United States v. Matlock, 415 U.S. 164 (1974), the Supreme Court recognized that a co-resident has the authority to consent to a search of the residence. In United States v. Morning, 64 F.3d 531, 536 (9th Cir.1995), the Ninth Circuit extended the Matlock holding to cover a situation in which the police obtained the consent of the co-resident after the defendant refused the police's request to search the residence.
In light of these standards, it is clear that Ahola had the authority to consent to the search of the areas of the house where Ahola and Knowles were co-residents. This was a permissible consent under Matlock. Furthermore, even if Knowles was correct in his assertion that he "clearly indicated his objections" to the search by resisting arrest, the search is analogous to the permissible one in Morning.
Ahola's valid consent to the search obviates the question of whether or not the search was a proper search incident to Knowles' arrest. We recognized this in United States v. Huffhines, 967 F.2d 314, 318 (9th Cir.1992):
Huffhines contends [a search of his hotel] violated the Fourth Amendment because it was not justified by exigent circumstances, hot pursuit or a search incident to his arrest. This argument overlooks the fact that this was a consensual search.
Id. The legality of Knowles' arrest does not bear on the constitutionality of the search, as the search resulted from the consent of Ahola, not incident to Knowles' arrest.
9. Consecutive sentence
In imposing Knowles' sentence on the federal crimes, the district judge ordered that Knowles' sentence should run concurrent with Knowles' prior state court theft convictions, but consecutive to Knowles' state court conviction of intimidating a judge. Knowles appeals on the ground that the district judge's use of a consecutive sentence violates USSG § 5G1.3(b) and (c).
Section 5G1.3(b) requires a judge to impose a concurrent sentence if "the undischarged term of imprisonment resulted from offense(s) that have been fully taken into account in the determination of the offense level" for the current criminal conviction. However, as § 5G1.3(c) notes, any other situation must be evaluated in the discretion of the district judge. In the case at bar, the district judge properly made the federal sentence concurrent with Knowles' state theft sentence, as required under § 5G1.3(b). Knowles' intimidation conviction was not "fully taken into account" by his federal offense level, and thus the district judge had discretion to make the federal sentence consecutive to that sentence.
10. Knowles' offense level was unforeseeably high to him
Knowles appeals his sentence on the ground that he should not have received a sentence based on the "interstate transportation" activity, because "there was no evidence" that that activity was reasonably foreseeable to Knowles. He also argues that he could not foresee the high dollar amounts of the attempted frauds perpetrated by his coconspirators. From the record, however, it is clear that the police seized from Knowles' home copies of many of the Certified Banker's Checks, one made out for $60 million, used in those "interstate" transactions. These copies, coupled with the check printing materials also recovered from Knowles' residence, were sufficient to demonstrate that Knowles could foresee those transactions and the dollar amounts involved. The district court did not abuse its discretion in basing Knowles' offense level on those offenses.
Miller and Knowles allege a variety of reasons why this court does not have jurisdiction over them. Knowles argues that the court is interested in the fictitious corporate entity "Veryl Edward Knowles," and that he is properly known as "Sovereign Veryl Edward ." Knowles Blue 1 n. 1. Miller also alleges that his identity of "Charles C. Miller" is not the same as the "CHARLES C. MILLER" listed on court documents. Moreover, Miller alleges that the "UNITED STATES DISTRICT COURT is an Article 4 territorial court of no Congressional authority by statute or regulation," and he "will not consent to its authority until proof by statute of the United States with implementing regulation of proper character is entered in the court record under proper seal to prove said authority." "Sovereign Veryl Edward" included an approximately 40-page brief in support of his broad heading, "Fraud Upon Myself and The Court."
We reject these claims as frivolous.
12. Error on upward departure under USSG § 2F1.1
Miller and Knowles argue that the district court erred in using an upward departure in calculating their sentences under U.S.S.G. § 2F1.1. We agree.
A district judge's decision to depart upward from the Sentencing Guidelines is reviewed for an abuse of discretion. Koon v. United States, 518 U.S. 81, 99 (1996). The commentary to § 2F1.1 specifically contemplates the various grounds for which a departure under the section might be appropriate. Generally, a judge can depart under § 2F1.1 "[i]n cases in which the loss determined under subsection (b)(1) does not fully capture the harmfulness and seriousness of the conduct...." USSG § 2F1.1, Note 10. Application Note 10 delineates six different situations in which such a case might arise--none of which resemble at all the crimes committed by Miller and Knowles. The conduct was seriously criminal and harmful, as was the guidelines sentence. It was not of such gravity as the kinds of conduct for which departure is authorized by Application Note 10, nor was it outside the "heartland" of cases to which the Guideline applies. An upward departure for Miller and Knowles was outside the scope of the district court's discretion. We therefore vacate Miller's and Knowles' sentences and remand for resentencing without the upward departures.
13. Error on obstruction of justice finding under USSG § 3C1.1
Miller received an obstruction of justice adjustment as a result of indications that he perjured himself at trial. Specifically, this relates to the consistency between Miller's trial testimony and the transcript of a telephone call Miller placed to Schweitzer on October 19, 1995. The district judge accepted without any comment the recommendation of the presentence report, and imposed a two-level upward adjustment for Miller's obstruction of justice under USSG § 3C1.1.
After reviewing the presentence report and the district court record, we hold that the district court erred in applying an obstruction of justice upward adjustment to Miller's sentence. The presentence report says that "it appears" that Miller "provided false information under oath and therefore obstructed justice." Adoption of this statement in the presentence report is not a finding adequate to support the imposition of the upward adjustment under U.S.S.G. § 3C1.1. We therefore vacate Miller's sentence so that the district judge can either resentence without the obstruction adjustment, or make additional findings to support it.
14. Other arguments raised by Knowles.
To the extent that additional arguments are raised in the appendix to Knowles' brief, we have considered them and reject them.
CONCLUSION
The sentences of Miller and Knowles are vacated. We remand their cases to the district court for resentencing consistent with this disposition. Except for those sentencing matters, we AFFIRM the judgments as to all appellants.