Petition for Writ of Certiorari — Ledford v. United States
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97147 4 FER 18
Supreme Court, U.S
2 Y
1
No.
In The
SUPREME COURT OF THE UNITED'S FATES"
October Term, 1997
EKKKEKEKEKEKEEKKKKKKKKKKKKKKKEK
ALLAN LEDFORD,
Petitioner,
V.
UNITED STATES OF AMERICA,
Respondent.
2 KEKEKEKEKEKEKEEEKEKEKEKEKKKKE
On Petition For Writ Of Certiorari
To The United States Court Of Appeals For The Sixth Circuit
KEKKKKEKEEEEEEEKEKEEKEEEKEEKEEKEEKEEKEEKEEEKKEEKEKEKKKKKKEEK
PETITION FOR WRIT OF CERTIORARI
KEKE KEEEEEEEEEEKEEEKEEKEEKEEEKEEKEEEEKEEEKEKEKEEEEKEKKKEER
Gerald H. Summers
(counsel of record)
SUMMERS & WYATT, P.C.
500 Lindsay Street
Chattanooga, TN 37402-1490
(423) 265-2385
Attorneys for the Petitioner
SN a ee
QUESTIONS PRESENTED FOR REVIEW
|. WHETHER THE DISTRICT COURT’S REFUSAL TO
CONDUCT AN EVIDENTIARY HEARING CONCERNING EVIDENCE
THAT A JUROR WITHHELD PERTINENT INFORMATION FROM
THE COURT DURING VOIR DIRE EFFECTIVELY DENIED THE
PETITIONER HIS SIXTH AMENDMENT RIGHT TO AN IMPARTIAL
JURY?
ll. WHETHER THE GOVERNMENT VIOLATED BATSON V.
KENTUCKY AND PURKETT V. ELEM BY USING TWO OF ITS
SEVEN PEREMPTORY CHALLENGES TO EXCLUDE THE ONLY
TWO BLACK PROSPECTIVE JURORS FOR NO REASON OTHER
THAN NON-VERIFIABLE “BODY LANGUAGE”?
Ill. WHETHER THE DISTRICT COURT REVERSIBLY ERRED
BY ALLOWING THE GOVERNMENT’S CROSS-EXAMINATION OF
THE PETITIONER TO IMPROPERLY DELVE INTO THE DETAILS
BEHIND THE PETITIONER’S PRIOR CONVICTIONS, ESPECIALLY
WHEN COMBINED WITH THE DISTRICT COURT’S FAILURE TO
GIVE AN IMMEDIATE, CAUTIONARY JURY INSTRUCTION?
IV. WHETHER THE APPLICATION OF 18 U.S.C. §
1956(a)(1)(B)(i) TO PUNISH CRIMINAL BEHAVIOR NOT
INVOLVING DRUGS OR ORGANIZED CRIME CONTRAVENES THE
CONGRESSIONAL INTENT BEHIND THE MONEY LAUNDERING
STATUTE?
V. WHETHER 18 U.S.C. § 1956(a)(1)(B)(i) IS
UNCONSTITUTIONALLY VAGUE BECAUSE IT NEGLECTS TO
DEFINE WHAT IS MEANT BY THE WORD “PROCEEDS”.
Vi. WHETHER THE MONEY LAUNDERING SENTENCING
GUIDELINE (U.S.S.G § 2S1.1) IS APPLICABLE TO OFFENSES
THAT ARE NEITHER DRUG RELATED NOR ORGANIZED CRIME-
RELATED, AND IF SO WHETHER THE SEVERITY OF THE
GUIDELINE IN SUCH SITUATIONS NECESSITATES THE
APPLICATION OF A DOWNWARD DEPARTURE?
ii
TABLE OF CONTENTS
Questions Presented for REVICW..........ssssscsssssssseessssreeeeetreeeceeeeeeees
NE CRETE A DAL OEE OOTY TOE iii
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EAE SR EES ROE A ai ree aie oe Te eT OR vi
I UII. 114, 51010 ca scncenpensetocebscnuebubvusesecenin vi
00 nhcllaciosnpetoncnbeitbonseuounabed vi
I ichcsdde ta iacccovccscidoccececcscesiccsconsecieonesseneanbesesevoveesscatons 1
nn ICIIRITL. 2. os sodaksebnondonsdscumnsnnbendenncesvocebibooeens 1
Constitutional and Statutory Provisions INVOIVE..........+seeeeere 1
aL ccceiesenepderdcsenninescenmmsenhohebtontes 2
Reasons for Granting the W1rit.........cccccccocccccerscccscccsercscscsoveccsssseees 4
TABLE OF CITED AUTHORITIES
Cases:
Batson v. Kentucky, 476 U.S. 79, 106 S.Ct.
1712, SOLEE2Zd C9 C1986) ...ccccrcccscesesscccceccssees 14,15,19
Cunningham v. Sears, Roebuck & Co.,
Be Fe roe ee ails FI Pacllscrnssipecdubssccascsnsvccsccccecesces 8
Edmonson v. Leesville Concrete Company, Inc., 500 U.S.
614,111 S.Ct. 2077, 114.L.Ed.2d 660 (199 1)............. 14
Faison v. Hudson, 417 S.E.2d 305 (Va. 1992).......cscessrseeseeeees 15
Green v. State, 247 S.W. 84 (Tenn. 1923).......ssccscscrseesseeeereees 7
Gordon v. U.S., 383 F.2d 936 (D.C. Cir. 1967)........scscsreseeees 21
In re of A.D.E., 880 S.W.2d 241 (Tex. Ct. App. 1994)... 15
Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639 (1961)... seeesees 7
Kolender v. Lawson, 461 U.S. 352, 357, 103
S.Ct. 1855, 1858, 75 L.Ed.3d 903 (1983).......cccccccsseee 27
Long v. State, 607 S.W.2d 482
A RII ARID. 0 IIE Das cas.cstirsscncevsosoncsssensbbecsssqsnideceoesied 21
McCoy v. Goldston, 652 F.2d 654
i al satasiesaemeilal 8,10,13
McDonough Power Equipment, Inc. v. Greenwood,
464 U.S. 548, 104 S.Ct. 845 (1984)... cceseetsesssseeees 7
Morgan v. Illinois, 504 U.S. 719,
I iiiaitkiisiiicstnctinkictdansnaceeiedascacsbecoesnnetes 7
People v. Jamison, case # B082926 (Cal. Ct. App.,
2nd Dist., decided March 12, 1996)...........cccseseseserersesees 19
Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364,
bei kT h) . : 5 SRO Enno 14,17,18
Purkett v. Elem, _ U.S. __, 115 S.Ct. 1769,
epee Fe) 14, 15,17, 18,19
Rhoden v. Morgan, ®63 F.Supp. 612
I a le cataenamenrnmonage 7
Ricketts v. Carter, 918 S.W.2d 419 (Tenn. 1996)............0000 5.7
iv
a ee
Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940 (1982)... cee >
State v. Ellison, 841 S.W.2d 824 (Tenn. 1992).......ceesesseeeeeees 15
U.S. v. Amahia, 825 F.2d 177 (8th Cir. 1987)............ 21,22, 24
U.S. v. Caba, 911 F.Supp. 630 (E.D.N.Y. 1996).......... 27,29, 30
US. vy Cor. 536 F.20 65 (Sth Cir, 1976) ..cccccccccscesecoscccceseee giee
U.S. v. Daccarett, 6 F.3d 37, 43 (3rd Cir. 1993)..........ccceceeeees 25
U.S. v. Dimeck, 24 F.3d 1239 (10th Cir. 1994)... ee eeeeeeeee 26
U.S. v. Edgmon, 952 F.2d 1206 (10th Cir. 1991)... eeeeeees 28
U.S. v. Hamilton, 931 F.2d 1046 (Sth Cir. 1991)... eeeeeeee 26
U.S. v. Haun, 90 F.3d 1096 (6th Cir. 1996)................ 27,28, 29
U.S. v. Heaps, 39 F.3d 479 (4th Cir. 1994)... eesseeeeeeneees 28
U.S. v. Hinton, No. 95-3678 (7th Cir. 9/3/96)......cssccsssreeesees 19
U.S. v. Hurst, 951 F.2d 1490 (6th Cir. 1991)............. 22, 23,24
U.S. v. Jackson, 935 F.2d 832 (7th Cir. 1991)... eesssseees 28
U.S. v. LeBlanc, 24 F.3d 340 (1st Cir. 1994)... eens 29,30
U.S. v. Moore, 917 F.2d 215 (6th Cir. 1990)...........sesecesseseesees 24
U.S. v. Morrow, 977 F.2d 222 (6th Cir. 1992)
ED io sicciindinsonscentanadotaiiics ihe Aaiceciibladitanpescabiidainnb 25
U.S. v. Old Chief, U.S.__,117S.Ct. 644,
DI BF OG ne Nabdintlatadersntviichscesiisinceeseescssoseroeins 20
U.S. v. Patrick, 965 F.2d 1390 (6th Cir. 1992)............essesssseeeeee 8
U.S. v. Roenigk, 810 F.2d 809 (8th Cir. 1987)............ccee 21,22
US. v. Seema, SF.30 53 1 (Gt Cr. 1993) ..ccccrcccsecccosccccsteceoce 26
U.S. v. Sangineto-Miranda, 859 F.2d 1501
Ry: Fatih tiie ebadeabathctdstcbiidiinsicecncsninnscsees 15,16
US. wv. Sete BSA P20 GOT (SN GH. VSB) vcrcccoraccccesccccssensconsenss 8
U.S. v. Skinner, 946 F.2d 176 (2nd Cir. 1991 ).......s0csseeeeee 26, 29
U.S. v. Turner, 995 F.2d 1357 (6th Cir. 1993)........... 20, 22, 23
U.S. v. Werber, 787 F.Supp. 353 (S.D.N.Y. 1992)......ceceeeseees 28
U.S. v. Wolf, 561 F.2d 1376 (10th Cir. 1977).......ccceeeeeee 22, 24
Woodson v. Porter Brown Limestone Company, Inc.,
9G SW ZO GIO (1 GTM. 1 SOG pecctcccccssscctscnsisccsictsvesscosesees 15
Zerka v. Green, 49 F.3d 1181 (6th Cir. 1995)... 5, 8, 14
Statutes:
1S SESS FSG BD iiciecccivinvesivsccrnssstlichesnsestlelecsstnivcusiiilisaliaiiaieaspdiiie 2
AE BERN od & . ” “TpLO a ENC RRO Lome MO ae? 26,27,28
15 CAS.C. & ISAT MBE) wocecvecvesccesctaseecsssscesivsosbonnlill c,eaer
1S USGBC TS Peitisdissecccccovesercecsuciisanedcbcinicsbeonauseibalbaeddananl 26
BE AC ee Po crticicinienisinencvetonssviininiveditentchentetsbetnieaieaniecteaiial 26
1S CABG eae Pinctisscocesinkinticctisiconsscucsianestealpdbbanaaddiiecaliabanedsediaiial 2
ES EAD GR eich ncn sccisinscnscerponnhsthinitialapsnte lected databasessaeiii 30
CHS CLS Fae i iccsiienedacheaticniiniicicidicstaltilnhsictaatconanddiihiiannicihieabah 1
Money Laundering Control Act of 1986
(codified at 18 U.S.C. §§ 1956-1957)... .esessseseeseeeee 25
Constitutional Provisions:
Fifth Amendment to the U.S. Constitution.................ccccc0ce000 1,28
Sixth Amendment to the U.S. Constitution.............. 1,4, 7, 9, 14
Fourteenth Amendment to the U.S. Constitution.......... 1, 14, 28
Other Authorities:
132 Cong. Rec. 18,486-18,487 (1986)..........cccccccccssssssssecceeeeees 25
American Criminal Law Review, “The Money
Laundering Control Act of 1986:
Creating A New Federal offense Or
Merely Affording Federal Prosecutors
An Alternative Means Of Punishing
Specified Unlawful Activity?”, by Jimmy
SAR 5 WER FEE A ae cccecenscesecnechienesscetsscvcnventesinesin 26
Federal Rules of Evidence
FR iii nnierihncacnstiinibbccincsittinnibieinalidiahhelctiaedadia lala tania 9
FRI caiiicinnantinsiteiniitichinskiclidlceledaiepbieee dette WEale mal iaas 22
PRIIIIGEIID «.rosirvaniesenecevtcenstesenessvsensepbicashataiadiaisiiaiialaauetinal 21
President’s Commission on Organized Crime,
“The Cash Connection: Organized Crime,
Financial Institutions, and Money
IE PIPES FEI Piiccsiteacssetedecesassstscecasccscescssovccseseenns 25
Tennessee Law of Evidence, Cohen, Sheppeard,
and Paine, 3d Ed., § 609.11, pp. 381-382.................... 21
Tennessee Rules of Evidence - Rule 609(a)(3)..........ccscesceceeeeees 22
United States Sentencing Guidelines
SOU Wi Wali besddsaedhcideaddth caditisddbstiubinsaletbessainecibsenstaitusbesssuatncia 29
2H SATIRE AURA RD ei 2a TN I Ne 28,29
SSSI TUOPIh ciples tice achghbeesscaignlbeciulais Seaptebgan eae Aca 28,30
Vii
OPINIONS BELOW
United States District Court Judge R. Allan Edgar
entered a judgment in the U.S. District Court for the Eastern
District of Tennessee (R. 42) against the petitioner on May
14, 1996, but did not render a formal opinion. The decision
of the United States Court of Appeals for the Sixth Circuit in
U.S. v. Allan Ledford (consolidated case Nos. 96-5659 and
96-6589) is unpublished, but is attached in the appendix.
STATEMENT OF JURISDICTION
The judgment of the U.S. Court of Appeals for the
Sixth Circuit was entered on October 22, 1997. The
petitioner then timely filed a petition to rehear, which was
denied by the Sixth Circuit on November 20, 1997. The
jurisdiction of this honorable court is invoked pursuant to 28
U.S.C. § 1254.
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Fifth Amendment to the U.S. Constitution in
relevant part states “No person shall be ... deprived of life,
liberty, or property, without due process of law; ...”
The Sixth Amendment to the U.S. Constitution in
relevant part provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by
an impartial jury...”.
Section 1 of the Fourteenth Amendment to the U.S.
Constitution in relevant part says that:
... No state shall make or enforce any law which
1
shall abridge the privileges of immunities of citizens of
the United States; nor shall any state deprive any
person of life, liberty, or property, without due process
of law; nor deny to any person within its jurisdiction
the equal protection of the laws.
Finally, 18 U.S.C. § 1956(a)(1)(B)(i) provides:
(a)(1) Whoever, knowing that the property
involved in a financial transaction represents the
proceeds of some form of unlawful activity, conducts
or attempts to conduct such a financial transaction
which in fact involves the proceeds of specified
unlawful activity - (B) knowing that the transaction is
designed in whole or in part - (i) to conceal or disguise
the nature, the location, the source, the ownership, or
the control of the proceeds of specified unlawful
activity;
STATEMENT OF THE CASE
On September 26, 1995, the petitioner, Allan Ledford,
(referred to in this petition as the “petitioner” ) was originally
indicted on eight counts of wire fraud, in violation of 18 U.S.C.
§ 1343, and six counts of money laundering, in violation of 18
U.S.C. § 1956(a)(1)(B)(i). (R. 1.) None of the counts levied
against the petitioner contained any allegations that the
petitioner was involved with narcotics or in any type of
organized crime. (R. 1.) The petitioner pled not guilty to the
charges in the indictment. (R. 6.) A thirteen count
superseding indictment was subsequently filed, which
essentially just eliminated one of the previously charged
money laundering counts. (R. 19.) Consequently, the district
2
court had subject matter jurisdiction in this case by virtue of
18 U.S.C. § 3231, which provides that“[t]he district courts of
the United States shall have original jurisdiction, exclusive of
the courts of the States, of all offenses against the laws of
the United States.”
Following a trial that occurred over the course of four
days, a jury found the petitioner guilty of eleven of the
thirteen counts charged in the superseding indictment. (R.
42.) The two counts of the superseding indictment for which
the petitioner was found not guilty were counts five and eight,
both involving charges of wire fraud. (R. 42.) Finding the
petitioner to have a total offense category of 28 and a
criminal history category of IV without any particular
aggravating or mitigating factors, the honorable Judge R.
Allan Edgar of the U.S. District Court for the Eastern District
of Tennessee then sentenced the petitioner to concurrent
terms of imprisonment for 124 months on the money
laundering counts and 60 months on the wire fraud counts.
(R. 42.) The petitioner was also ordered to pay restitution
to his former employer (Long-Pontiac Mercedes Benz), whom
he was found to have defrauded, in the amount of
$713,998.00. (R. 42.) After filing a motion for a new trial
(R. 28) and supporting brief (R. 45), which the district court
denied (R. 47), the petitioner then timely filed his notice of
appeal (R. 37). The U.S. Court of Appeals for the Sixth
Circuit (consolidated case Nos. 96-5659 and 96-6589)
ultimately affirmed the petitioner’s conviction in all respects.
For the sake of brevity, the specific facts relative to
each issue are set forth within the respective issue itself with
citations to the transcript record. Nevertheless, the
following provides a general background of the proof
presented at trial.
The essence of the wire fraud scheme was that the
3
petitioner misused his position as general manager and sales
manager of Long-Pontiac Mercedes Benz in Chattanooga,
Tennessee, to sell high value used car trade-ins (such as
Mercedes and BMW) and converted the proceeds from such
sales to his own personal use. In some instances the
petitioner would supposedly sell a trade-in to a wholesaler
and have the wholesaler make a check payable to the trade-
in owner. The petitioner would then supposedly forge the
trade-in owner’s name and then convert the check to his own
use. To conceal his wrongdoings, the petitioner would also
supposedly make false entries into the records of Long-
Pontiac. The money laundering counts came into play -
because the petitioner supposedly placed the funds from
these activities into various accounts at financial institutions.
Testifying at trial in support of his defense, the petitioner
maintained that the owner of Long-Pontiac Mercedes Benz,
Mr. Nelson Long, knew what was going on and condoned it
because of the cash-flow problems surrounding the car
dealership.
For purposes of this petition, the respondent (United
States of America) is referred to simply as the
“government”, while any references to the record are made
by the symbol “R”. Any references to the transcript of the
proceedings are made by the symbol “TR”, and, where
appropriate, the abbreviation U.S.S.G. will be used to refer to
the United States Sentencing Guidelines.
REASONS FOR GRANTING THE WRIT
|. THE PETITIONER WAD DENIED HIS SIXTH
AMENDMENT RIGHT TO AN IMPARTIAL JURY BY THE DISTRICT
COURT’S REFUSAL TO CONDUCT AN EVIDENTIARY HEARING
4
CONCERNING EVIDENCE THAT A JUROR WITHHELD PERTINENT
INFORMATION FROM THE COURT DURING VOIR DIRE.
The decision rendered by the Sixth Circuit in this case
contradicts the teaching and guidance of the U.S. Supreme
Court, contradicts prior Sixth Circuit precedent, and
contradicts Tennessee jurisprudential precedent. See, e.g.,
Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940 (1982); Zerka v.
Green, 49 F.3d 1181 (6th Cir. 1995); and Ricketts v. Carter,
918 S.W.2d 419 (Tenn. 1996). According to the dictates of
Smith v. Phillips, 455 U.S. at 215, 102 S.Ct. at 945 (1982),
the U.S. Supreme Court “has long held that the remedy for
allegations of juror partiality is a hearing in which the
defendant has the opportunity to prove actual bias.” Yet, as
shown below, the District Court, now affirmed by a panel of
the Sixth Circuit, denied the petitioner his only opportunity to
prove actual bias.
After being called to the jury box (R. 43, voir dire TR.
p. 21, line 4), Mr. Dean Pesnell (juror #236) gave some brief
background information about himself (R. 43, voir dire TR. p.
22, lines 9-15). Shortly thereafter, Mr. Humble asked the
prospective jurors, “Have any of you all ever had any dealings
with Long Pontiac?” (R. 43, voir dire TR. p. 24, lines 6-7) - a
question to which Mr. Pesnell did not respond. After other
jurors responses to that question, Mr. Humble posed the next
question,
Q: [Mr. Humble] Have any of you ever sold cars?
How about your husbands or wives, any or your spouses
ever sold cars? Yes sir.
A: [Mr. Pesnell] My son sold.
Q: What kind of cars did he sell?
A: He sold just about every kind.
Q: Okay. How long ago was that?
A: Up until last year. He quit last year selling cars.
5
Q: Okay.
A: He sold at Capitol Toyota and Economy Honda and
City Dodge.
Q: How long did he sell cars?
A: About 13 years.
Q: What's he doing now?
A: He’s in the service station business.
(R. 43, voir dire TR. p. 25, line 16 - p. 26, line 6)
(emphasis added).
Following a short discussion with two other prospective
jurors on the same question, Mr. Humble concluded that line
of questioning with a general question: “Okay. Anybody
else? Is there anything about those people’s experiences in
selling cars that would make any difference to you all in this
case?” (R. 43, voir dire TR. p. 26, lines 22-24). No
prospective juror responded to this question, including Mr.
Pesnell. Later, the petitioner’s counsel, Jerry H. Summers, _
followed-up with a general question: “Do any of you know
any reason why you feel that you could not or should not sit
on this case?” (R. 43, voir dire TR. p. 33, lines 3-4). No
response to Mr. Summers’ question was made by any
prospective juror, including Mr. Pesnelil.
As can be seen by the transcript of the voir dire (with
relevant excerpts noted above),Mr. Dean Pesnell (juror
#236) was readily forthcoming with information that his son
had been a car salesman at three Chattanooga area car
dealerships (Capital Toyota, Economy Honda, and City
Dodge). For unknown reasons, however, Mr. Pesnell withheld
extremely material and prejudicial information from the
district court that his son had also sold cars for Long
Pontiac. Evidence gathered after the trial and brought to the
district court’s attention through a Motion for New Trial and
accompanying documents included (1) the employment
6
records from Long Pontiac for Mr. Pesnell’s son (Craig
Pesnell), (2) an affidavit of the petitioner corroborating the
fact that Mr. Pesnell’s son worked as a car salesman at Long
Pontiac while the petitioner was General Sales Manager for
Long Pontiac, and attesting further to the fact that the
relationship between the petitioner and Mr. Pesnell’s son was
not good because of pressure applied on the younger Pesnell
as a result of his consistent lack of sales, and (3) other
corroborating evidence. These facts, if proven true, would
arguably present a valid basis for a challenge for cause, and
which, if true, would show a high probability for actual bias on
the part of the elder Mr. Pesnell (juror #236).
Under the Sixth Amendment to the U.S. Constitution, a
criminally accused is entitled to a fair trial before an impartial
trier of fact. Rhoden v. Morgan, 863 F.Supp. 612, 615 (M.D.
Tenn. 1994) (citing Irvin v. Dowd, 366 U.S. 717, 721-722, 81
S.Ct. 1639, 1642 (1961); see, also, Morgan v. Illinois, 504 U.S.
719, 727, 1t2 S.Ct. 2222, 2229 (1992) (due process
demands that jury stand impartial and indifferent to extent
commanded by Sixth Amendment)). This right to an
impartial jury is so fundamental to the American concept of
ordered liberty that a defendant has the right to challenge a
juror for cause on the grounds of a lack of impartiality even
after the jury has rendered its verdict. See, e.g., Ricketts v.
Carter, 918 S.W.2d 419, 423-424 (Tenn. 1996), and Green v.
State, 247 S.W. 84 (Tenn. 1923). “[B]y exposing possible
biases, both known and unknown, on the part of potential
jurors”, McDonough Power Equipment, Inc. v. Greenwood, 464
U.S. 548, 554, 104 S.Ct. 845, 849 (1984), the voir dire
process is a key method of ensuring the criminally accused’s
right to a fair trial, Rhoden v. Morgan, 863 F.Supp. at 615
(M.D. Tenn. 1994). Obviously, however, the protections
afforded the criminally accused by the voir dire process are
7
- compromised if a juror is not forthcoming and truthful with
facts about the individual juror.
This area of the law was addressed by the U.S.
Supreme Court in McDonough Power Equipment, Inc. v.
Greenwood, 464 U.S. 548, 555-556, 104 S.Ct. 845, 850
(1984), wherein it was held that a new trial is warranted only
where a truthful answer would have provided a valid basis for
a Challenge for cause. Without mentioning McDonough
specifically, U.S. v. Patrick, 965 F.2d 1390, 1399 (6th Cir.
1992) expounded upon this subject further saying:
A prospective juror’s failure to disclose material
information is grounds for a new trial if it
demonstrates bias. McCoy v. Goldston, 652 F.2d 654,
658-659 (6th Cir. 1981). If a juror is found to have
deliberately concealed material information, bias may
be inferred. If, however, information is not concealed
deliberately, the movant must show actual bias.
Cunningham v. Sears, Roebuck & Co., 854 F.2d 914,
916 (6th Cir. 1988).”
While a juror’s motive for concealing information is relevant,
even more probative is the nature of the undisclosed
information. Zerka v. Green, 49 F.3d 1181, 1185 (6th Cir.
1995). This is so because “a well-intentioned juror omitting a
material fact can do more damage than one who deliberately
conceals an inconsequential fact”. Id. (citing U.S. v. Scott,
854 F.2d 697 (Sth Cir. 1988), where the court distinguished
the difference between a juror’s sincerity and a finding that
the juror is not biased). :
Considering the important constitutional ramifications,
an evidentiary hearing was warranted on this issue, in
accordance with the procedure approved in Zerka v. Green,
49 F.3d at 1186-1187 (6th Cir. 1995), to explore Mr.
Pesnell’s concealment of important information from the
8
court. It was reversible error for the district court to fail to
hold such an evidentiary hearing. The main purpose for such
an evidentiary hearing would have been to determine: (1)
whether Mr. Pesnell’s withholding of information that his son
worked at Long Pontiac under the petitioner was
intentional/deliberate (in which case bias may be inferred),
and if not intentional/deliberate, (2) whether the petitioner
could show actual bias, (3) whether the revelation of such
information during voir dire would have provided sufficient
grounds for a challenge for cause, and (4) whether this
prejudicial information was communicated to other jurors.
Although it is impossible for the petitioner to know whether
any information about the petitioner which Mr. Pesnell had
learned from his son was passed along to other jurors, Rule
606(b) of the Federal Rules of Evidence expressly provides
for such an inquiry saying “... except that a juror may testify
on the question whether extraneous prejudicial information
was improperly brought to the jury’s attention or whether
any outside influence was improperly brought to bear upon
any juror”. Consequently, an evidentiary hearing should have
been conducted to determine whether this extraneous,
prejudicial, outside information was improperly brought to
bear upon any juror - including juror #236 (Mr. Pesnell).
Under these circumstances, to allow the petitioner’s
conviction to stand, without even the benefit of an evidentiary
hearing, would be to disregard the Sixth Amendment to the
U.S. Constitution and its guarantee to the criminally accused
the right to an impartial jury.
In essence, the Sixth Circuit’s decision, if left intact,
would effectively absolve the petitioner’s constitutional right
to be tried before an impartial jury. The key factor here is
whether the district court abused its discretion by denying
the petitioner’s motion for either a new trial or an evidentiary
9
hearing because of juror misconduct.
The Sixth Circuit's opinion is plagued with incomplete
information that has adversely influenced the ultimate decision
and dictates this request for rehearing. Specifically, the Sixth
Circuit relied upon tiie district court’s conclusion that Juror
#236 (Mr. Pesnell) would not have been excused for cause,
even if Juror #236 had divulged the fact that his son worked
directly under the defendant and for the victim of this offense
(R. 47). The opinions of both the district court and this
Sixth Circuit focused exclusively upon the fact that Mr.
Pesnell’s son merely worked at the same location as the
petitioner. While this is true, a more intimate relationship
existed between Mr. Pesnell’s son and the petitioner than had
actually been portrayed throughout these proceedings. First,
Mr. Pesnell’s son was supervised directly by the petitioner
during his employment and the decision to terminate his
employment was made by the petitioner. Obviously as well,
Mr. Pesnell’s son was also employed by the alleged “victim” of
this offense - Nelson Long and Long Pontiac - elevating
potential bias to a level that demands vigorous attention and
further inquiry by way of an evidentiary hearing.
The Sixth Circuit has long maintained that “an
evidentiary hearing on a juror’s alleged failure to disclose
information during voir dire must be granted when the
defendant has alleged facts, which establish a prima facie
case of impropriety and any doubt should be resolved in
favor of granting the motion for evidentiary hearing.” McCoy
v. Goldston, 652 F.2d 654, 657 (6th Cir. 1981); Standard
Alliance Industries, Inc. v. The Black Causon Company, 587
F.2d 813, 828 (6th Cir. 1978). Applying the principle
enunciated in McCoy v. Goldston, supra, to the case at hand,
establishes that an “abuse of discretion” has occurred. Yet
the Sixth Circuit ignored its own teachings and those of the
10
U.S. Supreme Court when it rendered its opinion in the case at
hand.
The following excerpts from the voir dire process
further reveals the district court’s abuse of discretion:
MS. KAIN: | Know the Longs.
THE COURT: Their daughters?
MS. KAIN: Yes. | know the wife personally.
(R.43, voir dire TR. p. 5-6).
KEKE KEKKE
MS. LASATER: | work at AmSouth bank.
(R.43, voir dire TR. p. 7-8).
EKEKEKEEKEK
MR. LEVI: | believe some seven or eight years
ago our daughters (IRS Special Agent, Mr. Lynn
Barker and Mr. Levi’s daughters) were on the
softball team. We knew each other just from
softball that one season.
(R.43, voir dire TR. p.9).
Not coincidentally, these potential jurors were excused on the
basis of the information provided above even though they
gave their assurances to the trial court that there was
nothing that would affect their ability to be impartial. Despite
these prior determinations, the district court asserted (and
the Sixth Court upheld) that “[e]ven had the juror been asked
whether his son had worked for Long Pontiac and responded
affirmatively, this Court would not have excused this juror for
cause.” (R. 47, p. 11).
The petitioner respectfully submits that the prior
decisions of the district court in regard to individuals affiliated
with the “victim”, the victim’s wife, and the prosecution, as
noted above, dispels any inclination that the district court
would not have excused Juror #236 (Mr. Pesnell) for cause
upon a complete list of his son’s supervisor (who terminated
11
his son's employment) and was also directly employed by the
alleged victim, Nelson Long). It is seemingly contradictory
for the district court to maintain that, had this hidden
information been revealed, Juror #236 would not have been
excused for cause (and/or the defense or prosecution would
not have exercised a peremptory strike). The Affidavit of
defense counsel that accompanied the petitioner’s Motion for
New Trial substantiates as much. (R. 45, Exhibit E). Hence,
the district court abused its discretion when determining that
Juror #236 would not have been excused for cause (or
peremptorily).
The leading case involving juror misconduct is
McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548,
556 (1984), wherein the Supreme Court announced a two
prong test to “obtain a new trial in such situations, as party
must first demonstrate that a juror failed to answer honestly
a material question on voir dire, and then further show that a
correct response would have provided a valid basis for a
challenge for cause.” Id. Here, a situation that exceeds this
prerequisite is presently before the Court - the district court’s
determination to the contrary notwithstanding.
As demonstrated above, the district court excused a
number of potential jurors less involved with acquaintances of
the parties than Juror #236 (Mr. Pesnell). The district court’s
judgment in this regard ostensibly was guided by the
underlying purpose of voir dire and jury selection, namely to
ensure the parties the benefit of an impartial trier of fact.
McDonough, 464 U.S. at 550. The inevitable conclusion that
the district court would have excused Juror #236 (Mr.
Pesnell), had he revealed highly pertinent information, is
reached when the voir dire proceeding as a whole is
considered.
The first prong of the McDonough test is also satisfied
12
upon a proper interpretation of the voir dire process. The
Sixth Circuit has long recognized that “it would be an
aberration in the administration of justice if a juror could
simply remain silent during voir dire and fail to disclose
potentially disqualifying information.” McCoy v. Goldston, 652
F.2d 654-658 (6th Cir. 1981). The relevant event at issue is
hereby reiterated for the sake of clarity:
MR. HUMBLE: How about your husbands
or wives, any of your spouses ever sold cars? Yes sir.
KEENE
MR. PESNELL: My son sold.
EEE
MR. PESNELL: He sold at Capital Toyota
and Economy Honda and City Dodge.
(R. 43, voir dire TR. pp. 25-26).
The Sixth Circuit's decision, faulting the petitioner for
assuming Juror #236 (Mr. Pesnell) list of his son’s former
employers was complete, creates a grave injustice on the
petitioner. A reasonable deduction that was concluded
(apparently by no-less than all present in the courtroom) was
that Juror #236 (Mr. Pesnell’s) list of his son’s former
employers/supervisors was complete - that no further inquiry
was necessary. At the very least, Juror #236's (Mr. Pesnell)
deceptive information raises a substantial question as to
whether or not his incomplete list was founded upon an
improper or intentional omission. Mr. Pesnell simply “remained
silent” and “failed to disclose [ ] disqualifying information.”
McCoy, supra. This is the identical scenario that this Court in
McCoy sought to avoid, and therefore, the district court
abused its discretion by failing to conduct an evidentiary
hearing into Mr. Pesnell’s motive - a fact intensive inquiry.
Public confidence in our criminal jurisprudence will certainly
diminish upon knowledge that the courts will tolerate a
13
disgruntled, ex-employee’s father sitting as a tier of fact at
the criminal trial of his son’s former supervisor. At the very
least an evidentiary hearing is necessary to develop a proper
record in this matter and explore Mr. Pesnell’s motive(s),
thereby insuring compliance-with constitutional requirements.
As reflected above, the Sixth Circuit’s decision in the
case at hand contains factual inaccuracies, but more
importantly it strays from the path of prior, established
precedent guaranteeing a criminally accused the right to a
fair trial by an impartial jury. Furthermore, the district court
erred in failing to see the potential bias of a juror who, for
whatever reason, withheld important information from the
court during the voir dire process. At a minimum, the district
court should have held an evidentiary hearing upon the
discovery of the potential bias as requested by the petitioner.
Based on Zerka v. Green, 49 F.3d 1181, 1185 (6th Cir. 1995)
and other relevant cases, the petitioner’s Sixth Amendment
fundamental right to an impartial jury was violated in the
district court, such that the petitioner’s conviction should be
reversed and a new trial ordered.
ll. THE GOVERNMENT VIOLATED BATSON V. KENTUCKY
AND PURKETT V. ELEM BY USING TWO OF ITS SEVEN
PEREMPTORY CHALLENGES TO EXCLUDE THE ONLY TWO
BLACK PROSPECTIVE JURORS FOR NO REASON OTHER THAN
NON-VERIFIABLE “BODY LANGUAGE”.
Through a series of cases, the U.S. Supreme Court has
established a three-prong test to determine whether a
prosecutor’s use of peremptory challenges to exclude
individuals of a certain race from sitting on a jury violates the
Equal Protection Clause of the Fourteenth Amendment. See,
generally, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712,
90 L.Ed.2d 69 (1986); Powers v. Ohio, 499 U.S. 400, 111
S.Ct. 1364, 113 L.Ed.2d 411 (1991); Edmonson v. Leesville
14
Concrete Company, Inc., 500 U.S. 614, 111 S.Ct. 2077, 114
L.Ed.2d 660 (1991); Purkett v. Elem, __- U.S. __, 115 S.Ct.
1769, 131 L.Ed.2d 834 (1995). The first prong of the test
requires a defendant to establish a prima facie case of
purposeful discrimination. Batson v. Kentucky, 476 U.S. at
96, 106 S.Ct. at 1723 (1986); Purkett v. Elem, __ U.S. at _,
115 S.Ct. at 1770 (1995). Recently, the Tennessee Supreme
Court summarized the considerations used by the U.S.
Supreme Court throughout these series of cases to
determine whether the defendant has in fact established a
prima facie case. See, Woodson v. Porter Brown Limestone
Company, Inc., 916 S.W.2d 896 (Tenn. 1996). Specifically,
“[a]ll relevant circumstances should be considered, including
any pattern of strikes, questions and statements during voir
dire, and the recognized inference that peremptory challenges
create an atmosphere which allows discrimination”. Woodson
v. Porter Brown Limestone Company, Inc., 916 S.W.2d at 904
(citing Batson v. Kentucky, 476 U.S. at 96-98, 106 S.Ct. at
1722-24); U.S. v. Sangineto-Miranda, 859 F.2d 1501, 1519-
1520 (6th Cir. 1988). While some courts consider the
exclusion of the only minority members of the venire as
sufficient to establish a prima facie case, see, Woodson v.
Porter Brown Limestone Company, Inc., 916 S.W.2d at 901
(citing State v. Ellison, 841 S.W.2d 824, 827 (Tenn. 1992);
Faison v. Hudson, 417 S.E.2d 305, 308 (Va. 1992); and In re
of A.D.E., 880 S.W.2d 241, 243 (Tex. Ct. App. 1994)), the
Sixth Circuit Court of Appeals in U.S. v. Sangineto-Miranda,
859 F.2d 1501, 1521 rejected such a “per se” rule because it
does not take into account all relevant considerations.
As to the petitioner’s burden under the first prong of
the test, three key factors support the petitioner’s prima —
facie case - evidencing purposeful discrimination by the
government. First, there were thirty-two prospective jurors
15
empaneled to undergo questioning during voir dire, of which
two were black (or in other words 6.25% of the venire was
black). Ostensibly because the government did not like the
“pody language” of the two black jurors on the venire, the
government used two of its seven peremptory challenges to
dismiss both of the black prospective jurors. This exclusion
of the only two blacks from the venire meant that the final
jury which actually sat to decide the petitioner’s case
contained absolutely no black members (or in other words
the actual jury which decided the defendant’s case was 0%
black). This difference between the percentage of minority
members in the venire versus the percentage of minority
members in the final jury actually sworn is at least a “factor
pointing toward an inference of discrimination”. See, U.S. v.
Sangineto-Miranda, 859 F.2d at 1521-1522. Second, while
the Sixth Circuit has held that the exclusion of the only
minority members of the venire is not sufficient by itself to
establish a prima facie case, U.S. v. Sangineto-Miranda, 859
F.2d at 1521, at a minimum this would obviously be a
relevant factor lending further support to an inference of
discrimination. Third, the government used 29% of its
peremptory challenges (or two out of seven) against blacks
even though only 6.25% of the venire was black. The
combination of these three factors weigh heavily towards the
petitioner’s burden of establishing his prima facie case
(although the ultimate determination as to whether the
petitioner has established a prima facie case is up to the trial
court, U.S. v. Sangineto-Miranda, 859 F.2d at 1520). At one
point, the district court acknowledged its belief that the
petitioner had made out a prima facie case (see R. 43, voir
dire TR. p. 41, line 25 - p. 42, line 7).
In the last two sentences of the first paragraph on
page three of the “United States’ Response in Opposition to
16
Defendant’s Motion For New Trial” (R. 31), the government,
by implication, referred to the fact that since the petitioner
was of a different race than the two excluded jurors, the
petitioner’s arguments on this issue have lesser value.
However, the U.S. Supreme Court in Powers v. Ohio, 499 U.S.
400, 416, 111 S.Ct. 1364, 1373, 113 LEd.2d411,_ (1991)
specifically allowed a white defendant to have third party
standing to challenge the exclusion of a black juror, stating
that “race is irrelevant to the defendant’s standing to object
to the discriminatory use of peremptory challenges”.
Consequently this implication by the government is
meaningless in determining whether the petitioner has made a
prima facie case and only serves to needlessly cloud the real
issues.
Assuming the petitioner is successful in making out a
prima facie case, the burden shifts to the government to
show a race-neutral explanation for the peremptory
challenges. Purkett v. Elem, _ U.S. at ___, 115 S.Ct. at 1770.
In this regard, the only explanation given by the government
was that the two black prospective jurors were struck
because of suggestions supposedly made by the two jurors’
“body language”. According to the district court, the
government met this burden (see R. 43, voir dire TR. p. 42,
lines 10-12). In Purkett v. Elem, __ U.S. at ___, 115 S.Ct. at
1771, the U.S. Supreme Court held that a prosecutor’s
proffered explanation that two black jurors were struck
because of their long hair and/or facial hair was race-neutral
and thus satisfied the second prong requiring the prosecution
to articulate a non-discriminatory reason for the strike. The
U.S. Supreme Court in Purkett v. Elem then went on to note
that the growing of long, unkempt hair and the wearing of
beards is not peculiar to any race. Id.
Once “a race neutral explanation is tendered, the trial
17
court must then decide (step 3) whether the opponent of the
strike has proved purposeful racial discrimination”. Purkett v.
Elem, __- U.S. at __, 115 S.Ct. at 1770-1771. The district
court’s ruling on this issue went as follows:
[The Court] ... But | find it difficult to confirm
your observation based upon what I’ve seen here in
the courtroom, but then again, | don’t claim to have
seen everything either. I’m obviously not looking for
the same things that you’re looking for in picking a
jury.
ll just have to say that | don’t think it has been
shown here that | can find by, that the defendant has
carried his burden of showing that there is
purposeful discrimination. | think one thing, too, here
is, of course, the defendant is white, as well. The
defendant is white.
(R. 43, voir dire TR. p. 44, line 19 - p. 45, line 3).
As recognized by the district court, no confirmation of
the government’s purported justification for excluding the
two black jurors could be made. Given this fact, the
petitioner respectfully contends that the government’s use of
non-verifiable criteria to dismiss the only two black members
of the jury pool is distinguishable from the physical
characteristics observed, verified, and approved as race-
neutral in Purkett v. Elem. Also, as shown above in Powers v.
Ohio, the fact that the petitioner was white and the two
excluded jurors were black was irrelevant. To the extent that
this factor actually played a role in the court’s decision, then
this too is erroneous and further justifies reversal.
Considering the government’s dismissal of the only two
black members of the venire for no reason other than
supposedly because of unverified “body language”, especially
in light of the important rights implicated under the Equal
18
Protection Clause of the U.S. Constitution, the balance
arguably falls in favor of the petitioner such that the
petitioner’s conviction should be set aside and a new trial
ordered. See, generally, People v. Jamison, case # BO082926
(Cal. Ct. App., 2nd Dist., decided March 12, 1996) (attached
as Exhibit F to the petitioner’s Brief in Support of Motion for
New Trial - R. 45) (reversing conviction since California’s
Constitution prohibits a prosecutor from excluding a juror
solely because the juror purportedly avoided eye contact - “In
the absence of body language that is more expressive and
commonly recognized as a sign of hostility, other factors
must be present to constitute a race-neutral explanation.” -
to rule otherwise would give prosecutors “carte blanche” to
discriminate.); see, also, U.S. v. Hinton, No. 95-3678 (7th Cir.
9/3/96) (wherein the court held that a prosecutor’s
observations that a prospective juror was wearing a
“Malcolm X” cap and sat with his arms crossed during a
portion of the voir dire constituted an adequate race-neutral
explanation for exercising a peremptory challenge against the
juror).
Thus, while Batson v. Kentucky, 476 U.S. 79, 106 Sf.
1712, 90 L.Ed.2d 69 (1986), and its progeny including the
recent case of Purkett v.Elem, U.S. __, 115 S.Ct. 1769,
131 L.Ed.2d 834 (1995), permit the government wide latitude
in dismissing prospective jurors, there must be some
verifiable limitation on the exercise of this great power. The
government’s use of non-verifiable criteria (i.e. “body
language”) to dismiss the only two black members of the jury
pool is readily distinguishable from the physical
characteristics observed, verified, and approved as race-
neutral in Purkett v. Elem. Where, as here, the only minority
members of the venire pool were dismissed for reasons that
the district court admittedly could not verify, then such
19
dismissals constitute reversible error.
lll. THE DISTRICT COURT REVERSIBLY ERRED BY
ALLOWING THE GOVERNMENT’S CROSS-EXAMINATION OF THE
PETITIONER TO IMPROPERLY DELVE INTO THE DETAILS BEHIND
THE PETITIONER’S PRIOR CONVICTIONS, ESPECIALLY WHEN
COMBINED WITH THE DISTRICT COURT’S FAILURE TO GIVE AN
IMMEDIATE, CAUTIONARY JURY INSTRUCTION.
Just last term, the U.S. Supreme Court in U.S. v. Old
Chief, —-sUS. 117 S.Ct. 644, 136 L.Ed.2d 574 (1997),
reversed a conviction based on Rule 403 of the federal Rules
of Evidence, holding that the district court abused its
discretion by rejecting the defendant’s offer to concede the
fact of a prior conviction, and instead admits the full record
of a prior judgment, when the name or nature of the prior
offense raises the risk of a verdict tainted by improper
considerations, and when the purpose of the evidence is solely
to prove the element of prior convictions. This case presents
the court with a similar opportunity to clarify the discretion
of a district court under Rule 609(a) of the Federal Rules of
Evidence.
Like the fourth assignment of error in U.S. v. Turner,
995 F.2d 1357, 1363 (6th Cir. 1993), the petitioner
respectfully contends that the district court erred, not
because impeachment evidence was introduced that the
petitioner had some prior felony convictions (for the
petitioner revealed that himself during voir dire, see R. 43,
voir dire TR. pp. 33-34, and on direct examination, see R. 56,
TR. pp. 327-329), but rather because the government was
permitted too broad of an inquiry on cross-examination into
the details of the petitioner’s prior convictions. In this
regard, the relevant portion of the trial transcript to which
the petitioner is referring (the government’s cross-
examination of the petitioner about his prior convictions, on
20
the third day of trial) starts on page 392 and goes through
page 417 (R. 49).
Rule 609(a) of the Federal Rules of Evidence in relevant
part provides:
“(1) ..., and evidence that an accused has been
convicted of such a crime shall be admitted if the court
determines that the probative value of admitting this
evidence outweighs its prejudicial effect to the
accused; and (2) evidence that any witness has been
convicted of a crime shall be admitted if it involved
dishonesty or false statement, regardless of the
punishment.”
Notably, Rule 609(a) only refers to evidence of convictions,
and does not contain any references to the admissibility of
details surrounding the convictions which are used to impeach
the accused. One ostensible reason the rule makes such a
distinction is the inherent danger that a jury would consider
such detailed convictions as evidence that the accused is
more likely to have committed the crime alleged instead of as
impeaching evidence on credibility. See, e.g., U.S. v. Amahia,
825 F.2d 177, 180 (8th Cir. 1987); U.S. v. Roenigk, 81 0 F.2d
809, 815 (8th Cir. 1987); and U.S. v. Cox, 536 F.2d 65, 71
(Sth Cir. 1976). Such danger is especially viable when the
prior convictions involve crimes similar to crime(s) for which
the accused is on trial. See, Gordon v. U.S., 383 F.2d 936
(D.C. Cir. 1967).
Thus, the general rule is that if a criminally accused is
impeached by use of a prior conviction under Rule 609 of the
Federal Rules of Evidence, the only matters as to the prior
conviction which should be elicited are (1) the date of
conviction, (2) the fact of conviction, and (3) the nature of
the crime. U.S. v. Amahia, 825 F.2d at 180 (8th Cir. 1987).
Usually, inquiry into the details of the prior crime for which the
21
accused was convicted is not permissible. See, e.g.,
Tennessee Law of Evidence, Cohen, Sheppeard, and Paine, 3d
Ed., § 609.11, pp. 381-382 (citing Long v. State, 607 S.W.2d
482, 485 (Tenn. Crim. App. 1980)) - both dealing with the
comparable Rule 609(a)(3) of the Tennessee Rules of
Evidence - and compare with U.S. v. Amahia, 825 F.2d at 180
(8th Cir. 1987) (if accused on direct examination explains
away or excuses guilt of prior conviction, on cross-
examination court can allow questions about details of prior
offense) and U.S. v. Wolf, 561 F.2d 1376 (10th Cir. 1977)
(since accused on direct examination gave favorable
impression of prior convictions, government entitled to cross-
examine on relevant facts).
In addressing this similar issue, the Sixth Circuit in U.S.
v. Turner, 995 F.2d 1357 (6th Cir. 1993), observed that
“[o]ther courts that have addressed this issue have
concluded that examination of the circumstances of prior
felony convictions should be limited”. U.S. v. Turner, 995 F.2d
at 1363 (citing U.S. v. Roenigk, 810 F.2d 809 (8th Cir 1987),
and U.S. v. Cox, 536 F.2d 65 (5th Cir. 1976)). Ruling against
the defendant though, the Turner court distinguished Roenigk
and Cox by noting that the only elicited details which were
challenged by the Turner defendant were the admission of the
venue of his prior convictions (which the court called
irrelevant but not highly prejudicial), and the fact that his
most recent conviction was for escaping from a work release
program (which the court said the jury would have found out
about anyway).
Another case involving a challenge to the prosecution’s
inquiry into the details of prior convictions is U.S. v. Hurst,
951 F.2d 1490 (6th Cir. 1991). While the court in Hurst
upheld the trial court’s actions allowing the questioning under
Rule 608(b) of the Federal Rules of Evidence, two key
22
distinguishing factors were noted in the Hurst case as
important to the holding which are not present in the
petitioner’s case. First, “the scope of cross-examination was
narrow and brief” - that is, “the government did not badger
the witness, nor did it exhaustively comb the subject”. U.S. v.
Hurst, 951 F.2d at 1501. Secondly, immediately after the
government’s questioning of the defendant about his prior
convictions, the district court issued an extended
precautionary instruction to the jury.
Both Turner and Hurst thus stand in stark contrast
with the amount and depth of details revealed about the
petitioner's prior convictions in the case at hand. Just one
example of the overly broad and improper questioning
engaged in by the government occurred over the
government’s exhibit 42 (see R. 49, TR. pp. 399-404). After
setting forth the specific, lengthy allegations in count one of
exhibit 42, the following exchange occurred between the
government and the petitioner/witness (R. 49, TR. p. 400,
starting on line 5):
Q: [by the prosecutor, Mr. Humble] ... That was what
you were charged with in Count 1?
A: [by the petitioner, Allan Ledford] That’s correct.
Q: You pled guilty to that?
A: Yes, sir.
Even though the petitioner had just admitted his guilt to the
offense charged, the government’s questioning pressed
onward (R. 49, TR. p. 400, starting on line 10):
Q: Were you guilty of that offense?
A: | was guilty of taking the card down there and
opening the account, yes, sir.
Q: Sir, were you guilty of forging someone’s name with
intent to defraud?
A: | didn’t forge his name on that bank card, sir.
23
Q: My question was, were you guilty?
A: Yes, Sir.
Despite the petitioner’s having admitted his guilt for the
second time, the government’s questioning still continued (R.
49, TR. p. 400, starting on line 18):
Q: You were, in fact, guilty of that?
A: | was charged with it, and an agreement was
reached, yes, sir.
Q: And did you have the intent to defraud when you
forged that signature?
A: No, sir.
Q: You deny that?
A: Yes, sir.
Whereupon the subsequent dialogue evolved around the
petitioner’s attempted explanation of the reasons for his
having pled guilty. Consequently, this case presents a
different situation from that involved in U.S. v. Amahia, supra,
and U.S. v. Wolf, supra, because here the petitioner admitted
to the offense(s) charged, but only resorted to explanations
upon further questioning by the government.
To make matters worse, the district court did not
attempt to correct the severe prejudicial impact of such
detailed, laborious questioning by giving the jury any kind of
precautionary instruction to place such questioning into its
proper context. Unlike the defendant in Hurst, the petitioner
in the case at hand had to wait until the end of the trial for
the jury hearing his case to receive a far more limited jury
instruction on “Impeachment of Defendant by Prior
Conviction” (see R. 50, jury charge p. 19). At this point in the
trial, the damage to the petitioner had already been done
and was arguably irreversible.
For brevity purposes, the petitioner respectfully refers
the court to two other fairly recent cases from the Sixth
24
Circuit which, although not directly on point, nevertheless
provide persuasive authority for the petitioner's position on
this issue. See, generally, U.S. v. Moore, 917 F.2d 215 (6th
Cir. 1990) (holding that the potential prejudicial impact of
admitting a similar prior felony into evidence for impeachment
purposes was overcome by the trial court’s immediate
admonishment to the jury to consider the evidence only as to
witness credibility); and U.S. v. Morrow, 977 F.2d 222 (6th
Cir. 1992) (en banc) (where, in rejecting the defendant’s
challenge to the fact that two prior felony convictions were
used to impeach him, the court noted that the trial court
expressly limited the cross-examination to eliciting whether or
not the defendant admitted the convictions, and commented
that “[s]uch caution by the court reflects a concern for the
potentially prejudicial effect of this evidence”).
To summarize, the district court improperly permitted
the government too broad of an inquiry on cross-examination
into the details of the petitioner’s prior convictions. To make
matters worse, unlike numerous other cases, the district
court failed to make an immediate, cautionary instruction to
the jury, preferring instead to wait until the end of the trial to
make a very limited instruction along with all the other jury
instructions. These mistakes unduly prejudiced the petitioner
to the point where his conviction should be reversed.
IV. THE APPLICATION OF 18 U.S.C. § 1956(a)(1)(B)(i)
TO PUNISH CRIMINAL BEHAVIOR NOT INVOLVING DRUGS OR
ORGANIZED CRIME CONTRAVENES THE CONGRESSIONAL
INTENT BEHIND THE MONEY LAUNDERING STATUTE.
in an effort to combat international drug trafficking
and traditional organized crime, Congress passed the Money
Laundering Control Act of 1986 (codified at 18 U.S.C. §§
1956-1957). See, 132 Cong. Rec. 18,486-18,487 (1986)
(statements of Senators Thurmond and Hatch); President’s
25
Commission on Organized Crime, “The Cash Connection:
Organized Crime, Financial Institutions, and Money Laundering”
4-8 (1984); U.S. v. Daccarett, 6 F.3d 37, 43 (3rd Cir. 1993);
see, also, American Criminal Law Review, “The Money
Laundering Control Act of 1986: Creating A New Federal
offense Or Merely Affording Federal Prosecutors An
Alternative Means Of Punishing Specified Unlawful Activity?”,
by Jimmy Gurule’, Vol. 32, p. 823-854 (providing further
details and insight into the legislative history of 18 U.S.C. §
1956). While mail fraud is listed as a “specified unlawful
activity” under 18 U.S.C. 1961(1), which in turn is made
applicable to 18 U.S.C. § 1956 through the language of 18
U.S.C. § 1956(c)(7), implicit within the definition of “specified
unlawful activity” under 18 U.S.C. § 1956(c)(7) is the
understanding that the offenses referred to in 18 U.S.C.
1961(1) must be related to drugs or organized crime in
order to be applicable in 18 U.S.C. § 1956. Through creative
thinking and application by the U.S. Attorney’s office, 18
U.S.C. § 1956 has been expanded and applied to punish
criminal behavior that are not related to drugs or organized
crime, even though Congress did not intend such behavior to
be covered by the money laundering statute. The majority of
cases reflect the money laundering statute’s intended
application to drugs and organized crime, although their
results are often conflicting. See, e.g., U.S. v. Hamilton, 931
F.2d 1046 (Sth Cir. 1991); U.S. v. Samour, 9 F.3d 531 (6th
Cir. 1993); U.S. v. Skinner, 946 F.2d 176 (2nd Cir. 1991); and
U.S. v. Dimeck, 24 F.3d 1239 (10th Cir. 1994). However, ina
few cases, like the petitioner’s case, the government has
sought to extend 18 U.S.C. § 1956 to cover behavior not
involving drugs or organized crime.
Since the money laundering allegations against the
petitioner did not involve activities related to drugs or
26
organized crime, allowing the petitioner’s conviction under 18
U.S.C. § 1956 to stand would effectively contravene the
Congressional intent behind this statute. By reversing the
petitioner's conviction as contrary to Congressional intent,
this honorable court would force the government to limit
prosecution under 18 U.S.C. § 1956 to its proper and
intended context.
U.S. v. Haun, 90 F.3d 1096 (6th Cir. 1996), as applied
to the case at hand, and similar cases should be overruled
because the true Congressional intent behind the federal
money laundering statute shows that the statute was not
meant to apply to offenses not involving narcotics or
organized crime. This argument is similar to the argument
that was raised and rejected in U.S. v. Haun, 90 F.3d 1096
(6th Cir. 1996). However, the decision in U.S. v. Haun is in
conflict with U.S. v. Caba, 911 F.Supp. 630 (E.D.N.Y. 1996)
(opinion by Judge Trager). U.S. v. Caba discusses the
legislative intent behind surrounding this issue, and the
petitioner respectfully suggests it represents a more
enlightened judicial interpretation of the money laundering
statute.
V. 18 U.S.C. § 1956(a)(1)(B)(i) IS
UNCONSTITUTIONALLY VAGUE BY NEGLECTING TO DEFINE
WHAT IS MEANT BY THE WORD “PROCEEDS”.
One reason the government was able to creatively
prosecute the petitioner for money laundering, even though
no drugs or organized crime were involved in the alleged
activities, is because 18 U.S.C. § 1956(a)(1)(B)(i) neglects to
define the word “proceeds”. This lack of a definition for the
word “proceeds” effectively allows for such creative thinking
on the part of the government and thereby encourages the
arbitrary and discriminatory enforcement of 18 U.S.C. §
1956. This shortcoming in the statute runs afoul of the
27
requirement that penal statutes contain sufficient
definiteness, see generally Kolender v. Lawson, 461 U.S. 352,
357, 103 S.Ct. 1855, 1858, 75 L.Ed.3d 903 (1983) (citations
omitted), and consequently renders the statute
unconstitutionally void for vagueness under the Fifth and
Fourteenth Amendments to the U.S. Constitution. Cf. U.S. v.
Werber, 787 F.Supp. 353, 358 (S.D.N.Y. 1992).
Neither this issue nor Issue IV cited above have been
resolved by the U.S. Supreme Court despite numerous cases
from lower federal courts construing the meaning and
Congressional intent behind 18 U.S.C. § 1956. See, e.g., U.S.
v. Edgmon, 952 F.2d 1206 (10th Cir. 1991); U.S. v. Heaps, 39
F.3d 479 (4th Cir. 1994); and U.S. v. Jackson, 935 F.2d 832
(7th Cir. 1991). Defining the permissible scope of coverage
of 18 U.S.C. § 1956 would settle an important, confusing, and
as-yet unsettled question of federal law.
Vi. THE MONEY LAUNDERING SENTENCING GUIDELINE
(U.S.S.G § 2S1.1) IS NOT APPLICABLE TO OFFENSES THAT
ARE-NEITHER DRUG RELATED NOR ORGANIZED CRIME-
RELATED, AND EVEN IF SO THE SEVERITY OF THE GUIDELINE
~ IN SUCH SITUATIONS NECESSITATES THE APPLICATION OF A
DOWNWARD DEPARTURE.
Should the court desire to uphold U.S. v. Haun, 90 F.3d
1096 (6th Cir. 1996) and related cases, there is ample
authority to suggest that the severity of the money
laundering sentencing guideline, U.S.S.G. § 2S1.1, reflects that
either it should not apply to money laundering offenses not
involving narcotics or organized crime, or else its application
in such cases should be coupled with a downward departure
pursuant to U.S.S.G. § 5K2.0. Although the literal wording of
the federal money laundering statute might cover criminal
offenses not involving narcotics or organized crime, the
severity of the money laundering sentencing guideline (U.S.S.G
28
§ 2S1.1) reflects that it was designed to deter drug-related
and organized crime-related offenses, such that either it is
inappropriate to apply the money laundering sentencing
guideline to non-drug-related or organized crime-related
offenses, or else it justifies a downward departure from the
money laundering sentencing guideline when narcotics or
organized crime are not involved.
The money laundering sentencing guideline (U.S.S.G §
2S1.1) simply was not designed to apply to offenses that
were not drug-related or organized crime-related, such that
the district court erred in sentencing the petitioner pursuant
to this section of the U.S. Sentencing Guidelines. Because the
petitioner’s conduct fell outside the “heartland” of the money
laundering sentencing guideline, the petitioner should have
been sentenced pursuant to the wire fraud sentencing
guideline, U.S.S.G. § 2F 1.1, instead. See, U.S. v. Caba, 9117
F.Supp. 630 (E.D.N.Y. 1996); see, also, U.S. v. Skinner, 946
F.2d 176 (2nd Cir. 1991); but see, U.S. v. LeBlanc, 24 F.3d
340 (1st Cir. 1994). The Sixth Circuit’s opinion in U.S. v.
Haun, 90 F.3d 1096 (6th Cir. 1996), is distinguishable in that
its holding is related to the money laundering statute,
whereas the case at hand deals with whether the money
laundering provision of the sentencing guidelines actually
applies to non-drug and non-organized crime related
offenses.
Furthermore, at the very least, the fact that the
money laundering offenses, which the petitioner was found to
have committed, did not involve narcotics or organized crime
is a mitigating factor that should have resulted in a
downward departure from the normal “heartland” of money
laundering cases which do involve narcotics and/or organized
crime. Again, because the money laundering offenses in this
case did not involve narcotics or organized crime, this case
29
does not fall within the “heartland” of the typical money
laundering cases embodying the conduct to which U.S.S.G. §
2S1.1 was directed. Therefore, the petitioner should have
received a downward departure pursuant to U.S.S.G. §
SK2.0. See, 18 U.S.C. § 3553(b), and U.S. v. Caba, 911
F.Supp. 630 (E.D.N.Y. 1996); but see, U.S. v. LeBlanc, 24 F.3d
340 (1st Cir. 1994).
CONCLUSION
Based on the foregoing, this petition for a writ of
certiorari should be granted. If the petition is granted, the
petitioner respectfully submits that his conviction should be
reversed and a new trial granted the petitioner. At a
minimum, the petitioner respectfully contends that the case
should be remanded for an evidentiary hearing on the
possible misconduct/bias of one of the jurors. Together with
the enlightened facts that such an evidentiary hearing would
provide, the above issues, individually and certainly collectively,
warrant the ultimate reversal of the petitioner’s conviction
and the granting of a new trial for the petitioner.
30
Respectfully submitted,
—_ & WYATT, P.C.
By: BA VW, \\\ es
Gerald H. Sumerers—\ >
TN BPR #534
500 Lindsay Street
Chattanooga, TN 37402-1490
(423) 265-2385
Attorneys for the Petitioner,
Allan Ledford
APPENDIX DESIGNATION
A. U.S. v. Ledford, unpublished opinion from the Sixth Circuit
B. Sixth Circuit Order denying petition to rehear
31
NOT RECOMMENDED FOR PUBLICATION
Nos. 96-5659/6589
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA _)
) -
Plaintiff-Appellee, )
) ON APPEAL FROM THE
) UNITEDSTATES DISTRICT
) COURT FOR THE EASTERN
v. ) DISTRICT OF TENNESSEE
)
) OPINION
ALLAN LEDFORD, )
)
)
Defendant-Appellant.
BEFORE: NORRIS and BATCHELDER, Circuit Judges;
ALDRICH, District Judge.*
ALAN E. NORRIS, Circuit Judge. Defendant Allan Ledford
appeals his multi-count conviction for wire fraud and money
* The Honorable Ann Aldrich, United States District Judge for the
Northern District of Ohio, sitting by designation.
Nos. 96-6589/5659
United States v. Ledford
laundering. For the reasons outlined below, we now affirm both his
conviction and sentence.
I.
Defendant worked for a Chattanooga, Tennessee automobile
dealership for several years, eventually serving as its sales manager.
During his tenure as sales manager, he engaged in a pattern of
fraudulent behavior that eventually led to his prosecution: he would
purchase expensive used automobiles from prospective customers as
part of a trade-in and then resell them to wholesalers. However, rather
than turn the proceeds of these transactions over to the dealership,
defendant converted the funds to his own use. A jury found him guilty
on six counts of wire fraud, 18 U.S.C. § 1343, and on five counts of
money laundering, 18 U.S.C. § 1956(a)(1)(B)(i).
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Nos. 96-6589/S5659
United States v. Ledford
II.
I. Jury Selection
Defendant raises two issues that relate to the composition of the
jury that convicted him. First, he contends that the prosecution
unconstitutionally used its peremptory strikes to exclude two black
potential jurors. Second, he argues that the potential bias of one juror
deprived him of a fair trial. We address each allegation in turn.
a. use of peremptory Strikes
In Batson v. Kentucky, 476 U.S. 79, 89 (1986), the Supreme
Court held that “the Equal Protection Clause forbids the prosecutor to
challenge potential jurors solely on account of their race.” Because jury
service represents a “significant opportunity to participate in civic life,”
white defendants, such as Mr. Ledford, have standing to assert the equal
protection rights of excluded black venire persons. Powers v. Ohio, 499
U.S. 400, 409 (1991).
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Nos. 96-6589/5659
United States v. Ledford
The determination of whether the prosecution has improperly
used its peremptory strikes to exclude black jurors involves three steps.
First, the defendant must make a prima facie showing that the
prosecutor has in fact exercised challenges based upon the race of the
prospective juror. Once the requisite showing has been made, the
burden of production shifts to the prosecution to articulate a race-neutral
explanation for striking the jurors in question. Third, the trial court
must decide whether the opponent of the strike has proved purposeful
discrimination. Hernandez v. New York, 500 U.S. 352, 358-59 (1991).
During jury selection, the government chose to use two of its
peremptory challenges to strike the only blacks from the thirty-two
person venire. The district court concluded that this “‘statistic alone
warranted a finding that the defendant had made out a prima facie
case.” The prosecution then offered the following race-neutral reason
for its decision:
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Nos. 96-6589/5659
United States v. Ledford
I thought both of them were too responsive, especially
Ms. Browdy, to [defense counsel]. She had a lot of eye
contact and nodding her head up and down and seemed
like she'd be really, 1 was getting a lot of body language
that she’d be sympathetic to [defendant], less so from
Mr. Adair, but I was getting the contrary from him, kind
of cold to me, so that’s why I struck them. That’s just —
it’s just [a] judgment call based upon the signs that I was
getting understanding that this is not like I have a chance
to sit down with these people and get to know them
personally. I have to read body language and their
response and make these judgment calls.
The district court noted that this explanation contained “no inherent
discriminatory intent” and therefore concluded that defendant had failed
to carry his burden of showing that the government engaged in
purposeful discrimination in choosing a jury.
The explanation offered by the government highlights the
difficulty in assessing Batson challenges when the justification for a
decision to strike is based upon a trait as subjective as “body language.”
In discussing the proffered reason with counsel, the trial judge hi
confessed that he found it “difficult to confirm your observatio:
5
ices teas
Nos. 96-6589/5659
United States v. Ledford
hostile body language] based upon what I’ve seen here in the
courtroom” and went on to note that crediting subjective explanations
for peremptory stril id allow an improperly motivated prosecutor
to circun
ise undoubtedly exists, it is minimized
by the fac rt has the power to disbelieve even a race-
nei rosecution. Hernandez, 500 U.S. at
365 (“In the ty] mptory challenge inquiry, the decisive question
will t \eutral explanation for a peremptory
challe \|though an implausible explanation
may s dentiary burden to rebut a prima facie
case, suc} ld ultimately be rejected by the trial court
as pretexts for purposeful discrimination at the third step of the
Nos. 96-6589/5659
United States v. Ledford
Furthermore, the ultimate question of discriminatory intent
represents a finding of fact to which we accord great deference on
appeal. Hernandez, 500 U.S. at 364. Because it often involves an
sessment of the prosecutor’s state of mind, the trial court is better able
make judgments of credibility than an appellate court because the
trial court alone has the opportunity to observe the demeanor of counsel.
365. Accordingly, we will reverse only on a finding of clear error.
Our review of the record convinces us that no such error exists.
b. juror bias
After his conviction, defendant filed a motion for a new trial
d in part upon his discovery that one juror had failed to disclose
nformation during voir dire that, if revealed, might have supported a
challenge for cause. Specifically, the juror’s son had worked briefly in
fO an
strict
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Nos. 96-6589/5659
United States v. Ledford
court denied the motion, a decision that we review for abuse of
discretion. United States v. Patrick, 965 F.2d 1390, 1399 (6th Cir.
1992).
While a prospective juror’s failure to disclose material
information is grounds for a new trial if it demonstrates bias, id., the
party seeking a new trial must demonstrate that the prospective juror
failed to answer a material question honestly and then further show that
a correct response would have provided a valid basis for a challenge for
cause. McDonough Power Equipment, Inc. v. Greenwood, 464 U.S.
548, 556 (1984).
The district court found, and we agree, that defendant has not
met either of the McDonough requirements. No one asked the juror
during voir dire whether his son had worked with defendant or at the
dealership where defendant served as sales manager; rather, he
answered the questions posed honestly. It is not the responsibility of a
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Nos. 96-6589/5659
United States v. Ledford
prospective juror to anticipate and then volunteer every piece of
information that might conceivably be of use to counsel. Moreover,
even if the information about his son’s employment history had been
disclosed, it would not have provided grounds for a challenge for cause.
As the district court observed, the juror had consistently asserted that he
could be impartial.
2. Application of Money Laundering Statute to Crimes Unrelated to
Drugs
Defendant next asks us to reconsider an earlier panel decision,
United States v. Haun, 90 F.3d 1096, 1099 (6th Cir. 1996), which held
that the money laundering statute under which defendant was convicted,
18 U.S.C. § 1956(a)(1)(A), included non-drug related transactions. A
panel of the court may not overrule the decision of a prior panel unless
an inconsistent opinion of the Supreme Court requires it. Golden v.
Kelsey-Hayes Co., 73 F.3d 648, 654 (6th Cir.), cert denied, 117 S. Ct.
Nos. 96-6589/5659
United States v. Ledford
49 (1996). Defendant does not contend that Haun is inconsistent with
any Supreme Court decision, and we therefore affirm the application of
the money laundering statute to the conduct with which defendant was
charged.
3. Extent of Cross-Examination
Defendant testified at his trial. As a means of impeaching
defendant’s credibility, the prosecutor on cross-examination delved into
defendant’s prior felony convictions for passing bad checks. Federal
Rule of Evidence 609(a)(1) provides, “For the purpose of attacking the
credibility of a witness, . . . evidence that an accused has been convicted
of [] a crime shall be admitted if the court determines that the probative
value of admitting this evidence outweighs its prejudicial effect to the
accused.” Furthermore, under Fed. R. Evid. 609(a)(2), convictions
involving dishonesty or false statements are admissible as to all
witnesses.
10
A-10
Nos. 96-6589/5659
United States v. Ledford -
Defendant does not contend that the prosecution’s introduction
of his prior convictions constituted error. Rather, defendant objects to
the detailed cross-examination about the specifics of the crimes. A
review of the trial transcript reveals that the prosecutor produced copies
of the earlier indictments, read them to defendant, and asked him to
verify his guilt on the charges. The record also reveals that the
defendant equivocated in his responses, at one point testifying that he
had pleaded guilty in various state courts, not because he committed the
crimes, but instead on the advice of counsel. Receiving less than
satisfactory answers, the prosecutor asked a number of specific
questions about each conviction.
Defense counsel initially objected to the “scope” of the cross-
examination, maintaining that Rule of Evidence 609 only permits
inquiry into the nature of the prior felony, not into its details. While
this proposition is generally true, the district court found that, given
1]
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Nos. 96-6589/5659
United States v. Ledford
defendant’s attempt to minimize his guilt, some latitude in cross-
examination was appropriate. See generally United States v. Robinson,
8 F.3d 398, 410 (7th Cir. 1993). p
Since briefs were filed in this case, the Supreme Court decided
Old Chief v. United States, 117 S. Ct. 644 (1997), and defendant argues
that it affects our analysis of this issue. While Old Chief certainly
reminds us that courts must be sensitive to the potential for unfair
prejudice when evidence of other criminal convictions is introduced, it
does not control the outcome of the case before us. In Old Chief, the
prior conviction was not used for impeachment purposes under Rule of
Evidence 609, nor did the defendant attempt to minimize his guilt.
Under the circumstances of this case, the district court acted within its
discretion in permitting the prosecutor to explore the facts of the prior
convictions sufficiently to allow the jury to evaluate defendant’s
credibility.
12
: A-12
Nos. 96-6589/5659
United States v. Ledford
4. Order of Restitution
The final issue before us concerns restitution. As part of its
judgment, the district court ordered defendant to pay restitution in the
amount of $713,998.00 to his former employer pursuant to the
Mandatory Victims Restitution Act of 1996 (“MVRA”), 18 U.S.C. §
2248 et seq. Defendant challenges this restitution order on two
grounds: first, that application of the MVRA violates the Ex Post Facto
Clause of the Constitution;' and second, that the calculation of the
restitution amount impermissibly takes into account conduct for which
defendant was not convicted.
Defendant also argues that the recent Supreme Court decision in Lindh
v. Murphy, 117 S. Ct. 2059 (1997), supports the position that the
MVRA does not apply retroactively. After careful consideration, we
find Lindh to be inapposite.
13
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Nos. 96-6589/5659
United States v. Ledford
A law runs afoul of the Ex Post Facto Clause if it is
retrospectively applied and imposes “a greater punishment, than the law
annexed to the crime, when committed.” Lynce v. Mathis, 117 S. Ct.
896 (1997) (citing Calder v. Bull, 3 Dall. 386, 390 (1798)); see also
Miller v. Florida, 482 U.S. 423, 430 (1987). A key question, then, is
whether the amount of restitution for which defendant was responsible
under the terms of the MVRA was greater than it would have been
under the previous restitution statute, the Victim and Witness Protection
Act of 1982, U.S.C. § 3663-64 (“VWPA”). If both statutes permit the
amount of restitution ordered by the district court, no ex post facto
problems exists because the defendant suffered no “greater
punishment.”
As the district court noted, when an offense causes a victim to
lose property, the VWPA allows orders of restitution that include “the
value of the property on the date of the damage, loss or destruction, or
i
A-14
Nos. 96-6589/5659
United States v. Ledford
the value of the property on the date of the sentencing, less the value (as
of the date the property is returned) of any part of the property that is
returned.” 18 U.S.C. § 3663(b)(1)(B)(i)-(ii) (superseded). The plain
language of the statute, therefore, allows an order of restitution for the
full amount of loss. Because the district court’s reliance upon the
MVRA did not result in an increased order of restitution, the Ex Post
Facto Clause was not violated.’
In calculating the amount of restitution owed by defendant, the
district court relied in part upon the Presentence Investigation Report
(“PSI”). The PSI calculated the monetary loss attributable to the counts
of conviction to be $201,000; however, it went on to consider other
criminal conduct that resulted in total losses of $713,998, which was the
5
-
The government also argues that the MVRA was not retroactively
applied. We do not reach that issue.
15
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Nos. 96-6589/5659.
United States v. Ledford
amount of restitution that was ultimately ordered. Defendant contends
that the restitution order is at odds with Hughey v. United States, 495
U.S. 411, 413 (1990), which held that restitution awards made under the
VWPA are limited to losses caused by specific conduct that is the basis
of the offense of conviction.
However, the VWPA was amended by the Crime Control Act
of 1990, see Pub. L. No. 101-647, § 2509, 104 Stat. 4789, 4863 (1990),
to expand the definition of “victim” to include “any person harmed by
the defendant’s criminal conduct in the course of the scheme,
conspiracy, or pattern.” 18 U.S.C. § 3663(a)(2). As this court has
noted, this amendment “would appear to authorize restitution for all
losses attributable to [defendant’s] scheme to defraud.” United States
v. Jewett, 978 F.2d 248 (6th Cir. 1992). Whether we consider
defendant’s repeated misappropriation of funds from his trade-ins to be
a “scheme to defraud” or a “pattern,” it is abundantly clear that under
16
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Nos. 96-6589/5659
United States v. Ledford
the terms of the VWPA,? defendant can be ordered to pay restitution for
all of his conduct.
Accordingly, we affirm the district court’s order of restitution in
the amount of $713,998.00.
Il.
The judgment of the district court is hereby affirmed.
3
The MVRA contains essentially the same definition of victim: “[A]
person directly and proximately harmed as a result of the commission
of an offense for which restitution may be ordered including, in the case
of an offense that involves as an element a scheme, conspiracy, or
pattern of criminal activity, any person directly harmed by the
defendant’s criminal conduct in the course of the scheme, conspiracy,
or pattern.” 18 U.S.C. § 3663A(a)(2).
17
ae ee ee ne ee ee
Case No. 96-5659
96-6589
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ORDER
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ALLAN LEDFORD
Defendant - Appellant
BEFORE: NORRIS and BATCHELDER, Circuit Judges;
ALDRICH, District Judge.
Upon consideration of the petition for rehearing filed by the
appellant,
It is ORDERED that the petition for rehearing be, and it
hereby is, DENIED.
ENTERED BY ORDER OF THE COURT
/s/
Leonard Green, Clerk
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.