Petition for Writ of Certiorari — York v. United States (No. 05-1503)

Division, Southern District of Georgia. Doc. 146, Order,

Oct. 28, 2003. Nevertheless, the government obtained

another indictment from the Macon jury pool that had

been judicially determined to be polluted. Doc. 158, Super-

seding Indictment, Nov. 21, 2003. The charges against

Petitioner were greatly expanded from three to fourteen

counts, with the indictment growing from three to 48

pages. It intertwined alleged sexual misconduct with the

unrelated failure to report financial transactions.’ Pleas of

not guilty were entered to all charges. Doc. 177, Pleas of

not guilty, Dec. 16, 2003. Petitioner unsuccessfully sought

dismissal of the disparate charges. Doc. 160-62, Motion To

Dismiss Based Upon Outrageous Conduct, Motion To

Dismiss Counts 1 and 2, Motion To Separate, Dec. 8, 2003.

It was argued that under Fed. R. Crim. P. 8(a) and 14, his

right to a fair trial was prejudicially compromised by the

prosecution joining unrelated allegations of criminal

conduct.’

' The indictment charged a conspiracy under 18 U.S.C. § 1962(d)

(Count One), racketeering violations under 18 U.S.C. § 1962(c) (Count

Two), conspiracy to transport minors in interstate commerce for

unlawful sexual activity and conspiracy to structure cash transactions

to evade currency reporting requirements under 18 U.S.C. § 371 (Count

Three), transporting minors in interstate commerce for the purposes of

unlawful sexual activity under 18 U.S.C. §§ 3283, 2423(a) and 2

(Counts Four-Six and Eight), traveling in interstate commerce for the

purpose of engaging in unlawful sexual] acts with a minor under 18

U.S.C. §§ 3283 and 2423(b) (Count Seven), structuring transactions to

evade reporting requirements under 31 U.S.C. §§ 5324(a)(3), 5313(a)

and 18 U.S.C. §2 (Counts Nine-Eleven), RICO forfeiture under 18

U.S.C. § 1963 (Count Twelve), and, criminal forfeiture in violation of

exploitation of minors pursuant to 18 U.S.C. § 2253 (Count Thirteen).

Doc. 158, supra.

* “(T]he predicate acts are clearly unrelated to the enterprise in

that the purpose of an Indian tribe is not to bring minors across State

lines for sexual purposes and least of all to structure cash bank

(Continued on following page)

9)

Following a 14-day trial, the jury returned verdicts of

guilty to all charges with the exception of Count Eight.

Doc. 234-36, Jury Verdict, Minute Sheet, Jan. 23, 2004.

Petitioner filed new trial and acquittal motions. Doc. 242-

43, Motion for New Trial, Motion for Judgment of Acquit-

tal, Jan. 30, 2004.

A Pre-sentence Investigation Report (PSI) was pre-

pared, to which Petitioner objected. Doc.272, Objection To

Pre-sentence Investigation Report, Apr. 12, 2004. The

court denied the objections, and sentenced Petitioner to

1,620 months imprisonment.’ Doc. 275, Transcript of

sentencing, Apr. 22, 2004; Transcript of restitution hear-

ing, Apr. 23, 2004; Doc. 285, Judgment, May 7, 2004. He

was also ordered to pay $566,066.00. Doc. 286, Order, May

12, 2004.

A timely notice of appeal was filed. Doc. 289, Notice of

Appeal, May 7, 2004. Thereafter, Petitioner filed a second

motion for a new trial. It was based upon newly discovered

evidence, that one of the government’s witnesses had re-

canted her testimony and cast doubt onto the reliability of

the testimony of several other witnesses. It was learned that

deposits.” Doc. 160 at 4. “The mere fact that Malachi Z. York allegedly

transported or cause[d] to be transported minors across State lines,

does not establish required relationship between the criminal acts and

the affairs of the enterprise (Yamassee Tribe of Native Americans). 7d.

at 10-11. It was moved that the court “sever the child molestation

charges from the lawful structuring charges and grant separate trials

for each.” Doc. 162 at 1.

* The 135-year sentence included the following consecutive terms:

Count One, 240 months; Count Two, 240 months; Count Three, 60

months; Count Four, 180 months; Count Five, 180 months; Count Six,

180 months; Count Seven, 180 months; Count Nine, 120 months; Count

Ten, 120 months; and Count Eleven, 120 months. United States v. York,

428 F.3d at 1329.

6

other prosecution witnesses were apparently encouraged to

fabricate testimony against Petitioner. Doc. 294, Motion

for New Trial, May 19, 2004. The motion was denied. Doc.

347, Order, Aug. 16, 2004.

4

REASONS FOR GRANTING THE WRIT

I. The Proceedings Involve A Question Of Excep-

tional Importance Because A Trial Court Must

Sever Disparate Counts Where Their Joinder

Would Prejudice The Accused In Contravention

Of The Fifth And Sixth Amendments

The indictment misjoined sexual abuse charges with

the unrelated financial structuring allegations. By inter-

twining such disparate charges, it would have been diffi-

cult for the jury not to find Petitioner guilty. The

prejudicial atmosphere flowing from the sexual allegations

certainly swept the jury into finding Petitioner liable for

his alleged financial transgressions. Likewise, the finan-

cial charges made him appear dishonest and unworthy of

the presumption of innocence as to the sexual contentions.

Under circumstances, it is not surprising that guilty

verdicts were returned with the judge imposing a 135-year

sentence.

Petitioner was initially charged with the interstate

transport of minors for unlawful sexual activity in viola-

tion of 18 U.S.C. § 2423(a) (Mann Act). Doc. 1, Indictment,

May 2, 2002. As part of a settlement agreement, a three-

page superseding information was returned re-alleging the

Mann Act allegation, but adding failure to report deposits

in 1999 and a forfeiture claim. Doc. 78, Superseding

Information, Jan. 23, 2003; Doc. 80, Plea Agreement, Jan.

23, 2003. However, that dissolved due to the interference

of the original trial judge who wanted a 20-year sentence

rather than the 15-year term agreed upon by the parties.

United States v. York, 274 F.Supp. 2d 1347-48.

Ten months later the government returned a 13-count,

48-page indictment against Petitioner. Doc. 158, Supersed-

ing Indictment, Nov. 21, 2003. It attempted to overcome

the government’s problem of charging Petitioner with stale

Mann Act violatiens in which the statute of limitations

had run, by creating a muddled aggregation of such

claims, allegations of improperly structuring legal cash

deposits, conspiracy charges, and racketeering claims

based upon the belief that a recognized church ministry

and Native American tribe constitutes an enterprise for

illegal racketeering akin to a drug cartel or an organized

crime syndicate. Thereafter Petitioner moved to separate

Count Three (conspiracy to violate the Mann Act) and to

sever the wholly unrelated financial reporting allegations.

Contemporaneously, Petitioner also sought dismissal of

the RICO claims, a subject of further district court error

discussed below. Doc. 160-62, Motion To Dismiss Indict-

ment, Motion To Dismiss Counts 1 and 2, Motion To

Separate Count Three, Dec. 8, 2003.

The prosecution joined together independent and

unrelated claims against Petitioner. First, it alleged that

he sought to transport minors across state lines for the

purpose of engaging in unlawful sexual activity sometime

in the distant future, and secondly, that he engaged in the

improper structuring of legal cash deposits to circumvent

required administrative currency reporting regulations.

The alleged acts were not only unrelated, but were also

unrelated by time. Such a joinder offends due process

under the Fifth Amendment and is contrary to the Federal

8

Rules of Criminal Procedure, Rule 8(a) permits “two or

more offenses [to] be charged in the same indictment ...

in a separate count for each offense if the offenses charged

... are of the same or similar character or are based on the

same act or transaction or on two or more acts or transac-

tions connected together or constituting parts of a common

scheme or plan.” Fed. R. Crim. P. 8(a)_(emphasis added);

see United States v. Weaver, 905 F.2d 1466 (11th Cir. 1990).

The underlying principles of the constitutionally

required indictment process are founded in the guarantee

of due process. Disparate claims against a defendant,

joined under the umbrella of one indictment, are suscepti-

ble to severance under Rules 8(a) and 14, most notably

when the government’s joinder of such claims are prejudi-

cial. The rationale for the severance of dissimilar claims is

fairness and due process.

This Court has held that reversal is mandated if “the

misjoinder results in actual prejudice because it ‘had

substantial and injurious effect or influence in determin-

ing the jury’s verdict.’” United States v. Lane, 474 US.

438, 449 (1986) (quoting Kotteakos v. United States, 328

U.S. 750, 776 (1946)). Misjoinder will “rise to the level of a

constitutional violation only if it results in prejudice so

great as to deny a defendant his Fifth Amendment right to

a fair trial.” United States v. Lane, 474 U.S. at 446 n.8.

Here, the prejudice to Petitioner could not have been more

pervasive. See United States v. Richardson, 161 F.3d 728

(D.C.Cir. 1998) (threats charge was not properly joined

with federal weapons charges).

It is recognized Rule 8(a) is not limited to crimes of

the “same” character but also covers those of “similar”

character. That means “nearly corresponding; resembling

9

in many respects; somewhat alike; having a general

likeness.” United’ States v. Walser, 3 F.3d 380, 385 (11th

Cir. 1993). Moreover, when offenses are joined under Rule

8(a) by virtue of their “same or similar character,” the

offenses need only be similar in category, not in evidence.

See United States v. Coleman, 22 F.3d 126, 133 (7th Cir.

1994).

The Eleventh Circuit was unreasonable in assuming

that the Mann Act violations were similar in category,

evidence, resemblance, -or general likeness to alleged

violations of currency reporting regulations. United States

v. York, 428 F.3d at 1325. Such rationale belies logic for no

definition can transform such unrelated allegations into

similar ones. Thus, there is no question that the Mann Act

violations were misjoined with the financial offenses.

Rule 14 directs that “[ilf the joinder of offenses ... in

an indictment, an information, or a consolidation for trial

appears to prejudice a defendant or the government, the

court may order separate trials of counts, sever the defen-

dants’ trials, or provide any other relief that justice re-

quires.” The standard for applying the rule is that an

appellate court is required to reverse a denial of a motion

to sever if the joinder of disparate claims creates prejudi-

cial error and results in actual prejudice that had “sub-

stantial and injurious effect or influence in determining

the jury’s verdict.” United States v. Weaver, 905 F.2d at

1477. There is no question but that the joinder of the

unrelated charges in the case at hand served to prejudice

Petitioner.

Not only did the joinder obfuscate statute of limita-

tions issues relative to Mann Act claims, it clearly influ-

enced the jury’s verdict. The government sought to

10

eliminate the objectivity of the jury by submitting evidence

of Petitioner’s alleged wrongdoing regarding cash structur-

ing in an effort to make him appear guilty of other unre-

lated crimes of child molestation. Likewise, the sexual

allegations clearly made him seem guilty of the dissimilar

financial charges.

Petitioner was a respected clergy member and a

respected leader of a large “religious organization that

consisted of approximately 5,000 members.” Doc. 158,

Superseding Indictment, Count One, supra. The prosecu-

tion sought to destroy that image by mischaracterizing

him as a major criminal, corrupt racketeer, and opportun-

istic false minister. Through its joinder of dissimilar

allegations, the government successfully influenced the

- jury with the claims that Petitioner was a child molester, a

sinister tax cheat who wanted to hide the ministry’s

income, and a corrupt crime leader involved in racketeer-

ing and other corrupt practices. Thus, evidence of guilt

concerning one act spilled over, leading the jury to con-

clude that he was guilty of the others.

The district court, pursuant to Rules 8(a) and 14,

should have granted Petitioner’s motion to sever the Mann

Act counts from those related to claims of improper cur-

rency reporting. The legal standards for such separate acts

are complex. At the very least, the jury instructions

prejudiced and confused the jurors in addition to the

“actual prejudice accruing due to the jury recognition of

many, multiple count allegations of guilt. Doc. 228, Charge

to Jury, Jan. 22, 2004.

Petitioner was prejudiced by the joinder of objectively

om dissimilar charges of the indictment. The misjoinder of the

dissimilar offenses in the single indtetment resulted in a

11

deprivation of Petitioner’s right under the Fifth Amend-

ment to due process of law and a fair trial.

Il. The Proceedings Involve A Question Of Ex-

ceptional Importance And The Court Of Ap-

peals Decision Failed To Follow An Opinion

Of This Court Because It Is Error For A Court

To Allow A Trial To Proceed On An Indictment

Returned By A Grand Jury Selected From A

Judicially Recognized Tainted Jury Pool,

Thereby Rendering The Proceedings Funda-

mentally Unfair Under The Fifth And Sixth

Amendments

It was judicially determined that Petitioner could not

obtain a fair and impartial trial in the Macon Division.,

and thus a change in venue was ordered:

The Court GRANTS Defendant’s Motion as

to Fed. R. Crim. P. 21(a) because the Court is sat-

isfied that without changing venue for the trial of

this case, Defendant cannot obtain a fair and im-

partial trial in the Macon Division of the Middle

District of Georgia. ... In reaching the conclusion

about where to try this case, the Court has care-

fully considered the problem of media saturation

and potential bias involving not only the allega-

tions against Malakai (Malachi) Petitioner, but

also reports about the Nuwaubians because York

is the leader of the Nuwaubians. The Court regu-

larly reviews and has reviewed both the Macon

Telegraph and the Atlanta Constitution for many

years. Over the years the Court has noticed in

both newspapers coverage of Defendant’s criminal

case and articles that reflect unfavorably on the

Nuwaubians that could adversely impact Defen-

dant at trial. The Court has grave concerns about

12

trying to select a jury in this case in any division

in the Macon and Atlanta media markets. . .

Doc. 146, Order, Oct. 28, 2003 (emphasis added).

Thus the case was moved to the Brunswick Division of

the Southern District of Georgia. The prejudice was so

strong that the prosecution did not object to the defense

change-of-venue motion. Nevertheless, the government

thereafter obtained a new indictment from a Grand Jury

selected from the tainted jury pool within the Macon

Division. Doc. 158, Superseding Indictment, Nov. 21, 2003.

In Bank of Nova Scotia v. United States, 487 U.S. 250

(1988), this Court discussed the standard for assessing

non-constitutional errors in the grand jury. It was deter-

mined that the dismissal of an indictment is appropriate

where it is established that the violation ‘substantially

influenced the grand jury’s decision to indict or if there is a

grave doubt that the decision to indict was free from the

substantial influence of such violations. Farlier it was

recognized that there is “no reason not to apply [Rule

52(a)} to “‘errors, defects, irregularities, or variances’

occurring before a grand jury just as we have applied it to

such error occurring in the criminal trial itself.” United

States v. Mechanik, 475 U.S. 66, 71-72 (1986). Dismissal of

an indictment is appropriate “if it is established that the

violation substantially influenced the grand jury’s decision

to indict,” or where there is “grave doubt” that the decision

to indict was free from the substantial influence of such

violations. Jd. at 78; see Kotteakos v. United States, 328

U.S. at 758-59, 765; United States v. Lane, 474 U.S. at

454-55.

In denying relief, the Eleventh Circuit gave short

shrift to the issue and seemed oblivious to Bank of

13

Nova Scotia v. United States, 487 U.S. 250. It determined

that there had been a failure to establish that “publicity.

surrounding the case ‘substantially influenced’ the ulti-

mate decision.” United States v. York, 428 F.3d at 1332.

The conclusion defied logic, since there had been a federal

court finding a month earlier that Petitioner could not be

fairly tried in the jurisdiction from which the grand jurors

were drawn due to the enormous amoun: of prejudicial

- media and public attention the defendant had received.

Doc. 146, supra.

It was constitutionally unacceptable for the prosecu-

tion to present Petitioner’s a case to a grand jury selected

from the tainted jury pool. The prejudice was a judicial

fact; the government did not disagree. It would have been

a simple matter for the prosecution to draw a grand jury

from the Brunswick Division where the case had been

moved. In fact, it defies logic that this was not done, and

renders the prosecution’s motive suspect.

Any jury, whether for trial or grand jury proceedings,

selected from the Macon Division jury pool would be

tainted having been equally affected by the same negative

publicity. Thus, there is clearly a grave doubt that the

grand jury decision to indict Petitioner on the Superseding

Indictment was free from the concerns expressed by the

court. The district court took “judicial notice” of the fact

that any jury selected from this Macon Division would be

tainted. Thus, denying Petitioner’s Motion to Dismiss the

Superseding Indictment and permitting the trial go

forward was error. The facts that were uncontested by the

government in the lower courts, are:

1. The jury pool in the Macon and Atlanta me-

dia markets was tainted;

14

2. The district court recognized that Petitioner

could not have a fair trial in Macon Division;

3. The grand jury for the Superseding Indict-

ment convened after the court had issued its

order changing the venue to Brunswick Di-

vision due to the prejudicial atmosphere in

Macon; and

4. The grand jury that returned the Supersed-

ing Indictment against Petitioner was se-

lected from the judicially recognized tainted

jury pool in the Macon Division.

The role of the grand jury must not be overlooked.

Even though investigative in nature and thus given wide

latitude, it must also ensure fair law enforcement. As

explained by this Court:

The institution of the grand jury is deeply

rooted in Anglo-American history. In England,

the grand jury served for centuries both as a

body of accusers sworn to discover and present

for trial persons suspected of criminal wrongdo-

ing and as a protector of citizens against arbi-

trary and oppressive governmental action. In

this country the Founders thought the grand jury

so essential to basic liberties that they provided

in the Fifth Amendment that federal prosecution

for serious crimes can only be instituted by a

“presentment or indictment of a Grand Jury.” Cf.

Costello v. United States, 350 U.S. 359, 361-362

(1956). The grand jury’s historic functions sur-

vive to this day. Its responsibilities continue to

include both the determination whether there is

probable cause to believe a crime has been com-

mitted and the protection of citizens against un-

founded prosecutions. Branzburg v. Hayes, 408

15

U.S. 665, 686-87, 92 S.Ct. 2646, 2658-2659, 33

L.Ed.2d 626 (1972).

United States v. Calandra, 414 U.S. 338, 342-43 (1974).

* The constitutional character of the grand jury must be

more than to act as a rubber stamp for government prose-

cution. It has an obligation to act fairly without bias or

outside influence. This Court is asked to examine that role

and establish the principle that defendants such as peti-

tioner, are entitled to have a grand jury drawn from a jury

pool that is not tainted. To hold otherwise would contra-

vene the very essence of the Fifth and Sixth Amendments.

III. The Proceedings Involve A Question Of Ex-

ceptional Importance And The Court Of Ap-

peals Decision Failed To Follow An Opinion

Of This Court, In That Petitioner Was Sen-

tenced To 135 Years Imprisonment Based

Upon Facts Not Reflected In The Jury Ver-

dict, In Contravention Of The Right To Due

Process Of Law And A Jury Trial Under The

Fifth And Sixth Amendments

The decision below is in conflict with this Court’s

determination in United States v. Booker, 543 U.S. 220

(2005). Petitioner was sentenced to 1,620 months (135

years) imprisonment. Doc. 275, Transcript of sentencing,

Apr. 22, 2004; Transcript of restitution hearing, Apr. 23,

2004; Doc. 285, Judgment, -May 7, 2004. The Eleventh

Circuit recognized that “the district court committed

16

Booker‘ error by sentencing Petitioner under a mandatory

Guidelines scheme.” United States v. York, 428 F.3d at

1336. Nevertheless, the sentence was affirmed. The court

made the incredible conclusion that Petitioner “failed to

establish that either error affected his substantial rights.”

Id.

The Fifth and Sixth Amendments guarantee the right

to a trial by jury wherein no punishment can be imposed

unless a defendant is found guilty of particular criminal

charge beyond a reasonable doubt. At odds with that

fundamental constitutional right is the Sentencing Reform

Act of 1984. It sets up a system that requires a district

court to sentence or punish a defendant based upon

conduct that is not admitted or proved beyond a reason-

able doubt. See Title II of The Comprehensive Crime

Control Act of 1984; USSG (United States Sentencing

Commission, Guidelines. Manual), Chapter 1, Part A,

intro., comment (3).

In addition to a base sentencing range established by

reference to the jury verdict alone, the Guidelines pre-

scribe enhanced sentencing ranges based upon sentencing

factors that are determined by a judge after trial, by a

preponderance of the evidence. Jd. at comment (2) and

(4)(a). Due process requires that every fact necessary to

constitute a crime must be found beyond a reasonable

doubt by a jury if that right is not waived. Harris v. United

States, 536 U.S. 545, 575-76 (2002) (Thomas, J.,-dissent-

ing), citing Jn re Winship, 397 U.S. 358, 364 (1970). Society

* In United States v. Booker, 375 F.3d 508 (7th Cir. 2004), aff’d,

543 U.S. 220 (2005), the defendant’s sentence was vacated because the

sentencing enhancements violated the Sixth Amendment right to jury

trial after Blakely v. Washington, 542 U.S. 296 (2004).

17

has long recognized a necessary link between punishment

and crime. Jd. at 574-76, citing Apprendi v. New Jersey,

530 U.S. 466, 478 (2000) (“The defendant’s ability to

predict with certainty the judgment from the face of the

felony indictment flowed from the invariable linkage of

punishment with crime”). “Why, after all, would anyone

care if they were convicted of murder, as opposed to

manslaughter, but for the increased penalties for the

former offense, which in turn reflect the greater moral

opprobrium society attaches to the act?” Harris at 576.

The Guidelines do precisely what is prohibited under

the Sixth Amendment and require district courts to

punish, as here, a defendant based upon conduct that is

not admitted or proved beyond a reasonable doubt. For

example, USSG § 1B1.3, gives an expansive interpretation

of “Relevant Conduct.” Under it, ordinary crimes such as

perjury, subornation of perjury, escape, and obstruction of

justice arguably become “relevant conduct” or “sentencing

factors.” Such semantics are enough to exempt such

criminal conduct from the provisions of the Fifth and Sixth

Amendments even though citizens can be sent to prison

for years simply by the government proving with “reliable

information” (not trial quality evidence) to a judge (not a

jury) that it is more probably true than not true (not

“beyond a reasonable doubt”) that the defendant commit-

ted such “relevant conduct” (not crime).

However, the Sentencing Guidelines cannot supersede

the Constitution and should not be used to accomplish an

“end-run” around the fundamental right to trial by a jury

and to usurp the role of the jury. The district court should

not be permitted to use the Guidelines to ignore a verdict,

take the jury’s role, find culpability for conduct beyond

what is reflected in +2 jury verdict, and punish based

18

upon that extra-jury determination at a standard lower

than proof beyond a reasonable doubt. See Anderson v.

Fuller, 455 U.S. 1028, 1032 (1982) (Burger, C. J., dissent-

ing) (noting that federal courts should not usurp the

function of a jury in finding facts).

This Court has begun to recognize the fundamental

defects in the manner the justice system determines

sentences for defendants in a series of decisions. In Ap-

prendi v. New Jersey, 530 U.S. at 490, it was held that

“other than the fact of a prior conviction, any fact that

increases the penalty for crime beyond the prescribed

statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” In Ring v. Arizona,

536 U.S. 584 (2002), this imperative was clarified and

reaffirmed, noting that the rule in Apprendi applies to any

aggravating fact necessary to expose a defendant to

punishment beyond an otherwise mandatory statutory

limit.

After Apprendi, courts assumed the term “statutory

maximum” referred to in Apprendi and Ring was the

maximum sentence set forth under the statute listed in

the indictment. There was an assumption that the “statu-

tory maximum” does not apply to the various sentencing

thresholds established under the federal sentencing

guidelines. The courts have been wrong. “(T]he ‘statutory

maximum’ for Apprendi purposes is the maximum sen-

tence a judge may impose solely on the basis of the facts

reflected in the jury verdict or admitted by the defen-

dant. ... When a judge inflicts punishment that the jury’s

verdict alone does not allow, the jury has not found all the

facts which the law makes essential to the punishment.”

Blakely v. Washington, 542 U.S. at 302 (emphasis in

original).

19

The Blakely decision not only clarifies what was

meant by the term “statutory maximum,” but as a result of

that amplification calls into question the constitutionality

of current sentencing practices in federal courts. This

Court noted that the rule announced in Apprendi reflected

two longstanding tenets of common-law criminal jurispru-

dence: “that the truth of every accusation against the

defendant should afterwards be confirmed by a unanimous

[jury verdict], and that an accusation which lacks any

particular fact which the law makes essential to the

punishment is ... no accusation within the requirements

of the common law and it is no accusation in reason.”

(citations omitted) Blakely, at 301-302. The principle that

“‘every fact which is legally essential to the punishment’

must be charged in the indictment and proved to a jury.”

Id. at 341 n.5.

In the days following Blakely, several courts, includ-

ing the Seventh and Ninth Circuits have applied Blakely

to the Federal Sentencing Guidelines.’ See United States v.

Booker, 375 F.3d 508 (vacating defendant’s sentence

because sentencing enhancements violated the Sixth

Amendment right to jury trial after Blakely); United

States v. Ameline, 376 F.3d 967 (9th Cir. 2004) (same);

United States v. King, 328 F.Supp. 2d 1276 (M.D. Fla.

2004); United States v. Landgarten, 325 F.Supp. 2d 234

* The Eleventh Circuit has said that the holding in Blakely does

not alter the application of the Federal Sentencing Guidelines. United

States v. Reese, 382 F.3d 1308 (11th Cir. 2004). However, the court

recognized that the decision was likely to be overturned by this Court,

stating, “in light of this instability [of the decision], we recognize that

district courts might deem it wise and appropriate to take protective

steps in case the Guidelines are later found unconstitutional in whole

or in part.” Jd. at 1312.

20

(E.D.N.Y. 2004) (court orders that in light of Blakely,

sentencing must be held in front of a jury); United States

v. Medas, 232 F.Supp. 2d 436 (E.D.N.Y. 2004) (holding the

application of the Guidelines is unconstitutional after

Blakely), United States v. Croxford, 2004 W.L. 1462111

(C.D, Utah 2004); United States v. Lamoreaux, 2004 W.L.

1557283 (D. Mo. 2004); United States v. Leach, 325

F.Supp. 2d 557(E.D. Pa. 2004); United States v. Green, 346

F.Supp. 2d 259 (D. Mass. 2004).

Compliance with the Sixth Amendment requires “any

fact that increases the penalty for a crime beyond the

prescribed statutory maximum” must be proved beyond a

reasonable doubt. Apprendi, 530 U.S. at 490. The statu-

tory maximum is not the maximum penalty provided by

statute of conviction. Instead, this Court has held that the

“statutory maximum’ for Apprendi purposes is the maxi-

mum sentence a judge may impose solely on the basis of

the facts reflected in the jury verdict or admitted by the

defendant.” Blakely at 302. The jury verdict alone — or the

defendant’s admission alone — “must authorize the sen-

tence.” Id. Therefore, the upper bound of the appropriate

Guideline range, based on facts proven to a jury beyond a

reasonable doubt or admitted by Petitioner, establishes the

relevant statutory maximum for Apprendi purposes.

Under the Federal Sentencing Guidelines, dollar

amounts, drug amounts, other enhancements, and upward

departures all have the same effect — namely, they all

increase the maximum permissible sentence under the

guidelines. A judge’s reliance on such factors at sentencing

is therefore unconstitutional. United States v. Booker, 375

F.3d 508; United States v. Ameline, 376 F.3d 967; United

States v. King, 328 F.Supp. 2d 1276.

21

Blakely changes the way the Guidelines must be

applied. Once the applicable offense guideline is selected

based on the offense of conviction (see USSG §§ 1B1.1(a)

and 1B1.2), the base offense level and any adjustments to

it must now be determined on the basis of facts found by a

jury to have been proved beyond a reasonable doubt. See

United States v. Booker, 375 F.3d 508; United States v.

Ameline, 376 F.3d 967.

This Court recently clarified once more the law and

put the issue to rest:

Accordingly, we reaffirm our holding in Ap-

prendi: Any fact (other than a prior conviction)

which is necessary to support a sentence exceed-

ing the maximum authorized by the facts estab-

lished by a plea of guilty or a jury verdict must

be admitted by the defendant or proved to a jury

beyond a reasonable doubt.

United States v. Booker, 543 U.S. at 244 (emphasis added).

In the instant case, the government had Petitioner’s

sentence increased based on enhancements that were

never submitted to the jury. This was error. The sentence

should have been determined exclusively by the base

offense level corresponding to the offense reflected in the

jury verdict. Any increase in that sentence based on

factors never submitted to the jury is in violation of his

Sixth Amendment right to a jury trial and must be va-

cated.

22

IV. The Court Of Appeals Decision Failed To Fol-

low An Opinion Of This Court, And The Pro-

ceedings Involve A Question Of Exceptional

Importance, Because The Use Of The Newer

2002 Version Of The Federal Sentencing Guide-

lines Instead Of The 1993 Guidelines Violates

The Ex Post Facto Clause

The 2002 Federal Sentencing Guidelines followed to

sentence Petitioner were more severe than that in effect at

the time he allegedly committed the instant offenses.

Nevertheless, the district court used the newer guideline

to calculate the base offense level in sentencing Petitioner.

The 1993 version should have been used. The alleged

offenses listed for groups II, III, IV, V, and VI all occurred

no later than 1993. According to the government, this is

when the intent to transport the minors across state lines

allegedly formed, and when the crimes occurred.

The ex post facto clause forbids the imposition of

punishment more severe, as here, than that in existence

when the criminal act to be punished occurred. U.S.

Const., art. I, § 10, cl. 1. This Court addressed the issue a

quarter of a century ago:

The ex post facto prohibition forbids the Congress

and the States to enact any law “which imposes a

punishment for an act which was not punishable

at the time it was committed; or imposes addi-

tional punishment to that then prescribed.”

Cummings v. Missouri, 4 Wall. 277, 325-326, 18

L.Ed. 356 (1867). See Lindsey v. Washington, 301

U.S. 397, 401, 57 S.Ct. 797, 799, 81 L.Ed. 1182

(1937); Rooney v. North Dakota, 196 U.S. 319,

324-325, 25 S.Ct. 264, 265-266, 49 L.Ed. 494

(1905); In re Medley, 134 U.S. 160, 171, 10 S.Ct.

23

384, 387, 33 L.Ed. 835 (1890); Calder v. Bull, 3

Dall. 386, 390, 1 L.Ed. 648 (1798).

Weaver v. Graham, 450 U.S. 24, 28 (1981).

What occurred in the situation at hand meets the

criteria for relief. “[T]wo critical elements must be present

for a criminal or penal law to be ex post facto: it must be

retrospective, that is, it must apply to events occurring

before its enactment, and it must disadvantage the of-

fender affected by it.” Jd. at 29; see Lindsey v. Washington,

301 U.S. at 401. Those elements are present here.

The ex post facto clause demands that where Congres-

sional revision of the Federal Sentencing Guidelines

“changes the legal consequences of acts completed before

its effective date” to the detriment of the convict, the

Guidelines in effect at the time of the criminal act must be

applied. Miller v. Florida, 482 U.S. 423, 431 (1987). There-

fore, the guidelines in effect at the time of sentencing

apply.

Here the probation office correctly cited that § 2G1.1

applies to the offense of transporting individuals, includ-

ing minors, for the purpose of prohibited sexual conduct.

However, despite the fact that the offense conduct oc-

curred in 1993, the court used the 2002 version of the

Federal Sentencing Guidelines to determine the Peti-

tioner’s base offense level. Doc. 275, Minute Sheet, Apr. 22,

2004; Doc. 285, Judgment, supra. Under the 2002 version,

§ 2G1.1(c)(2) instructs that if the offense involved criminal

sexual abuse, then § 2A3.1 should be used to determine

the offense level. When applying § 2A3.1, the offense level

becomes 27. Further, additional enhancements are appli-

cable under § 2A3.1 based on the age of the victims and

whether the victims were under his care or supervision. As

24

a result of the enhancements, Petitioner’s offense levels for

the offenses listed in groups II, III, IV, V, and VI were

increased drastically. Importantly, the 1993 version of the

Guidelines do not contain a cross reference to § 2A3.1.

Instead, USSG § 2G1.1 (1993) provides for a base offense

level of 14 and no other enhancements apply under this

section.

Applying the 1993 Guidelines, Petitioner’s offense

levels should have been drastically lower than the offense

levels listed in the PSI. As it was, he was sentenced to 135

years of imprisonment.

a

CONCLUSION

The petition for writ of certiorari should be granted.

DATED: May 20, 2006

Respectfully submitted, ;

ROBERT R. BRYAN

Counsel of Record

LAW OFFICES OF ROBERT R. BRYAN

2088 Union Street, Suite 4

San Francisco, California 94123-4117

Telephone: (415) 292-2400

Facsimile: (415) 292-4878

E-mail: RobertRBryan@aol.com

Attorney for Petitioner

Dwight D. York

App. 1

428 F.3d 1325

United States Court of Appeals, Eleventh Circuit.

UNITED STATES of America, Plaintiff-Appellee, v.

Dwight D. YORK, a.k.a. Malakai Z. York, etc., Defendant-

Appellant. No. 04-12354.

Oct. 27, 2005.

Jeffrey M. Brandt, Matthew McGavock Robinson,

Robinson & Brandt, P.S.C., Cincinnati, OH, Adrian Lopez

Patrick, Law Offices of Adrian L. Patrick, Athens, GA,

Benjamin A. Davis, Jr., Davis Law Firm, Atlanta, GA, for

Defendant-Appellant.

Richard S. Moultrie, Jr., Macon, GA, Dean S. Daskal,

Columbus, GA, for Plaintiff-Appellee.

Appeal from the United States District Court for the

Middle District of Georgia.

Before BIRCH, HULL and BOWMAN*%*, Circuit

Judges.

PER CURIAM:

Defendant-Appellant Dwight D. York appeals his

convictions and 1,620-month sentence. After review and

oral argument, we affirm.

I. BACKGROUND

Dwight D. York (“York”) is the leader of the United

Nation of Nuwaubian Moors, a religious ministry/Native

American tribe that has existed in some form since the

* The Honorable Pasco M. Bowman, II, of the United States Court

of Appeals for the Eighth Circuit, sitting by designation.

App. 2

1960s.’ Over the years, the Nuwaubian organization’s

official philosophy (as well as its name) has changed

several times, alternatively finding its basis in Islamic,

Hebrew, ancient Egyptian, Yamasee Indian, and various

other cultures and religions. The organization was

founded in Brooklyn, New York; however, in approxi-

mately 1990 the Nuwaubians moved to a farm in Sullivan

County, New York. In early 1993, York began to move the

Nuwaubians from Sullivan County to a large plot of land

in Eatonton, Georgia.

On November 21, 2003, a grand jury in the United

States District Court for the Middle District of Georgia

(Macon Division) returned a second superseding indict-

ment (the “Indictment”),’ which formed the basis for York’s

fourteen-day trial in January 2004. The Indictment

contains thirteen counts. :

Specifically, Count One charges York with a Racketeer

Influenced and Corrupt Organizations (“RICO”) conspir-

acy, in violation of 18 U.S.C. § 1962(d). Count Two charges

a substantive RICO offense, in violation of 18 U.S.C.

§ 1962(c). The RICO counts are predicated on specific

instances in which York: (1) engaged in the interstate

- * York is known by several names, including “Malakai Z. York,”

“Malachi York,” “Isa Muhammad,” “Isa Alihad Mahdi,” and “Baba.” For

the sake of consistency, we refer to him as “York.”

* Initially, York and an alleged co-conspirator were indicted on four

counts arising out of their alleged interstate transport of minors for

unlawful sexual activity. The original indictment was first superseded

in order to facilitate a guilty plea by York to one count of interstate

transport of a minor for unlawful sexual activity; however, York’s plea

agreement was rejected by the district court. York subsequently

withdrew his guilty plea, and the Indictment (on which York was

ultimately tried) was returned by the grand jury on November 21, 2003.

App. 3

transport of minors with the intent to engage in unlawful

sexual activity; (2) engaged in interstate travel for the

purpose of engaging in unlawful sexual activity with

minors; and (3) unlawfully structured cash transactions in

order to avoid federal reporting requirements. Count

Three charges York with general criminal conspiracy to

engage in the interstate transport of minors with the

intent to engage in unlawful sexual activity, as well as

with conspiracy to unlawfully structure cash transactions

to avoid federal reporting requirements, in violation of 18

U.S.C. § 371.

Counts Four, Five, Six, and Eight charge York with

the specific interstate-transport-of-minors-for-sex acts that

form the basis for those predicate acts in the RICO and

conspiracy counts, in violation of the Mann Act, 18 U.S.C.

§ 2423(a). Specifically, Count Four charges the interstate

transpert of -a minor, identified as “I.J.,” from Sullivan

County, New York to Eatonton, Georgia in February 1993.

Count Five charges the interstate transport of three

minors, identified as “K.H.,” “A.N.,” and “D.N.,” from

Sullivan County to Eatonton in April 1993. Count Six

charges the interstate transport of a minor, identified as

“A.T.,” from Kings County, New York to Georgia in April

1993. Count Eight charges the interstate transport of

three minors, identified as “A.N.,” “K.L.,” and “S.W.,” from

Georgia to Florida in 1996.

Count Seven charges York with a 1996 act of inter-

state travel from Georgia to Florida for the purpose of

engaging in unlawful sexual activity with minors, in

violation of the Mann Act, 18 U.S.C. § 2423(b). The minors

in Count Seven are the same minors named in Count

Eight.

App. 4

Counts Nine, Ten, and Eleven charge York with the

acts of unlawfully structuring cash transactions that form

the basis for those predicate acts in the RICO and conspir-

acy counts of the Indictment. Specifically, Counts Nine,

Ten, and Eleven charge York with three acts of unlawfully

structuring cash transactions to avoid federal reporting

requirements, in violation of 31 U.S.C. § 5313(a) and 31

U.S.C. § 5324(a)(3). Count Nine charges York with unlaw-

fully structuring cash transactions on or about September

29-30, 1999. Count Ten charges York with unlawfully

structuring cash transactions on or about October 6-8,

1999. Count Eleven charges York with unlawfully struc-

turing cash transactions on or about April 5-11, 2000.

Finally, Counts Twelve and Thirteen are forfeiture counts.

At trial, there was substantial evidence that under

York’s leadership, the Nuwaubians’ lifestyle was highly

restricted.’ York had many “wives” who served his busi-

ness and personal needs. York’s followers were expected to

abide by his rules or risk punishment or expulsion from

the Nuwaubian organization. Men and women did not live

together; children beyond toddler age were generally

separated from their parents; and children were separated

by sex and age and lived in different buildings and rooms

accordingly. Children were home-schooled and usually

interacted with their biological parents for only specific,

short periods of time.

Several witnesses testified that York, both in Sullivan

County, New York and in Eatonton, Georgia, as well as in

* We discuss the evidence in the light most favorable to the

government and recognize that York vigorously denies the government's

version of events. See United States v. Garcia, 405 F.3d 1260, 1269 (11th

Cir.2005).

App. 5

Athens, Georgia, engaged in a regular course of sexual

contact with underage children within the Nuwaubian

organization, including oral, vaginal, and anal sex. Some

of the children were as young as six years old when the

initial sexual contact with York occurred. Certain of York’s

“wives” and older sexual partners (some still underage

themselves) helped recruit or encourage younger children

to participate in sex acts with York.

Additionally, there was substantial evidence that York

owned and operated a number of stores and outlets

throughout the country that sold religious and non-

religious Nuwaubian items. A “finance office” in Eatonton,

Georgia, staffed by various Nuwaubians, was responsible

for collecting and handling the profits from York’s busi-

nesses. In addition to the sex crime evidence at trial,

witnesses testified that York instructed the workers in the

“finance office” never to deposit $10,000 or more in cash

into any of his bank accounts at any given time, in order to

evade federal cash transaction reporting requirements.

The jury convicted York on eleven of the thirteen

counts in the Indictment, acquitting York on Counts Eight

and Twelve. The district court sentenced York to the

statutory maximum prison term on each count of convic-

tion, to be served consecutively, yielding a total sentence of

1,620 months’ incarceration. York timely appealed.

II. ISSUES ON APPEAL

On appeal, York raises several assignments of error,

including: (1) the Indictment misjoined the sexual abuse

charges with the financial-structuring charges, and the

district court erred in refusing to sever those charges; (2)

the district court erred in refusi:ig to dismiss the RICO

App. 6

counts because the United Nation of Nuwaubian Moors is

not an “enterprise” under RICO and because there is an

insufficient connection between York’s alleged acts and the

Nuwaubian organization; (3) the district court erred in

refusing to dismiss the Indictment because the Indictment

was improperly returned by a grand jury tainted by pre-

trial publicity; (4) the district court erred in allowing the

government to call a certain witness in rebuttal, and

further erred by refusing to allow York to call his own

rebuttal witness thereafter; (5) there was insufficient

evidence to convict York of the charges that he transported

minors in interstate commerce with the intent that the

minors would engage in unlawful sexual activity, and

further, the government did not put forth sufficient evi-

dence to prove that any underlying sexual activity under-

taken by York was actually unlawful; (6) the district court

erred in denying York’s motion to dismiss two counts of the

Indictment because the minor victim was undisputedly

over the age of consent at the time the sexual act took

place;* (7) the district court erred in denying York a con-

tinuance when York switched lead counsel approximately

two weeks before trial; (8) York’s sentence violates the

Sixth Amendment under United States v. Booker, 543 U.S.

220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), because the

district court enhanced his sentence based on facts not

reflected in the jury’s verdict; (9) York’s sentence is invalid

under Booker because he was sentenced under a manda-

tory, rather than advisory, guidelines scheme; and (10)

York’s sentence violates the ex post facto clause of the

* This victim, however, was undisputedly under the age of consent

at the time she was transported in interstate commerce from Sullivan

County, New York to Eatonton, Georgia.

App. 7

Constitution because York was sentenced under the

November 2000 edition of the United States Sentencing

Guidelines (“Guidelines”) rather than under the November

1993 edition of the Guidelines.*

Ill. DISCUSSION ,

After careful review of the voluminous record in this

case, as well as the arg::ments of the parties in both their

briefs and at oral argument, we conclude that all of York’s

claims of error lack merit.° Only York’s pre-trial publicity

and severance claims, along with York’s three assignments

of sentencing error, warrant further discussion.

* York also asserts that his post-trial counsel was ineffective in

that, without York’s express consent, he withdrew a motion for judg-

ment of acquittal and a motion for new trial, both of which were

initially filed by York’s trial counsel. We conclude that York’s ineffective

assistance of counsel claim is not properly before us at this time

because the record below is not sufficiently developed to adequately

address the merits of York’s argument. See United States v. Camacho,

40 F.3d 349, 355 (11th Cir.1994), overruled in part on other grounds by

United States v. Sanchez, 269 F.3d 1250 (11th Cir.2001); see also

Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 1694,

155 L.Ed.2d 714 (2003) (holding that “in most cases” it is preferable

that a motion for ineffective assistance of counsel be raised on collateral

review rater than on direct appeal). As such, we do not reach this

claim.

° The decision to permit rebuttal testimony lies in the sound

discretion of the trial court. United States v. Gold, 743 F.2d 800, 818

(11th Cir.1984). A district court’s denial of a motion for mistrial is also

reviewed for abuse of discretion, as is the denial of a motion for

continuance. United States v. Chastain, 198 F.3d 1338, 1352 (11th

Cir.1999); United States v. Wright, 63 F.3d 1067, 1071 (11th Cir.1995);

United States v. Verderame, 51 F.3d 249, 251 (11th Cir.1995). We review

a defendant’s challenge to the sufficiency of the evidence de novo,

taking all reasonable inferences in the government’s favor. United

States v. Rudisill, 187 F.3d 1260, 1267 (11th Cir.1999).

App. 8

A. Pre-Trial Publicity

In late October 2003, the district court granted York’s

motion to change venue and ordered that the location of

York’s trial be moved from the United States District

Court for the Middle District of Georgia (Macon Division)

to the United States District Court for the Southern

District of Georgia (Brunswick Division). In its change-of-

venue order, the district court “first note[d] that the

Government has not objected to Defendant’s motion.” The

district court then stated that it had “grave concerns about

trying to select a jury in this case in any division in the

Macon and Atlanta media markets” and concluded that

York could not receive “a fair and impartial trial” if the

trial were to take place in Macon.’

Approximately one month after the change-of-venue

order, the grand jury issued the second superseding

indictment (the Indictment), on which York was ultimately

tried. The grand jury was chosen from the same pool of

individuals from which any trial jury would have been

chosen if York’s trial had actually taken place within the

Middle District of Georgia (Macon Division).

After the Indictment issued in November 2003, York

moved for its dismissal, arguing that if the trial jury pool

was tainted by pre-trial publicity as of October 2003, then

it must follow that the Indictment - issued by a Macon-

area grand jury approximately one month after the change-

of-venue order — must also be tainted due to pre-indictment

* York’s appeal, however, properly comes to this Court from the

United States District Court for the Middle District of Georgia (Macon

Division), where the Nuwaubians’ Eatonton, Georgia compound is

located and the Indictment was returned.

App. 9

publicity. The district court denied York’s motion, conclud-

ing that York “failed to show that the pre-indictment

publicity resulted in actual bias or prejudice against him”

before the grand jury. The district-court found that the

existence of pre-trial publicity by itself, or even evidence

that the grand jury may have been aware of the publicity,

was insufficient to carry York’s burden of showing actual

bias or prejudice in the grand jurors’ decision to indict. The

district court concluded that the grand jury need not

deliberate in a “‘sterile chamber’” and that pre-trial

publicity alone was an inadequate ground upon which to

base the dismissal of the Indictment.

With regard to its change-of-venue order, the district

court drew a distinction between the role of the grand jury

and a trial jury, pointing out that the grand jury is an

investigative and accusatorial body “‘unimpeded by the

evidentiary and procedural restrictions applicable to a

criminal trial.’” The district court then classified its

earlier decision to permit a change of venue as one taken

out of “an abundance of caution” and found that dismissal

of the Indictment was “far too extreme a remedy under

these circumstances.”

The district court’s refusal to dismiss the Indictment

based on pre-trial publicity was not error, much less

reversible error.” First, our decision in United States v.

Waldon, 363 F.3d 1103, 1109-10 (11th Cir.2004), is control-

ling. In that case, as here, the defendant Waldon argued

* We review the district court’s denial of a motion to dismiss an

indictment for abuse of discretion, although the legal sufficiency of the

allegations in an indictment is a question of law that is reviewed de

novo. United States v. Waldon, 363 F.3d 1103, 1108 (11th Cir.2004);

United States v. Pendergraft, 297 F.3d 1198, 1204 (11th Cir.2002).

App. 10

that pre-trial publicity prejudiced the grand jury such that

dismissal of his second superseding indictment was re-

quired. Moreover, just as in this case, the Waldon Court

recognized that “case was undoubtedly the subject of much

press in the Jacksonville area.” Waldon, 363 F.3d at 1109.

Nevertheless, this Court squarely held in Waldon that

“publicity is generally not a basis for dismissal of an indict-

ment.” Id. In Waldon, we pointed out that the defendant’s

pre-trial publicity argument misconstrued “the role of the

grand jury, which is an ‘investigative and accusatorial [body]

unimpeded by the evidentiary and procedural restrictions

applicable to a criminal trial.’” Jd. (quoting United States v.

Calandra, 414 U.S. 338, 349, 94 S.Ct. 613, 620, 38 L.Ed.2d

561 (1974)). We concluded that the Waldon district court did

not err in failing to dismiss the indictment on the grounds of

pre-trial publicity because “the concern over adverse public-

ity is its effect on the fairness of the ensuing trial, and not its

effect on the grand jury.” Id. at 1109-10.

Although Waldon governs here, York nevertheless

argues that his situation is distinguishable from, and not

controlled by, Waldon because in his case, the district court

issued a change-of-venue order on the specific ground of

excess pre-trial publicity and expressly noted its “grave

concerns” about picking a trial jury from the Macon area.

In other words, York argues that Waldon does not bind the

panel in this case because here, it was “ ‘judicially recog-

nized’” that the jury pool in Macon was unduly influenced

by pre-trial publicity.

* Moreover, in Waldon, we noted that “it does not appear that any

iridictment has thus far been dismissed on the ground that it was

induced by pretrial publicity,” and York cites no such case. Waldon, 363

F.3d at 1109 (quotation marks, citations, and alterations omitted).

App. 11

We reject York’s argument because the amount of the

pre-trial publicity in Waldon was not the basis for the

Waldon decision; indeed, in Waldon, we expressly assumed

a high level of pre-trial publicity. See id. at 1109. Rather,

our decision in Waldon was based on the entirely different

functions of the grand jury vis-a-vis the trial jury and the

different types of evidentiary restrictions before each body.

The point in Waldon was, and the point remains today,

that the grand jury is not impeded by the evidentiary and

procedural restrictions applicable to trial juries. Jd. A

grand jury investigation “may be triggered by tips, ru-

mors, evidence proffered by the prosecutor, or the personal

knowledge of the grand jurors.” Calandra, 414 U.S. at 344,

94 S.Ct. at 618. Moreover, “(t]he grand jury’s sources of

information are widely drawn, and the validity of an

indictment is not affected by the character of the evidence

considered.” Jd. at 344-45, 94 S.Ct. at 618. As a result, the

district court’s conclusion that a change-of-trial-venue

from the Macon area was warranted does not necessarily

mean, as York argues, that the district court erred in

refusing to dismiss the Indictment issued by a grand jury

from the Macon area.

We do recognize that Waldon states that publicity is

“generally not a basis for dismissal of an indictment.”

Waldon, 363 F.3d at 1109 (emphasis added). We further

acknowledge that York maintains that Calandra requires

dismissal of his Indictment because the Supreme Court

recognized in Calandra that the-grand jury is not merely

an investigative body but also an institution that exists for

“the protection of citizens against unfounded criminal

prosecutions.” Calandra, 414 U.S. at 343, 94 S.Ct. at 617.

However, York fails to explain how his prosecution was

rendered “unfounded” by the publicity that surrounded the

App. 12

Indictment. This is particularly true given Calandra’s

specific recognition that an indictment’s validity is not

affected by the type of evidence considered by a grand jury.

Id. at 344-45, 94 S.Ct. at 618-19.

More importantly, and in any event, York has failed to

establish that publicity surrounding his case “substan-

tially influenced” the ultimate decision to indict him and

thereby caused him actual prejudice. Bank of Nova Scotia

v. United States, 487 U.S. 250, 256, 108 S.Ct. 2369, 2374,

101 L.Ed.2d 228 (1988) (dismissal of indictment due to

error in grand jury proceedings is only appropriate where

“St is established that the violation substantially influ-

enced the grand jury’s decision to indict,’ or if there is

‘grave doubt’ that the decision to indict was free from the

substantial influence of such violations”) (citation omit-

ted). Indeed, York overstates the significance of the district

court’s change-of-venue order, given that York’s venue

motion was unopposed and the district court later de-

scribed its decision to grant the venue motion as a decision

taken out of “an abundance of caution.” For all of these

reasons, and based on the record and factual circum-

stances of this case, we reject York’s argument that the

district court erred in denying his motion to dismiss the

Indictment due to pre-trial publicity.

B. Severance

York alternatively asserts that the Indictment mis-

joined the sexual abuse charges with the unlawful finan-

cial structuring charges, and that the district court abused

its discretion in denying his motion to sever those

App. 13

charges.” In response, the government emphasizes that

these charges are not totally unrelated and that there was

evidence at trial that York staffed his “finance office” with

only women and preferred that the positions of greatest

responsibility within the “finance office” be staffed only by

women with whom York had previously had a sexual

relationship.

In order to show that the district court wrongly denied

his motion to sever, York must show that he suffered

“actual prejudice” from any misjoinder that allegedly may

have occurred. See United States v. Hersh, 297 F.3d 1233,

1242-43 & n. 14 (11th Cir.2002) (regardless of whether or

not charges were initially misjoined, in order to show that

the district court abused its discretion in denying a motion

to sever, the defendant must demonstrate that he suffered

“actual prejudice” or “compelling prejudice” from the

misjoinder that caused “‘substantial and injurious effect

or influence in determining the jury’s verdict’”) (citation

omitted).

Here, we readily conclude that York has failed to show

that he suffered “actual prejudice” from the alleged mis-

joinder of the charges and the denial of his severance

motion. Jd. at 1243 (finding no actual prejudice where child

pornography charges were allegedly misjoined with charges

of child molestation, and holding that “‘more than some

prejudice must be shown; the appellant must demonstrate

that he received an unfair trial and suffered compelling

This Court reviews de novo whether the government’s initial

joinder of criminal charges was proper under Federal Rule of Criminal

Procedure 8. We then review the district court’s subsequent denial of a

motion to sever for abuse of discretion. United States v. Hersh, 297 F.3d

1233, 1241 (11th Cir.2002).

App. 14

prejudice’” via more than “‘conclusory allegations’”) (cita-

tion omitted). Although York conclusorily asserts that the

alleged misjoinder “unfairly circumvented” the statute of

limitations for many of the alleged sex acts, York also

acknowledges that the RICO charge rendered any statute of

limitations argument moot, stating in his reply brief that

“Thlad it not been for the umbrella of RICO, these acts

would not have been prosecutable.” See also United States

v. Welch, 656 F.2d 1039, 1051 & n. 20 (5th Cir. Unit A

Sept.1981) (substantive RICO and RICO conspiracy

charges “can provide an overall connection that will allow

the joinder of seemingly unrelated acts”);" United States v.

Starrett, 55 F.3d 1525, 1544-45 (11th Cir.1995) (five-year

statute of limitations for substantive RICO charge only

requires that at least one predicate act be committed

within five years of the date defendant was charged in the

indictment).

Moreover, the jury was expressly instructed that it

was to consider each count of the Indictment separately

and was further instructed that merely finding York guilty

of one charged offense was not to influence its verdict as to

the other charged offenses. In Hersh, we found a similar

limiting instruction significant in affirming a district

court’s denial of a motion to sever. Hersh, 297 F.3d at 1244

(“‘If the possible prejudice may be cured by a cautionary

instruction severance is not required.’”) (citation omitted).

Further, the jury acquitted York on two of the thirteen

counts, evincing that it considered each count separately.

" In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981)

(en banc), this Court adopted as binding precedent all Fifth Circuit

decisions rendered prior to October 1, 1981.

App. 15

For all of the foregoing reasons, the district court did not

abuse its discretion in denying York’s motion to sever.

C. Sentencing

We first outline the manner in which York’s sentence

was calculated and then review his sentencing claims.

1. Pre-Sentence Investigation Report and Sen-

tencing Hearing

Prior to York’s sentencing, a probation officer prepared

a Pre-Sentence Investigation report (“PSI”) utilizing the

November 2000 edition of the Guidelines.” The PSI

recommended a base offense level of twenty-seven, under

U.S.S.G. §§ 2G1.1(c)(2), 2A3.1, and 3D1.1 (2000). The PSI

also recommended: (1) a four-level increase under U.S.S.G.

§ 2A3.1(b)(2)(A) because the victim in each relevant group

was under age twelve when he or she was first molested

by York; (2) a two-level increase under U.S.S.G.

§ 2A3.1(b)(3)(A) because the victims were under York’s

care and supervisory control; (3) a four-level increase

’ Although York argues in his briefs that he was improperly

sentenced under the November 2002 edition of the Guidelines, it is

clear from the PSI and the transcript of the sentencing hearing that

York was in fact sentenced under the November 2000 edition of the

Guidelines. See PSI 9 69; Tr. of Apr. 22, 2004 Sentencing Hr'g at 3.

Accordingly, we will construe York’s ex post facto claim as a claim that

York was improperly sentenced under the November 2000 edition of the

Guidelines (hereinafter, the “2000” edition of the Guidelines).

'* Specifically, the PSI grouped relevant counts together pursuant

to U.S.S.G. § 3D1.1 and used the groups that produced the highest total

offense levels (those groups dealing with the interstate transport of

minors for sexual activity) to compute York’s base offense level] at

twenty-seven.

App. 16

under U.S.S.G. § 3B1.1(a) because York exercised a leader-

ship role and/or the Nuwaubian enterprise involved more

than five participants and was otherwise extensive; and

(4) a two-level increase under U.S.S.G. § 3B1.4 because

York utilized a person under the age of eighteen to commit

the offense. These increases resulted in an adjusted

offense level of thirty-nine. The PSI then-applied a multi-

ple-count adjustment of four levels, pursuant to U.S.S.G.

§ 3D1.4, for a combined adjusted offense level of forty-

three. York’s criminal history category of I and adjusted

offense level of forty-three yielded a Guidelines range of

life imprisonment.

York filed several written objections to the PSI. York’s

objections asserted that the 1993 edition of the Guidelines

— rather than the 2000 edition — should have been used to

calculate his sentence, and that the use of the 2000 edition

of the Guidelines violated the ex post facto clause of the

Constitution. York did not, however, raise any Booker

objections in the district court.

At York’s sentencing hearing, the district court

adopted the findings in the PSI and rejected York’s ex post

facto argument. Given that York’s Guidelines range was

life imprisonment on each count, the district court then

sentenced York to the statutory maximum for each count

of conviction, with the sentence on each count to run

consecutively. Specifically, the district court sentenced

York to 240 months’ imprisonment on Count One; 240

months’ imprisonment on Count Two; 60 months’ impris-

onment on Count Three; 180 months’ imprisonment on

Count Four; 180 months’ imprisonment on Count Five; 180

months’ imprisonment on Count Six; 180 months’ impris-

onment on Count Seven; 120 months’ imprisonment on

Count Nine; 120 months’ imprisonment on Count Ten; and

App. 17

120 months’ imprisonment on Count Eleven, for a total

sentence of 1,620 months’ imprisonment.

At sentencing, the district court expressly stated that

it found York’s sentence “appropriate” in light of “the

nature of the crimes, the victims involved, the length of

the offense, and the totality of the circumstances.” At no

point during sentencing did the district court indicate that

it desired to impose a lesser sentence than that called for

by the Guidelines, or that it felt that the Guidelines range

was overly harsh.

2. Booker Error

On appeal, York does not contend that there is insuffi-

cient evidence to support the district court’s findings of

fact as to his specific sentencing enhancements, or that the

district court legally misapplied or miscalculated those

sentencing enhancements. York simply contends that his

sentence violates Booker because the district court im-

posed extra-verdict sentencing enhancements uiider a

mandatory Guidelines scheme.

This Court recently recognized that there are two

types of Booker error, constitutional and statutory. United

States v. Mathenia, 409 F.3d 1289, 1291-92 (11th Cir.2005).

“The constitutional error is the use of extra-verdict en-

hancements to reach a guidelines result that is binding on

the sentencing judge; the error is in the mandatory nature

of the guidelines once the guidelines range has been

determined.” United States v. Rodriguez, 398 F.3d 1291,

1301 (11th Cir.), cert. denied, __U.S. __, 125 S.Ct. 2935,

162 L.Ed.2d 866 (2005). Meanwhile, “statutory error occurs

when the district court sentences a defendant ‘under a

mandatory guidelines scheme, even in the absence of a

App. 18

Sixth Amendment enhancement violation.’” Mathenia, 409

F.3d at 1291 (citation omitted). York argues that the

district court committed both constitutional and statutory

Booker error.

Because York did not raise his Booker claims before

the district court, we review those claims only for plain

error. Rodriguez, 398 F.3d at 1298. In order to establish

plain error, York must show “‘(1) error, (2) that is plain,

and (3) that affects substantial rights.’” Jd. (citation

omitted). “‘If all three conditions are met, an appellate

court may then exercise its discretion to notice a forfeited

error, but only if (4) the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.’” Jd.

(citation omitted).

Turning first to York’s claim of constitutional Booker

error, there is a substantial question as to whether the

facts supporting the enhancements in York’s sentence were

extra-verdict or well within the facts necessarily deter-

mined by the jury’s verdict (i.e., whether the first prong of

the plain-error test is present). The Indictment alleges

that York: (1) was the leader of a 5,000-person religious

organization (the enterprise in the RICO count); (2)

directed his followers, particularly the children, to view

him as a god-like or father figure; (3) molested multiple

minors, including several who were under age twelve at

the time the specific acts charged in the Indictment took

place; and (4) ordered minors to bring other minors to him

for unlawful sexual activity. The jury convicted York of

each count of the Indictment that alleges such conduct,

arguably establishing most, if not all, facts necessary to

support each enhancement imposed by the district court.

App. 19

In any event, the district court did commit statutory

Booker error by sentencing York under a mandatory

Guidelines scheme. See United States v. Shelton, 400 F.3d

1325, 1330-31 (11th Cir.2005). Moreover, in order to satisfy

the second prong of the plain-error test, Booker error need

only be plain at the time of our appellate consideration.

See Rodriguez, 398 F.3d at 1299. Although York has thus

clearly shown statutory Booker error, and even assuming

arguendo that he has also shown constitutional Booker

error, we still affirm York’s sentence because he has failed

to establish that either error affected his substantial

rights. “A defendant’s substantial rights are affected when

there is a reasonable probability that the district court

would have imposed a different sentence if the guidelines

were not mandatory.” United States v. Rivas-Ruiz, No. 04-

13056, 2005 WL 2334375, at 2 & n. 1, 151 Fed.Appx. 831,

833 & n. 1 (11th Cir. Sept.26, 2005) (unpublished) (con-

cluding that the defendant failed to meet his burden of

showing that his substantial rights were affected by

Booker error because the record did not indicate what the

district court would have done if the Guidelines were not

mandatory); see also Rodriguez, 398 F.3d at 1299-1301

(concluding that where the effect »f Booker constitutional

error “on the result in the district court is uncertain or

indeterminate ... the appellant has not met his burden of

showing a reasonable probability that the result would

have been different but for the error”).

Nothing in the transcript of York’s sentencing hearing

or elsewhere in the record establishes a “reasonable

probability” that if the district court had sentenced York

under an advisory Guidelines scheme rather than a

mandatory Guidelines scheme, the district court would

have imposed a lesser sentence. See Rodriguez, 398 F.3d at

App. 20

1301; see also United States v. Fields, 408 F.3d 1356, 1360

(11th Cir.2005) (“Where ‘[w]Je just don’t know’ whether the

defendant would have received a lesser sentence if the

guidelines had been advisory, the defendant has not met

his burden of showing prejudice.”) (citation omitted). If

anything, the record shows that the district court would

not have imposed a lesser sentence because the district

court specifically determined that the Guidelines range

and York’s 1,620 month sentence were “appropriate” in

light of the “nature of the crimes, the victims involved, the

length of the offense, and the totality of the circum-

stances.” Compare Rodriguez, 398 F.3d at 1301 (third

prong of plain-error test not met because record provides

no reason to believe that district judge might have short-

ened defendant’s sentence) with Shelton, 400 F.3d at 1332

(third prong of plain-error test met where district court

“during sentencing expressed several times its view that

the sentence required by the Guidelines was too severe”;

classified defendant’s criminal history category as “‘unfor-

tunate[]’”; sentenced defendant to low end of Guidelines

range; and classified final sentence as “‘more than appro-

priate’”). Accordingly, York’s Booker claims fail because he

has not met his burden with regard to the third prong of

the plain-error test.

3. Ex Post Facto Claim

Finally, we address York’s argument that the district

court improperly imposed sentencing enhancements based

on U.S.S.G. § 2G1.1’s (“Section 2G1.1”) cross-reference to

U.S.S.G. § 2A3.1 (“Section 2A3.1”) in the 2000 edition of

the Guidelines. York contends that the district court

should have used the 1993 edition of the Guidelines,

because his sex crimes should have been severed from his

App. 21

financial crimes and his last sex crime concluded in 1993.

York argues that the 1993 edition of the Guidelines con-

tains no cross-reference to Section 2A3.1 and thus. the

district court’s use of the 2000 edition of the Guidelines

resulted in a-more onerous sentence and violated the ex

post facto clause of the Constitution."

“Generally, a convicted defendant’s sentence is based

on the United States Sentencing Commission Guidelines

Manual ‘in effect on the date the defendant is sentenced.’”

United States v. Bailey, 123 F.3d 1381, 1403 (11th

Cir.1997) (quoting 18 U.S.C. § 3553(a)(4)). However, if the

Manual in effect on the date of sentencing violates the ex

post facto clause of the Constitution, then the district court

must use the Manual that was in effect on the date that

the crime was committed. Jd. A sentencing scheme violates

the ex post facto clause “if it is enacted after the crime was

committed and before sentencing, and its application

results in a more onerous penalty.” Jd. at 1403 n. 32.

Further, if related crimes are committed in a series, the

date of the crime at the end of the series governs the date

of the Manual to be used.” Jd. at 1404-05.

“ A defendant's claim that his sentence was imposed in violation of

the ex post facto clause of the Constitution is a question of law that this

Court reviews de novo. United States v. Futrell, 209 F.3d 1286, 1289

(11th Cir.2000).

** “The use of either the Sentencing Guidelines Manual in effect at

sentencing or the one in effect when the crime was committed is known

as the ‘one book rule.’” Bailey, 123 F.3d at 1403 (explaining in detail

that under the one book rule, only one edition of the Manual is to be

applied in sentencing a defendant). York was sentenced in 2004, but no

party contends that the 2004 Manual should have been used. The 2000

Manual was used instead, and York’s only argument on appeal is that

the district court should have used the 1993 Manual. Thus we address

only whether the 1993 Manual should have been used.

App. 22

We reject York’s argument that his sentence violates

the ex post facto clause for two reasons. First, as outlined

above, the district court did not err in refusing to sever the

sex charges from the financial charges. Thus, the district

court properly refused to apply the 1993 edition of the

Guidelines at York’s sentencing because York’s crimes

continued well past 1993. See Bailey, 123 F.3d at 1404-05

(“(Rjelated offenses committed in a series will be sen-

tenced together under the .. . Manual in effect at the end

of the series.”).

Secondly, and in any event, there is no ex post facto

violation present here because both the 1993 and 2000

editions of the Guidelines contain applicable cross-

references to Section 2A3.1. Under the 2000 edition of the

Guidelines, Section 2G1.1 is the applicable guideline for

convictions under 18 U.S.C. § 2423(a), which prohibits the

interstate transport of a minor with the intent to engage

in criminal sexual activity. Section 2G1.1 is entitled

“Promoting ... Prohibited Sexual Conduct” and states as

follows: “If the [18 U.S.C. § 2423(a)] offense involved

criminal sex abuse, attempted criminal sexual abuse, or

assault with intent to commit criminal sexual abuse, apply

§ 2A3.1.” U.S.S.G. § 2G1.1(c)(2) (2000) (emphasis added).

Meanwhile, under the 1993 edition of the Guidelines,

U.S.S.G. § 2G1.2 (“Section 2G1.2”) is the applicable guide-

line for convictions under 18 U.S.C. § 2423(a). Just as

Section 2G1.1 (2000) does, Section 2G1.2 (1993), entitled

“Transportation of a Minor for the Purpose of... Prohib-

ited Sexual Conduct,” provides that “[ilf the [18 U.S.C.

§ 2423(a)] offense involved criminal sexual abuse, at-

tempted criminal sexual abuse, or assault with intent to

commit criminal sexual abuse, apply § 2A3.1.” U.S.S.G.

§ 2G1.2(c)(2) (1993) (emphasis added).

App. 23

In other words, contrary to York’s argument, under

both Section 2G1.1 (2000) and Section 2G1.2 (1993), there

are applicable cross-references to Section 2A3.1 if the

interstate transport offense involves criminal sexual

abuse. Compare U.S.S.G. § 2G1.1(c)(2) (2000) with

U.S.S.G. § 2G1.2(c)(2) (1993). While the numbering of the

sub-sections (Section 2G1.1 and 2G1.2) is different, the

substance of the two provisions is the same for 18 U.S.C.

§ 2423(a) offenses.”

In his reply brief, York essentially concedes that point,

but he also argues (1) that the only way to arrive at the

same offense level that the district court reached here is

“by manipulating the [1993 edition of the] Guidelines,”

and (2) that “his sentence would have been lower” under

the 1993 edition of the Guidelines. However, York cites no

case or record evidence in support of his argument that his

sentence would have been lower if it had been calculated

under the 1993 edition of the Guidelines, and as discussed,

our own review of the record does not reflect any indica-

tion that the district court wished to impose a different

sentence. More to the point, because the cross-reference to

Section 2A3.1 is essentially identical in both the 1993 and

2000 editions of the Guidelines, the district court did not

violate the ex post facto clause by using the 2000 edition.

'* There is no Section 2G1.2 in the 2000 edition of the Guidelines.

However, in the 2000 edition of the Guidelines, Section 2G1.1 is

unquestionably the applicable guideline for convictions under 18 U.S.C.

§ 2423(a). See U.S.S.G. app. A (2000); see also U.S.S.G. § 2G1.2 histori-

cal note (2000) (“Section 2G1.2 ... was deleted by consolidation with

jSection] 2G1.1 effective November 1, 1996.”).

App. 24

IV. CONCLUSION

For all of the above reasons, we affirm York’s convic-

tions and sentence.

AFFIRMED.

App. 25

167 Fed.Appx. 169

United States Court of Appeals, Eleventh Circuit.

U.S.

v.

Dwight D. York, a/k/a Malakai Z. York, a/k/a Isa Muham-

mad, a/k/a Isa Alihad Mahdi, a/k/a Baba

NO. 04-12354

December 21, 2005

DENIALS OF REHEARING EN BANC.