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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0953%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0953%3A1. Public record. Not legal advice.