United States v. Harold Rosbottom, Jr.
2014 U.S. App. LEXIS 15554
| 5th Cir. | 2014Background
- Harold Rosbottom (debtor) and Ashley Kisla (employee/girlfriend) were indicted on 11 counts arising from Rosbottom’s Chapter 11 bankruptcy filings for concealing assets, making false oaths, money laundering and related conspiracies; the indictment also sought forfeiture.
- Trial evidence: shortly before filing bankruptcy, Rosbottom converted large withdrawals into 17 cashier’s checks (~$1.82M) that were not disclosed; those checks were used to acquire a boat (via a BVI company, CCH, owned by Kisla) and a half-interest in a plane (through Westwind II, LLC owned by Kisla); other undisclosed assets included a private club membership and removal of household contents.
- At trial: jury convicted Rosbottom on most counts (acquitted on some) and convicted Kisla on several counts; Rosbottom received a 120-month sentence and $5.35M restitution; Kisla received 60 months.
- Post-trial challenges: appellants argued jury-selection defects (a juror who identified as a reserve deputy marshal), limits on cross-examination of the bankruptcy trustee, insufficiency of evidence on several counts (esp. money-laundering conspiracy and false oaths), restitution/forfeiture and sentencing error.
- Court disposition: the Fifth Circuit affirmed all convictions, sentences, and monetary penalties.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jury-selection defect under Jury Selection and Service Act (reserve deputy juror) | Govt: defendants waived statutory remedy by failing to file sworn §1867(d) motion timely; Act requires strict compliance | Rosbottom/Kisla: juror was statutorily disqualified; trial court erred in keeping him and failed remedy | Affirmed: claim forfeited for failure to file sworn statement before voir dire; strict timeliness required; no relief post-trial |
| Limits on cross-examining Chapter 11 trustee for bias | Defendants: exclusion impaired confrontation and right to present a complete defense about trustee’s motives and compensation | Govt: trustee testimony was marginally relevant; district court allowed sufficient inquiry; further probing would be repetitive/confusing | Affirmed: no Sixth Amendment violation; district court acted within discretion and any error was harmless |
| Sufficiency of evidence for conspiracy to commit money laundering and false oath counts | Defendants: insufficient proof they agreed to launder proceeds or knowingly made false statements (Kisla: funds were hers or prospective) | Govt: checks, transactions, shell entities, emails, false testimony and accounting entries support intent to conceal and conspiracy | Affirmed: viewing evidence favorably to verdict, rational jury could find agreement, intent, and knowing false testimony |
| Restitution/forfeiture amount and jury determination (Apprendi/Southern Union argument) | Rosbottom: restitution/forfeiture amounts not tied by jury, so Apprendi/Southern Union require jury findings for facts increasing financial penalties | Govt: no statutory maximum for forfeiture/restitution; precedent allows judge to determine amounts; restitution relies on PSR and district findings | Affirmed: plain-error standard failed; Fifth Circuit precedent holds Apprendi inapplicable to restitution/forfeiture amounts here |
Key Cases Cited
- United States v. Bearden, 659 F.2d 590 (5th Cir. 1981) (Jury Selection Act must be strictly construed)
- United States v. Kennedy, 548 F.2d 608 (5th Cir. 1977) (establishing strict compliance with §1867(d) timing)
- Delaware v. Van Arsdall, 475 U.S. 673 (1986) (limits on cross-examination under the Confrontation Clause)
- United States v. Skelton, 514 F.3d 433 (5th Cir. 2008) (standard for reviewing limitations on cross-examination)
- United States v. Brown, 553 F.3d 768 (5th Cir. 2008) (definition of concealment prong in money-laundering context)
- United States v. Threadgill, 172 F.3d 357 (5th Cir. 1999) (conspiracy is distinct offense separate from substantive crime)
- United States v. Read, 710 F.3d 219 (5th Cir. 2012) (Apprendi inapplicable to restitution because no statutory maximum)
- Southern Union Co. v. United States, 132 S. Ct. 2344 (2012) (Apprendi principle applied to criminal fines)