United States v. Michael Butler
659 F. App'x 390
| 9th Cir. | 2016Background
- Michael Butler was convicted by a jury of ten counts of mail fraud, one count of conspiracy to launder money, and one count of conspiracy to make false statements about cigarette distribution.
- His former stepdaughter and codefendant, Kim Sims-Crandell, had pleaded guilty and awaited sentencing; Butler sought to compel her trial testimony.
- The district court denied the motion to compel Sims-Crandell’s testimony on Fifth Amendment grounds.
- Butler also challenged sufficiency of the evidence as to the mailings element of the mail fraud counts, arguing the fraud was complete upon receipt of cigarettes and later tax returns mailed by wholesalers were not in furtherance of the scheme.
- The Ninth Circuit considered whether plea agreements with specified sentencing recommendations waive Fifth Amendment protections at sentencing, and whether the wholesalers’ mailed tax returns were a step in execution of the fraudulent scheme.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a defendant who pleaded guilty with a Rule 11 sentencing recommendation waives Fifth Amendment rights at sentencing | Butler: plea agreement sentencing recommendation should permit compelled testimony from cooperator | Government/District Ct: plea and recommendation do not waive Fifth Amendment at sentencing | Court: No waiver; Mitchell controls; unsentenced defendants retain Fifth Amendment rights and court properly refused to compel testimony |
| Whether mailed tax returns satisfied the mailing element of mail fraud | Butler: scheme completed when he received cigarettes; later mailings were routine and not in furtherance | Government: mailings were incident to and essential for perpetuating an ongoing fraudulent scheme | Court: Mailings were a step in the plot and sufficiently in furtherance of the scheme under Schmuck |
Key Cases Cited
- Mitchell v. United States, 526 U.S. 314 (1999) (Fifth Amendment privilege extends through sentencing)
- Schmuck v. United States, 489 U.S. 705 (1989) (mailings that are steps in an ongoing fraudulent venture satisfy mail fraud mailing element)
- United States v. Paris, 827 F.2d 395 (9th Cir. 1987) (convicted but unsentenced defendants retain Fifth Amendment rights)
- United States v. Klinger, 128 F.3d 705 (9th Cir. 1997) (court may decline to compel testimony when witness can legitimately refuse on Fifth Amendment grounds)
- United States v. Tsui, 646 F.2d 365 (9th Cir. 1981) (same)