United States v. Michael Roussel
705 F.3d 184
5th Cir.2013Background
- Roussel, NOPD Captain and Traffic Division commander, was convicted on conspiracy and two wire fraud counts; Branch pleaded to conspiracy and cooperated; Dabdoub assisted FBI investigation; trial included deliberate ignorance instruction and modified 404(b) instruction; jury found some counts guilty, some acquittals; district court sentenced Roussel to 136 months within a far below-guidelines range; on appeal, conviction affirmed but sentence vacated and remanded for resentencing.
- The scheme involved inflated Entergy security payments and kickbacks to Dabdoub and others; Roussel connected Branch with Dabdoub, attended meetings, and received a share of the illicit proceeds; evidence included videotapes and recorded calls; Branch received a plea deal for cooperation; Dabdoub as Entergy security manager helped structure the deal.
- Roussel argued trial errors (deliberate ignorance instruction, 404(b) modification, confrontation limitations) and sentencing errors (security-official enhancements, multiple-bribe enhancement, benefit calculation, Apprendi).
- The panel analyzed the alleged trial errors for harmlessness and concluded the deliberate ignorance instruction was harmless; found invited error on 404(b) and upheld limitation on cross-examination as permissible; upheld that Roussel was a public official and in a high-level/sensitive position; vacated the sentence due to errors in calculating benefits and multiple-bribe enhancement and remanded for resentencing.
- The court remanded for resentencing and affirmed the conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Deliberate ignorance instruction harmless? | Roussel argues instruction lowered mens rea | Government says pattern instruction proper | Harmless error; conviction affirmed on this point |
| Rule 404(b) instruction on other acts? | Roussel challenges admission/limitation | Invited error due to defense strategy | No reversible error; invited error • 404(b) modification upheld |
| Confrontation/cross-examination of Branch? | Stricter cross-exam needed to show bias | Judge properly limited examination | No Confrontation Clause violation; no abuse of discretion |
| Sentencing enhancements for public official/high-level position? | Enhancements improper due to role timing | Enhancements supported by record | Not clearly erroneous; affirmed that enhancements applied |
| Calculation of expected benefit / multiple bribes? | Benefit's calculation overstated; multiple-bribe enhancement improper | District court within discretion | Remanded for resentencing due to miscalculation of benefit and failure to sustain multiple-bribe finding |
Key Cases Cited
- United States v. Brooks, 681 F.3d 678 (5th Cir. 2012) (standard for review of jury instructions and harmless error)
- United States v. Threadgill, 172 F.3d 357 (5th Cir. 1999) (harmful error in deliberate-ignorance when there is actual knowledge)
- United States v. Jones, 664 F.3d 966 (5th Cir. 2011) (deliberate indifference instruction proper in some contexts; harmless here)
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000) (any fact increasing penalty beyond statutory maximum must be found by jury)
- United States v. Ismoila, 100 F.3d 380 (5th Cir. 1996) (focus on intended loss for sentencing enhancements)
- United States v. Griffin, 324 F.3d 330 (5th Cir. 2003) (clear error standard for relevant conduct)
- United States v. Chappell, 6 F.3d 1095 (5th Cir. 1993) (intent vs. actual loss in guideline measures)
- United States v. Doggett, 230 F.3d 160 (5th Cir. 2000) (Apprendi-related harmless error standard)
- United States v. Waskom, 179 F.3d 303 (5th Cir. 1999) (harmlessness inquiry for guideline misapplication)