United States v. Pennue
2014 U.S. App. LEXIS 21192
1st Cir.
2014

Background

  • Pennue was charged with two counts of passing altered obligations and one count of inducing interstate transportation of currency with intent to defraud.
  • The scheme involved blackened currency purported to be real money; demonstrations showed how it could be cleaned to appear genuine.
  • Bradford and Chadheen participated as dupes/associates; Mitchell, an undercover agent, participated under cover as Falugo's associate.
  • Evidence at trial included witness testimony, recordings, and photographs; jurors found Pennue guilty on all counts.
  • The district court sentenced Pennue to a 21-month term; appeal followed challenging jury instructions and the sentence.
  • On appeal, Pennue argued the jury instruction misdescribed reasonable doubt, and the sentence reflected improper loss calculations.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Did the misdescribed reasonable doubt instruction plain error? Pennue Pennue No plain error; instruction was harmless to substantial rights.
Did the district court err in using intended losses for sentencing? Pennue Pennue No error; intended losses valid for guideline enhancement.
Was there error in considering relevant conduct for grouping? Pennue Pennue No error; conduct properly treated under guidelines.

Key Cases Cited

  • Sullivan v. Louisiana, 508 U.S. 275 (Supreme Court 1993) (structural error issue for reasonable doubt instruction)
  • Johnson v. United States, 520 U.S. 461 (Supreme Court 1997) (plain error standard)
  • United States v. Duarte, 246 F.3d 56 (1st Cir. 2001) (plain error review framework)
  • United States v. O'Shea, 426 F.3d 475 (1st Cir. 2005) (plain error review for instructional claims)
  • United States v. Van Anh, 523 F.3d 43 (1st Cir. 2008) (contextual harm assessment in instruction errors)
  • United States v. Ranney, 298 F.3d 74 (1st Cir. 2002) (limitations on imperfections in jury charges)
  • Romero, 32 F.3d 641 (1st Cir. 1994) (harmless error in instructions analyzed in total charge)
  • United States v. Lebron-Gonzalez, 816 F.2d 823 (1st Cir. 1987) (inference of missing word in instructions)
  • United States v. Jones, 674 F.3d 88 (1st Cir. 2012) (plain error review in courtroom instructions)
  • United States v. Cintolo, 818 F.2d 980 (1st Cir. 1987) (instructional error evaluation framework)
  • United States v. Eisom, 585 F.3d 552 (1st Cir. 2009) (relevant conduct and sentencing scope)
  • United States v. Jaca-Nazario, 521 F.3d 50 (1st Cir. 2008) (pattern or scheme for grouping/related conduct)
  • United States v. Stergios, 659 F.3d 127 (1st Cir. 2011) (intended loss concept in sentencing)
  • United States v. Appolon, 695 F.3d 44 (1st Cir. 2012) (intended losses in fraud guidelines)
  • Wright v. United States, 642 F.3d 148 (3d Cir. 2011) (loss calculation in fraud)
  • United States v. Yakobowicz, 427 F.3d 144 (2d Cir. 2005) (structural error discussion in instruction)
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