*2 SMITH, Before BARKSDALE and BENAVIDES, Judges. Circuit BARKSDALE, RHESA HAWKINS Judge: Circuit whether, principal at hand is The issue sponte prior departure, ato sua downward give P. district must Fed. R.Crim. pre-sentencing notice to Government. Joseph appeals his conviction un- 201(b)(1)(A) “corruptly der 18 U.S.C. [$10,000] public ... official ... giv[ing] [a] ... with ... to influence official [an] act”; challenges he both the instruction describing (“acceptance act” the “official purchase a loan [Pankhurst] offer being sold ... the Resolution Trust Cor- sufficiency of poration”) and the the evi- dence, especially concerning corrupt cross-appeals from tent. The Government departure, the downward because We accordingly. And, notice. AFFIRM the increased his offer later conviction, discussions, placed but VACATE and REMAND for a stack of resentencing. cash on the At meeting, table. Hooks
informed Pankhurst that did not have the *3 authority accept $560,000 to Pankhurst’s of- I. RTC; addition, fer to the in he neither ac- and owned Pankhurst his wife Atlas Oil cepted rejected nor Pankhurst’s offer of cash. 1992, Pankhurst, Company. early In table, Concerning placed the cash on the Oil, through acquired Atlas Jetera Fuels Ter- Pankhurst testified that he had asked if an $2,500. But, minaling Corporation for attorney necessary, would be and whether was Jetera burdened with million debt $5.6 anyone willing Hooks knew to act as a con- (TBS), Savings loans from on two TexasBanc during negotiations sultant with the monthly payments of approximately with RTC; that he to stated Hooks that he had $60,000 property and with Jetera’s as securi- seen advertisements about former RTC em- ty. prior acqui- TBS had failed to Atlas Oil’s ployees consultants; offering to work as that Jetera; sition loans were man- TBS opened he his briefcase order to show aged Corporation the Resolution Trust advertisement, Hooks such an (RTC), stating that he which, alia, power inter had the these”; had seen about “ten and that some property foreclose on Jetera’s in event of briefcase, cash happened also to be in the default. and, deposit because he was about to make a mid-1992, although In Jetera was not in therefore, slip a deposit top was bound to the profitable, default on either loan and was hand, of the cash. On the other Hooks testi- Pankhurst, Jetera, requested as chairman of fied that he understood the “ten of these” that RTC consolidate the loans and re- comment to be a reference to ten similar principal duce the million. The RTC $1.75 piles of cash. that responded grouped the loans had been reported Hooks Pankhurst’s actions sale, con- others for that their terms cerning the cash to the RTC. An investiga- negotiated not be then. could Later that ensued, tion assisting with Hooks the FBI. year, Jetera defaulted on the loans. conversations, telephone In recorded Hooks default, response In the RTC ad- and Pankhurst discussed different documents Pankhurst ap- vised that it would order an RTC, Pankhurst would have submit to the praisal and assessment environmental of Jet- fee”, “consulting and the amount of Hooks’ Pankhurst, Jetera, again era. behalf of $10,000. they set at requested again loan re- consolidation and conversations, During these recorded duction. Hooks that he told Pankhurst did not want 1993, Pankhurst, June In now on behalf of hotel; places. They meet at met obvious at a Company, Oil Atlas offered the RTC to Pankhurst then took Hooks to Pankhurst’s $500,000 purchase for prop- either the Jetera car. erty response, or the Jetera loans. Ron- Hooks, Hooks, car, wearing recording At the employee nie contract the RTC device, that had more work acting manager was asset stated he to do who as senior TBS, get Pankhurst he met with at the of- the deal wanted from the Pankhurst RTC’s RTC; Houston, that he had been afraid when Pank- fices Texas. approached him hurst first about the deal meeting Hooks advised Pankhurst offices; within days, RTC a few competing that RTC had received offers could obtain Pankhurst’s loans; property securing for the offer to the RTC. appraised approximately Jetera’s value $800,000; receiving ap- point, At Pankhurst said that he RTC proximately appraised pay 70% of value for would half of the Hooks then therefore, properties; half offer to similar if other when his the RTC was $500,000 accepted. Pankhurst increased his offer from He Hooks a binder la- handed records”; $560,000, might accepted. “corporate be beled binder eon- prove corrupt intent. The part Hooks of ure to Govern- gave tamed cash. departure, keep challenges in ment the downward he would rest the cash and said contending trunk his automobile. that it made a sufficient objection being given about to the FBI binder Hooks delivered possible departure. notice of a It Pankhurst. contained received from $5,000in cash. men request, the two met two A.
At Hooks’ Again, days the same hotel. Hooks later at con- Pankhurst’s one count indictment they met wearing recording device possible grounds for conviction. two tained car. handed *4 (A) violating subparts charged He was with $560,000, offering a Hooks a settlement letter 201(b)(1), (B) pro- § and of 18 U.S.C. $2,000 money document, a check. and earnest scribes: turn, a gave Pankhurst letter ac- Hooks offer, explained that Atlas cepting [djirectly indirectly, corruptly giv[ing], or purchaser and that Oil would be offering] promis[ing] anything or of value probably end would close transaction public ... with ... any to official job Hooks asked about of month. When (A) act; any to influence official or suggested that opportunities, Pankhurst gave him. Pankhurst also Hooks work for (B) public ... to to influence such official $5,000 in brown manila Hooks a the second committing or in ... fraud commit aid your envelope, “put him this in telling to ... on the United States.... briefcase”. 201(b)(1). But, § not court did U.S.C. subsequent, at the Pankhurst was arrested (B) (fraud) subpart jury as a submit videotaped meeting he instructed to at- possible Accordingly, for basis conviction. He the transaction. was con- tend close only possible for conviction was an basis official, public by jury bribery of a victed a (subpart intent “to influence an official act” 201(b)(1)(A). a of 18 violation U.S.C. (A)), an intent a on the to effect fraud motions, trial, during and after (B)). (subpart United States denied, judgment acquittal for were as was new trial. his motion for Accordingly, jury the court instructed the only if it guilty that could return a verdict sentencing, At consistent with recom- found, doubt, beyond a that reasonable both Report, mendation in the Presentence indirectly “directly gave, of- Pankhurst or urged sentencing a guidelines $10,000 Hooks, promised to Ronald fered or Instead, range of 51 to 63 months. dis- official”; public a that Pankhurst “did so court, pre- Rule having given trict without corruptly as inten- [defined for ‘done possible notice of a downward purpose’], tionally with an unlawful guidelines departure, ruled that the did not act by public tent to influence an official a apply to Pankhurst’s adequately offense The “official act” was official”. defined departure. ordered Because of a downward indictment; in the there- act described level, and resulting low offense the fact fore, pertinent portion of the indictment offender, proba- a that Pankhurst was first charge: was included then in the sentencing option. tion was a Pankhurst (with placed probation year for one home Pankhurst, directly indirectly cor- confinement) $50,000. and fined The sen- offer, promise ... ruptly give, stayed appeal. pending tence was official, public namely Ronald ... to a Hooks[,] ... with the intent influence II. official, public a official act and influence Hooks, namely aid Ronald to commit and challenges description committing fraud the United jury charge and the “official act” used in the That is an offer claims States. there was insufficient evidence conviction, purchase the defendant to loan because of claimed fail- public by to the the Resolution Trust purpose. Likewise, sold indictment for that he Corporation.1 complains, belatedly, most the indict- ment language contained concerning fraud as proposed charge The court’s had not con- payment Hooks, aim of the description tained a definition or of the “offi- making conviction on the pos- fraud element charge cial act” issue. At the earlier sible, though even the court refused to sub- conference, objections proposed mit that jury. element to the In the alterna- contended, charge, Pankhurst’s counsel had tive, urges, again belatedly, very general way, in a that the court should in, because the language fraud was left But, description. add such definition it should have been defined. referring language other than indictment, But, again, Pankhurst’s counsel did not offer object Pankhurst did not And, a definition. when the court stated inclusion of the language, fraud nor to the description fraud, the indictment con- would failure to define when the court opted act”, stitute the definition for the “official to use the indictment to describe the official noted, Pankhurst’s counsel did not had, however, act. As re- language quested inclusion the fraud also contained earlier that the court define the offi- Restated, request there. he hand, did not cial act. noted, On the other as also *5 fact, language fraud be In provide definition, redacted. did not suggest other indictment, agreed to the agreeing included the than to the language indictment’s language, being description fraud as the being incorporated used purpose. for that or definition of the official act. Therefore, challenging were Pankhurst
Now, however,
appeal
only
with different
the inclusion of the
language,
fraud
we
counsel,
would, most,
Pankhurst asserts that
the court
at
only
plain
review
for
error.
in
E.g.,
committed reversible error
its “official act”
Calverley,
160,
v.
States
37 F.3d
that,
Cir.1994)(en bane).
complains
(In
instruction. Pankhurst
in-
fact,
162-64
as
granting
“request[
stead of
his
...
infra,
colloquy
]
[to]
discussed
based on the
at the
jury specifically
they
conference,
struct
the
what
charge
must
presented
the issue
is
”,
error.)2
find as the ‘official act’
quite
the court used the
being
close to
invited
Howev-
Concerning
punctuation
1.
the
upon
difference in
sur-
... a fraud
the United States. That is the
rounding "that is” in the last sentence of the
acceptance of an offer....”
above-quoted
charge
transcribed
and in the in-
course,
reporter
simply
Of
the court
was
tran-
dictment,
2,
see note
infra.
scribing
judge's
the trial
verbal inclusion of this
part
language,
As for the inclusion
by
of the fraud
of the indictment. The version seen
the
also that
jury
claims
it caused confusion
punctu-
was in the indictment. We note this
deprived
him of a fair trial. The indictment
only
hyper-technical partial
ation difference
as a
provided
jury
was
to the
for its deliberation. As
response
hyper-technical,
to Pankhurst's
seman-
1, supra,
indicated in note
description,
for the "official act”
jury
tic contention about
confusion.
punctuation
the
used in the indict-
urges
phrase
the
"that
is”
slightly
ment is
different from that used in the
caused confusion because the act described after
transcript
portion
jury charge
of that
of the
when
(acceptance
"that is”
of Pankhurst's offer for the
court,
response
the district
in
to Pankhurst’s
loan) might be understood
to
to refer
the "influ-
act,
request
verbally
for definition of the official
portion
charge,
opposed
ence fraud”
of the
to
incorporated part
defining
of the indictment in
portion;
the “influence an official act”
pertinent part
the official act. The
of the indict-
result,
charge
as a
both the indictment and
were
ment reads: "with the
to
intent
influence an
"vague
ambiguous”, making
it doubtful that
official,
public
official act and to influence a
juiy
the
returned a unanimous verdict as to what
Hooks,
namely Ronald
to commit and aid in
and, therefore, deprived
the "official act” was
States,
committing
is,
a fraud
the United
right
him of his
to a fair trial.
by
the
anof
offer
the defendant to
First,
disagree.
pertinent portions
We
the
of
purchase
being
public by
a loan
sold to the
the
charge
vague
the indictment and the
are neither
added.)
(Emphasis
[RTC].”
As reflected in the
each,
ambiguous.
nor
It is clear
the act
text,
portion
charge quoted
supra,
of the
described after "that is" refers
the
to
official act
transcript
charge,
jury,
the
as read to the
And,
event,
comma,
as well as to fraud.
period,
uses a
instead of a
between
trial;
present
objection
again,
did not
"upon
the United States” and "that
is”
does
error,
even if there were an
not have a comma after
part:
we would review
"that is”.
It reads in
only
plain
again,
(appellate)
"with the intent to influence an
act
for
error. Once
new
official
public
(trial)
raising
point
and to influence a
official ...
to commit
counsel
is
that former
sug-
generally
charge possibly
the indictment in the
er,
because Pankhurst
gested
jury
the
fraud
as a
intend-
to
failure of
charge conference
the
the
bribe,
charged
the
result of
fraud was not
to describe or define
ed
proposed charge
dubitante, review,
conviction,
will,
act,
permissible
basis
because
official
we
standard,
portion
the refusal
the court removed the fraud
our
under
usual
(The
jury’s
instruction.
de-
indictment
from
consideration.
grant
requested
charged
Again,
jury
only
for the
was
under sub-
follows is also
tailed review that
(A) (intent
act).
demonstrating
influence official
further the total
purpose of
issue.)
merit in this
lack of
stated,
instructions,
reviewing jury
we look at
as a whole.
instructions
Jury
only
are
charges
reviewed
McKinney,
at 676. As
discretion;
abuse of
we determine
an
jury,
underlying
allegation
the factual
induc-
whole,
charge,
as a
“whether
court’s
exactly the
that for
ing fraud was
same as
of the law and whether
correct statement
influencing
accep-
an
act:
official
“That is
principles
clearly
jurors as
instructs
purchase
tance of
offer
[Pankhurst]
applicable
the factual issues confront
law
public....”
a loan
sold to
This
McKinney,
ing them.” United
—
only
one
indict-
listed
(5th Cir.)
denied,
cert.
U.S.
F.3d
argued
ment and
one
the Govern-
(1995).
-,
116 S.Ct.
through a to influence the Pankhurst did not to the included RTC’s of his offer. language, fraud limiting plain review to error repeating It agreed point; bears that Pankhurst on that “[cjonceivably, Pank- place the indictment’s included of hurst ‘invited’ the error of which he now some other definition of the “official complains”. act”. As Despite serious, these and cor- earlier, rect, referenced we will charges Government, not hold that by the error, agreement to constitute invited be- does not have response one word in in his had, least, cause Pankhurst earlier re- “Brief Cross-Appellee For the Reply And definition, quested a even though request Brief Appellant”. Instead, For The very general, vague, if not and even brief deals with the issue though provide he did not the desired lan- raised in cross-appeal. the Government’s But, record, guage. as also reflected response This lack of concerning an issue subsequent agreement review, based on our exhaustive has no *7 definition, dictment’s sup- used merit further why fuels our concern about plemented by his during comments raised, and, point this especially, was how it conference, charge by as illuminated re- presented/briefed. was appel- Pankhurst’s sponding judge, comments the trial cer- late counsel have fallen far short of making a tainly cause the claimed error to border on fair, accurate, presentation much less invited error. This is demonstrated further charge conference They and related issues. by the fact that post-verdict Pankhurst’s mo- presented totally an issue lacking in judgment tions for urge, and for new trial merit. Counsel are that warned such con- alia, jury inter that fraud, had to find in may duct the future in result sanctions and that the evidence was insufficient on that being imposed against them. essence, point. In being pre- what we are appeal, part, sented with on appellate in B. quite counsel’s different view of the case from that goes of trial counsel. It without court, In preserved district Pankhurst our saying points that raised at trial are the usual standard of review for sufficiency his points appeal. that control on by moving, issue at the close of the Govern- sum, pursuant
In three-part to our evidence, review ment’s case and the close of the in regard requested 29(a), to refusal of a instruc- judgment under R.Crim. P. for a Fed. tion, fact, there was no alia, reversible error. In acquittal, contending, inter nauseum, as discussed ad appel- Pankhurst’s prove evidence was insufficient to criminal tried, late large part beyond counsel have most a reasonable doubt. See Unit- improperly, present point Castaneda-Cantu, to 1325, of error where ed v. 20 F.3d
352 that, (5th Cir.1994); closing, was v. at the sham Pankhurst United States fact 1329-30 (5th 394, Knezek, n. 14 that contained 399-400 & careful none of the documents 964 F.2d Cir.1992). (After verdict, (Although un any Pankhurst misstatements RTC. videotaped, or for tri- successfully judgment meeting Pankhurst’s moved for such and, later, failed, through oversight, for reconsideration new trial al counsel claimed motion.) Therefore, Post-trial, tape the denial 'of that to offer the evidence. evidence, is whether Pankhurst’s standard of review was submitted to the light favorable sentencing.) as viewed in the on trial counsel for consideration verdict, of fact permit facts, a rational trier would Pankhurst’s claim Regardless these beyond a reasonable guilty to find Pankhurst reasons. fails for number of Jaramillo, v. 42 F.3d doubt. United States First, despite apparent complaining of an (5th Cir.), denied, 920, cert. 514 U.S. 922-23 integrity among jury, lack of 2014, 1013 L.Ed.2d S.Ct. juror there was misconduct does contend Castanedar-Cantu, (1995); 20 F.3d at jury on to con- any pressure external or 18 U.S.C. A conviction under points He letter to pre-sentencing vict. (1) 201(b)(1)(A) requires: judge foreperson, jury the trial from the indirectly, corruptly gave, offered directly, or proof ha[d] stated that “... we no (2) value; any anything of promised intentionally] into the Mr. walked (3) official; to influence public with intent Corporation’s office on the Resolution Trust Tomblin, United States official act. question offered Mr. day to bribe Cir.1995). The evi Hooks”; jury that the reason the decided negotiated that Pankhurst dence showed they Friday, convict because on when loans; purchase the Jetera with the RTC to convict, they at 9-3 to were were deadlocked negotiations, he showed during these verdict, they if not then told reach an Hooks a stack of cash said and, they Monday, would as a return them; that, offer be worth ten of of his would result, quickly changed the three holdouts recorded, meetings, surreptitious, but minds; that, despite professed their “corporate Hooks a rec Pankhurst handed intent, proof lack of voted which instead contained $5000 ords” binder wealthy convict because Pankhurst was delivered, offered, cash, later and then lawyer. expensive had retained he re other when half of This does not rise to the level of noticeable RTC; acceptance of his offer to the ceived (At juror the court sentencing, misconduct. attempted to close his and that Pankhurst counsel that the letter been sub advised had “deal” with the RTC. mitted; lawyer of its had known short, evidence there was sufficient about probable inquiry submission and official, Hooks, public money was offered prompted the the letter court’s reference the RTC’s goal and that the influence *8 so, Despite suggesting might it. that he do of- acceptance purchase of Pankhurst’s loan Pankhurst did not seek to move for a new addition, fer, In as both an official act. letter, trial based on it. Reference to the below, discussed further shown above and deferring the action it “until court’s on re- more than the evidence was sufficient arises”, the matter are included in the court’s in of- “corrupt” intent garding requisite infra.) any In sentencing-ruling, quoted $10,000 fering the to Hooks. event, only sufficiency, not Pankhurst raises misconduct; corrupt juror points without made about There was evidence $10,000 intent, jury sufficiency analysis. not offering was do affect our Pankhurst (as Restated, if “consulting objective sufficiency fee” standard type Hooks as of some intent), obviously include of such does not examination that could without be jurors’ feelings; jury that the loan- deliberations or the true supported view is fact instead, we to deter purchase to the RTC examine evidence offer Pankhurst made re- whether it was sufficient for a rational accepted by the RTC mine could been Jaramillo, 42 922- jury to convict. F.3d at gardless any influence on the by the Hooks. is further corroborated This discussed, the evidence was than Finally, more Pankhurst contends that the example, For it included prove
sufficient. record- evidence was insufficient to loan ings meetings attempting of the two in which he was purchase Pankhurst was in $10,000—in $5,000 fact public. sold to the gave the increments—to The issue is The charged meritless. indictment recordings Hooks. These include discussion that the official act which office, attempted Pankhurst meeting, about their first at the RTC corruptly influence was acceptance of his during placed money which Pankhurst on purchase offer to the loan. The indictment the table. As reflected recording further, unnecessarily states purposes meeting, second Hooks hotel/automobile 201(b)(1)(A), that the loan had been offered you stated: “But it scared me when walked public. sale description This of the into the office ... laid that fee on the loan trying Pankhurst was purchase was said, ‘hey, table and ... I need consultant’ surplusage; even if sup the evidence did not something. It ... I scared me and had to port a finding that the loan was offered to give thought.” it replied: some Pankhurst public, the statute was satisfied and the course, got “Of ... but who’s time to do the conviction must stand. dance; tap romance deal and the little ... is; way here it and ... that’s I saw it.” alternative, In the Pankhurst seeks a new trial. We review denials of such mo Hooks testified him offered tions for abuse of E.g., discretion. throughout to act as “consultant” Giraldi, negotiation process. The manner of the Cir.1996). above, For the reasons cash, surreptitious transfer of the meet- district court did not abuse its discretion. ings “corporate and hidden in a records” plain envelope, binder and in a brown manila C.
point corrupt to Pankhurst’s intent. More- over, the fact that the second half of the challenge The to the district court’s sua payment to Hooks not was to be made until sponte departure downward premised after acceptance received of his both a lack of notice and the basis for the points offer to the RTC the fact that this departure. urging departure fee, quid pro quo was not consultant but a affirmed, counters, should be for the RTC’s of Pankhurst’s of- alia, ter that the Government failed to fer. departure—both to lack of notice and on the merits. This was a jury. classic case for a The discussed, conclude, As hereinafter we competing may evidence convincing seem record, based on our review of the some, presents merely but it an alternative objection Government’s lack-of-notice to the decision a rational could reach. sufficient, though even could—and The contention that Pankhurst did not want And, specific. should—have been far more to mislead the closing RTC we conclude requisite because the Rule documents, testimony that he departure notice of a downward attempting to hire Hooks as a “consul- given, we must remand for resen- tant” and that thought this sort of therefore, tencing; we do not reach whether common, legal transaction was and the departure upheld. would be For our testimony character, good about his do not *9 analysis, a most detailed review of Pank- render the other evidence insufficient as a sentencing process required. hurst’s by jury. basis for conviction a rational Un- Moreover, presentation high- detailed der upset these circumstances we cannot lights extremely the careful attention and E.g., verdict. United States v. Petti- painstaking analysis given the merits of the grew, 77 F.3d Cir. sentencing issue/departure question by the 1996)(“The every evidence need not exclude district court. hypothesis reasonable of innocence ... and (PSR) among is free to choose Report reasonable The Presentence recom- evidence.”). constructions of the required mended that Pankhurst’s base of- PSR, 201.1(a), objections § in his he had under U.S.S.G. fense of 10 that official, increased, sentencing countered at as Pankhurst public be bribery of a (thus 201.1(b)(2) leaving of- there no “benefit” (“Specific § by Offense required 10), that, with- asserting fense at even Characteristics”); level 14-level increase was Hooks, $10,000 payment Pank- out the recommended, requisite on the basis acquired hurst have would still in return for the to be “benefit” received $560,000 (Pursuant loans/property for offered. $5,053,000. $10,000 payment was line, that, Along pointed out that Pankhurst 201.1(b)(2), the “benefit” ex- § because fact, $419,000 accepted the RTC later $2,000, was made to the reference ceeded $560,000 property, for the far less than the (“Fraud Deceit”); § 2F1.1 table in Pankhurst had offered. by 14 if the is to increased offense level be million.) loss exceeds $5 that, alternative, urged In the Pankhurst most, benefit, gain, would have (a offender) Pankhurst first had Because (the been what Atlas Oil actual offeror— I, guidelines history category of criminal Pankhurst) might owned realized months. sentencing range 51-63 Pursu- if acquired property later had both 32(b)(4)(B), the PSR Rule commented ant to it; $560,000 using offer of and the sold adjustments; sentencing it rec- on $800,000, then-appraised value of this sale alia, ommended, against inter reduction for $240,000. would in a gain have resulted and, responsibility, critical to But, argued neither because hand, probation stated that the issue occurred, event there no “benefit” for not have information concern- officer did guidelines again leaving the of- purposes, which ing either the offense or Pankhurst fense at 10. level justify guide- from departure would Having greater an offense level no than 10 sentencing range. lines’ supra, was critical for Pankhurst. As noted filing response pre-sentencing Pankhurst, for a such “first offender” as PSR, level, Pankhurst stated addition sentencing with that offense Pankhurst, prosecuting “may probation prison term”. substitute for a 4(d) (1995). had 1 Pt. A U.S.S.G. Ch. argu- After hearing extensive and detailed financially in sought to ruin him the busi- parties’ concerning vastly ment different has world. That ruination been ex- ness 201.1(b)(2) “benefit”, positions as to the a factor tremely effective. This is that has “When two intelli- court stated: I hear not been taken into consideration ade- gent lawyers thoroughly familiar with the by the quately Sentencing Commission and two, you disagreement, facts as in this much depar- entitles to a downward [Pankhurst] just problem I there is wonder not a if ture. added.) (The guidelines.” (Emphasis sen- response pre-sentencing The Government’s tencing judge’s were consistent comments objected departure to Pankhurst’s downward earlier, expressed with his views three weeks demand, stating regard to claimed at the hear- originally-scheduled that, as attempt to “ruin” with all ing; hearing that was continued because of convictions, press there had been release. receipt late the Government’s response objections Prior to his to the PSR. sentencing, support of At the PSR’s continuing hearing, earlier the court the benefit was in ex- recommendation that argument by heard on similar million, urged cess of the Government $5 “benefit”; why indi- there was no the court greater simply put, that: the loss was than issue.) open cated that it was then $560,000for Pankhurst had offered the loans argument, After further detailed the court Jetera, for more than slightly $5.6 stated: owed, were million was and which secured I property; deducting stop right point. We now one do
the Jetera can gain. approximate million not there was actual from the owed left believe $5.6 potential benefit excess of million. There was remote $5 removed, officers, gain, probation at least one level that their various adden- might up supplements. have wound with a da and [Pankhurst] corporation piece with a [Atlas Oil] I probation And believe that the officers $800,000, property might that be worth correct, are adopt report, and I their that $560,000. got [Pankhurst] ten; the base offense level is potential benefit to Mr. through “benefit”, Following argument further over ownership his of the [Atlas Oil] stock was non, the court stated: vel likely $560,- the difference between absolutely right up You both are to a $800,000. 000 and point. unique certain I think this is a fact 1 believe that appraised was the situation. I think Mr. what Pankhurst did property value at the time [Pank- something was offer a bribe do that he $560,000 offer, made the a, hurst] and there- could have done without a bribe. It was fore I believe term, that is the benefit thing [Pank- excuse the technical a dumb hurst] intended to receive. do. And it a violation of the constituted law. history one, With his criminal category of guideline imprisonment talking range we are about now is what the What point appropriate punishment would be and would be to 33 months. sentencing guidelines whether the covers argument His that he is entitled to a two slowly becoming And I am it. convinced level decrease for responsi- case, that because it this facts bility ais close one. But I have never something guide- not that I can in the find him heard admit that he money offered the having struggle lines. I am a real with it. to Mr. purpose Hooks for the of influenc- added.) ing Mr. something. Certainly Hooks to do (Emphasis he would not admit that he offered as a Following yet argument further as to bribe. I give accep- Therefore cannot him “benefit”, apparently taking hope in the responsibility. tance of twice-expressed court’s concerns that the I impressed am not with the letter from cident under consideration was not covered foreperson of the [discussed su- guidelines, urged, pra up ]. We will take that if the matter time, departure a downward on that first arises. basis, claiming that “not situation had by the Guidelines. immediately pointed urged in sion, sis was [been] discussed taken into totally pointed supra. different consideration But, out to the district out, pre-hearing as the Government noted, from the basis departure-ba- adequately” and as the submis- court, through departures!”] But I do want manual has this the latest version still commission of course has not dealt with single may justify probation acts of aberrant behavior that point sentence [1995] out [that] higher it[:] [“]The guidelines page levels 7 of Pankhurst had then claimed entitlement to a they And what referring are to is [U.S.S.G. departure, but on the basis that § 5K2.0 and ] [U.S.C. ] 3553. And ability Government had ruined his to do pursuant provisions, to those I find that business. As the Government had discussed mitigating there exists circumstances of a response in its filed to the earlier filed de- degree adequately kind and a taken demand, parture pointed the Government into Sentencing consideration Com- sentencing judge out to the that Pankhurst in formulating guidelines, mission based this entitlement claim on sup- harm therefore the sentence should be different posedly resulting press from a release about provided guidelines. Spe- from that his conviction. difference, cifically, the the increase over the ten level.
Following argument, even more the court ruled: I peculiar think the facts in this case are so right.
All I great strange this matter a guide- such a state that the considered, thought. deal of I have apply adequately lines do not in that in- *11 departure-basis urged by Pankhurst was the going I am to sentence Therefore crease. that he was “entitled” to a downward him at level 10. claim had departure because the Government option given the resulting to the Pursuant noted, But, him financially”. “ruin[ed] level to low offense court because of that sentencing to the court alluded twice at after probation, rather than place Pankhurst on departure, § basis for a 5K2.0 for given probation prison, was counsel seized it: confine- year, with a of home one condition Later, for a $50,000. proper I think that this is a case He was also ment. fined Pankhurst, departure guidelines because the has not remarked: “Mr. because case, adequately I taken into consideration very peculiar of this am facts case, is circumstances this and under giving you a break which the Government may very upset provision guidelines I and the going to be about. catchall Code, Fifth you appeal to the I have Your Honor both to and cited that to [an sentenced New in] Orleans.” in the memorandum. Circuit noted, put parties objected had not on notice im- The court As also just announced— possible—and this now mediately: But, objection departure. unlike basis for its government Judge, the would hearing, seized in the when Pankhurst earlier departure. coun- downward [Pankhurst’s time, on this basis for first the Govern- specifically for said that the basis sel] object, sentencing- not ment did after departure because the Gov- downward was ground ruling, on the the court was basically his client’s ernment had ruined giving Rule 32 departing downward without ability by sending to do an al- business Instead, point pre-senteneing notice. at this press leged release to Dunn & Bradstreet. objected only (post-ruling), the Government short, objected prompt the Government objected departure, for the to the basis ly departure, fact that the alluded imposing court’s sentence later to the not court, by by Pank being requested range by the PSR. recommended within ground hurst on a new for which the Govern days judgment, The entered six after the pre-hearing ment had not notice. received hearing, sentencing provided that the PSR Restated, point hearing, except adopted, that the court found a court, objection Pank alerted as well as ($240,000 mil- instead of lower “benefit” $5 hurst, that the not received Government had 14, lion), 8, resulting in an level instead of a departure-basis, notice of this new later used This in a total offense increase. resulted lack-of-notice, by the court. Such the Gov 18, sentencing range with a of 27 to level of contends, ernment violates the rule enunciat months, as had stated in the court’s been States, ed Burns 501 U.S. following rea- sentencing-ruling. verbal The (1991). 2182, 115 111 S.Ct. L.Ed.2d 123 depar- given son then the downward for ture, sentencing consistent with that 3553(b) pursuant § to 18 U.S.C. contention, reaching Prior to we U.S.S.G. 5K2.0: “The Court finds must decide whether the Government’s ob offense, single, representing nature of the post- jection, including with those combined act, mitigating is a circumstance of a criminal sufficient; is, pre it ruling, is whether kind, degree, adequately or to a taken adequately a lack-of-notiee by Sentencing sented/described into consideration Com- not; ground. urges that mission, pursuant to U.S.S.G. 5K2.0.” should, therefore, only that we review Before we can reach the merits of plain error. See v. Haw United States departure, for the basis we must consider Cir.1996). kins, contention that it was denied Government’s requisite objection Rule 32 of the court’s The Pank- notice basis seized ultimately depart undisputed It court cer- downward. hurst used give tainly that the court did not such notice to the alerted the court that the And, territory parties. prior sentencing, hearing had moved to new
357 given the been Government had not Rule 32 states that “the court must afford As the court moved to new notice. counsel the defendant and for the Gov- territory during hearing, off both opportunity and on the ernment an the comment on objected probation before and after the Government officer’s determinations and departure-basis relating the new when Pankhurst other appropriate matters ” it, have seized Government should sentence.... Fed. R. Crim. P. 32(c)(1). objection, words, articulated its provides better laek-of-notice other the Rule that the Gov- assumption sentencing court on the ernment is due same notice as is increasingly seemed inclined to use ba- defendant.
sis.
reason,
very
that,
For this
Bums
noted
But, surely, the
when it
court was aware
(pre-upward departure
issue
that ease
utilizing
departure-basis
that it was
ruled
defendant),
notice to a
it would be
notice;
sponte,
having given
without
sua
and
equally appropriate to frame
the issue
that, because of a lack of
from both
notice
parties
whether the
are entitled to notice
Pankhurst,
the court
the Government
departs upward
before the district court
or
opportunity
had an
con-
had not
to comment
from
range.
downward
the Guidelines
with Rule 32. Part of the court’s
sistent
32,
Under
it is
Rule
clear that the defen-
had to come from
Govern-
awareness
enjoy equal
dant and
proce-
Government
objection
ment’s earlier
when Pankhurst
dural entitlements.
urged this same—new—basis.
this rec-
On
Burns,
4,
501
at 135 n.
111
U.S.
S.Ct. at 2185
ord,
objection was suffi-
the lack-of-notice
added).
lines,
n. 4 (emphasis
Along these
Knight,
cient. See United States v.
76 F.3d
supports
Bums
application
otherwise
(5th Cir.1996).
Accordingly, we turn
87
Government,
holding
its
as well as the
required.
to whether notice was
defendant,
departure.
for downward
(as
Otero,
Bums reasoned
868 F.2d
2.
1415) that Rule 32 is intended to achieve
Burns,
requires
Under
Rule 32
development
focused adversarial
of the issues
depart up
may
before
district court
particular
pertinent to a
sentence. 501 U.S.
notice,
ward, the defendant must
either
have
Furthermore,
111
at 2185-86.
S.Ct.
(see
32(b)(4)(B)),
in pre
PSR
Rule
or
explicitly gives
the Rule
defendant
Government,
hearing
by
submission
right
particular
on a
departure
to comment
prior
the court.
court
from
Our
so held
imposed;
before it is
Bums reasoned
Otero,
See United States
Burns.
v.
right
meaningful,
carry
for this
to be
it must
(5th Cir.1989). However,
1412, 1415
our
right
possible
with it
to notice of a
depar-
expanded
holdings
court has never
136, 111
ture.
Id. at
S.Ct. at
and Bums to
at hand—
Otero
the situation
noted,
has the
the Government
same com-
receiving
of a
the Government’s
notice
ment-right; concomitantly, it must
have
departure.
downward
notice-right.
same
Nevertheless, at least four other circuits
applies
sentencing hearing
held that the rule
downward
The
for this case
Alba,
departures.
example why
See United States v.
933 offers an excellent
such no
(2d Cir.1991);
required,
F.2d
States v.
tice is
as well as
the benefit that
Maddox,
(4th Cir.1995);
For offense, opinion. nature of the that “the the court felt act, a miti-
representing single, criminal PART; VACATED and AFFIRMED in *13 kind, degree, or to a of a gating circumstance PART REMANDED in into consideration adequately taken not Commission, pursuant Sentencing BENAVIDES, specially Judge, Circuit parties been 5K2.0.” Had U.S.S.G. concurring: notice, better assisted they could have majority judgment of the I concur in the example, determining, as a further in court remand- affirming appellant’s conviction and offense, repre- “the nature of whether resentencing. ing for con- act” had been senting single criminal that the district court Appellant contends Sentencing Commission sidered by incorporating in its abused its discretion 2Cl.l(a) offense level of § base imposing the charge original indictment. He ar- 10; urges here the Government should have been gues that the indictment reflect such consider- level does base offense goverm any reference to the redacted to omit ation. sought theory that he to influence ment’s court, the As another aid a fraud public official to commit developed explored, or parties could have majority correctly As the United States. further, introductory commentary to observes, proof at trial focused on the (“Offenses Involving § Public 2C U.S.S.G. i.e, theory, appellant government’s other Officials”): Compare sought to influence an official act. pre-guide- believes 201(b)(1)(A) The Commission § id. 18 U.S.C. adequate- sentencing practice not lines 201(b)(1)(B). § public corrup- the seriousness of ly reflect trial counsel did not to use Because Therefore, guidelines these tion offenses. indictment, is for of the unredacted review considerably are provide for sentences that 52(b). P. Even plain error. Fed. R.Crim. prac- average pre-guidelines higher than assuming that it was error submit tice. jury, original indictment to the Introductory § 2 Pt. C Commen- “plain” U.S.S.G. in the sense of error was “obvious,” tary. appellant demon- “clear” or has rights. substantial strated no effect on his example, extensive yet another Calverley, 37 F.3d United States Cf. might provided commentary to 2C1.1 Cir.1994). Accordingly, this first 162-64 ground that have been devel- further could claim fails. And, finally, coun- oped to the court. assist argues that during Appellant also the district far more able sel would have been jury charge by failing rele- court erred its hearing present argue the other allegedly the “official act” which he guidelines and the case define portions vant attempted influence. The court refused law. request to define the offi- defense counsel’s notice, we Accordingly, due to the lack jury, referring instead cial act for the the case to the district must remand Appel- jury to the unredacted indictment. resentencing, including giving the Gov- confusing in that lant contends that this oppor- Pankhurst notice and ernment and jury may that the “official have concluded to, respond comment tunity to and otherwise unspecified unproven act” was the on, depar- possible ground(s) for the noticed “fraud” mentioned the indictment. ture. invited, if Any on this score was confusion manufactured, by in his defense counsel III. Appellant jury. closing argument jury charge regarding the reasons, complains that the the conviction is foregoing For confusing VACATED; “ambiguous and AFFIRMED; “official act” was the sentence arguments;” yet it light ... of counsel’s the district REMANDED to and this case is who was defense counsel described the “offi alleged
cial act” as the “fraud” the indictm
ent.1 This circuit will not reverse on the error, injus
basis of invited absent manifest Sanchez,
tice. United States v. (5th Cir.1993).
1384, 1392 There no such
injustice in this case. It is clear from the
record evidence and the comments of the ap
district court that the official act which
pellant allegedly sought to influence was the
RTC’s sale the note.2
Appellant’s sufficiency claims are merit- Accordingly, appellant’s I
less. would affirm However, I
conviction. would vacate and
remand sentence for the reasons ex-
pressed by majority. I therefore concur judgment.
Eugene HARRINGTON; Levy; M. Martin Kleven, Plaintiffs-Appellees,
Thomas HARRIS, al., Defendants,
William H. et Douglas; Caliph Johnson; M.
James University,
Texas Southern
Defendants-Appellants.
No. 95-20751. Appeals,
United States Court of
Fifth Circuit.
July 1997.
Rehearing Suggestion Rehearing July
En Bane Denied 1997. argued jury: trying 1. Defense counsel He was to do a reasonable business They charged that Joe Pankhurst with intent deal. corruptly gave with Ronnie Hooks influence an official act. And explained district court here is official act: To commit and aid in beginning the trial: States, committing a fraud the United $10,- charged giving Mr. that is the of an offer the defen- payment to Mr. Hooks to influence Mr. purchase dant to a loan sold public by Corporation.... Hooks to sell him the note. That’s what case, the Resolution Trust trying get perpetuate basically, [H]e wasn't a fraud. is about.