*1
Amеrica, Appellee,
§
UNITED STATES
er,
a claim under
1986.8
proper bases for
Furthermore,
recognize
caution that
we
v.
reviewing
must exercise
federal courts
CHAMBERS, Appellant.
en
discretionary decisions that
law
Dean
highly
G.
make,
upon
called
officers are
forcement
97-3599, 97-3600,
Nos.
97-3603.
Rick
in the area of arrests. See
particularly
etts,
(“Holding that an officer’s
(“When action taken a statute reaches officials, always courts must
governmental chilling potentially the law’s
concerned about conduct.”).
effect on official order of the
Accordingly, we affirm the court.
district America, Appellee,
UNITED STATES
v. MATHISON, Appellant.
Eugene H. America, Appellee,
UNITED STATES GOBEL, Appellant.
Perry America, Appellee, STATES
UNITED HOLMES, Appellant. E.
Robert distress, Similarly, Brandon death, callousness toward 8. Laux's infliction of emotional intentional (1) special grounds under during be remedied other claims on her interview cannot gave to offi- relationship rise was created § that Laux was aware 1986 without evidence reported duty protect Brandon after she cers' conspiracy. § 1985 rape police and offered to aid in to the the prosecution, (2) claim for intentional inflic- Brandon’s emotional distress survived tion of death).
543 *3 brief, Mathison, pro se. Falls, SD, argued, Langner, B. Sioux
Shari for Mr. Gobel. Falls, SD, argued, Kirby,
Brian K. Sioux for Mr. Holmes. Falls, SD, ar-
Jeffrey Clapper, C. Sioux gued, for Mr. Chambers. *4 SD, Zuercher, AUSA, Pierre,
David L. for of America. argued, United States NOONAN,1 McMILLIAN, and Before ARNOLD, Circuit MORRIS SHEPPARD Judges. ARNOLD, Circuit
MORRIS SHEPPARD Judge. Perry
Eugene Mathison and his associates Holmes, Gobel, and Dean Chambers Robert conspir- indicted on numerous counts fraud, § acy, mail see see 18 U.S.C. fraud, § see 18 U.S.C. wire U.S.C. 1623(a), § and perjury, § see 18 U.S.C. 1956(a)(1), § money laundering, see 18 U.S.C. 1957(a). alleged Mr. government § The operated three fraudulent invest- Mathison that the four schemes himself and ment together operated a fourth. defendants group operating the fourth investment While alone, charged, the defen- friends, acquain- family, and dants defrauded nearly million. tances of $1 operat- groups Mr. Mathison’s investment The first simple Ponzi scheme. ed as North- group of investors formed the limited Group. Mr. Mathison ern Investment they victims that were invest- convinced his City broker who had de- ing with a Kansas way exceptional to make returns vised a market. Once investors the commodities began money, he gave Mr. Mathison their showing monthly rates of mailing statements percent. percent to 17.6 return from about money, invested the Mr. Mathison never however; instead, money deposited the he Circuit, Noonan, Jr., designation. sitting by the Ninth 1. The Honorable John T. Judge Appeals States Circuit for the Court guilty of out it to All four defendants were found paid and most of a bank account into fraud, conspiracy, money small mail and launder- and his wife. Some amounts himself money to investors. ing, were returned and Mr. Mathison was convicted on five counts fraud. Holmes additional of wire groups, twо Goldstar The next investment was convicted addition one count Universal, substantially the operated in perjury. The trial court2 sentenced the de- In their manner as Northern States. same lengthy prison fendants to terms and ordered materials, report- promotional They urge to make rever- them restitution. paper group of the first ed the success great grounds. on a number of sal diverse promised for the all but the same success arguments we find none of their Because $102,500 collected new ones. Goldstar persuasive, judg- trial we affirm the court’s $171,000. Again, no collеcted Universal ments. invested, and money was ever substantial and his payouts were made to Mathison groups’ from the funds.
wife I. June, 1995, Mathison was arrested Mr. Mathison asserts that arising for crimes out of activities him. against court was biased He maintains government pro- groups. three the first judge that the should have recused himself knew proof duced at trial that Chambers case had from this because *5 arrested for that Mr. Mathison had been during him a humiliated embarrassed laundering. money and for Later that fraud years deposition a civil case several earlier year, final the four dеfendants formed the judge practice. the Federal law when was Group. entity, relevant the Perob Investment judge disqualify requires a federal himself time, already By this the was impartiality might rea or herself where “his activities, and investigating Mr. Mathison’s sonably questioned,” be see 28 U.S.C. was, organization group’s final thus the 455(a), § personal a or where “he has bias government alleged, calculated to conceal prejudice concerning party,” see 28 a U.S.C. govern- The Mr. Mathison’s involvement. 455(b)(1). § alleged also Mr. Gobel and ment that find, review, after that Mr. careful to in- Holmes soliсited friends relatives right to seek recusal Mathison waived his that group, in the Mr. Chambers vest trial We have from the court. held registered agent group, for as the acted § under not be considered claims 455 will “in- continued do the while Mr. Mathison they timely made unless were before trial vesting” the scenes. The defen- from behind Bauer, 19 F.3d court. See United States $947,000 from in- dants collected the Perob (8th Cir.1994). In a he letter that vestors. following particu- trial some to the court sent government maintained trial that The at larly rulings, Mr. Mathison referred adverse the fake Gobel and Mr. Holmes used claims to the events he now warranted previous from statements investment opinion indicated recusal. letter to lure to Perob. All four groups victims might events alluded to warrant mon- sizable amounts of defendants received recusal, did the letter judge’s but nowhere accounts. Mathi- ey from Perob’s bank actually We therefore believe seek recusal. money by wiring laundered some of this son quite properly did not the trial court Arizona, who to an associate at a bank the letter to be a motion to recuse. consider Mathison, money then wired back Mr. account, raise matter Mathison chose not to at his direction. or into another court, although he money into the trial wired recusal Much of this laundered before might plainly thought that he basis three in- associated with first accounts asking judge to recuse. Mr. Mathi- wholly Mr. Ma- for groups and under vestment objection an simply forfeit son did thison’s control. Piersol, L. United Dakota'. The Honorable Lawrence 2. Judge South District for the District of inaction; Finally, promotional materials from the first made a con-
mere inadvertent
he
objection.
In
scams were used to defraud investors
not to rаise the
three
scious choice
reasons,
these
circumstances,
in the fourth one. For
plain
that he
these
it is
to us
Olano,
charged
“of
that the offenses
we hold
it.
has waived
See United States
character” and were
725, 732-34,
the same or similar
...
or more ...
transactions
“based on
two
8(a),
together,”
connected
see Fed.R.Crim.P.
joinder
counts
and that
of all of the
II.
proper.
therefore
Mr. Holmes and Mr. Chambers mount sev-
government pro
It is true that the
challenges to the trial court’s refusal to
eral
guilt
Mathison’s
duced more evidence of Mr.
In
sever their trials frоm Mr. Mathison’s.
co-defendants’, and it is also
than it did of his
1-37, only Mr.
was a defen-
counts
on more
true that Mr. Mathison was indicted
dant,
only
arising
and crimes
out of
the first
But
co-conspirators
than his
were.
counts
three of the four investment schemes were
defendant is not entitled to severance
“[a]
38-61,
In
alleged.
counts
which concerned
merely
against
the evidence
a co-
because
group, all
the fourth investment
four defen-
damaging than the evi
defendant is more
charged.
dants were
against him....
becomes
dence
Severance
Although Mr.
Holmes and
necessary [only]
jury
... а
could not
where
during pre
moved for severance
Chambers
expected
compartmentalize the evi
they
hearing,
did not renew the motion
separate
dence as it relates to
defendants.”
government’s
at
at the close of the
case or
Jackson,
517, 525
States v.
the close of all of the evidence. Because
(8th Cir.1977),
U.S.
omission,
we review the denial of the
1682, 2195, 2928,
923, 968,
only.
plain
error
id. at
motion
See
236, 1064
L.Ed.2d
53 L.Ed.2d
*6
plain-error
on
S.Ct. 1770. To succeed
case, “any
prejudice
reduced
113
this
risk of
was
sever, a
review of the denial of a motion to
instructions,
by thе district court’s
which di
must show an abuse of discretion
defendant
jury
each offense and
rected
to consider
by
“prejudice
the trial court as well as
affect
separately,
supporting evidence
and to
its
ing
rights and an extraordi
his substantial
analyze
respect
the evidence with
to each
nary
to reverse.”
States v.
reason
considering
ad
individual without
evidence
(8th
851,
Cir.1998);
Rogers, 150 F.3d
855-56
solely against
mitted
other defendants.”
14.
see also Fed.R.Crim.P.
1053,
Noske,
United States v.
117 F.3d
——
(8th
denied,
-,
cert.
U.S.
true,
it is
as the defendants
While
-,
315, 389,139
244,
118 S.Ct.
L.Ed.2d
out,
point
alleged
the acts
in counts 1-37
—
(1997),
,
U.S. -—
in
alleged
were
from those
counts
distinct
38-61, the trial court did not abuse its discre
important,
a
by having
tion
all of the counts considered
More
because
substan
all,
amount,
pre
if
trial. Mr. Mathison’s first three
tial
of
evidence
the same
respect
groups served as the model and
sented with
to counts 1-37 would
investment
(and likely
progenitor
final
one
have been admissible
would have
for the
scam. At least
used)
defendant,
Mathison,
separate
in all
in a
trial on counts 38-
Mr.
was involved
been
acts,
government presented
Mr. Holmes and Mr. Chambers could not
of the
and the
prejudiced by the trial
allegedly linking Mr. Gobel and Mr.
have been
court’s
evidence
underlying all
failure
sever their trials from that of Mr.
Holmes to the acts
to
held, moreover,
Furthermore,
money-
complex
Mathison. We have
counts.
scheme,
“charged
conspiracy
laundering
for which all of the de
defendants
a
should
convicted,
proof
money
together, particularly
ob
be tried
where
fendants were
involved
groups.
charges against
of the
the defendants is based
tained from four
investment
scheme,
typical
money
upon
Ponzi
the same
and acts.” United
As in a
obtained
evidence
Boyd,
to
Cir.
from viсtims of the final scam was used
1979),
previous three scams.
U.S.
S.Ct.
placate victims of the
entities,
hold,
involved in solicit-
his business
was
there-
sented veracity of a search warrant warrant, by out FBI determine search and sworn first if she make a substantial he or can Reynolds, was based on affidavit Special Agent Danny showing statement information, preliminary that false tending to sources of several (or that Mathison, in the affidavit relevant through several of was included show that Mr. 548 it) cause,” may and thus that recklessness be was omitted from intentional
information
recklessly,
allegedly
that the
from the fact of
omission. Unit-
ly or
false
inferred
(8th
Reivich,
957,
necessary
finding
prob
to a
statement was
ed
v.
793 F.2d
961
Martin,
alleged
Cir.1986), quoting
cause or that the
omission would
v.
able
United States
(5th Cir.1980).
probable
318,
impossible
to find
have made
F.2d
While we
615
329
155-56,
2674;
at
S.Ct.
dispute
cause. See id.
98
of an infor-
do not
that evidence
House,
1135, 1141,
v.
may
United States
credibility
mant’s
sometimes be critical
(8th Cir.1979),
denied,
cause,
1141
cert.
445
n. 9
finding
probable
agree
we
with
to a
931,
1320,
that,
case,
100 S.Ct.
Mr. Mathison that aware of Mr. Mathison’s criticisms. It may affiant material that Mr. the omitted information be Mathison was not neutral respect magistrate about one of the informants on whom the and detached with to that gathering judge, may reasonably affiant relied information for the but one not infer frоm affidavit, specifically, opposite that the informant this that true. Mr. was the was Mathi- jail charged grand magistrate judge issuing and with theft at claim that the the son’s that he made the the neutral time relevant statements. second warrant also was not and detached, moreover, nothing Mr. Mathison asserts that the omission was amounts to “ ‘clearly finding vague conclusory allegation. a probable critical’ to the of more than
549 the warrant limited the cause first search Y. pertaining speci- to the to all records search maintains that the corporations and tо certain individuals’ fied upon the first search warrant which affidavit records, find we that was suffi- financial support insufficient to premised was was See, e.g., ciently particular. United States v. of probable for the search finding of cause Rude, 1538, F.3d entities for distinct business several the — -, U.S. warrant was issued. which the search (1997). L.Ed.2d cause, the court issu probable order to find “ ‘whether, must decide ing a search warrant Similarly, we find that the trial court forth in the all circumstances set given the motion to properly denied Mr. Mathison’s [it], proba ... is a fair there affidavit before ground the that suppress certain evidence on crime be bility that ... evidence of a will scope of the first its seizure exceeded ” Kail, States v. found.’ alleges that search warrant. Mr. Mathison (8th Cir.1986), quoting Illinois v. unlawfully per the FBI seized documents Gates, 213, 238, 2317, 76 103 S.Ct. taining companies specifi to a number of together, Taken L.Ed.2d 527 affidavit cally named in either the in question the affidavit information in sup The trial court declined to warrant. us strongly suggests that Mr. Mathison was evidence, fit press finding that it within his to recruit vic ing several of businesses agree. warrant. We As the confines deals, fraudulent loan tims for Mr. Totaro’s noted, first properly warrant we tending to demonstrate and that evidence fi the seizure Mr. Mathison’s authorized be involvement could found Mr. Mathison’s disputed Because the evi nancial records. entities, corporate those locat the records of groups in related which dence to investment there is more than ed in his office. Because investor, Mathison was listed as an in the that Mr. Ma- ample evidence affidavit scope of did not exceed the the war seizure activity, criminal thison involved rant. be of this involvement could that evidence court’s denial therefore affirm We records, financial affidavit found motion a Franks hear- of Mr. Mathison’s magistrate judge’s supported the properly ing suppress. of his motion to His claim respect finding probable cause pursuant to a second that evidence obtained first under the warrant. of the records seized search, under a second warrant based likewise, find, the first search, from the initial derived information specific; it appropriately search warrant was poison- as of the suppressed be fruit should not, contrary of Mr. Mathi- to another did is moot. ous tree therefore assertions, general authorize a search. son’s specific enough to must A search warrant VI. “general, exploratory rummaging” avoid the trial court Hamp Mathison maintains that Coolidge v. New person’s property, shire, refusing force the 29 erred property him to seized FBI examine In this ease the allow during the office second regarding Mr. his home and information from had considerable moved in- activity, including the search. When criminal Mathison’s evidence, court treated it potential the trial spect corporations names discovery. hеaring At the at But a motion for wrongdoing. criminal as ly involved in considered, nature, gov- fraud, which this motion entails concealment. its *9 complied, and indicated that had that rec ernment FBI not be certain the The could discovery comply, to corporate about which would continue of the 17 entities ords acknowledged that requests. would contain evidence it had information sufficiently accommodat- sought, government had therefore Mathison’s crimes. It discovery requests suggested then but received, search all of ed his authorization to and access tо the evi- in that he had been denied addition Mathison’s financial records search war- the second corporate Be- dence seized under records. the delineated to 550 government predicate support
rant. When the indicated that sufficient to the conclusion attorney had in Mr. Mathison’s fact reviewed the defendants were entitled to what documents, however, here, they requested. Mr. Mathi- some of the There is thus no error acquiesced. plain son to have detect no or seems We otherwise.
error here.
VIII. VII. conspira Gobel was convicted оf fraud, cy, money laundering. All of the defendants contend that the trial mail He refusing immunity court erred in denying to extend contends that the trial court in erred judgment acquittal one of their witnesses. The defendants sub- for motions on the poenaed Scharlepp, ground Sharon Mathison’s the evidence was insufficient to secretary, testify, whereupon support Specifically, former Ms. his convictions. Mr. Go- Scharlepp argues informed the trial government court that she bel failed to right would assert her Fifth prove Amendment not that he intended to into a enter con testify. governmеnt grant spiracy, The any declined to that he intended to defraud immunity Scharlepp exchange to Ms. the victims whom he recruited for the invest testimony, despite group, her the fact that it had ment and that he was even aware of granted immunity any her when she testified impropriety existence of financial against money Mr. Mathison at an laundering. earlier tax-eva- govern- sion interviews with the a We review denial of a judgment ment before the defendants’ trial. acquittal by considering the evidence immunity light
The relevant
federal
most favorable to the verdict.
If the
statutes,
§§
рlainly
18 U.S.C.
do evidence
permit
so construed would
a reason
give
authority
courts
jury
to immunize
guilty,
able
to find the defendant
we
See,
party.
e.g.,
witnesses
motion of
uphold
must
the verdict. See United States
248, 261,
Smith,
(8th
Pillsbury
Conboy,
145,
Cir.1997).
v.Co.
459 U.S.
104 F.3d
608,
(1983);
Viewing
103 S.Ct.
light,
see
evidence
this
we find
608,
Capozzi
also United States v.
support
that the record is sufficient to
(8th Cir.1989),
denied,
7n.
cert.
495 U.S. Gobel’s convictions.
918,
1947,
110 S.Ct.
lepp would have
to if
testified
she had been
provided
evi
granted immunity. Even if
closely
the trial court
dence that Mr. Gobel was
associated
legal authority
grant
immunity,
had the
with the
group:
relevant investment
There
(a proposition
very
proof
therefore
that we
much was
that he
was instrumental
its or
doubt), it
ganization,
accepted
could not have done sо in this
that he
a sizable amount
instance,
given
it,
because it
money
encouraged
was never
a factual
from
and that he
*10
1074, 1083
addition,
Triplett,
the rec- United States
in it.
to invest
victims
—
-,
finding that Mr. Gobel
support a
ord would
-,
1837, 2445, 137 L.Ed.2d
inability
many
feigned
to recollect how
an
(1997),
we believe that
138 L.Ed.
encouraged to make investments.
people he
ripe
instance are
for
Mathison’s claims
this
hold, therefore,
though the
that even
them
and the
because he raised
below
review
by
presented
evidence
reject all of
trial court ruled on them. We
prove,
overwhelming,
sufficient to
it was
not
merit,
as without
but address
detail
them
doubt,
par
Gobel’s
beyond a reasonable
only the claim that Mr. Mathison’s counsel
As a result of
ticipation
conspiracy.
in the
obtaining a
ineffective in not
Franks
involvement,
properly con
he was also
hearing in connection with Mr. Mathison’s
money-laun
on related mail fraud and
victed
suppress.
motion to
charges.
v. Esco
dering
See United States
(“each
(8th Cir.1995)
bar,
already
that Mr.
We have
held
Mathison’s
F.3d
hearing
for a Franks
was cor-
conspiracy may be held crimi
first motion
member of a
because, among
any
rеctly
things,
other
nally
crime com
denied
liable for
substantive
preliminary showing of
did not make a
by co-conspirator
course and
he
mitted
by Mr.
conspiracy”);
or reckless untruthfulness
of the
see also
deliberate
furtherance
States,
640, Reynolds
justify
hear-
that was sufficient
Pinkerton v. United
proa
mo-
ing. Mr. Mathison later made
se
tion he for the same While asserts cient reason. IX. lawyer have appeal that his could reason- trial Mathison asserts ably discovered certain additional facts that ways in in a number of sentenc court erred original for supported mоtion would court ing argues him. first that He hearing, additional facts did a Franks those improperly required that he make restitution Reynolds’s alleged tend that Mr. to show assessing ability his so without first did was deliberate reckless. untruthfulness Mandatory pay. Restitution Victim not have been enti- Mathison would thus 1996, however, requires for restitution Act of lawyer if his hearing even tled to a Franks injuries of crimes in inflicted the course Mr. Mathison discovered the facts that had volving fraud. See U.S.C. In our have been discovered. asserts should 3663A(c)(l)(A)(ii). re § The same statute view, then, preju- cannot show be “without quires that restitution orderеd shortcomings, lawyer’s alleged dice from of the economic circumstances consideration must this claim of ineffective assistance defendant.” See U.S.C. therefore fail. 3664(f)(1)(A). § that his Mr. Mathison also maintains XI. pun cruel and unusual sentence constitutes a number of other Mr. Mathison makes him to require ishment because will all which we have considered arguments, expectan beyond prison the extent of his life entirely mer- carefully to be without and find previous in a case that cy. But we have held it. range pre is a sentence that within statute, in excess of a althоugh scribed XII. expectancy, does not violate life defendant’s Eighth reasons, Amendment. United States See we affirm the foregoing For the (8th Cir.1989). Mendoza, judgments of the trial court. NOONAN, concurring Judge,
X. Circuit dissenting. raises numerous opinion except as to I concur the court’s of counsel. of ineffective assistance claims holding on claim ineffective ordinarily Mathison’s be raised its such claims must While way rul- relief, of counsel. The usual see assistance petition postconviction in a *11 ing on claims is on a motion for such habeas Petty, See United States
corpus. Cir.1993).
695, 696 The record here is sparsely developed
so that I cannot form an
opinion on the merits of the claim. Mathi-
son’s account of his counsel’s failure to move inquiry. recusal itself warrants more America, Appellee,
UNITED STATES TURNER, Appellant. L.
Eddie
No. 98-1183. Appeals,
United States Court of
Eighth Circuit. May
Submitted 1998. Sept.
Decided 1998.
Rehearing Denied Oct. 1998.