UNITED STATES of America, Plaintiff-Appellee, v. George M. PARROTT, Defendant-Appellant.
No. 97-6035
United States Court of Appeals, Sixth Circuit
Decided July 6, 1998.
148 F.3d 629
Argued April 30, 1998.
Under the Agostini analysis, the Lansing School District has no valid argument that the Establishment Clause is violated by its provision of PT and OT services at Our Savior Lutheran School. All the arguments advanced by the Lansing School District are based on the assumptions set forth in Aguilar and Ball that were expressly overruled by the Court in Agostini. The IDEA certainly has a secular purpose and its primary effect is one that does not advance religion. See School Comm. v. Department of Educ., 471 U.S. 359, 369, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985) (stating that the purpose of the IDEA “is principally to provide handicapped children with a free appropriate public education which emphasizes special education and related services designed to meet their unique needs“). Accordingly, we affirm the district court‘s grant of summary judgment in favor of the Pecks on their IDEA claim.
Lutheran Sсhool under the Individuals with Disabilities Education Act (IDEA). As noted by Judge Cole, the IDEA was amended, effective June 4, 1997, to provide that the Act no longer requires a local educational agency to pay for educational services for a disabled child at a private school “if that agency made a free appropriate public education available to the child and the parents elected to place the child in such private school or facility.”
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
DAUGHTREY, Circuit Judge, concurring.
I concur in the conclusion that Agostini v. Felton, 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997), now controls our analysis of the First Amendment implications of the Individualized Educational Programs developed for Elizаbeth Peck prior to the 1997-1998 school year. I write separately, however, to emphasize that this case does not present us with a question of the propriety of future state-funded services at Our Savior
Ernest W. Williams (argued and briefed), Franklin, TN, J. Russell Heldman (briefed), Williams and Heldman, Franklin, TN, for Defendant-Appellant.
Before: MERRITT, NORRIS, and WALLACE,* Circuit Judges.
MERRITT, J., delivered the opinion of the court, in which NORRIS, J., joined. WALLACE, J. (pp. 636-638), delivered a separate opinion concurring in part and dissenting in part.
MERRITT, Circuit Judge.
George M. Parrott appeals the sentence imposed following his guilty plеa to one count of filing a false tax return in violation of
In December 1996, a grand jury indicted Parrott for filing false tax returns in 1988, 1989, and 1990; for submitting seven false documents to the I.R.S. during examination of these returns; and for submitting false documents to a bank in connection with loan applications. Parrott agrеed in April 1997 to plead guilty to filing a false tax return for the year 1990 in exchange for dismissal of the remaining counts of the indictment. In the plea agreement the parties stipulated that Parrott caused a tax loss to the government of between $70,000 and $120,000 in the years 1988 through 1990.
At the plea hearing, Special Agent Gary Sinclair testified as to the relevant facts. In early 1988, John and Alice Lindahl entrusted Parrott, their accountant, with approximately $282,000 to invest and manage on their behalf. Parrott was to prepare periodic financial statements on their investments and to reinvest their earnings. Without the Lindahl‘s knowledge, Parrott transferred their funds into his personal and business accounts. Parrott provided the Lindahls with a financial statement at the end of 1988 falsely indicating that he had used their money to purchase certain bonds. Parrott misappropriated $169,716 from the Lindahls’ accounts in 1990 and failed to report this amount on his tax return. He also failed to report income he received in 1990 from a corporation known as Brindan Music, Inc. Parrott‘s total tax deficiency for the year 1990 amounted to $48,266. During the hearing, Parrott stated that he believed Sinclair‘s testimony was truthful. Plea Tr. at 21, J.A. at 99.
In July 1997, District Judge Todd J. Campbell sentenced Parrott. He used the 1990 Guidelines Manual to avoid violation of the Ex Post Facto Clause. See
Parrott first contends that the District Court erred in determining his base offense level based on a tax loss of more than $70,000. Although he had stipulated in the plea agreement that his conduct caused a
Judge Campbell properly refused to consider Parrott‘s alleged farm loss deductions in determining the tax loss. Under
Parrott next argues that the District Court erred by making an upward adjustment under
Parrott offers two theories for reversing the District Court‘s upward adjustment under
Parrott‘s second theory is that the government failed to offer proof sufficient to support the District Court‘s finding that he engaged in “criminal activity” and that the District Court erred by relying solely on the presentence report as the factual basis for the enhancement. As Parrott observes,
In his written objections to the presentence report, Parrott contended generally that there was no evidence to support the
At sentencing the District Court considered and rejected Parrott‘s general objection to the enhancement recommended by paragraph 28 of the presentence report. The court asserted that that the government had proved by a preponderance of the evidence that Parrott‘s conduct violated Tennessee‘s statute for theft of property. Judge Campbell did not make independent findings with respect to the elements of the offense. Instead, he relied solely on the factual statements contained in the presentence report in finding that Parrott‘s conduct warranted enhancement of his sentence on this basis: “I am basing my ruling on the presentence report, and those are the facts that I am considering. I think the facts in the presentence report reflect a violation of theft of property which is
On appeal, Parrott continues to assert that the evidence is insufficient to prove that he engaged in criminal activity, but he has refined his argument somewhat. He now contends that the court‘s failure to make a particularized, independent finding with respect to criminal intent requires remand for resentencing. Parrott suggests that because he intended to repay the money he took from the Lindahls, he did not have the intent necessary for theft of property. He concedes only that he breached his fiduciary duty, an act that does not constitute criminal activity.
In light of the objections made by Parrott to the presentence report before and during the sentencing hearing, the District Court did not fully comply with
In sum, although the District Court technically erred by adopting the challenged paragraph of the presentence report in support of the
Parrott also contends that the District Court erred by making an upward adjustment under
We agree with the prosecution that attempting to impede a criminal investigation by submitting false documents warrants enhancement, whether or not the investigation is actually impeded. The guideline explicitly states that enhancement is required if the “defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice.”
Nevertheless, we agree with Parrott‘s claim that in light of his objections to the presentence report, the District Court erred by failing to make independent factual find-
We reject this interpretation of the guideline. On its face,
In light of Parrott‘s objections before and during the sentencing hearing, Judge Campbell erred by failing to make an explicit finding on the question of Parrott‘s purpose for submitting the documents to investigators. The presentence report adopted by Judge Campbell in support of the enhancement, is silent on the issue. The government failed to present any evidence regarding Parrott‘s intent either before or during the sentencing hearing, apparently because of its erroneous interpretation of the guideline. Although the record may contain circumstantial evidence suggesting that Parrott submitted the documents for the purpose of impeding the government‘s investigation of the conduct underlying his conviction for the predicate offense, the record before us does not foreclose a finding to the contrary. The proof does not preclude the possibility that Parrott submitted the documents in an effort to cooperate with investigators. The documents in question do not appear in the record before us, but they apparently provided evidence tending to show that Parrott committed the underlying offense. Parrott apparently turned the documents over in response to a request for all of his financial records for the relevant period, but the precise circumstances of their submission remains unclear.
Given the gaps in the record surrounding the documents and their submission, we cannot conclude that the District Court‘s error was harmless. Had Judge Campbell correctly interpreted the obstruction guideline and developed the evidence on the issue, he might have found that Parrott‘s purpose for submitting the documents to investigators was innocent and thus did not justify the enhancement. If that had been the case, Parrott‘s offense level would have been twelve rather than fourteen, and Judge Campbell could have imposed a shorter term of imprisonment reduced further by a period of home confinement, a possibility he explicitly entertained but ruled out because of his error. See Sentencing Tr. at 86, J.A. at 342 (Judge Campbell discussing
Remand is also necessary in this case to fulfill
For the reasons stated, we vacate Parrott‘s sentence and remand for resentencing in accordance with this opinion. The defendant should be subject to release on bail while awaiting resentencing. We leave the question of the conditions of release to the District Court.
WALLACE, Circuit Judge, concurring and dissenting.
I concur with the majority‘s discussion of the amount of the tax loss and concur in the result only on the “criminal activity” sentence enhancement, but I must respectfully dissent on the reversal of the sentence enhancement for obstruction of justice.
I
I agree with the majority that any error under Rule 32 in the context of the “criminal activity” enhancement is harmless. I disagree with the majority that there is any error at all.
The majority correctly states that Parrott objected to an enhancement pursuant to section
The majority now holds that this finding was insufficient because, on appeal, Parrott argues that he lacked intent. Parrott did not challenge the finding or enhancement on this basis in the district court. If the majority is correct, to avoid reversal the district court would have to make findings on every subissue, whether or not it was specifically raised by the defendant. This cannot be the law. I would hold the intent issue was waived by failing to raise it before the district court.
The majority also faults the district court for “simply adopt[ing]” the presentence report. It is true that “a court faced with a dispute over sentencing factors [is prohibited] from adopting the factual findings of the presentence report without making factual determinations of its own.” United States v. Monus, 128 F.3d 376, 396 (6th Cir.1997). Unlike the district court in Monus, which failed to address “the defendant‘s specific factual objections to the methods of calculation” in the presentence report, id. at 397, the district court here directly addressed and made findings on the objections raised by the defendant. It did not make a blanket acceptance of all the findings of the presentence report, but specifically addressed all controverted issues.
The mаjority faults the district court for not making “independent” findings. Independent factual findings, however, only mean
This court demands “literal compliance” with
II
The majority‘s analysis of the obstruction of justice enhancement fails for the same reasons discussed in reference to the “criminal activity” enhancement. But here, the majority‘s mistake is compounded because the majority holds there was no harmless error. I conclude that not only is the majority‘s interpretation of the “error” incorrect, but any “error” on the obstruction of justice enhancement is harmless for the same reasons as the “error” on the “criminal activity” enhancement is harmless.
Parrott objected to a proposed enhancement under
The majority assert that Parrott “inarticulately” raised another argument: “that he submitted the documents not in an effort to impede the investigation, but in order to cooperate.” I do not believe this argument was raised. The majority cites three pages of the trial transcript, but that oblique colloquy ends with the following:
THE COURT: In your view it is not false, whatever was handed over was not false?
I want to make sure I understand your argument.
MR. WILLIAMS: That‘s correct. It is always our position that we didn‘t give them false documents.
Nor have I found where the precise issue of an effort to cooperate was raised in Parrott‘s opening brief to this court. His argument is difficult to follow because he mixes the criminal activity issue with the obstruction of justice issue. But that aside, he still argues the documents were not false and that having submitted the same documents earlier to a civil investigation, resubmitting them now cannot be a willful obstruction.
Thus, the district court was not required to guess what additional arguments Parrott would articulate on appeal and to make findings on those issues.
Even if the district court did err in not making the clairvоyant findings on intent the majority opinion would require, such an error would be harmless here. In his plea hearing, Parrott agreed with Agent Sinclair‘s statement that Parrott misappropriated funds. Establishing misappropriation was a vital part of the plea hearing—if the money had merely been a loan, as Parrott suggested in his sentencing hearing that he could show “if the court let [him] withdraw his plea,” then there would have been no crime in failing to pay taxes on the “borrowed” money. But Parrott agreed that he misappropriated funds and evaded federal income taxes and is now bound by his plea agreement.
The majority suggests that “[t]he proof does not preclude the possibility that Parrott submitted the documents in an effort to cooperate with investigators.” Providing documents one knows to be false and to cover up a crime is, in my judgment, a strange way to “cooperate” with an investigation. I believe that Parrott‘s actions provide “at least a minimal showing by the government” that Parrott‘s production of documents “was done with the purpose of interfering with investigation or prosecution of the crime.” United States v. Perry, 991 F.2d 304, 312 (6th Cir.1993); see
I would affirm.
MID-AMERICA CARE FOUNDATION, d/b/a Fair Oaks Health Care Center, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
Nos. 97-5433, 97-5535.
United States Court of Appeals, Sixth Circuit.
Argued May 1, 1998.
Decided July 8, 1998.