UNITED STATES of America, Appellee, v. Harvey DURANSEAU, also known as Alan B. Merrill, also known as Glen M. Mitchell, Appellant.
No. 93-3513.
United States Court of Appeals, Eighth Circuit.
Decided June 7, 1994.
26 F.3d 804
Submitted Feb. 15, 1994.
The magistrate judge was of the view that the ADEA‘s definition of willfulness was “almost exactly the same as that mandated by Missouri law for punitive damages.” Nelson, No. 90-2444-C(6), slip op. at 9 (E.D.Mo. Mar. 5, 1992), reprinted in Jt. App. at 219. We believe the court made a fundamental error. “The standards established by the Missouri Supreme Court for finding punitive damages under the [MHRA] are entirely different” from the standards for imposing liquidated damages under the ADEA. Doyne v. Union Elec. Co., 953 F.2d 447, 450 (8th Cir.1992). An employer who demonstrates reckless disregard for its compliance with the ADEA does not necessarily act in a manner that is “outrageous,” which is necessary for the imposition of punitive damages. Stated another way, the Missouri law of punitive damages requires actual outrageousness, which is not present in the ADEA‘s concept of willfulness. Compare Biggins, ___ U.S. at ___, 113 S.Ct. at 1710 (“employee need not additionally demonstrate that employer‘s conduct was outrageous“) with Burnett, 769 S.W.2d at 789 (“An attentive observer would note that this Court cited with approval the Restatement comment that there must be some element of outrage to justify punitive damages.” (internal quotations omitted)). Not every willful violation of the ADEA will involve outrageous conduct. To equate the two standards, as the district court did in this case, would be to permit recovery of punitive damages in every Missouri case where a willful violation of the federal statute is shown to have occurred. The distinction between finding an employer‘s violation of the ADEA to have been willful and finding that same employer‘s conduct to have been willful or, even worse, outrageous is an important one. See Brown, 994 F.2d at 561 (Loken, J., dissenting). After reading the entire transcript in the light most favorable to the plaintiff, we conclude that there was insufficient evidence of conduct by Boatmen‘s which would shock the conscience and cause outrage so as to warrant submission of the issue of punitive damages to the jury.
Because we conclude that the district court erred in permitting the jury to consider the issue of punitive damages, we reverse the jury‘s award of punitive damages.2
VI.
Accordingly, we affirm the awards of compensatory damages and for front pay. We reverse the award of punitive damages under the MHRA. We reinstate the award of liquidated damages under the ADEA.
Alfred Willett, Cedar Rapids, IA, for appellant.
Rodger E. Overholser, Cedar Rapids, IA, for appellee.
Before McMILLIAN, WOLLMAN, and MAGILL, Circuit Judges.
Harvey Duranseau appeals both his jury conviction for aiding and abetting the interstate transportation of stolen goods in violation of
I. BACKGROUND
In February 1991, Duranseau originally was indicted in the Eastern District of Michigan on three counts for violation of
On December 7, 1992, the morning of trial, Duranseau moved to dismiss the indictment for violation of his speedy trial rights. See
At trial, the government presented testimony that early in September 1988, a man who identified himself as Alan Merrill came to Running‘s store and sold Running a ring. Merrill showed Running his Michigan driver‘s license. Michigan records indicated that Duranseau had obtained a Michigan driver‘s license in the name of Alan Merrill. Later in September, Duranseau returned and received a tour of Running‘s store. On September 24, Duranseau visited Running‘s store once again. On September 26, someone burglarized Running‘s store. Running suffered a loss of between $40,000 and $60,000 that forced him to shut down his forty-three-year-old jewelry business.
Bill and Carolyn McCollum testified that in December 1988, Duranseau informed them that he had a briefcase full of jewelry that he wanted to sell. Duranseau told Carolyn McCollum that he had received the jewelry from an uncle who had died. Duranseau sold several pieces of jewelry to McCollum. Running identified these items as jewelry stolen from his store. In October 1992, Detective Sergeant Robert Manes of the Michigan State Police executed a search warrant on Duranseau‘s safe-deposit box. Detective Manes discovered over 500 pieces of jewelry. Many of the individual pieces had Running‘s identification tags on them. Running identified over fifty percent of the jewelry as pieces stolen from his store.
Duranseau presented four witnesses at trial. Mary Lou Cole, Duranseau‘s sister, testified at trial that Duranseau was with her in Michigan on September 25, 1988 and all day on September 26, 1988. She was sure of the September 25, 1988 date because she claimed that it was the day after she had broken off her engagement with her fiancé. On cross-examination, Cole admitted that she had testified as an alibi witness for Duranseau before and that she did not know her former fiancé‘s age, birthdate, or his address.
Danny Schmitzer testified that Duranseau had been with him in Florida after lunch on September 23, 1988, had driven away at noon of September 24, 1988, and returned to Florida on September 27, 1988. Schmitzer testified on cross-examination that he had received a letter from Duranseau asking him to find records that would jog his memory about Duranseau‘s whereabouts in late September 1988. Prior to trial, Schmitzer told FBI agents that he had not seen Duranseau since 1981.
Richard Neely, Duranseau‘s nephew, who previously had testified as an alibi witness for Duranseau‘s wife, testified that in September 1988 he saw Ed Suiter with a lot of jewelry. Further, Neely testified that Suiter had invited him to drive with Suiter to put jewelry in Duranseau‘s safe-deposit box. Finally, Mark LaCusta testified that he saw Duranseau‘s brother and Suiter with a suitcase full of jewelry, and that they offered to sell LaCusta some of that jewelry.
The jury convicted Duranseau of aiding and abetting the interstate transportation of stolen property. At sentencing, the government offered evidence that Duranseau was a career criminal who had obtained multiple aliases to further his criminal designs and that Cole had perjured herself by lying about an alleged fiancé to strengthen her alibi testimony. The district court acknowledged that there was no direct evidence that Duranseau had suborned Cole‘s perjury; nevertheless, the district court found that circumstantial evidence supported the conclusion that Duranseau had suborned perjury. The district court determined that Duranseau was involved in a conspiracy to suborn perjury in which Duranseau would testify as an alibi witness for his friends and relatives and that they would testify as alibi witnesses for him. Thus, the district court applied a two-level enhancement for obstruction of justice under § 3C1.1 of the guidelines.
II. DISCUSSION
Duranseau raises four points on appeal. Duranseau claims: first, the district court abused its discretion when it dismissed his initial indictment without prejudice; second, the government presented insufficient evidence for a jury to convict him for aiding and abetting the interstate transportation of stolen property; third, the district court clearly erred when it determined by a preponderance of the evidence that he had suborned perjury; and fourth, the district court erred when it departed upward to give Duranseau a ninety-eight-month concurrent sentence.
A. Section 3161(c)(1) Dismissal
Duranseau argues that the district court abused its discretion when it dismissed his indictment pursuant to
“The Speedy Trial Act requires that a federal criminal defendant be brought to trial within 70 days of the filing of the indictment or of arraignment, whichever is later.” United States v. Koory, 20 F.3d 844, 846 (8th Cir.1994). When a violation occurs, dismissal is mandatory on the motion of the defendant. Id.; see also
An abuse of discretion occurs when a relevant factor that should have been given significant weight is not considered, when an irrelevant or improper factor is considered and given significant weight, or when all proper and no improper factors are considered, but the court in weighing those factors commits a clear error of judgment. United States v. Kramer, 827 F.2d 1174, 1179 (8th Cir.1987). Absent clear error, we will not disturb factual findings by the district court. Koory, 20 F.3d at 847. The factors that a district court must consider when determining whether to bar reprosecution are “(1) the seriousness of the offense; (2) the facts and circumstances which led to the dismissal[;] and (3) the impact of reprosecution on administration of the Act and justice in general.” Kramer, 827 F.2d at 1176 (citing
Duranseau does not argue that the interstate transportation of stolen property, a felony offense with a maximum penalty of 120 months’ imprisonment and/or a fine of $250,000, is not a serious offense. We agree with the government that this offense is serious.
Next, we consider the facts and circumstances leading to the dismissal. “[C]ircumstances do not favor dismissal with prejudice, however, where there is no showing that the claimed negligence was in reality an attempt to obtain a tactical advantage for the government or that the government regularly or frequently failed to meet the time limits of the Act.” Koory, 20 F.3d at 848 (citing Kramer, 827 F.2d at 1177). The district court found that the twenty-six-day delay was the result of “unintentional non-compliance with the Act.” Specifically, Duranseau first was indicted in Michigan, but the government moved to dismiss the Iowa offense before trial. The government erroneously excluded the forty non-excludable days expended pursuant to the Michigan indictment when it calculated the total number of non-excludable speedy trial days under the first Iowa indictment. See United States v. Leone, 823 F.2d 246, 248 (8th Cir.1987). As a result of this error in calculation, the government exceeded the seventy-day cap by twenty-six days.
Finally, we must determine the effect of reprosecution of Duranseau on the administration of the Act and justice in general. The district court found that there was “minimal prejudice to the defendant.” Duranseau claims that the delay resulted in prejudice to his case because Suiter, a defense witness who died before the trial, would have provided alibi testimony for Duranseau. Duranseau argues that the reprosecution, in light of Suiter‘s death, prejudiced his defense. We disagree.
First, at trial, at least two of Duranseau‘s witnesses provided alibi testimony for Duranseau. Cole testified that she was with Duranseau on September 26, 1988, the day of the robbery. Schmitzer testified that he was with Duranseau immediately before and after September 26, 1988. Second, Duranseau‘s defense at trial was that Suiter, not Duranseau, stole the jewelry and put it into Duranseau‘s safe-deposit box. Suiter‘s testimony at trial, assuming that he would have waived his Fifth Amendment rights, would have duplicated other alibi testimony already in evidence and would have linked Duranseau to Suiter. In light of the testimony by Duranseau‘s witnesses that linked Suiter to the robbery, any link between Duranseau and Suiter could have been interpreted by the jury to support a determination that Duranseau aided Suiter in the interstate transportation of property. The district court‘s factual determination that Duranseau‘s reprosecution resulted in minimal prejudice was not clear error. See Kramer, 827 F.2d at 1179.
We conclude that the district court gave proper consideration to each of the factors in
B. Insufficiency of Evidence
Duranseau argues that there was insufficient evidence for the jury to find that he aided and abetted the interstate transportation of stolen money. “To convict [a defendant] of aiding and abetting, the government [must] prove [the defendant] associated [himself] with the illegal activity, ... took part in the activity as something [he] wished to bring about, and by taking part [he] sought to make the activity succeed.” United States v. Copple, 827 F.2d 1182, 1187 (8th Cir.1987), cert. denied, 484 U.S. 1073, 108 S.Ct. 1046, 98 L.Ed.2d 1009 (1988). The government may prove the essential elements through circumstantial evidence. Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137-38, 99 L.Ed. 150 (1954). We review the evidence in the light most favorable to the government, and may reverse the jury verdict only if the evidence was so insufficient that a reasonable jury must have entertained a reasonable doubt of guilt. United States v. Noibi, 780 F.2d 1419, 1421 (8th Cir.1986).
The evidence, when viewed in the light most favorable to the government, is sufficient to sustain the jury‘s verdict. Running testified that Duranseau visited his store three times before the robbery. The McCollums testified that Duranseau sold them jewelry that Running later identified as jewelry stolen from his store. The Michigan State Police found numerous pieces of jewelry in Duranseau‘s Michigan safe-deposit box that had Running‘s identification tags on them. Running identified over half of the jewelry found in Duranseau‘s safe-deposit box as jewelry stolen from his store. We conclude that there was sufficient evidence for a jury to conclude that Duranseau aided and abetted the interstate transportation of stolen property.
C. Suborning Perjury: Section 3C1.1
Duranseau argues that the district court improperly enhanced his offense level by two levels for obstruction of justice pursuant to
When reviewing an enhancement for obstruction of justice, this court accepts as true the district court‘s factual findings unless they are clearly erroneous. United States v. Armstrong, 992 F.2d 171, 174 (8th Cir.1993). The district court must determine by a preponderance of the evidence, see United States v. Malbrough, 922 F.2d 458, 464 (8th Cir.1990), cert. denied, 501 U.S. 1258, 111 S.Ct. 2907, 115 L.Ed.2d 1071 (1991), that Cole perjured herself and that Duranseau “aided or abetted, counseled, commanded, induced, procured, or willfully caused” that perjury, see
The parties do not dispute that Cole perjured herself.4 Further, the government can sustain its burden that Duranseau procured Cole‘s perjury through circumstantial, as well as direct, evidence. The district court found that Duranseau and his relatives provided alibi testimony for one another. There was evidence that these prior alibi testimonies were false. Further, there was evidence that Duranseau sent a letter to Schmitzer asking him to find documents that would jog Schmitzer‘s memory as to Duranseau‘s whereabouts in late September 1988. This evidence supports the district court‘s finding that there was a nexus between the witnesses’ testimonies and Duranseau‘s procurement of that testimony.
The district court did not clearly err when it determined by a preponderance of the evidence that Cole committed perjury and that Duranseau procured that perjured testimony. See United States v. Seabolt, 958 F.2d 231, 234 (8th Cir.1992) (per curiam), cert. denied, ___ U.S. ___, 113 S.Ct. 1411, 122 L.Ed.2d 782 (1993).
D. Upward Departure: Section 5G1.3
Finally, Duranseau argues that the district court improperly applied the guide-
At the time of sentencing, Duranseau was serving a seventy-four-month sentence for the Michigan offenses. Pursuant to
A district court may depart from the guidelines when it finds aggravating or mitigating circumstances that are not adequately taken into consideration by the guidelines,
The district court did not abuse its discretion when it departed upward to sentence Duranseau to a ninety-eight-month concurrent sentence. The district court departed upward because if it had imposed a concurrent sentence of sixty-three months, the top of Duranseau‘s applicable sentencing range, Duranseau would not have received any additional punishment for the Iowa offense. See Gullickson, 981 F.2d at 349; see also Muzingo, 999 F.2d at 363. The district court noted that (1) the criminal history category did not adequately reflect the likelihood that Duranseau would continue to commit crimes once released, and (2) the impact of the crime on the victim was not adequately taken into consideration in the guidelines.8
Each of these reasons supports the district court‘s upward departure. The district court determined that Duranseau was a career criminal who had obtained multiple aliases and had made his livelihood by stealing and
III. CONCLUSION
For these reasons, we affirm the judgment of the district court.
McMILLIAN, Circuit Judge, concurring in part and dissenting in part.
I concur in Parts II(A), (B), and (D) of the majority opinion, but dissent from Part II(C) regarding the district court‘s sentencing enhancement for subornation of perjury pursuant to
Samuel HAYNES, SS # 431-78-5306, Plaintiff-Appellant, v. Donna E. SHALALA, Secretary of Health and Human Services, Defendant-Appellee.
No. 93-2800.
United States Court of Appeals, Eighth Circuit.
Decided June 8, 1994.
26 F.3d 812
Submitted Feb. 15, 1994.
Notes
I do believe that .. [Duranseau] can and should be assessed for obstruction on the grounds that he was involved in procuring perjured testimony.
I think when one makes a decision in cases like this, you can‘t leave your common sense at the door, and while there is no direct link between the defendant or no one has testimony to say that they [sic] saw [Duranseau] tell [Cole] to lie, the fact of the matter is that [Cole] did lie. She lied on matters which she used in order to bolster her credibility to the jury in order to provide an alibi for [Duranseau]. There‘s no doubt in my mind that she perjured herself, and I suspect all the other witnesses perjured themselves who came in to provide alibi testimony, but certainly as to [Cole], she did and, given the history of [Duranseau] in which he testifies for his relatives, they testify and provide alibis for him in trials ... it [doesn‘t take] a rocket scientist to figure out that they‘re working with each other and in basically a conspiracy of procuring perjured testimony ... and I don‘t believe that there has to be an eyewitness who can come in and say he or she saw [Duranseau] tell [Cole] that [Cole] should come in and testify and provide a false alibi.
[G]iven the history of [Duranseau] and his family in the way that they provide testimony for each other, I believe supports that conclusion. It might be a little different situation if there weren‘t the history of providing testimony for each other, but in this case I think ... that finding clearly is warranted. Sentencing Tr. at 117-19.