UNITED STATES of America, Plaintiff-Appellee, v. Joseph Costa PACHECO, III, Defendant-Appellant.
No. 10-1067.
United States Court of Appeals, Sixth Circuit.
March 16, 2012.
519 F.3d 517
Before: CLAY, GIBBONS, and WHITE, Circuit Judges.
Because Jazic did not establish entitlement to asylum, he necessarily could not meet the higher standard for withholding of removal. See Koliada v. INS, 259 F.3d 482, 489 (6th Cir.2001). Finally, he did not qualify for relief under the CAT because he did not show that it was more likely than not that he would be tortured upon his return to Croatia. See Pilica v. Ashcroft, 388 F.3d 941, 951 (6th Cir.2004).
For all of the above reasons, the petition for review is denied. The motion for a stay of removal is denied as moot.
Joseph Costa Pacheco, III was convicted of five counts of bank robbery, in violation of
Pacheco also appeals his sentence. He argues that the district court erred when it declined to grant a two-level downward adjustment of his offense level for acceptance of responsibility. He further claims that his sentence was procedurally unreasonable because the district court failed to consider his argument that his criminal history was overrepresented.
For the reasons that follow, we affirm Pacheco‘s conviction and sentence.
I.
Between October 15, 2007 and October 29, 2007, Pacheco robbed five banks in eastern Michigan. His modus operandi was similar for each robbery: Near closing time, Pacheco entered the front door of the bank branch, waited in line, and when called to the teller window, placed a brown paper bag on the counter in front of the teller. The bag had writing on it that informed the teller “this is a robbery.” The writing on the bag also directed the teller to put all of his or her money in the bag. Each teller complied with the demand, and Pacheco then left the bank, through the front door, with the money. He did not brandish a weapon during any of the robberies.
Pacheco was arrested on October 30, 2007 and admitted to the police that he had robbed each of the five banks. A grand jury returned an indictment charging Pacheco with five counts of bank robbery in violation of
Pacheco represented himself pro se in district court proceedings, with the assistance of stand-by counsel. On February 9, 2009, Pacheco moved to obtain an investigator and for a ninety-day continuance of his trial, which was then scheduled to begin on February 24, 2009. The district court continued the trial, authorized the appointment of an investigator, and authorized the payment $1,000 for investigative services. On July 16, 2009, the court authorized an additional $600 in funds for investigative services.
Pacheco‘s jury trial began on September 14, 2009. That morning, Pacheco requested a thirty-day continuance of the trial to allow his private investigator to attempt to contact twenty additional prospective witnesses. He also requested an additional $200 for investigative services. Pacheco argued that the government had delayed in providing his investigator with the home phone numbers of certain witnesses, causing her to unnecessarily expend 1 1/2 hours obtaining this information. Pacheco also argued that a continuance was necessary because he had not yet been able to review the videos of his police interrogation and the surveillance videos of the robberies.
The government objected to the continuance, arguing that the investigator had been provided with the names and home phone numbers of witnesses at least one month prior to the first day of trial, affording her ample time to conduct her investigation. The government further argued that Pacheco could have subpoenaed witnesses with the assistance of the United
The district court ruled that there was no impediment to proceeding with voir dire and told Pacheco that he would be given an opportunity to review the surveillance and interrogation videos after voir dire was completed. The court conducted voir dire, empaneled a jury, and sent the jury home for the day. Pacheco was then given an opportunity to review the surveillance and interrogation videos. Trial proceeded the next morning as scheduled.
At trial, the government called the five bank tellers from whom Pacheco had demanded money and played the surveillance video from each robbery. Each teller identified Pacheco as the robber in still photos or videos of the robberies and also identified Pacheco when testifying during trial. All of the tellers also testified that they had been trained by the bank to comply with notes that demanded money. However, four of the five tellers testified that they gave Pacheco money because he demanded it, not because bank policy directed them to do so.
The government also elicited testimony from Joseph Herrera, a bank examiner with the Federal Deposit Insurance Corporation (“FDIC“). Herrera testified that the FDIC insured the deposits of member banks and deposits made at each of their domestic branches. He testified that he had reviewed the FDIC‘s insurance records and had confirmed that the deposits of each of the five banks that had been robbed were presently insured by the FDIC, and had been insured in October 2007, when the banks were robbed.
Pacheco testified in his own defense. He acknowledged that he had robbed each of the five branches but claimed that he did not intend to intimidate anyone during the course of the robberies. He testified that he never threatened the tellers involved in the robberies with harm if they failed to comply with his demands for money.
Pacheco also sought to elicit the testimony of Harsha Shah, a witness to one of the bank robberies. Shah was unavailable to testify, and Pacheco agreed that the following stipulation would be read to the jury in lieu of her testimony:
One, that the dates listed in the indictment are true and correct dates for each incident; and two, an employee of the Charter One bank in Farmington Harsha Shah was present on October 23, 2007. She told investigators that after the suspect left the bank, she went out the door to see if a vehicle was involved, and saw the suspect walk east on the north sidewalk of Slocomb to the east lot of the Orchard condominiums and north toward Orchard where the site [sic] line was lost.
Pacheco specifically advised the district court that this stipulation would allay his concern about the inability of Shah to testify in his defense.
The jury returned a verdict of guilty as to each count of the indictment. Prior to sentencing, the district court reviewed sentencing memoranda submitted by Pacheco and the government, a Pre-Sentence Investigation Report, multiple victim impact statements, and two letters submitted in support of Pacheco. In his memorandum and again at the sentencing hearing, Pacheco argued that he was entitled to a two-level downward adjustment on the basis of his acceptance of responsibility for his criminal conduct. He also argued that a criminal history category of VI overrepresented his past criminal conduct.
The district court concluded that the combined adjusted offense level for the five robbery convictions was 26 and Pacheco‘s criminal history category was VI. Ac
The court considered but rejected Pacheco‘s argument that he was entitled to a two-level adjustment based on his acceptance of responsibility. During the sentencing hearing, the court also acknowledged that Pacheco sought a departure based upon the overrepresentation of his criminal history, but did not grant a departure. After assessing the relevant factors under
II.
Pacheco raises three arguments in support of his claim that his conviction must be reversed. He first argues that the district court erred in denying his request to authorize additional funds for investigative services, a request he made on the morning his trial began. Second, Pacheco contends that the district court erred in declining to grant his request for a thirty-day continuance of his trial to allow his investigator to interview twenty additional witnesses to the bank robberies. Finally, Pacheco argues that the government presented insufficient evidence that the deposits of the banks he robbed were FDIC-insured. We address each argument in turn.
A.
We review the district court‘s denial of an indigent defendant‘s request for authorization for investigative services under
Pursuant to
The district court did not abuse its discretion in denying Pacheco‘s motion for additional investigative funds because Pacheco was able to mount a plausible defense without additional investigative services. Pacheco‘s defense theory was that he could not be convicted of bank robbery under
There is also no evidence that Pacheco‘s defense was prejudiced by the district court‘s failure to authorize an additional $200 in investigative funds. In March of 2009, six months before trial, the court authorized $1,000 for investigative services. In July, the court authorized $600 of additional funds. Yet after a six-month investigation and the expenditure of $1,600, Pacheco‘s investigator had not identified a single witness to subpoena in support of Pacheco‘s defense that his actions did not constitute intimidation. There is simply no indication that any of the additional twenty witnesses his investigator wished to interview would have buttressed his defense, particularly because the jury heard the most probative testimony, the testimony of the tellers themselves. Pacheco‘s speculation that one of the additional witnesses might have seen his actions as non-threatening is insufficient to demonstrate that he was prejudiced by the court‘s refusal to authorize additional investigative services.
B.
Pacheco next contends that the trial court erred in denying his request for a thirty-day continuance of his trial. We review the district court‘s denial of a motion for continuance for an abuse of discretion. United States v. Warshak, 631 F.3d 266, 298 (6th Cir.2010). “Denial amounts to a constitutional violation only if there is an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay. To demonstrate reversible error, the defendant must show that the denial resulted in actual prejudice to his defense.” Id. (citation and internal quotation marks omitted). “The defendant demonstrates actual prejudice by showing that a continuance would have made relevant witnesses available or added something to the defense.” Id. (citation and internal quotation marks omitted).
Pacheco argues that the trial court‘s failure to grant his request for a thirty-day continuance pursuant to his oral motion, made on the morning his trial was scheduled to begin, impaired his ability to present a defense. Pacheco sought the continuance to allow his investigator to interview additional witnesses to the robberies. He speculated that these additional witnesses would support his defense that he did not use intimidation during the robberies by testifying that they did not notice that robberies were in progress or that the tellers reacted calmly during the robberies.
Pacheco cannot demonstrate that he was actually prejudiced by the district court‘s failure to grant him a thirty-day continuance. Pacheco could not articulate what evidence the additional potential witnesses would offer—he merely speculated that some would corroborate his theory that he did not act in an intimidating manner by testifying that they had not noticed that a robbery was taking place and that the tellers reacted calmly during the robberies. Even if certain witnesses testified that they had not noticed the robberies occurring, or that the tellers reacted calmly, this would hardly have shown that Pacheco‘s actions would not have caused “an ordinary person in the teller‘s position [to] reasonably infer a threat of bodily harm
C.
Pacheco next contends that the evidence presented at trial was insufficient to support his convictions because the government failed to prove that the deposits of the banks he robbed were FDIC-insured. In reviewing the sufficiency of the evidence in support of a criminal conviction, we must determine “whether, after viewing the evidence in the light most favor-able to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Davis v. Lafler, 658 F.3d 525, 543 (6th Cir.2011) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original) (internal quotation marks omitted). Where, as here, the defendant did not move for a judgment of acquittal pursuant to
Pacheco argues that the government introduced insufficient evidence to prove that the deposits of the banks he robbed were FDIC-insured at the time of the robberies. Pacheco claims that the FDIC insurance certificate from each bank was improperly introduced under
In a bank robbery prosecution under
Business records, such as FDIC insurance certificates, must be “presented
The introduction of FDIC certificates through Herrera was proper. It is apparent from the record that Herrera was familiar with the FDIC‘s record-keeping procedures. At the time of trial, Herrera had been employed by the FDIC for ten years and eight months. As part of his job duties as a bank examiner, he regularly accessed and examined FDIC business records. Herrera testified that the FDIC regularly kept records of bank insurance and that those records were made at or near the time the insurance became effective by a person with knowledge of the insurance maintained by the banks. Herrera also testified that a notation was made in the FDIC‘s electronic database if a member bank thereafter ceased to be insured by the FDIC. Herrera reviewed the FDIC records of each of the banks robbed prior to testifying and confirmed that each bank‘s deposits were insured at the time of3 the robberies in October 2007. Herrera also accessed the FDIC‘s electronic database on the morning before trial and confirmed that each bank‘s deposits were still FDIC-insured. Herrera was clearly a qualified witness through which to introduce FDIC insurance records. Accordingly, the government introduced sufficient evidence the banks robbed were FDIC-insured.3
III.
Having concluded that Pacheco‘s conviction must be affirmed, we now turn to Pacheco‘s challenges to his sentence.
A.
Pacheco first argues that the district court erred when it refused to grant him a two-level downward adjustment of his offense level for acceptance of responsibility. Pacheco‘s argument has two prongs. First, he claims that the district court improperly interpreted
Because “[t]he sentencing judge is in a unique position to evaluate a defendant‘s acceptance of responsibility[,] ... the de
Contrary to Pacheco‘s assertion, the district court did not improperly interpret Section 3E1.1 of the Sentencing Guidelines as preventing it from awarding Pacheco acceptance of responsibility credit solely because he proceeded to trial. Section 3E1.1 provides for an offense level reduction of up to three points for a defendant‘s acceptance of responsibility as follows:
(a) If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.
(b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level.
Application note 2 explains:
This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct.
In denying Pacheco‘s request for a reduction of his offense level based on acceptance of responsibility, the district court explained:
The critical, the gist and perhaps the most important aspect of accepting responsibility is sparing the victims and the government, the task and ordeal of a trial process itself . . . [G]iven the choices that you made, [I] cannot find such acceptance of responsibility to give the reduction.
(R. 89, at 12) (emphasis added.)
By noting that the most important aspect of acceptance of responsibility is demonstrated by a defendant‘s decision to plead guilty, the district court acknowledged that it had the authority to grant acceptance of responsibility credit even if a
Moreover, Pacheco was not entitled to a two-level adjustment for acceptance of responsibility because he contested his factual guilt at trial. Though Pacheco admitted that he was the perpetrator of the robberies, he claimed that he could not be convicted because he did not perpetrate the robberies through the use of intimidation. We have squarely rejected the argument that a bank robber is entitled to an acceptance of responsibility adjustment even though he claims he cannot be convicted under
B.
Pacheco also challenges the procedural reasonableness of his sentence, arguing that the district court failed to consider his argument that his criminal history was overrepresented before sentencing him to 120 months of imprisonment. We review the reasonableness of a sentence imposed by the district court under an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007).
A sentence is procedurally unreasonable if the district court improperly calculates the advisory Guidelines range, treats the Guidelines as mandatory, fails to consider the
Pacheco‘s argument fails because the record reveals that the district court considered and rejected Pacheco‘s argument that a criminal history category of VI overrepresented the severity of his past criminal conduct. During the sentencing hearing, the court noted on three separate occasions that Pacheco sought a downward departure based on the overrepresentation of his criminal history. The court asked Pacheco to explain why he sought a departure based on overrepresentation of his criminal history, and Pacheco responded that certain past convictions should not be counted because they were uncounseled or had been assigned too many points. After the court concluded that the appropriate amount of points had been assigned to each of Pacheco‘s prior convictions, Pacheco stated that he still wished to argue
The court stated on the record that it had reviewed Pacheco‘s sentencing memorandum, in which he argued that his criminal history was overrepresented, and afforded Pacheco an opportunity to argue the issue at the sentencing hearing. The court stated its reasons for imposing a sentence of 120 months—including the need to provide deterrence and to provide Pacheco with necessary education and treatment in an institutional setting. The court clearly considered the extent of Pacheco‘s criminal history in reaching a proper sentence, as evidenced by the court stating that Pacheco “ma[de] one mistake after another.” Thus, while the district court did not expressly state its rejection of Pacheco‘s overrepresentation argument, it is apparent, reading the sentencing transcript as a whole, that the court considered Pacheco‘s overrepresentation argument and concluded that a downward departure on that ground was inappropriate.
IV.
For the reasons stated above, we affirm Pacheco‘s conviction and sentence.
UNITED STATES of America, Plaintiff-Appellee, v. Michael T. PARDUE, Defendant-Appellant.
No. 09-6313.
United States Court of Appeals, Sixth Circuit.
March 16, 2012.