281 F. App'x 78

3rd Cir.

2008

DONALDSON v. UNITED STATES of America

United States Court of Appeals, Third Circuit

276 F.3d 557

the BOP from FTCA liability, where an inmate that the BOP had misclassified attacked and injured the plaintiff); Alfrey v. United States, 276 F.3d 557, 565 (9th Cir. 2002) (where BOP officials’ decision not to relocate an inmate in the face of death threats from his cellmate resulted in the inmate‘s death, “what steps to take in response to a reported threat” required correctional officers to “set priorities among all extant risks: the risks presented by the reported threat, along with the other risks that inevitably arise in a prison,” all of which “implicate social and public-policy considerations.“). In accordance with these authorities, we find that the BOP‘s decisions about how to protect Donaldson from Drayton are the kinds of judgments that the discretionary function exception was designed to protect.²

For the foregoing reasons, we find that the District Court did not err in holding that the discretionary function exception to the FTCA shields the United States from liability in this case.

II.

Donaldson next argues that the Magistrate Judge erred in denying him leave to amend his complaint to add sixteen BOP employees as defendants because they “violated [his] Constitutional Rights.” That issue, however, is not before this Court because Donaldson failed to appeal the Magistrate Judge‘s February 24, 2005 Order denying him leave to amend. Instead, Donaldson only appealed the District Court‘s May 16, 2006, 2006 WL 1371090, Order which dismissed his FTCA claim and denied his motion to amend the complaint to add the Attorney General of the United States.

Donaldson does not argue on appeal that the District Court erred in denying him leave to bring a claim against the Attorney General. Had he done so, we would affirm for the same reason as the District Court.

For all of the foregoing reasons, we will affirm the judgment of the District Court.

UNITED STATES of America v. Patrick LOMBARDO, Appellant.

No. 06-3861.

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit LAR 34.1(a) April 17, 2008. Filed: June 3, 2008.

Gordon A.D. Zubrod, Office of United States Attorney, Harrisburg, PA, for United States of America. Anne M. Dixon, Lacheen, Dixon, Wittles & Greenberg, Philadelphia, PA, for Patrick Lombardo. Before: SCIRICA, Chief Judge, AMBRO and FISHER, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Chief Judge.

Patrick Lombardo appeals his conviction and sentence. We will affirm.

Lombardo was convicted by a jury on four counts under 26 U.S.C. § 7201 for tax evasion and on seven counts under 26 U.S.C. § 7202 for failure to truthfully account for and pay over withholding tax. The Presentence Report recommended a base level offense of twenty with a two-level enhancement under U.S.S.G. § 2T1.1(b)(1) for failing to report or correctly identify a source of income exceeding $10,000 in any year for criminal activity and a second two-level enhancement under U.S.S.G. § 3B1.3 for abuse of a position of trust. The corresponding sentencing guideline range was 51-63 months’ incarceration. The District Court granted an upward variance, sentencing Lombardo to 72 months’ incarceration.

Lombardo was the general manager of Patco, a partnership formed by his mother and his former co-worker. The Government presented evidence that Lombardo was the hidden owner of Patco, diverted Patco funds for his own purposes without reporting the money as income, and misused taxes withheld from Patco employees. Several witnesses testified to Lombardo using Patco checks to obtain personal items or cash. Witnesses also testified to Patco‘s and Lombardo‘s accounting and tax records.

Lombardo raises five issues on appeal: 1) comments by a prospective juror tainted the venire, 2) evidence was erroneously admitted, 3) the Government offered inflammatory closing argument, 4) his Rule 29 motion should have been granted, and 5) sentencing enhancements were erroneously applied.

Turning to the first issue, Lombardo contends the venire was tainted by the statements of two prospective jurors. One prospective juror stated, “I feel that anybody that is trying to cheat the Government of any kind of large sum of money, I couldn‘t be able to give a fair decision.” Another prospective juror in response to a question by defense counsel regarding a defendant‘s decision not to testify said, “My feeling is if you have nothing to hide, there should be no problem with stating that. You‘re being honest.” Twelve other prospective jurors indicated agreement with this statement. The court then instructed the venire on the presumption of innocence, the Government‘s burden of proof, and the right to remain silent. The court asked if anyone would be unable to follow these instructions as required by law. There were no affirmative responses. Neither juror who had voiced concerns, nor those who indicated their agreement, were seated.

Because Lombardo did not object to the instruction or the continuation of voir dire, we review for plain error. The “mere existence” of any preconceived notion regarding guilt or innocence does not rebut the presumption of a prospective juror‘s impartiality. Irvin v. Dowd, 366 U.S. 717, 723, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961). “It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” Id. The prospective jurors all indicated they would be able to follow the instructions of the District Court on the right to remain silent and the presumption of innocence. There was no clear error here.

Second, Lombardo contends the District Court erred in admitting certain evidence. Because there was no objection at trial,¹ we review for plain error. The Government presented evidence that Lombardo received health insurance benefits for his son‘s care that he failed to turn over to the home-nursing provider. Evidence pertaining to the current financial status of Lombardo‘s business partner was also admitted, as was evidence about a home Lombardo intended to purchase and the method of payment.

Lombardo contends this evidence was irrelevant and prejudicial under Federal Rules of Evidence 404(a) and 403. But this did not involve character evidence and the probative value outweighed any prejudicial effect. The evidence on the health care benefits refuted Lombardo‘s claim that the cash and checks received from Patco were merely repayments of a loan to the company out of his savings. Since Lombardo‘s business partner lent money to Patco and received repayment in cash and checks, his financial status was relevant. Also, Lombardo‘s purchase of the house was proof he paid for personal items with Patco money. The evidence was probative on the charges of tax evasion and failure to turn over Patco employees’ withholding tax.

Third, Lombardo contends the Government‘s closing argument was inflammatory and consisted of personal opinion. We review for plain error because defense counsel did not object or request a mistrial. Lombardo protests the prosecutor‘s remarks about failing to pay his son‘s nursing expenses, his business partner‘s debt, and harming his employees. After reviewing the Government‘s closing argument, we conclude the remarks were not inflammatory and were comments upon, and inferences drawn from, the evidence. Moreover, the District Court repeatedly instructed the jury that statements made by counsel were not evidence and should not be considered as such.

Lombardo also appeals the denial of his Rule 29 motion, specifically Count Four charging tax evasion in 2001 under 26 U.S.C. § 7201. We review sufficiency of the evidence in the light most favorable to the Government. United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir. 1995). Lombardo contends proof of tax evasion requires either a civil assessment of the tax or self-assessment through the filing of a tax return. But 26 U.S.C. § 7201 prohibits evasion of both assessment and payment of income taxes. United States v. Farnsworth, 456 F.3d 394, 403 (3d Cir. 2006). Assessment is not required. Id. Reviewing the trial evidence in the light most favorable to the Government, the District Court did not err in denying Lombardo‘s Rule 29 motion.

Finally, Lombardo contends the District Court erred in applying a sentencing enhancement under U.S.S.G. § 3B1.3 and in applying an upward variance. We review the District Court‘s factual determinations for clear error and legal determinations de novo. United States v. Georgiadis, 933 F.2d 1219, 1224-25 (3d Cir. 1991). Lombardo argues application of both U.S.S.G. § 3B1.3 and 26 U.S.C. § 7202 was prohibited as double-counting of the same underlying conduct.² Application of 26 U.S.C. § 7202 is proper where the defendant failed to truthfully account for and pay over withholding tax. Application of U.S.S.G. § 3B1.3 applies where the defendant abused of a position of trust that significantly facilitated the commission or concealment of the offense. To qualify, the position abused must substantially facilitate the crime and not merely provide an opportunity that could have as easily been afforded to other persons. U.S.S.G. § 3B1.3, cmt. n. 1. It was not necessary for the Government to prove an abuse of trust as defined by the Guidelines in order to convict under 26 U.S.C. § 7202. See Georgiadis, 933 F.2d at 1225 (affirming application of U.S.S.G. § 3B1.3 to an underlying conviction for embezzlement). The District Court did not count the same underlying conduct twice.

Lombardo also contends the District Court erred in varying upward from the sentencing guideline range. “In considering a criminal defendant‘s claim that a sentence is unreasonable, a reviewing court asks whether the district court: 1) exercised its discretion by giving ‘meaningful consideration’ to the § 3553(a) factors and 2) applied those factors reasonably by selecting a sentence grounded on reasons that ‘are logical and consistent with the § 3553(a) factors.‘” United States v. Ausburn, 502 F.3d 313, 328 (3d Cir. 2007). The District Court exercised its discretion appropriately, considering the § 3553(a) factors. The sentence imposed was reasonable in light of those factors and the evidence presented at trial.

For the foregoing reasons, we will affirm the judgment of conviction and sentence.

Craig Duval SAUNDERS, Appellant v. Gwendolyn BRIGHT, Judge; Barry Harris, Court Reporter; Sharon German, Court Reporter/Interpreter; Michael Ammann, Deputy Court Administrator; Susan Carmody, Supervisor; County and City of Philadelphia; Law Department-Claims Division.

No. 08-1763.

United States Court of Appeals, Third Circuit.

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 May 22, 2008. Filed: June 3, 2008.

Craig Duval Saunders, Bellefonte, PA, pro se.

Notes

Defense counsel objected once on relevance grounds and was sustained during the testimony of the home-case pediatric nurse. The Government asked the witness if she recognized a particular check; the witness responded affirmatively, then continued to discuss a vehicle recently purchased by the defendant. Before and after the objection, evidence was admitted regarding payment of the home-nursing provider.

We also reject Donaldson‘s contention that the use of prison officials’ individual judgments as to how the Drayton threat should have been handled removed their decisions from the sphere of public policy. See (finding that, although BOP officials’ decisions involved professional judgment, “that fact alone does not remove the decisions from the realm of policy-based judgments“); see also (observing that even ordinary “day to day” decisions by BOP officials involve “considerations of public policy“). Double-counting is prohibited by U.S.S.G. § 3B1.3, which provides, “this adjustment may not be employed if an abuse of trust or skill is included in the base offense level or specific offense characteristic.”