*1
273
(1984).
agreement
prosecutor’s
and the
remarks L.Ed.2d 674
Lam has failed to
facing
if
consequences
Yeung
any
about the
he
show
prejudice from trial counsel’s
did not tell the truth. We will not disturb
performance, as the state appellate court
court’s determination that nei-
the state
considered
vouching arguments
Lam’s
de-
imper-
ther of these statements constitute
spite trial
object.
counsel’s failure to
vouching.
Thus,
missible
rejection
District Court’s
of this
argument should be affirmed.
matter,
an initial
Lam
point
As
does not
portion
plea agreement
out a
that
IV. CONCLUSION
improper
assuring
has the
effect of
Lam has established that she is entitled
testimony
that
jury
Yeung’s
is credible.
to habeas relief on
process
her due
claim
Rather,
portion
agreement
of the plea
involving the voluntariness of her
April
by Lam
open
possibility
cited
leaves
statement and the
7April
telephone call to
Yeung’s
Yeung
statements are false:
It
objectively unreasonable,
Xie.
was
it
family
protection
and his
will receive
“if
light of
Supreme
holding
...
Court’s
is further
found that
truthful
[his]
Fulminante,
279,
Arizona v.
cooperation ...
U.S.
reveals” activities of indi-
1246,
(1991),
S.Ct.
Thus, we see no basis for habeas relief
based on the state appellate ap court’s
proval of those statements. UNITED STATES of America 3. Ineffective assistance. Finally, Lam claims her trial MILAN, Appellant Milton
counsel was ineffective because he failed to No. 01-2603. object to impermissible vouching at trial. reject
We this claim. Appeals, United States Court of An brought ineffective assistance claim Third Circuit. requires under the Sixth Amendment two Argued May 2002. first, showings: performance that counsel’s Filed Sept. deficient, second, constitutionally performance the deficient prejudiced
the defense. Washington, Strickland v. 668, 687,
466 U.S. 104 S.Ct. *3 A. Coughhn (argued),
Richard Julie McGrain, of the Federal Public De- Office fender, Camden, NJ, Appellant. Cleary, United States Attor- Robert J. (ar- N.J., Newark, ney, Norman Gross Attorney, gued), Assistant United States Chief, (argued), Appeals Leone George S. Division, of the United States Attor- Office Camden, NJ, ney, Appellee. BECKER, Judge, Before: Chief GREENBERG, Judge, and Circuit BARZILAY, Judge, U.S. Court *. International Trade THE OF COURT OPINION GREENBERG, Judge. Circuit this court on This case comes on before judgment final of conviction appeal from a entered the district and sentence Mi- defendant-appehant Milton following jury on 14 counts of lan’s conviction fraud, fraud, money laundering, mail wire part conspiracies criminal and related in while for his activities undertaken Milan, district court sentenced office. The * Barzilay, Judge, designation. United Honorable Judith M. Trade, sitting by States Court of International city key council mayor presi- testimony witnesses whose advanced former Camden, City Jersey, New Milan’s convictions on those counts.
dent
imprisonment.
months
to 87
Finally, Milan
maintains
we should
vacate his
sentence
remand the case
appeal,
advances
three
On
resentencing
because the district court
overturn his conviction on all
grounds to
applying
erred in
upward depar-
3-level
First,
counts.
he contends
under
public corruption
ture for Milan’s acts of
Kentucky,
Batson v.
476 U.S.
106 S.Ct.
2C1.7,
Application
under U.S.S.G.
Note
(1986),
his conviction. he that we pacity should reverse conviction on counts 3 his (wire conspiracy arising and 9 fraud and trial evidence at the demonstrated illegal receipt following.1 out of his of monies and the In October Milan office) during other benefits his tenure in Contracting formed the Atlas Company (“Atlas”) government friend, premised because the its case with his Gholam H. Da- largely testimony rakhshan, on from a cooperating to undertake commercial and witness im disclosing without material residential projects construction in the peachment (tape 11, 1994, evidence August recorded con Camden area. On Atlas versations) Brady in violation of v. Mary obtained a contract for the construction of land, 373 U.S. 83 S.Ct. 10 13 homes at Arthur’s Court in Camden. (1963), imposes duty L.Ed.2d 215 required Inasmuch as the contract Atlas provide on the the defense a performance payment secure bond, potential exculpatory impeachment with it entered into a surety arrange- Second, Milan argues evidence. that we Surety ment Amwest Insurance should reverse his conviction on Company counts in which agreed Amwest to is- 9, 15, 16, and 17 because the sue bonds for each phase construction. Amwest, however, improperly credibility vouched required Atlas to post point challenge 1. We out that Milan does not conviction. sufficiency support of the evidence to his Company pro- issu- from Selective Insurance for Amwest as a condition collateral against damage loss or to the ma- the bonds. tect ing chines. obligation post securi- satisfy To Darakhshan borrowed Milan and
ty, 31, 1995, Milan Dara- On December Rivera, own- $65,000 in from Jose cash staged burglary khshan sham store which func- parts an automotive er of office, removing property Atlas and break- a front to launder the part tioned ing They a window. later filed a false Realizing drug dealers. of local profits property report stolen with the Camden money had obtained the loan that Rivera property and a lost worksheet with police activities, and Dara- from nefarious company. the insurance Atlas received utilize the concocted a scheme to khshan $4,743.50 from Selective satisfaction of arous- proceeds nareoties-related without kept the false claim. Milan one of the the Internal Revenue suspicions computers personal August use until law, which, curren- domestic Service to it to a when he sold former student reports deposits for cash cy transaction intern. $10,000 Specifical- sent. or more must be *5 into amounts of they divided the cash ly, B. Milan’s Crimes as a Public Official $10,000 to they distributed less than a Milan was elected member who, turn, in trans- and relatives friends 7, 1995, city council on Camden November money Atlas in the form of ferred the to 1, president January and was elected its on personal checks or checks. Milan bank 13, 1997, Milan elected May 1996. On was some of deposited and Darakhshan also Camden, position a to which he mayor of into an account. directly the cash Atlas 1,1997. July sworn in on $60,900 a certificate They purchased then In March Milan met Daniel Dai- in and deposit from a bank Camden Natale, done, Ralph an associate of a noto- it to Amwest as collateral securi- assigned in organized Philadelphia. crime boss rious a few over the course of ty. Subsequently, had recruited Daidone previously Natale months, a Milan and Darakhshan issued Ortiz, busi- a Puerto-Rican and Caesar than in amounts of less series of checks contractor, man- and to nessman electrical $10,000made out from Atlas to themselves Trans-Aero, a operate govern- and age family and members or to various friends minority-owned certified business ment Milan repayments.”2 ostensible “loan gov- to enterprise compete which was eventually cashed and Darakhshan behalf. contracts on Natale’s ernment $65,000 to- repaid Rivera the checks $10,000in interest. gether would Correctly anticipating in ex- receptive accepting to kickbacks laundering, Milan money In to addition Trans-Aero secure change helping perpetrate used Atlas to and Darakhshan Camden, in Daidone de- projects business Febru- fraud. June 1994 and insurance in cash payment an initial livered $500 agreement into an ary Atlas entered Milan, reported to Na- a transaction he Leasing Corporation T Capital with AT & Thereafter, Daidone, acting on Na- tale. computers, print- two two for the lease of behalf, periodic continued to deliver ers, then tale’s machine. Atlas copy and one (occasionally at his office to Milan insurance bribes property secured commercial checks. wrote the words some 2. Milan and Darakhshan repayments" memo lines of on the "loan Hall)
in City request, Camden until Ian’s company Milan’s arrest installed an air told, system June 1998. All Milan received be- conditioning personal at Milan’s $30,000 $50,000 cash, tween includ- pay residence. Milan did not for these $1,433 a payment January toward a services and did not receipt disclose his 1998 Florida vacation for himself and his them on his financial disclosure state- Milan, turn, services, $3,346, then fiance. did numerous ments. The valued at organized favors for Natale and his crime took two days complete. men six associates, including lobbying on their be- In April a concrete recycling half federally-subsidized to secure con- company, River Recycling, ap- Delaware struction contracts in a empow- Camden plied County to the Camden Solid Waste zone, attempting erment to contact the Advisory permit operate Council for a Hill, mayor Cherry Jersey, New to ob- month, recycling facility. That same tain a liquor license for a restaurant Milan asked Casey, Robert the owner of associates, owned one of Natale’s and Delaware Recycling, River to do home arranging a meeting between Natale’s as- improvement work at private Milan’s resi- sociates and presid- officials Casey obliged, dence. sending work ing over Camden waterfront renovation garage crew tear down a remove projects.3 Casey paid tree. also for the instal- $700 cash,
In addition to Milan received lation carpeting of new at Milan’s home. improper Milan, during services, benefits his tenure in pay who did not for these office. On December Mi- capacity wrote letter his official on 3, 1998, lan arranged to have the title of a 1990 September appli- supporting Lumina Chevrolet Van transferred to his cation of Delaware River Recycling. Ca- *6 fiance from Towing, sey Nick’s an outfit which forwarded the letter to the Camden provided towing services to the City County Advisory Solid Waste Council. Camden.4 approxi- Milan also obtained inAs the other instances we have re- mately ten months free use of a respect 1996 GMC counted with improper to bene- Monaco, Jimmy fits, truck leased to Dominick Milan did not disclose his receipt Towing. the owner of Nick’s March gifts Casey. On these from 27, 1997, city council of Camden 1998, July In Milan received an estimate awarded a contract Towing to Nick’s to R Improvement from & G Home for the towing provide two-year services for a installation of new windows his resi- term at a contract price not to exceed G, dence. R operated by & owned and $480,000. Milan publicly did not disclose Ralph Jr., Ralph Cruz Sr. and pro- Cruz receipt gifts his of these from Nick’s Tow- figure vided a that included costs for mate- ing on his state-mandated financial disclo- labor, supplies rials and but not for sure statements. anticipation that Milan in turn would 1997,
In Ryan June B. Air James take the necessary steps expedite to pay- Conditioning Company a executed three- ments owed to R & G for work it had done year City contract with the City Camden for for the enough, Camden. Sure on 14, (five the servicing maintenancing and of air con- August days after R & G ditioning systems and in heating estimate), various submitted its arranged Milan a 1998, city-owned buildings. May In himself, at Mi- meeting among Sr., Ralph Cruz Cherry mayor nothing improp- 3. The Hill did 4. through Nick's effectuated the transfer a support and application. er did not party. third from the check. Jr., proceeds cash On June and the director Ralph Cruz 12, $5,000 Bradley and gave Willis Department Housing Services Camden $2,500 turn, in Bradley, gave to Milan. September From unpaid bills. discuss $5,000 attorney partial as a ap- R installed & G until December repayment expenses. at Milan’s for vacation new windows proximately Milan charging without home official, public required As a Milan $1,800 it incurred. in labor costs Jersey complete under New state law to an annual financial disclosure statement other, public office Milan abused his detailing his interests and sources business he ways. April creative more completed, signed, of income. Jersey New Election with the established 1997, 1998, mailed those forms a Commission Joint Law Enforcement but, indicated, (“JCC”) as we have failed to mention to raise Candidates Committee receipt his of the benefits we have de- city council can- funds for three campaign scribed. Mi- affiliated with him. politically didates aide, Bradley, Milton
lan installed his History C. Procedural Milan later informed treasurer. JCC 23, 2000, political his grand jury sitting that he and several of March a Bradley On celebratory taking returned a 19-count indictment supporters would Camden May Rico after the A against superseding vacation to Puerto Milan. indictment He then directed July council elections. was returned on 2000. Counts city trip charged finance the with funds from Bradley through scheme to defraud Bradley devised a pub- Milan and of Milan’s honest services as a the JCC. disguise the disbursement as in violation of the mail and wire scheme to lic official 1343, 1346, acts, §§ expense business for the JCC. fraud legitimate 18 U.S.C. Willis, 1, 4, Mark the owner of counts and 8 in- They Specifically, asked Milan’s building mailing office of Milan’s financial dis- Camden volved statements, locat- campaign headquarters was count involved mayoral closure ed, and Milan to draft a fake lease demonstrate call between Daidone phone were due monthly payments (during sup- lease which Milan asked Daidone to *7 “resources”), though even Mi- count 3 involved campaign ply from Milan’s him with using 2, office from a campaign January was Willis’s a 1998 fax transmission lan’s trip Milan’s space charge. agency concerning without travel Florida, and involved Mi- and counts 5 6 1997, 1,May flights and hotel reser- On Casey supporting to Robert lan’s letter a through booked trip vations for this were Recycling Delaware River application of people, including Mi- agency travel for 15 recycling permit. for a group The vacationed lan and his fiance. 9, Milan 20, involving conduct while May May Count in Puerto Rico from until office from March 1996 1997, per- on the was expenses charged public with 1998, to travel charged conspiracy a account of a Cam- June Express American sonal and return, facilities to solicit Milan had and use interstate attorney. Upon den his a $7,500 to influence servant accept on the bribes Bradley draw check § in violation of 18 U.S.C. 371. Counts payable to Willis’s man- JCC bank account and 4, charged conspiracy Milan with de- and agement company. On June Willis § and 18 under 18 U.S.C. corporate bank extortion posited the check into his 1951(a), alleging § and, through a series of transac- U.S.C. account $7,500 municipal public in threatened to remove obtained parties, tions with third appointed defender from office unless he contributed and the Federal Public Defend- $5,000 political post-verdict to a action committee er to file repre- motions and 2001, sent Milan at aligned sentencing. May with Milan. attorney new Milan’s wrote a letter to the 13, 12, and 14 charged Milan Counts prosecutor requesting copies of con- taped campaign using political contributions (or documenting versations evidence their Puerto Rico pay vacation prior attorney) disclosure to his of Natale acts, mail and wire violation of the fraud during his incarceration from October to 1343, §§ and 2. Spe- 18 U.S.C. December 1999. tapes, by The recorded predicated cifically, count -on a Prisons, indicated, the Bureau of allegedly phone agency call from domestic travel among things, that Natale expected Rico, to a hotel in Puerto count 13 on a early agree- release as result of his for an airline computer request ticket from ment to cooperate government. with the Tulsa, Oklahoma, an airline in and count Milan subsequently for a moved new trial $7,000 payable 14 on a mailed check to a on the counts to which testimony Natale’s company. card credit (3 9) grounds was directed on the 15, 16, charged conspir- Counts and 17 the government’s failure to disclose the acy currency to structure transactions tapes, germane impeachment purposes § violation of 18 a conspiracy U.S.C. trial, at Milan’s violated Brady and the money laundering to commit in violation of Act, § Jenks 18 U.S.C. 3500. The district 1956(h), money § laundering 18 U.S.C. motion, court denied the concluding 1957(a). in violation of 18 U.S.C. These tapes sufficiently were immaterial such charges pertained to Milan’s financial their non-disclosure did not under- $65,000 involving transactions loan integrity mine the of the verdict to war- Contracting from Jose Rivera to Atlas rant a new trial. Company. Finally, counts 18 and 19 15, 2001, On June the district court sen- charged mail fraud in violation of 18 tenced Milan to 87 imprisonment, months §§ predicated U.S.C. on Mi- in part arriving at figure by departing mail in lan’s use of the connection with his upwards 3 levels per- reason of Milan’s staged burglary of Atlas to collect insur- systematic vasive and corruption gov- proceeds. ance ernment function. Milan unsuccessfully Jury selection commenced on October objected to the court’s sequencing method- During the final pro- selection ology, arguing that the departure should attorney cess Milan’s raised an unsuccess- have been added to the counts objection ful government’s Batson grouped as corruption-related rather than peremptory challenges. use of its *8 combined, to the total offense level calcu- portion evidence the trial began of on No- lated grouping. after If the court had 6, 2000, vember and was concluded on accepted argument Milan’s his sentence jury December 2000. The convicted range would have been lower. The court 2, 5, 6, 10, Milan except on all counts and judgment entered the of conviction and II.5 15, 2001, sentence on June and Milan sub- verdict, Following the court at Mi- sequently timely filed a appeal. We have request lan’s jurisdiction removed his trial attorney § under 28 U.S.C. 1291 and 18 2, 5, jury acquitted 5. The Milan on counts 10 and counts and 6. 11 and was unable to reach a verdict on
281 challenges to strike Caucasian peremptory 3742(a), the district and U.S.C. potential alternates. jurisdiction pur- matter subject exercised § 3231. 18 U.S.C. to suant perempto fifth of After the round government (during ries struck which II. DISCUSSION Robinson), Milan raised a Batson ob Mr. Challenges Batson A. jection bench conference. at a Under progeny, and its courts should Batson challenges, Batson In one of his two equal protection a of an vi evaluate claim district court erred that the argues 7 the follow jury using olation in selection deci government’s that the concluding (1) objec process: has ing three-step jurors hot one of the to strike sion by prima a tor established case facie We discriminatory intent. by motivated peremptory of demonstrating pattern fact this finding of on review court’s race?; jurors of a challenges particular error, v. clear United issue (2) defending the yes, party if did the (3d Uwaezhoke, 388, 394 Cir. F.2d challenges prima case rebut facie factual de 1993), accept will its and thus tendering explanation a race-neutral (1) com it “either is unless termination (3) so, strikes?; if the objector has evidentiary sup minimum devoid of pletely purposeful proving his carried burden credibility, some hue port displaying discrimination, by showing for instance (2) relationship to the rational bears no explanation pretextu proffered data.” evidentiary Haines supportive York, v. New U.S. al. See Hernandez (3d Inc., F.2d Group, Liggett 1859, 1866, 352, 358-359, 111 S.Ct. Dinan, Cir.1992) Krasnov v. (quoting Batson). (1991) (citing L.Ed.2d 395 Cir.1972)). (3d 1298, 1302 Nevertheless, dis even surrounding before high publicity Owing to had whether Milan an trict court evaluated case, court conducted district case, govern dire, presented prima questioning pro- individual voir facie ment, in the context as is common directly allowing and jurors spective immediately responded objection, Af- Batson follow-up questions. attorneys ask explanation a race-neutral by stating hardship, for cause ter dismissals challenges. gov final each of its contested 12 individuals from the court seated Hargis that Ms. had lived At ernment noted pool at random. pre-qualifíed County primarily in Essex her adult life prosecution defense and point, both the Jersey and had moved chal- northern New peremptory initiated their exercise Jersey, where New Camden three of southern government utilized lenges. The located, earlier. years three Conse challenges to strike African- its first four that she would Gorrell, it a concern quently, stated Americans, Ms. Hargis, Ms. jurors who remaining “blend” Robinson, not challenge one Mr. used geog- the local far more familiar with two were It also exercised strike Caucasian.6 Nonetheless, analysis gov the Batson tions. 6. Under Fed.R.Crim.P. ten. the Fifth Amendment peremptories and the defense erns this because has six case challenge peremptories two apply Both had federal sides does *9 potential alternates. equal protection generally requires the same Amendment cases. analysis as Fourteenth in Batson, prosecu- a state 7. which involved Leslie, See, e.g., 813 F.2d United tion, Four- Supreme Court construed the the banc). (5th 1987) (era Cir. Clause, Equal Protection teenth Amendment's prosecu- govern federal not itself does in raphy higher being pretextual camouflage and had a level of interest to a race-con- familiarity community percolating and with the issues scious motive beneath. prosecutor trial. relevant to Milan’s The argument Milan now focuses his on the explained that Ms. Gorrell had indicated finding respect Hargis. with to Ms. that holding religious beliefs interfered court, evaluating government’s in the stat- ability judgment her on pass with striking ed motivation for Hargis Ms. —her people. Finally, prosecution empha- the inability to “blend” with jurors the other sized that Mr. had Robinson substantial because of her lack familiarity with difficulty answering ques- a number of the Jersey agreed south some extent with —to tions and acknowledged being unsure of that reasoning defense seemed what “impartial” prosecution meant. The somewhat attenuated considering that elaborated that it was not confident of his nothing in her background suggested else ability complexi- to follow the nuances and inability adequately function aas counts, ties of a case which included 19 juror. Nevertheless, App. See at 694. involving fairly some intricate financial prosecution’s court determined that transactions, witnesses, over 70 and hun- reason was sincere and therefore survived dreds of exhibits. scrutiny. Batson rejected
The court
Milan’s Batson ob-
finding
clearly
This
was not
erroneous.
jections,
informing
parties
with,
begin
it To
the facts
underlying
would
rulings
make further
after the
government’s
com-
concern were accurate: lead-
Thereafter,
pletion
jury
trial,
selection.
ing up to the
Hargis
Ms.
indeed had
issue,
revisiting
when
the court
Jersey
made
lived
south
period
shorter
First,
the following findings.
agreeing
than any
initially
jurors.
of the 12
seated
government’s
Moreover,
explanations were
patently
it was not
unsound or
facially
indeed
neutral with respect
prefer
unreasonable for the
race,
prosecutors
juror
the court noted that the
greater
with
community
ties
had made no
during
statements
voir
regional familiarity.8
dire
recognize
We
any
which would indicate
latent bias
the prosecution did not strike two other
against
Second,
jurors
African-Americans.
relatively
with
transient
ties to the
court noted that the
Jersey
had cho-
south
community: Ms. Bond who
sen not
to strike three other African-
had resided in the
only
years
area for
four
Americans who
were seated
the final
before
had lived on the west coast
jury. Finally, the court
a credibility
made
and Ms. Cain who had resided in the area
determination
respect
prosecu-
years.
six
Yet absent further
tors, holding that their reasons were genu-
motive,
evidence probative
prejudicial
ine and
in “good
made
faith” rather than
minor discrepancy,9
particularly
8. We
analysis might
note that neither we nor the district
be different if the
were
reverse
reject
logic
See,
must endorse or
e.g.,
Ryan,
true.
Jones v.
government's
long
nonracial motive so
as it is
(3d Cir.1993) (rejecting
prosecutor’s
genuine
deemed
and credible. See Hernan
proffered
explanation
striking
race-neutral
dez,
("In
500 U.S. at
S.Ct. at
jurors
prosecutor
black
where the
did not
typical peremptory challenge inquiry,
apply
jurors
the same rationale to white
question
decisive
will be whether counsel’s
position).
identical or more extreme
It also
explanation
peremptory
race-neutral
for a
mentioning
bears
that Milan struck Ms. Bond
believed.").
challenge should be
Cain,
gov-
Ms.
albeit in rounds
after
Hargis.
ernment struck Ms.
Hargis
The fact remains that Ms.
had the
briefest recent residence of the. three. Our
*10
proffered for
explanations
prosecution
the
peremptories
of
number
the finite
light of
peremptory challenges.
of
integrity
its exercise
available,
undermine the
not
does
distinct from his
finding.
argument
This
factual
court’s factual
the
of
district
govern-
respect
contention
record, including the
in the
Nothing else
challenge
Hargis. Typically,
to Ms.
ment’s
crimes,
the de-
race of
nature of the
review of a
plenary
we exercise
district
witnesses,
govern-
any
or
fendant
application
legal precepts.
of
See
court’s
and Mr.
Ms. Gorrell
of
ment’s strikes
Co.,
Dredge
& Dock
Shade Great Lakes
(unassailed
suggests
on appeal),
Robinson
Cir.1998).
(3d
gov-
The
into ac-
race
took
government
that
however,
suggests,
that our
ernment
re-
To the
exercising its
strikes.
count
by the more strin-
governed
here is
view
its
it did
exhaust
contrary,
though
not
because Milan
gent plain error standard
peremptories,
allocated
object
court’s meth-
district
failed
African-Ameri-
three of six
did not strike
odology in the district court. See Fed.
fact,
of
percentage
In
jurors.10
can
52(b) (“[pjlain errors or defects
R.Crim.P.
jury ap-
on the
seated
African-Americans
rights may be noticed
affecting substantial
percentage
have exceeded
pears to
brought
not
to the
although they were
total
among
venireper-
African-Americans
court”).
Milan counters
attention
Moreover,
suspect
nothing
find
we
sons.
preserve
did
with the assertion that he
the term
government’s
in the
use
by pressing his
appellate
claim for
review
that,
circum-
in some
a word
“blending,”
argument, which
generic discrimination
a
stances,
could be
cue
conceivably
on notice
put the court
that
presumptively
discriminatory
of a sublimated
presence
apply
legal
correct
stan-
a failure to
court
Ultimately,
district
motive.11
objectionable.
to the facts would be
dards
credi-
explanation
government’s
found the
that
ble,
suggests
us
nothing before
Nevertheless, we need not determine
short,
finding.
upset
we should
definitively
because
standard
review
regard-
finding
factual
court’s
the district
de
expansive
the more
novo
even under
clearly erroneous.
Hargis was not
ing Ms.
without merit.
Milan’s claim is
standard
the district
explicates
record
argument,
Batson
In his second
three-prong
properly applied
court
disregarded
that the district
claims
delin-
progeny
that Batson and its
analysis
judg-
analytical framework
the correct
instance, Milan
In the first
raised
eated.
by failing to
objections
Batson
his
of the first four
objection when three
race-neutral
an
appropriately the
scrutinize
accentuating
(e.g.,
characteristic
prosecu-
innocuous
that a
recognize that the fact
We
status,
government’s peremp-
age,
mari-
geography,
socio-economic
not exhaust
tor did
venireper-
which,
challenges
status)
black
tory
to exclude all
in the interest
so-called
tal
prosecutor did
does not mean that the
coincidentally
sons
blending,”
correlates
"jury
not
challenges in
any peremptory
a
exercise
not
may
realities and
demographic
to certain
States v.
discriminatory
United
manner. See
See,
another.
one
from
serve
cleave
race
Cir.1988)
(3d
Clemons, 843 F.2d
Batson,
at
106 S.Ct.
e.g.,
476 U.S.
including
("[W]e
significance of
doubt the
J.,
("A
(Marshall,
concurring)
prosecu-
time,
if,
panel
at the same
single black on a
conscious or unconscious racism
tor’s own
peremptory
most of its
used
easily
to the conclusion
lead him
with back-
challenges ...
to strike blacks
'sullen,'
‘distant,’
juror prospective black
ultimately
jurors
grounds similar to the white
would not have come
a characterization
selected.”).
juror had acted identi-
mind if a white
to his
cally.”).
might
prosecutor
couch
realize that a
11. We
homogeneous jury
preference
for more
*11
jurors
struck
cause the district court diluted the consti-
prospective
gov-
Then the
African-American.
tutionally
were
required
proof
standard of
in its
ernment,
the court determined
before
jury instruction on reasonable doubt. As
prima,
threshold had
whether
trial,
facie
objection
Milan did not raise this
at
crossed, quickly articulated race-neu-
been
we review this contention for plain error.
challenged
for all three
explanations
tral
Wolfe,
See
States v.
United
court,
The district
as re-
venirepersons.
(3d Cir.2001).
260-61
Batson,
the strictures
contem-
quired by
trial,
At the
of the
gave
outset
the court
explanations and the
plated
proffered
a brief definition
proof beyond
it and
a reason-
concluded ultimate-
before
evidence
had not
the defense
carried its
ly
able doubt as evidence of “such a convinc-
showing purposeful discrimina-
burden of
ing
person
character
that a reasonable
government.
of the
For
part
tion on the
without
rely
upon
hesitation would
and act
example,
reviewing
challenge
to Ms.
it in
important
the most
of his or her own
Gorrell,
court, in line with Batson step
App.
affairs.”
at 738. The court also
three,
that it
not find “the
noted
did
exer-
explained
presumption
af-
innocence
challenge
racially
of that
to have been
cise
forded to Milan
persua-
and the burden of
at 693.
App.
motivated.”
government,
sion demanded of the
Perhaps the court could have articulated
the latter satisfied
on
basis of
finding
clearly
more
its basis
“evidence that
produced during
government’s
explanations
race-neutral
course of this trial.”
App.
legitimate
“expressed
good
were
trial,
At the close of the
the court in-
App.
Notwithstanding,
at 670.
faith.” See
jury
charge
structed
its final
court,
specifically citing
quoting
to and
law,
follows,
well as our related
part:
Batson as
case
relevant
(3d
Casper,
F.2d 416
United
A reasonable doubt is a doubt which a
Cir.1992),12
proper legal
as the
standard
person
reasonable
has
carefully
after
claim,
analyze
under which to
fulfilled
weighing all of the
upon
evidence based
required
constitutional task
evaluat-
its
reason and common sense.
It
is the
government’s
against
reasons
kind of doubt that would make a reason-
backdrop of the record to see whether
person
Now,
able
hesitate to act ...
purposeful
there had been
discrimination.
possible
reasonable doubt is not a
doubt
Finding no basis
cast doubt on the
or a fanciful
A
doubt.
reasonable doubt
government’s
explanations,
race-neutral
is not a doubt arbitrarily
capriciously
objection.
overruled Milan’s
the court
As
by juror
asserted
because of his or her
scrutiny
special
required,13
no
the dis-
perform
reluctance to
a difficult task.
It
legal
trict court did not commit a
error.
arising
is not a doubt
from the natural
B.
Doubt
Reasonable
Instruction
sympathy
which one
an-
have for
...
argues
necessary
Milan
it is not
next
we should
for the
reverse
all
his conviction on
counts be-
prove
guilt
court, however,
App.
12. See
at 689-95.
group.
racial
The Uwaezhoke
immediately qualified
position, explaining
Uwaezhoke,
points
13. to a statement in
disparate impact
that the existence
aof
does
995 F.2d at
that a trial court should
legal
not
judge
alter the
standard the trial
special scrutiny
exercise
in the third Batson
apply.
should
See id. at 393 n. 4.
step
government's explanation
when
disparate impact
particular
would have
on a
*12
this burden of
to the defendant. And
or
doubt
possible
all
beyond
defendant
ex-
If that
a
doubt
certainty.
proof beyond
reasonable
a mathematical
to
ever
rule,
would
to each essential ele-
persons
few
tends and relates
the
were
they might
convicted,
guilty
charged.
however
ment of the crimes
be
world of
in this
reason is that
be.
added).
(emphasis
at 3610-12
App.
to be
impossible
ours,
practically
it is
equat-
in the court’s
posits
Milan
error
of
convinced
completely
absolutely and
beyond
reasonable doubt
proof
of
a
its nature is
by
fact which
disputed
any
defining or
certainty” without
“moral
with
certain-
mathematical
susceptible to
not
See United
contextualizing
phrase.
the
case, it
in a criminal
ty. Consequently,
(3d
1219,
Jacobs, 44 F.3d
v.
States
the
proofs
if the
show
is sufficient
Cir.1995) (“moral certainty” should not be
a reasonable
beyond
guilty
defendant
viewed as a
charge).
in
When
used
doubt.
doubt,
all
beyond
possible
not
whole,14however,
did not
the instructions
in
you
concept
the
up
I will sum
And
jury
that the
a
create
reasonable likelihood
Reasonable doubt
way.
this
convict
that it could
would have believed
when,
any
exist in
case
said
after
proof
a
of
lower
based on
standard
Milan
consideration
impartial
of
careful
Due Process
required by
the
than
evidence,
con-
jurors do not
the
the
feel
v.
See Victor
of the Constitution.
Clause
certainty that a
a moral
vinced
defen-
1239,
6,
Nebraska,
1,
114 S.Ct.
511 U.S.
fair,
however,
a
If,
after
guilty.
dant is
(1994). Rather, we
1243,
tacted the Attorney’s United States Office C. Brady Claim in Philadelphia regarding the tapes and transcripts but was advised that that of- argues government’s next that the fice, them, on the basis of its review of failure to reveal exculpatory evidence re- they determined that contained irrele- quires that we reverse his conviction on vant family discussions of matters and the counts 3 and 9. Our review of the denial of App. like. See at 3772. a motion for new trial on the basis Brady argument de novo with respect to 23, 2001, May On some four months the district court’s conclusions of law and after completion trial, of the Milan is based on “clearly erroneous” stan- government provided attorney Milan’s new dard respect to its findings of fact. with copies tapes, of the as well aas Perdomo, See United States v. 929 F.2d summary written of the conversations and (3d 967, Cir.1991). transcripts of particular three conversa-
Counts 3 and 9 centered around Milan’s tions. Milan moved for new trial on the receipt of cash and other benefits from basis tapes on June but the deliberation, returned mixed verdict Thayer, of con- 16. See United States v.
victions, acquittals, hung (3d Cir.1999). counts. See 222-23 Gilsenan, (3d United States 949. Cir.1991). versation, informs one of his Natale Milan’s during the motion denied court to be home “not daughters expects that he sentencing hearing. at 4067. In App. far in the future.” too 9, 2001, court issued the district July On addition, Na- demonstrate that tapes its deni- opinion explaining a memorandum in the that his involvement suggested tale made Revising statements al as follows. about a lucrative book might bring case the court concluded hearing, during the at 3922. Milan App. deal. See movie easily have “could relevant to tapes were maintains obligation and had tapes reviewed credibility by demon- impeach Natale’s information con- so” because to do falsify his connection strating his motive “easily accessible.” in them was tained aor Milan to secure a reduced sentence Nevertheless, App. at financial windfall. not Milan’s defense ruled that *14 inability attorney’s by his trial prejudiced in record a review of the extensive After cross-examining Natale. in tapes to use case, govern- that we conclude agree. We tapes did not divulge failure to ment’s States, 405 Giglio v. United Under as a whole integrity of the trial impair the 768, 766, 150, 154-55, 31 92 S.Ct. U.S. light a so in such different put the case or (1972), must 104 L.Ed.2d in the verdict. confidence as to undermine question go to materials that disclose outset, mentioning that it bears theAt well as materials as or innocence guilt benefit of the potential Milan overstates jury’s judgment affect the might that they inasmuch as to his defense tapes wit prosecution a credibility of crucial included, alia, inculpatory inter Natale’s Bagley, v. States See also United ness. Milan,” “buying that he was statement 3375, 676-77, 667, 105 3380- S.Ct. U.S. 473 4131, by Natale and a at statement App. (1985). However, to 81, L.Ed.2d 481 87 up” story make a “I don’t have to that reversal, evidence the withheld warrant a nothing” “promised he had been because is, sig material, of sufficient that must at 4074-75. App. government. from deprived suppression that its nificance Furthermore, they dem- to the extent trial. United a fair See defendant anticipated gov- that Natale once onstrate 97, 108, 96 427 S.Ct. Agurs, U.S. coop- leniency exchange for his ernment (1976); 2392, 2399, also 342 see 49 L.Ed.2d by Natale’s eration, tapes are undercut 57, Ritchie, 480 U.S. Pennsylvania v. plea collo- at his subsequent recognition (1987) 989, 1001, 40 94 L.Ed.2d S.Ct. 107 tape after the last five months some quy, (evidence only if there is material had recorded, district court that, had the evi probability “reasonable any government reject discretion defense, the been disclosed dence for a reduced § 5K1.1 motion U.S.S.G. have been would proceeding of the result and never- grant the motion sentence omitted). different”) (citations at id. any See limit reduction. theless Likewise, the district court 775-76. reveal that tapes Portions noted, that Natale correctly suggestion from early release expected Natale capital- to lie and a financial incentive had with cooperation as a result of his prison considering far-fetched his crimes is ize on in one con example, For government. aof evidence there was no credible D’Ambrosia, a for Daniel versation fact, movie deal. book or potential associate, surmises crime Natale mer ease the Merlino during testified one to two Natale approximately likely release when prospects inflated his he had con- In another App. at 3840. years. See speaking to wife and daughter his order in evaluating credibility of witnesses it assuage their concerns over mounting any could consider plea arrangements in Appellee’s financial woes. See SuppApp. which the agreed urge le- Furthermore, at niency 797-99. there was an at sentencing exchange for wit- why obvious non-fmancial cooperation during reason Natale ness investigation and daughter his wife and would tell he trial. See id. to be home soon: to comfort expected sense, In that distinguishable this case is they pres- in a time when
them missed his upon by from those relied Milan where the ence in their lives. withheld evidence was material because it deprived the any defense of reasonable importantly, Most the additional evi- opportunity pursue particular avenue merely dence would have been cumulative. See, impeachment. Wilson, e.g., Crivens v. See Hollman v. (7th Roth, (new (3d Cir.1999) Cir.1998); Hill, F.3d United States v. (3d Cir.1992). trial warranted where the state govern- F.2d failed to turn ment disclosed to Milan a im- over the criminal history wealth of records of Natale, its peachment impeachment materials witness for concerning purposes); Inc., including history, his entire criminal tran- United States v. Service Deli (9th Cir.1998) (new scripts testimony of his before United 942-44 trial *15 required States Senate Subcommittee investigating because failure to disclose infor- crime, organized a civil complaint, RICO regarding mation government the central 302s, witness, scores of FBI intercept- hundreds of which included statements attrib- ed recorded conversations between uting Natale inconsistent testimony to “a stroke associates, and other crime wiretap affida- which affected memory,” his completely vits, cooperation agreement, his the two foreclosed certain impeachment strate- to which pleaded informations he had gies). guilty, transcript of guilty his plea Moreover, even without access to the
hearing, an audiotape parole and hear- largely redundant tapes, Milan’s attorney ing. Amply equipped with materials pursued a number of other means of at- evincing that cooperated Natale with the tacking Natale’s credibility, including high- government in return for possibility of lighting a prior criminal record that in- sentence, a reduced attorney Milan’s trial complicity cluded in more than a dozen exploited this fact on cross-examination: attorney murders. Milan’s inquired also Now, Attorney: getting back to plea into relationship Natale’s with a previous agreement. understanding Your is as city Camden president, council with whom your a cooperation, gov- result Natale had met face-to-face on numerous prepared ernment to file what is occasions to bribe. This line of question- known as a substantial assistance mo- ing cast doubt on Natale’s claim that he tion, 5K1.1, known as a correct? to pay had Milan off using Daidone aas
Natale: Correct. middle man in order to avoid atten- Attorney: And particular that motion tion. you would allow escape to the manda- short, In attorney Milan’s pre- was not tory life you’re looking [sentence] cluded pursuing any from theory of im- at, correct? peachment with respect to Natale. See
Natale: True. Johnson, United States v. 199 F.3d addition, (3d App. Cir.1999) at 1512. the district (rejecting Brady chal- specifically jury instructed the lenge where the defense otherwise was Vouching constitutes an “assurance wit prosecution cross-examine to allowed attorney of the credibil by prosecuting affecting credibili “many areas on nesses through per witness ity of Government other evi- considerable ty”). As there information knowledge or sonal conviction to sustain dentiary support testimony jury.” of the before outside to 9,17 entitled Milan is not S and on counts Walker, 180, 184 v. 155 F.3d United States Price, 13 See, States v. e.g., United relief. Cir.1998). (3d danger Vouching runs Cir.1994).18 (3d 711, 722 its jury disregard influencing privileging fact-finding mandate favor of Vouching Improper D. of the deferring to the view perhaps and by sovereign repre evidence as endorsed on challenges his conviction Milan Young, States v. sentative. See United 3, 9, 15, ground 17 on the counts 18-19, 105 S.Ct. 470 U.S. in for the vouched (1985) for witnessés (vouching L.Ed.2d these of its case on strength tegrity concerning opinions expressing personal complains Specifically, counts.19 imprima carries “the guilt of the accused vouching when improper there was induce tur of the Government testimony introduced prosecutor judgment jury to trust the Government’s in approv role district court’s about the evidence”). than its own view of the rather testimony about wiretaps, elicited engendering also runs the risk of Vouching witnesses, and cooperating truthfulness in the of outside jury belief existence pros testimony concerning position introduced tending support information Jose government. witnesses See United ecution Cir.1949) (3d Toner, 140, 142 they decided Febo before and Saul Rivera “right (acknowledging defendant’s Because, as he acknowl cooperate. *16 by or innocence determined guilt have his at trial objection no Milan raised edges, him”). against presented the evidence the vouching, we review alleged to the See plain error. v. Dis in United States example, contention For (3d Inc., Saada, 210, 224 172 F.3d 212 F.3d poz-O-Plastics, United States Cir.1999), prosecutor’s remark found a (3d Cir.2000). we Milan, meeting well as reiterate, with charge, first done's a wire fraud count 17.To wit- government agents who testimony a scheme to alleged carried out from that Milan by apartment of his honest services exiting the defraud Natale's Daidone nessed Beach, paid golf vacation to Palm accepting Milan, a nearby. There was parked with meet government bolstered Natale’s Florida. an Italian testimony from the owner of also agency records testimony business with travel paid him effect that Natale to the restaurant trip in paid for the showing that Daidone $1,000 cover the cost of approximately cash, investigators who wit- testimony from evening previous the at the restaurant dinner plane to board the Milan and Daidone nessed mayor. celebrating election as Milan’s Florida, employee con- testimony a hotel from arrival, and other evidence firming their the the issue of whether We do not reach doing and Daidone was demonstrate that constructive knowl- actual or prosecution had City of Camden. seeking with the business transcripts as their tapes and edge of the illegal accept charged conspiracy to Count 9 materially impair the fair- suppression did not in violation of payments from Natale trial. ness of the that Daidone func- demonstrate Travel Act. To intermediary between Natale tioned as Milan, testimony wit- counts involved 19. These tape re- government introduced alleg- government whose behalf nesses on be- cording conversation of a March 1996 edly discussing vouched. Dai- Daidone and Natale tween fluous, Department of the policy personal about a of Jus- opinions prosecutor of the give tice not to “two-for-one deals” improp- Saada, vouching a witness. See for. er it was meant to because convince the (two F.3d at 225 required criteria to find jury prosecutor somehow knew (1) vouching are: prosecutor must as- truth, telling that the witnesses were sure jury testimony gov- of a i.e., that department give would not (2) credible, ernment witness is deal in guilty pleas return for the two assurance must be based on either the unless it convinced that was there were prosecutor’s personal knowledge or other separate two offenses. See also United record). information not contained DiLoreto, (3d States v. 888 F.2d Likewise, respect to the cooperat- Cir.1989) (reversing convictions where the Natale, Rivera, ing Febo, witnesses prosecutor attempted to bolster the credi- prosecutor inquired into previous their bility of cooperating its witnesses stat- cooperation agree- convictions and their ing during closing rebuttal: “We don’t ments, specifically aspects requiring those put take liars. We don’t liars on the exchange truthfulness in leniency for a that”).20 stand. We don’t do recommendation, but never any made specific While Milan attacks and isolated plausible statement that invited a jury in- strategic prosecution pursued choices the proof ference of reliability extra-record trial, he fails to demonstrate that a government’s possession. exclusive representative government gave in- Ramos, See United States v. 27 F.3d appropriate personal assurances concern- (3d Cir.1994) (no 4n. improper vouching reliability of a witness based on where merely made reference jury. instance, facts not before the For provision” “truthfulness plea suggests Milan prosecutor’s pur- agreement). As fails to show that testimony concerning judicial suit of ap- prosecutors referred to facts not ad- proval wiretaps21 “appear- created the duced at trial personal or offered opinions very ance that the court where the trial integrity bolster the and believability of participated heard had in and ap- witnesses, their carry he does not his bur- proved investigation.” den of showing prejudice. See United evidence, Br. at 90. though But this Turcks, (3d States v. tangential considering relevance that Mi- (an Cir.1994) *17 “plain” error is if it attorney sought lan’s never “serious- challenge ly fairness, government’s the integrity affect[s] use of or wiretap public tech- niques, and, (ci- reputation judicial was nevertheless of admissible22 proceedings”) significantly, omitted). more did super- not involve tations Zehrbach, trial, 20. United 47 objection absence of an say at we must (3d Cir.1995) (en banc), 1267 overruled DiLo legitimate we can see no reason for the applied per reto because DiLoreto se rule in "right reference to here in Camden.” We However, analysis. its Zekrbach did not over point prosecution also out that if the stated to rule the result reached in DiLoreto. See id. at jury judge thought that the defen- 1254 n. 1. guilty might dant was the comment be so prejudicial require as to a new trial. Agent 21. The asked Saturno wiretaps whether "the on Natale's residential 22.The opened by intimating defense the door telephone by authorized [were] a District during opening Camden,” govern- statements that the Judge right Court here in to which willing replied, "yes.” engage ment was App. improprieties— he in at 1163. While we devils,” pact see no basis to find that had made vouching App. there was "a by question, reason of particularly this in the in order to convict Milan.
291 Specifically, government. confidence in Departure Upward, 8-Level E. 2C1.7, guideline § used to U.S.S.G. that the dis contends Lastly, Milan for the adjusted offense level calculate applied it 3-level when erred trict court crimes, is entitled Group Two combined offense to his departure upward Involving Deprivation “Fraud Intan- corruption public than to rather level the Honest of Pub- gible Right to Services of in the effect only, which had counts Officials; by to Defraud Conspiracy lic by 16 months.23 On creasing his sentence Func- with Governmental Interference affirms majority panel point, this tions,” commentary Ap- within its contains however, court; Judge Green- the district 5, which states: plication Note opinion, this of the rest of the author berg, the defen- the court finds following portion Where The would reverse. therefore, systematic of a represents part dant’s conduct was opinion, joined governmen- in pervasive corruption Becker as or Judge views of Chief function, or office that Judge Greenberg process, tal Barzilay, with Judge gov- disagreement public cause loss of confidence for his offering the reasons ernment, may be upward departure an dissenting opinion, separate in a infra. Five, Part K Chapter warranted. See with adopted, the court sentencing, At (Departures). calculations objection, grouping out Report Investigation Presentence government’s mo- granted The court (PSR) which, set methodology applying tion, upward departure adding 3-level 3D1.2,24 Mi trisected forth U.S.S.G. for a total offense level Milan’s combined ac groups distinct convictions into lan’s base of 27 as follows: nature of the offenses: cording to the Section SDl.lt fi One, unlawful involving Milan’s Group Units Group Adjusted Level for Offense concerning the loan nancial transactions 23 One: (counts 15, 16, 17); Group from Rivera Group Adjusted Offense Level for Two: Two, public crimes as a involving Milan’s Group Adjusted Level for Offense 9, 12, 13, (counts 1, 3, 4, 7, 8, official Three: Three, 14); involving Group Total Units 1-1/2 Adjusted Offense Level Greater Contracting Atlas Com burglary of staged Level Increase Offense fraud subsequent insurance pany and Departure Increase Section 2C1.7 ' 19). Offense Level (counts 18 and Total history criminal at 21-27. With upward See PSR moved for I, 70 to sentencing range was category Milan was grounds that departure on the months, the max- imposed and the corrup- pervasive systematic involved range. available within imum term which caused a loss office tion of a *18 assigned an offense group then is 3D1.2. Each court’s construc- of the district 23. Our review highest plenary. Sentencing is count with the Guidelines based on the tion of the level Swan, 275 group. 275 F.3d U.S.S.G. See United. States See offense level within (3d Cir.2002). one Finally, there is more than § if 3D 1.3. the com- provides that group, section 3D 1.4 (a) guidelines estab- 24. Section 3D 1.1 by determining level is derived bined offense determining three-step procedure for lishes a adding offense group and for each "units” that involves proper level in a case the offense group to the offense for each level increases First, counts multiple of conviction. counts highest specified group the with the level for grouped "closely related” must that are level. offense provisions of section with the accordance 292
Milan maintains that the district court Part A of Chapter Five that corresponds applied departure only should have the to the offense history level and criminal adjusted level, Group (h) Two offense the determined; category previously deter group encompassing public Milan’s acts of mine from B through Chapter Parts ofG corruption departure to which the ap- Five sentencing requirements op and plicable, before applying multiple- probation, tions related to imprisonment, grouping adjustments found in U.S.S.G. conditions, fines, supervision and restitu § 3D1.4. Applying public the 3-level (i) cor- tion; and, to Parts H K “[r]efer and ruption departure only to calculate the Five, Chapter Specific Offender Charac adjusted offense level of the cor- and Departures, teristics to any and ruption charges yielded would have policy commentary statements or in the following results: guidelines might warrant consider 3Dl.Jp Section ation in imposing sentence.” U.S.S.G. Units 1B1.1(a)-(i). § We have held that these Adjusted Group Offense Level for One: steps 23 applied are to be sequentially by the Adjusted Group Offense Level for sentencing court. See United States v. (with Two three-level section Johnson, (3d Cir.1998) 684 departure applied): 2C1.7 21 Adjusted Group Offense Level for (“The court reads these instructions as Three: providing sequence steps for Total Units Adjusted Greater Offense Level to follow in the order in which they ap Increase in Offense Level pear.”); McDowell, United States v. Total Offense Level (3d Cir.1989) (construing I, history With a criminal category § 1B1.1 as reflecting “[t]he intent of the sentencing range proposed under Milan’s Sentencing Commission ... methodology would have been 57 to 71 formula; Guidelines be applied like a months. court ... should go guideline down each § Under 1B1.1 steps U.S.S.G. order, calculations”). making necessary (a) calculating a sentence are as follows: As we will explain infra, we think that the applicable guideline determine section applicable structure here. (b) Two; for each offense from Chapter Milan contends that determine the district court base offense level and apply § erred in any applying the appropriate “specific Application 2C1.7 offense charac (after teristics, (i) Note 5 references, upward departure step cross special and in (d) step grouping) step structions” contained in the rather than at particular (b) (before (c) Two; guideline grouping). in Chapter apply asserts adjustments Note 5 appropriate departure as is specific related to vic 2C1.7 tim, role, justice type not the general, obstruction of of more “unguid- from A, B, (d) Three; (i) Parts ed” Chapter Chapter and C of 5 departure to which step (a) (c) repeat steps through refers. each count This conclusion supported, ac- adjust Milan, accordingly cording offense level if by the language of Note conviction; (e) multiple there are counts of narrowly written and directed apply adjustment appropriate toward the offense level determination for acceptance defendant’s of responsibili §a 2C1.7 reason, offense. For the same (f) ty Three; from Part E Chapter Milan submits that applying the Note 5 *19 determine the history defendant’s criminal departure adjusted base lev- offense category specified as in APart of Chapter el grouping before is more consistent with Four; (g) guideline determine the in range the “punishment fits the crime” logic of 5 is a “cross argument that Note any upward depar- in that the Guidelines the reference,” reasonably do so nor could he to ought corruption governmental ture § that- 2C1.7 does not light of Ms of the fact portion tied to that specifically provisions— a four crimes as include Note 5 within its to his relates that sentence § des 2C1.7(c)(1)-(4) expressly U.S.S.G. official. — references,” see United ignated as “cross by arguing counters government (10th Gay, v. States in- methodology is proposed Milan’s that Cir.2001) (concluding the Guidelines’ that Spe- text. the with Guidelines’ consistent provision, offender U.S.S.G. career the that contends cifically, government the part 4B1.1, § is not a reference” “cross a “specific is neither departure Note such), nor does it. not labeled as is because characteristic,” refer- a “cross offense sentencing the court to Note 5 instruct instruction,” and ence,” “special nor a a re which is any guideline, other apply ambit of the not fall does therefore within the definition under Guidelines’ quirement (b). Rather, the step § 1B1.1 See U.S.S.G. a “cross reference.” of a reference to contends, simply Note 5 is a reference” (defining § 1B1.5 “cross the that departure Chapter of type the another offense apply instruction to “an consider may properly sentencing court guideline”). ad- (i), multiple-groups only after the step Fur- performed. have been
justments 5 does it clear that Note also think We thermore, argues “special a argues, as qualify, as Milan not con- is more methodology court’s district a instruction,” is used as phrase a principles Guidelines general sistent The Guide- art in the Guidelines. of term judge to assess in that it allows “special label instruc- care to take lines after in Note factors listed many subsec- expressly as such tions” informa- all of has considered judge See, e.g., U.S.S.G. Chapter Two. of tions whether determining relevant tion 2B4.1(c). 2B1.1(d), 2A3.1(d), Note §§ the de- such as appropriate, is departure however, “special labeled expressly is not and whether history fendant’s criminal of statu- apply the rules We instruction.” responsibility accepted has defendant interpreting when tory construction his acts. Robinson, Guidelines, see United position government’s hold that the We (9th Cir.1996), and un- correct, court did district is statutory the well-established canon der sen- 5 to Milan’s applying Note not err est exclu- expressio unius construction con- reach this grouping. tence after We alterius, failure to ex- the Guidelines’ sio find the text because we primarily clusion “special Note 5 as designate pressly clear on this Sentencing Guidelines conspicuous- is when label instruction” plain think it particular, we point. within provisions many ly affixed by Application warranted departure sign chapter is a clear same “specific amount does not Note 5 intend did not of the Guidelines authors reference,” characteristic,” “cross offense instruc- operate “special 5 to as a Note instruction,” only three “special Indeed, promi- provisions all of tion.” to which sentencing adjustments types ap- “special instructions” nently labeled as (b) explicitly refers. step Guideline, each the text of pear within within which appears Note Note 5 is not a unlike Milan has conceded that if Milan Even commentary to 2C1.7. characteristic,” Mi- see “specific offense apply it more “intuitive” not raised he has correct Br. at Reply lan’s *20 that, departure, system- form, the Note 5 which is for while different in are similar in function to governmental very atic these three pervasive corruption specifically or contrast, defined Guideline terms. sub- causing of confidence in govern- loss (i) 1B1.1, § section of which step is the at ment, only to Milan’s offenses that relate which the district court applied Note official, a public to his crimes as where the does contain a provision “catch-all” that clear, of appears text the Guidelines itas “any policy refers to statements or here, does may whatever “intuition” we commentary in guidelines might yield have language must to the of the warrant consideration in imposing sen- Guidelines. Moreover, tence.” Milan’s contention that Milan argues that even if Note 5 is not Note 5 equivalent is functional of a expressly designated as a “special instruc- “special instruction” is simply restate- tion,” it equivalent is the functional there- ment of claim his ought Note 5 to be of, ought and therefore to be treated as (b) applied (i); at step rather than at step (b) such for the purposes step of of words, in other Note 5 only is a functional § 1B1.1. disagree. As We mentioned equivalent of a “special instruction” if Mi- above, lBl.l(b) § the text of only refers lan is correct that Note 5 should be applied characteristics, “specific offense cross ref- adjustment. before the grouping For the erences, instructions,” and special and above, reasons stated reject we this asser- any does not include sort “catch-all” tion on the basis of the Guidelines’ clear provision for commentary subsections or text.25 support position,
25. As
1B1.1(b).
for his
Milan cites to
purposes
§
instructions” for
(11th
Nguyen,
United States v.
2. Thus, makes neces *25 at 292-93. expressly references 5 Application Note that step in order each But, sary under calculations Five, (Departures).” Part K "Chapter determining the base guideline, (choosing the that things: either one of two mean this could etc.) level, adjustments, until applying offense type of departure ais Note 5 Application (i). step At this step, arriving at final 5, that it departure or K Chapter Part to”) (i.e. "refer[s] considers point, the court general purposes of the for analogous to one and De Characteristics Specific Offender depar all applicable to policy considerations any other as well as Chapter Five partures of Reyes, 239 F.3d v. States See United tures. commentary in the policy statements The Blue Cir.2001); see also (5th 746 Once imposing sentence. guidelines before (Colum System Citation A book: of Uniform consultation, literally it that court makes ed., eds., The et al. 17th Ass’n Review bia Law sequential- (i) keeping with our step fulfills 2000) at 22-23 Review Ass'n Law Harvard of canons as fundamental as well rule order the cited (the that signal "see” demonstrates See, e.g., United interpretation. statutory proposition,” "clearly supports authority 1993) (3d Cir. Wong, 3 F.3d step the au between drawing an "inferential plain and statutory language, ("As with supports.” proposition it thority cited and Sentencing language of unambiguous However, that "the reflect does not "see” for their recourse the best affords Guidelines cited by the directly stated ... proposition ap Under interpretation.”). proper following merely from authority” than rather by the action taken any course of proach, it). by cabined is not that consultation after court IB 1.1. methodology section sequential Emphasis added. in con doubt that no Certainly can be there 2C1.7, Application a section cluding that added). 1B1.1(c) (emphasis infra § 4. U.S.S.G. step during applied is to be departure Note “specific (b) equivalent added). as the functional 1B1.1(e) (emphasis 5. U.S.S.G. reference,” characteristic,” “cross offense instruction,” conflict not in I am “special accept purposes for I the extent 6. To Moreover, plausi one precedents. our with sentencing must con- argument do precedents not argue that our bly can 2C1.7, Note de- Application a section sider entirety of proposition (i), stand I am consistent step parture during Application Instruc Sentencing Guideline (a) through steps holding that precedents our in which in the order applied are tions sequential order. (i) strict applied in a are actually stated Johnson, Johnson they appear. See, e.g., States v. United Furthermore, though it does appear not I point make is consistent with the under the heading “specific offense charac- Sentencing Commission’s contemplation of teristic,” reference,” “cross or “special in- two distinct types of departures: those in struction,” a departure systematic or which guidelines “the provide specific guid- pervasive corruption of a government ance departure by analogy byor function is within public identified cor- numerical or non-numerical suggestions” ruption guideline itself, 2C1.7, section not and those catch-all departures that “re- within Chapter Part K. Listed as an main unguided,” resting upon either “Application Note” the commentary, “grounds it referred Five, to Chapter Part expresses the position of the Sentencing K (Departures) or on grounds not men- court, Commission in aggravating tioned guidelines.” in the U.S.S.G., ch. circumstances such present as those 4(b). here, A, pt. So-called “guided depar- (ie. adjusting consider the sanctions guideline tures” —where a or related com- level) increasing the offense specifically for mentary suggests that a departure may be corruption-related offense conduct that warranted under certain specific circum- falls within the scope Section 2C. That stances considered the Sentencing say, is to placement cor- Commission8—“are more akin adjust- ruption departure within the Chapter ments, such as in Chapters those Two and public corruption guideline Three, itself rather which judges use to calculate the than within the generic rubric of Chapter applicable range, Guidelines rather than a strongly suggests that the departure Commission from the range.” Guidelines intended for departure to be consid- Michael al., S. Gelacak et Departures Un- ered at the moment the court consults the der the Federal Sentencing Guidelines: section guideline 2C1.7 to calculate the of- An Empirical and Jurisprudential Analy- fense pertinent level for sis, crimes.7 A con- 81 Minn. L.Rev. (1996); see *26 trary reading, hand, on the other con- also Bruce M. Selya & Matthew R. Kipp, founds a uniform, systematic reading of An Examination Emerging Departure of guidelines by virtue of a consequently Jurisprudence Under the Federal Sentenc- scattershot application, with portions some ing Guidelines, 67 Notre Dame L.Rev. a given of guideline in applied (1991) (A computing “guided” departure involves the offense level and applied others at “instances which a guideline or related some stage later process. commentary suggests that under partieu- (a)-(g) provide subsections rigid se- language of section 5K2.7 would seem to quence steps. of See 155 683-84. encompass departure Appli- formulated in Likewise, McDowell adjust- held that an Yet, cation Note 5 of section 2C1.7. as even acceptance ment for responsibility of under argument conceded at oral (e) step must applied be after the combined and as the majority acknowledges, the two offense level has been calculated in departures order distinct, are indeed a circum- pursuant (a)-(d). steps to See 888 F.2d at stance which I find indicative of the drafters' 292-93. simply The cases do not address the understanding that the particularized more question of whether the 2C1.7, serial method ap- of section Application departure Note 5 is plying (i). IB section 1.1 step extends to to be applied only in tire context precise of the guideline in which the Sentencing Commis- fact, 7. In Chapter already provides for an deliberately sion it. situated analogous departure in circumstances where a “defendant’s significant See, conduct results in a 2B1.1, e.g., § U.S.S.G. Application Note disruption of governmental 15; 2D1.1, function.” § Application 14; U.S.S.G. Note §
U.S.S.G. 5K2.7. glance, At first 2G1.2, sweep- § U.S.S.G. Application Note 12. the Eleventh for Appeals of the Court warrant- departure lar circumstances issue with re- a similar confronted Circuit ed”). departure a downward applying to spect section Moreover, application 2A1.1, Application Note under U.S.S.G. after departure 5Note 2C1.7, Application may be departure that a provides lends analysis the grouping of completion where conviction in a murder warranted case, In this outcomes. untenable to itself intentionally or did not the defendant district in the instance, it resulted one of Nguyen, cause death. knowingly punishment enhancing Milan’s court’s multiple was convicted the defendants unre- substantively temporally crimes including conspiracy, RICO in a counts It office. public his abuse to lated sentencing the district At felony murder. whereby, anomaly sentencing created level under the offense court calculated charges distinct try to by opting simply 6 levels 2A1.1, downward departed section able to was together,9 1, and then Note Application to pursuant de- corruption a 8-level bootstrap to determine rules grouping applied money laun- unconnected parture Nguyen, See level. offense the combined guideline drove charge which dering at 1344-45. 23of (an level offense adjusted range counts). advanced the the defendant appeal, corruption On to 18 opposed case, namely in this position en- government’s in essence court differently, the Put have first should convictions district laundering money hanced applied and then range was the offenses One), guideline grouped (Group whose the combined Chapter departure under the downward separately calculated appeals disa offense-specif- court of S, level. the basis offense on Section 2A1.1, Ap sec- section an unrelated holding contained greed, departure ic con concerning public departure Note guidelines plication of the tion (b) step contra- methodology in the aforementioned This sidered corruption. id. grouping See determination. design level express base offense vened an words, the for- the court im significance “limit In other rules to at 1345. 3, pt. ch. identi U.S.S.G. a departure charging decision.” concluded mal plicitly See also an offense Commentary. commentary D, Introductory fied 4(a) (“the A, Commis- of “specific pt. ch. comparable U.S.S.G. guideline references, treatment for the characteristics, rules its cross written sion has fense *27 eye to- purposes convictions of multicount instructions” special and that unfair treatment eliminating 1B1.1(b), properly and thus ward U.S.S.G. manipulation”); from count of flow the base might determining considered (the Sentencing A, pt. ch. While grouping. U.S.S.G. before level fense uniformity horizontal promote not does Nguyen Guidelines indicates majority similarly by requiring sentencing that Milan’s concluding it from dissuade similar- are sentenced defendants situated and notes incorrect argument ly). issue addressed court Nguyen rul Nguyen still the paragraph, single comparison closest case In the from escape I no and see clear ing is Ngu- v. aware, United am which I we result reaching our Cir.2001), (11th conclusion 1335, 1345 yen, grouping rules. under the level course, trial in itself the consolidated Of 9. offense combined in an increased resulted are creating Barclays conflict between two cir- Investors, Global N.A.; Green course, cuits. Of way as majority points Partners, L.P.; Greentree Part out, the conflict apparent ners, reflects an L.P.; rift Third-Party Plaintiffs between the United States Attorneys’ of- v. fices New Jersey and the Northern Cooper; David B. Edison; Julian I. Pe District Georgia.10 Edison; ter A. Evans; Jane Michael Freund; H. Michner; Karl W. Alan D.
Overall, I am satisfied that a section Miller; Newman; Andrew E. Alan A. 2C1.7, Application 5 departure Note Sachs; Craig Schunck; D. Martin systematic or pervasive corruption of a Sneider; David Corriveau; O. James government function, like “specific offense Corley; W. Henrion; Walter S. Mark characteristics, references, cross spe- Levy; H. Vittert; Mark B. Dave & instructions,” cial adjust be applied to Busters, Third-Party Inc. Defendants only the base level of specific, offense corruption-related offenses to which it ap- Barclays Investors, Global N.A. Green Thus, plies. I believe that the district way L.P., Partners, and Greentree applied erred when it the 3-level Partners, L.P., individually and in departure to a final combined offense level capacity their representatives class after applying the grouping methodology of all members of the defendant class to multiple disparate counts. Conse- certified in action, third-par quently, I dissent point. on this ty plaintiffs, Appellants.
No. 01-1864. United States Court of Appeals, Third Circuit. Argued: July 2002. Filed: Sept.
EBS LITIGATION LLC
BARCLAYS GLOBAL INVESTORS,
N.A.; Greenway Partners, L.P.; Partners, L.P.;
Greentree Wilshire Incorporated;
Associates N.A. Mellon
Bank; IBM Trust; Retirement Fund Baebler;
Drew Laura Baebler doubt, however, I do not sophisticated “heads, wins, rule is tails the defense attorneys reading opinions here defendant loses." Nguyen will conclude that actual