United States v. PhippsUnited States v. Phipps
Michael Phipps and Dean Gilley appeal several aspects of their kidnaping, carjacking, and firearms convictions and sentences. Because
I.
On December 13-14, 2000, Paula Vastano-Pasquariello departed work and drove to her home outside Dallas; defendants and their accomplice, Julian Medina, followed her in Medina‘s car. As Pasquariello pulled into her carport, defendants approached her, Phipps рut a gun to her head, Gilley restrained her in the back seat of her car, and they drove away with Phipps at the wheel. They stopped briefly to give the gun to Medina, then headed for the highway. Once they were on the highway, Gilley forced Pasquariello to perform sex acts with him, and he raped her. During and after the rape, Gilley continuously threatened Pasquariello with a knife as Phipps drove through the night.
Defendants switched positions near the Texas-New Mexico border. With Gilley driving, Phipps commanded Pasquariello to perform sex acts with him again. Gilley warned Phipps to wait until they arrived in Albuquerque, lest passing drivers see them. Upon arriving in Albuquerque, defendants forced Pasquariello to buy clothes for them and checked into a motel. Phipps again announced his desire to rape Pasquariello, but Gilley, who had become nervous, again intеrvened.
Defendants drove to a nearby alley. Pasquariello apparently believed that defendants planned to kill her, so she fled, screaming. Defendants did not give chase.
The FBI quickly apprehended defendants, no criminal masterminds. By the evening of December 15, just twenty-four hours after Pasquariello had escaped, an FBI agent swore a criminal complaint before a federal magistrate judge. The complaint included all of the foregoing facts and charged defendants with one count of kidnaping in violation of
On January 3, 2001, a grand jury indicted defendants on one count of kidnaping,
The jury convicted defendants on all five counts. The district court sentenced them to 405 months’ imprisonment on each of the conspiracy, kidnaping, and carjacking counts, with these sentences to run concurrently. It sentenced them to 84 months on count 3 (using a firearm during and in relation to the kidnaping) and 300 months on count 5 (using a
Defendants challenge the timeliness of their indictments, their multiple
II.
Defendants argue that all counts but the kidnaping count were untimely under the Speedy Trial Act (“STA“),
The STA requires an “indictment charging an individual with the commission of an offense” to be filed within thirty days of arrest.
Our precedents involve two kinds of allegedly untimely indictments. First, a defendant is charged in a complaint, arrested, and timely indicted for the offense charged in the complaint. Later (and after the STA period has run), a superseding indictment charges new offenses not contained in the complaint. United States v. Bailey, 111 F.3d 1229 (5th Cir. 1997); United States v. Giwa, 831 F.2d 538 (5th Cir. 1987). Second, a defendant is charged in a complaint, arrested, and timely indicted for an offense not charged in the complaint. Later (and after the STA period has run), a superseding indictment alleges the offense charged in the complaint. Martinez-Espinoza, 299 F.3d at 415-16; United States v. Perez, 217 F.3d 323 (5th Cir. 2000). This appeal presents the first situation, so Bailey and Giwa control.
In Giwa and Bailey, defendants were charged and arrested for a specific offense and, after the STA period had run, were charged, in a superseding indictment, with other offenses.1 The court rejectеd the STA challenge in both cases and stated the general rule in Giwa: “If the Government fails to indict a defendant within thirty days of arrest, the Act requires dismissal of only the offense or offenses
At the same time, Giwa identified, and Bailey elaborated on, a “gilding” exception to this general rule. “[A] gilded charge is one that merely annotates in more detail the same charge alleged in the initial accusatory instrument.” Bailey, 111 F.3d at 1236. As an example of a gilded charge, Bailey cited a case involving a superseding indictment that merely added new supporting facts to the charge in the complaint. Id. (citing United States v. Bilotta, 645 F. Supp. 369, 371 (E.D.N.Y. 1986)). Defendants cannot take advantage of the gilding exception, however, because the superseding indictment did not merely supply supрorting facts for the kidnaping charge, but added four entirely new charges.
Defendants rely on an old and irrelevant Ninth Circuit case and a secondary treatise to cobble together the argument that the complaint really charges all five counts because the facts in the complaint are sufficient to establish each charge. They cite no caselaw for this argument, nor could they, because the theory directly contradicts Giwa and Bailey.
Moreover, the government may have had a good reason to charge defendants solely with kidnaping in the complaint and first indictment: The evidence collected by the time of the complaint and first indictment may not have supported the other four counts.3 Defendants’ proposed rule would encourage the government to “throw the book” immediately and needlessly at suspеcts to avoid STA violations. We decline to adopt a rule that contradicts our precedents and encourages imprudent prosecutions.4
III.
A.
Defendants challenge their multiple § 924-(c)(1) convictions, arguing that they may be convicted under that statute only once for the
1.
Section 924(c)(1) states in relevant part that “any person who, during and in relation to any crime of violence . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence,” be sеntenced to varying terms of imprisonment based on the kind of firearm or the nature of its use.
The government answers that United States v. Privette, 947 F.2d 1259 (5th Cir. 1991), controls this case and authorizes the dual convictions, but the government misapprehends the holding of Privette. The precise question presented was whether a verdict could be upheld if it did not link the multiple
Privette, then, is a constitutional decision based on the Double Jeopardy Clause. It does not address the precise statutory question whether
Privette is not completely beside the point, however, because it forecloses defendants’ constitutional argument. They contend that the Double Jeopardy Clause prohibits multiple convictions for a single use of a single firearm based on multiple predicate offenses, even if
If the predicate offenses are “separated by the measure of the double jeopardy clause,” id. at 1261, therе can be no constitutional infirmities with multiple convictions authorized by
2.
Having dispensed with these preliminary matters, we now reach the main issue, namely, whether
a.
The parties dispute what is the unit of prosecution for
This court has not expressly decided the unit of prosecution for
Although Correa-Ventura did not directly address the question, this passage nonetheless suggests that the unit of prosecution is the use, carriage, or possession of a firearm during and in relation to a predicate offense, with slightly more emphasis on the use, carriage, or possession of a firearm. The text of § 924-(c)(1) bears out this suggestion: The conduct of using, carrying, or possessing a firearm constitutes the active verbs (“any person who . . . uses or carries a firearm, or who, in furtherance оf any such crime, possesses a firearm“), whereas the predicate offenses appear in a separate clause (“during and in relation to any crime of violence or drug trafficking crime“). Moreover, the many subsections of
The decision in Simpson v. United States, 435 U.S. 6, 10 (1978), also indicates that the unit of prosecution for
Though the emphasis is on the use, carriage, or possession of a firearm, and not on the predicate offense, simple use, carriage, or possession of a firearm also is not the unit of prosecution. Many citizens exercise their Second Amendment rights, United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), cert. denied, 122 S. Ct. 2362 (2002), by routinely using, carrying, or possessing a firearm, and
b.
This unit of prosecution aptly frames our
“Congress could no doubt” authorize such convictions; “[t]he question is: did it do so?” Bell, 349 U.S. at 82-83. We cannot say that
By its text,
True enough, this single use allowed defendants to commit two crimes. By brandishing the firearm, they forced Pasquariello to surrender her car, and they abducted her. They could have committed either offense without committing the other: They could have taken Pasquariello‘s car without abducting her, or vice versa. In this sense, the single use of the firearm served two purposes. Yet, just as motive often is the essеntial fact at trial but generally not a statutory element,
The legislative history of
We readily acknowledge, however, the reasonableness of the government‘s position. The
The crux of this argument would be the unusual neither-fish-nor-fowl quality of § 924-(c)(1), which criminalizes neither unadorned use of a firearm nor the predicate offense, but only the two combined, as the unit of prosecution indicates. If
Though the government‘s position does not persuade us, it is not unreasonable, but the statute‘s ambiguity compels us to apply the rule of lenity, under which a court should resolve doubts about an ambiguous criminal statute in favor of the defendant. United States v. Reedy, 304 F.3d 358, 367-68 (5th Cir. 2002). The Supreme Court first and most famously applied the rule in Bell, 349 U.S. at 82, in which the petitioner was convicted of two violations of the Mann Act‘s prohibition against knowingly transporting “any womаn or girl” in interstate commerce for immoral purposes, based on his transporting two women at the same time in the same vehicle. The Court acknowledged that “argumentative skill . . . could persuasively and not unreasonably reach either of the conflicting constructions.” Id. at 83. The Court therefore held that “the ambiguity should be resolved in favor of lenity.” Id.9 Because
Only two other circuits seem to have addressed the precise question whether § 924-(c)(1) authorizes multiple convictions for a single use of a single firearm based on multiple predicate offenses, and both have applied the rule of lenity.10 In United States v. Wilson, 160 F.3d 732 (D.C. Cir. 1998), the defendant was convicted of killing a witness in violation of
In United States v. Finley, 245 F.3d 199 (2d Cir. 2001), cert. denied, 534 U.S. 1144 (2002), defendant was convicted of one count of distribution and one count of possession with intent to distribute, both in violation of
By discussing Wilson and Finley, we do not mean to suggest that we agree with their interpretation of
Finally, we stress that our holding is limited by the unusual fact that defendants gave the firearm to Medina immediately after using it. Had, for example, they kept the firearm and used it to restrain or intimidate Pasquariello later, we might have affirmed their multiple convictions.12 We also might have done so if defendants had used, carried, or possessed multiple firearms when they took Pasquariello‘s car and kidnaped her.
These examples, however, are not the facts before us. In what surely must be a rare еvent, defendants used a single firearm a single time for a dual criminal purpose, then immediately discarded it. In light of this extraordinary fact,
“The proper remedy for multiplication of punishment is to vacate the sentences on all the counts and remand for resentencing with instructions that the count elected by the gov
B.
Gilley argues that the district court committed reversible error by inadvertently instructing the jury, on one occasion, that it could find him guilty of the conspiraсy count by a preponderance of the evidence.13 Gilley did not object to the instruction at trial, so we review the inadvertent instruction for plain error.14 See
Plain error review is very limited. There must be “error” that is “plain” and that affects “substantial rights,” and even then we have discretion not to correct the error unless it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732 (1993) (citation omitted). We conclude that the district court‘s inadvertent mistake is not reversible error, and certainly not reversible plain error.
The question is not whether the court‘s unwitting mention of the preponderance of the evidence standard while discussing count 1 is erroneous15—everyone concedes it is—but whether this single misstatement makes the instruction defective as a whole. See Cage v. Louisiana, 498 U.S. 39, 41 (1990). Moreover, “the proper inquiry is not whether thе instruction ‘could have’ been applied in an unconstitutional manner, but whether there is a reasonable likelihood that the jury did so apply it.” Victor v. Nebraska, 511 U.S. 1, 6 (1994) (citing Estelle v. McGuire, 502 U.S. 62, 72 & n.4 (1991)).16
Moreover, Gilley concedes that the general jury instruction on reasonable doubt, plus all other jury instructions, correctly stated the law. In the nearly identical case of United States v. Musgrave, 483 F.2d 327, 335 (5th Cir. 1973), we affirmed a conviction despite a similar error, because the “[i]solated statements which appear prejudicial when taken out of context [were] innocuous when viewed in the light of the entire trial.”17 During the jury charge in the instant case, the court correctly instructed, on fifteen occasions, on the meaning of reasonable doubt and its applicability.18
Finally, we have affirmed several convictions with worse errors in the general jury instruction on reasonable doubt; we disapproved of some particular wording but upheld the instruction as a whole.19 The isolated and inadvertent error here is certainly no worse than are the errors we excused in those cases. Though we encourage the courts to be vigilant in their jury instructions, we rarely will reverse a cоnviction based on a district court‘s insignificant slip of the tongue.
IV.
A.
Phipps contends that the district court should not have sentenced him under the criminal sexual abuse guideline, U.S.S.G. § 2A3.1, because he did not commit sexual assault on Pasquariello. Reviewing the district court‘s legal interpretation of the sentencing guidelines de novo and its factual findings for clear error, United States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999), we affirm.
The district court used the criminal sexual abuse guideline, U.S.S.G. § 2A3.1, instead of the kidnaping guideline, U.S.S.G. § 2A4.1, to sentence Phipps, because § 2A3.1 has a higher total offense level. See U.S.S.G. § 3D1.3(a).
The court did not clearly err by applying § 2A3.1. Medina testifiеd that defendants declared their intent to steal a car from a woman whom they could also kidnap for the purpose of raping her. Phipps forced Pasquariello into the car at gunpoint and restrained her by driving the car while Gilley forced her to perform sex acts on him and then raped her. Phipps attempted sexually to assault Pasquariello, and he stopped only because of Gilley‘s fear of detection by passing drivers. Given this evidence, the court easily concluded that Phipps reasonably could foresee Gilley‘s sexual assault on Pasquariello and thus could be liable for the assault under § 1B1.3(a)(1).
B.
Defendants assert the district court clearly erred by enhancing their sentence under the obstruction of justice guideline, U.S.S.G. § 3C1.1. Reviewing the court‘s factual findings for clear error, United States v. Smith, 203 F.3d 884, 891 (5th Cir. 2000), we affirm.
Section 3C1.1 permits a two-level еnhancement for obstruction of justice during an investigation. The enhancement is not appropriate merely because a defendant denies his guilt. U.S.S.G. § 3C1.1, cmt. n.2, but only if the defendant “provid[es] a materially false statement to a law enforcement officer that significantly obstructed or impeded the official investigation or prosecution of the instant offense.”
Both defendants misidentified Medina during the FBI‘s investigation. Gilley identified him as an unnamed and unknown black man to whom he paid five dollars to drive him and Phipps to Pasquariello‘s home. Phipps identified Medina as a local man named Javier, whose identity he otherwise did not know. The investigating agent testified that these lies delayed her inquiry for several months.
Because of the conflicting false statements and defendants’ untrustworthiness, the agent was forced to subpoena and search defendants’ telephone records for the unknown third defendant. She eventually interviewed Medina, who confessed to his involvement. This discovery was critical to the investigation, because Medina, who gave the firearm to defendants, provided the only evidence, other than Pasquariello‘s testimony, that defendants had used a firearm. Based on these facts, the district court found that defendants’ misidentification of Medina “significantly obstructed” the FBI‘s investigation, so the court enhanced the sentences by two levels.
Defendants argue that the district court clearly erred, because the investigating agent did not fully believe their lies and would have subpoenaed their telephone records anyway. We rejected this same argument in Smith, 203 F.3d at 891, in which we affirmed an enhancement because a defendant misidentified her female co-defendants as black males to throw the investigators off the trail. The defendant contended that the investigation was not “significantly obstructed or impeded” by her lie. Id. We rejected this reasoning solely because the affirmative misidentification sent investigators on the wrong trail, even though they admitted they would have found the co-defendants eventually in any event. Id. Smith therefore forecloses defendants’ argument and
C.
The district court erred by sentencing defendants to 405 months on the carjacking count, because the maximum sentence is 300 months.
Ordinarily, we would let this kind of erroneous sentence stand without correction. Defendants give no good reason to create make-work for ourselves, the district court, or counsel. We correct plain error only where we determine that the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Meshack, 225 F.3d 556, 577 (5th Cir. 2000), as modified, 244 F.3d 367 (5th Cir.) (citation omitted), cert. denied, 534 U.S. 861 (2001). Though the error here could not be more plain, defendants are not prejudiced, because the carjacking sentence runs concurrently with the valid longer sentences for conspiracy and kidnaping. Meshack, 244 F.3d at 368. Moreover, defendants do not assert “that our decision not to correct the sentence will have collateral consequences.” Id.
If we had аffirmed defendants’ convictions and sentences in all other respects, we would not disturb this sentence. Yet, we vacate their sentences and remand for resentencing on all counts as a result of the
Moreover, at the sentencing hearing the district court announced its desire to sentence defendants to the maximum term permitted by law. When the court made the carjacking sentence run concurrently with the conspiracy and kidnaping sentences, it assumed two valid
D.
Defendants aver that their special condition of supervised release is unconstitutionally vague. They did not object at or after the sentencing hearing, so we review for plain error. United States v. Wright, 86 F.3d 64, 64 (5th Cir. 1996). We affirm.
As a special condition of supervised release, the district court prohibited defendants from possessing “sexually oriented or sexually stimulating materials” and from “patroniz[ing] any place where such material or entertainment is available.” Defendants do not argue that this condition violates their First Amendment rights, but rather their “separate due process right to conditions of supervised release that are sufficiently clear to inform [them] of what conduct will result in [their] being returned to prison.” United States v. Guagliardo, 278 F.3d 868, 872 (9th Cir.), cert. denied, 123 S. Ct. 515 (2002).
Although we have not yet encountered this kind of condition, our general approach to other vague conditions leads us to reject defendants’ argument. In United States v. Paul, 274 F.3d 155, 166-67 (5th Cir. 2001), cert. denied, 122 S. Ct. 1571 (2002), we affirmed a condition prohibiting defendant from visiting locations “frequented by minors.” We acknowledged some vagueness with the condition but observed that “[t]his lack of specificity is not necessarily fatal to the validity of the restriction.” Id. at 166. We also stated that “conditions of probation can be written—and must be read—in a commonsense way” because “it would be impossible to list” every instance of prohibited conduct, hence “[s]entencing courts must inevitably use categorical terms to frame the contours of supervised release conditions.” Id.
The category of “sexually oriented or sexually stimulating materials” admittedly is somewhat vague, but Paul requires it be read in a commonsense way. Such a construction compels us to disagree with defendants’ suggestion that the condition could apply to newspapers and magazines that contain lingerie advertisements or even to the “Song of Solomon.” Moreover, the prohibition on patronizing sexually oriented establishments refers, with sufficient precision, to places such as strip clubs and adult theaters or bookstores.
We therefore read this second condition to narrow the first condition to the kind of sexually explicit materials available at such places. Though a more definite condition might be desirable, the district court has “wide discretion in imposing terms and conditions of supervised release,” Paul, 274 F.3d at 164, and a commonsense reading of the special condition satisfies the dictates of due process.
Furthermore, this question comes to us on plain error review. Assuming that the court on remand imposes the same sentence minus the twenty-five-year consecutive sentence for the invalid
Notes
Defendants concede that United States v. Martinez, 28 F.3d 444, 446 (5th Cir. 1994), forecloses this argument, and they raise the question merely for further review. Martinez held that the Hobbs Act,
(Emphasis added.)Now, once the jury has reached a unanimous decision as to Count 1 of the indictment as it affects Defendant Gilley, then the foreperson will write in the decision, the unanimous decision, either guilty or not guilty.
If the jury concludes from a preponderance of the evidence that the defendant has committed the offense charged by Count 1 of the indictment, that is, Defendant Gilley, then the verdict is guilty and the foreperson will write that in. If the jury concludes unanimously that the government has not proved beyond a reasonable doubt that Defendant Gilley committed the оffense charged by Count 1 of the indictment, then the foreperson will write in not guilty.