United States v. Robert Morales, Sr.

the case must be remanded for resolution on

the merits.

We also argu find no merit in the procedural

ment that default an appro

priate finding because of Brown’s later fail pursue

ure to his state ap remedies. The

propriate time to prisoner assess whether a

has exhausted his state remedies is when the filed,

federal petition habeas not when it

comes on for a hearing in the district court of appeals. Lewis, See White v. Cir.1989); Matias, 321;

F.2d at Domaingue accord v. Butter

worth, (1st Cir.1981). Brown

had not exhausted his state remedies when

he filed his petition. federal habeas He

could not have procedural been in default at

that time.

REVERSED and REMANDED. America,

UNITED STATES of

Plaintiff-Appellee, MORALES, Sr.,

Robert Defendant-

Appellant.

No. 92-50279.

United States Court of Appeals,

Ninth Circuit.

Argued March 1993.

Submission Deferred March 1993.

Resubmitted March 1993.

Decided Dec. Die- Atty., San Asst. U.S.

Philip Halpern, CA, plaintiff-appellee. for go, CA, Iredale, for Diego, San Eugene G. defendant-appellant. THOMPSON, SCHROEDER,

Before: O’SCANNLAIN, Judges. Circuit SCHROEDER, Judge: Circuit Morales, Sr., appeals his Robert counts of multiple guilty plea to following his practic- arising out of crimes various employee of an engaged while es Morales crimes The Service. Revenue the Internal period over many transactions involved was terminated ending Morales years when in March of 1990. employment his from appeal per- in this questions principal The to de- conspiracy guilty plea to to his tain States, and to his Count the United fraud bribery in violation for conviction (1988), § U.S.C. a two- maintains that

Appellant first bribery of his sentence level enhancement Sentencing Guideline pursuant to Federal appli 2Cl.l(b)(l) post facto an ex constituted pro That Guideline of the Guidelines. cation in the increase two-level mandates a vision “involved if the offense level base provi That Guideline one than bribe.” more 1, 1989. November effective sion became he en that while appellant contends transactions, only one many bribery gaged of that date the effective occurred after bribe in appellant’s schemes One of Guideline. payments return receipt of volved million evade fourteen Mario Saikhon helping Appellant maintains in taxes. dollars Mr. he received multiple payments date of Guide after the effective Saikhon continuing until termination lines pay installment constituted employment the Com Citing only one bribe. ments 2C1.1, Morales mentary 6 Guideline Note receipt payments analogizes his installments weekly paycheck. akin to a course of criminal conduct that extended be Thus he contends his two level increase must yond pro the effective date of the Guideline part upon have been based in pre-guideline applied by provision vision the court. The conduct. was in effect at the time that the giving applica committed crimes rise to the The addendum to the Report Presentenee provision. Enhancing tion of that Guideline penalties termed this contention “ridiculous.” As the post-Guideline for conduct on acts observed, addendum the bribes came from that occurred before the Guidelines does not sources, various payments and the numerous post run afoul of the ex facto clause. See in 1989 and 1990 in different amounts and at Ahumada-Avalos, United States v. 875 F.2d intervals, different were separate acts of (9th Cir.), denied, 837, 681 cert. 493 U.S. 110 bribery. The district court they concluded 118, (1989). Here, S.Ct. 107 L.Ed.2d 79 as in were, and the record bears out this conclu- Castro, 1107, United States v. 972 F.2d 1112 sion. Some appellant’s bribery the (9th Cir.1992), denied, U.S. -, cert. - implemented schemes were phony payroll 1350, (1993), 113 S.Ct. 122 L.Ed.2d 731 the (Cen- appellant’s checks to the brother-in-law any defendant was not sentenced for individ dejas) who not in did fact work for Saikhon. provision ual offense based on a Guideline Also, 1, 1989, after apart November from the that became effective after that offense was Cendejas checks, appellant continued to re- completed. Rather, the conduct for which ceive money interest from Saikhon. The appellant beyond was sentenced extended activity criminal included investment and re- provi the time when the relevant Guideline payment money promote order to Sai- sion became effective. See also United khon’s evasion of income taxes and enrich the (9th States v. 293 Cir. appellant. There was no error in utilizing 1991),where the defendant was sentenced on the provision enhancement for multiple completed individual counts for offenses fore the Guidelines became effective and we be occurring bribes after the effective date of the Guideline. held that the same losses should not be The same reasoning applies appellant’s to aggregated imposing separate, post- contention that the total loss under U.S.S.G. Guideline sentence. No such double count § 2F1.1 improperly was calculated so as to ing occurred here. post violate ex principles. facto The record Judge O’Scannlain’s dissent takes the view supports the district court’s conclusion that that conviction bribery on Count 3 could post-amendment there were losses. Thus not, law, as a matter have extended over a application the §of 2F1.1 appropriate. was period of time because bribery is not a “con- Appellant also contends tinuing offense.” Neither United States v. grouping of offenses that occurred both be Niven, supra, States, nor Toussie v. United fore and after the Guideline provisions vio 25 L.Ed.2d 156 lates the ex post Appellant facto clause. (1970), upon which the principally dissent argues that pre-Guidelines conduct al relies, a crime of bribery involved and are leged in Count was used in Count 3 to wholly inapposite. The bribery offense increase the offense level by fifteen. He government pleaded proved and argues that court “poured over” the loss began this case before the Guidelines went from Count 1 onto the penalty available for into effect beyond and extended well Count 3 in violation of post princi ex facto date. charged The crime was as follows: ples. Count 3 Here misinterpret Paragraphs 1 through ed the district court’s and sentence. The district through hereby 48 of Count I “pour realleged court did are not over” the loss from one incorporated and if Instead, count to reference as set another. the district court forth in full herein. correctly and separately pre considered the post-Guideline and conduct for each of the 2. Beginning at a time unknown to the counts. offenses grand were jury continuing up and to and in- in- minimize Report, continued tence the South- within eluding March court’s elsewhere, The district in the case. California, and volvement District ern SR., of re- MORALES, acceptance lack of A. determination ROBERT defendant clearly See official, knowingly and erroneous. not sponsibility did then receive, agree seek, accept, Daly, 974 corruptly United Cir.1992). of dollars of millions use to receive the being Saikhon, in return Mario appellant contends Finally, commit, committing, aid influenced princi protection equal district violated opportunities make in or allow collude him a member discriminating against ples, on United of frauds the commission him class, assessing against by of the middle things, setting is, among other States, that against Saikhon. than greater a sentence to assist designed up corporations sham sentencing dis that the Appellant contends payment of the evading in Saikhon Mario fact that Saikhon from the parity results Title taxes; of United in violation after sentence negotiate for a lower to able 201(b)(2)(B). Code, Section States of several millions pay a fine of agreeing to “continuing offense” of The doctrine in in the sentences The difference dollars. this a like to situation applicability has no upon based the calculations fact arises itself conduct charged criminal the

where Guidelines, includ specified in factors the the The doctrine of time. period over a extends of conduct absence appellant, this the ing, for that contended where play into comes responsi acceptance of an qualifying him for ended the defendant of conduct the actual justice, reduction, of bility his obstruction time. That past that continued crime but the There is public trust. his violation and government the by claimed situation was the defendant’s holding that the for no basis Su where the v. United in Toussie upon any way based in or fíne was sentence failing to of that the held crime preme Court class, if even membership in the middle his a not the draft was register for as him for status membership qualified such five-year limi extend the and did not class, it did not. suspect a of a member the no need for there is Here period. tation Williams, 397 U.S. Dandridge v. See argue that the defendant’s government 1160-63, L.Ed.2d 483-87, 90 S.Ct. he time that beyond the offense continued (1970). receiving illegal the and seeking stopped deal We thus bribery scheme. of his fruits AFFIRMED. charged proved and that prosecution with a a extended over in count scheme one O’SCANNLAIN, Judge, Circuit probably government The period of time. dissenting part: concurring part and multiple into the have divided scheme could majority opinion fails the I believe Because indictment counts, form of the the but impli- Ex Post Clause perceive the Facto case,1 and the in this an issue been never on imposed sentence of the enhanced cations facto post princi ex violate did not sentence Morales, respectfully dissent. I must ples. Mo- approach to majority’s Implicit in the objects to the district Appellant also length of his challenge to the rales’s him a grant two-level not to decision court’s committed, and actually idea that he is the responsibility. of acceptance reduction one, for, big ongoing offense. was sentenced guilty pleaded emphasizes that he Appellant the agree premise, I would with Given regretted the charges and early to some all of Morales’s majority’s If conclusions. family. The his done to he harm that had components can characterized be conduct many rejected of defen district offense, surely his then single of a assertions, out pointing factual dant’s date of effective after the occurred “offense” guilty pleas, his strung out the defendant more “involved 1989 amendments family to endure his members forced bribe,” application justifying one than and, in the Presen- trial, as noted difficult either. sufficiency challenge indictment not dissent does The 201.1(b)(1) section enhancement. Just as the nature substantive not surely, have there could been no error specific on the characteristics the con- lumping together by all the losses caused duct in the case at issue. assessing offense and them reference to Cir.1991) curiam) (per the November 1989 fraud loss table. added). (emphasis premise upon majority pro- The which the Contrary majority’s to the reasoning, it is clearly exposed ceeds becomes in its discus- dispositive not behavior out sentencing sion of the group on the formed of which Morales’s convictions arose was on- conspiracy, and Count going part single pattern illegal corruption, official which it refers to as “the dispositive conduct. What is is whether the bribery offenses”: pled substantive offenses to which guilty he offenses were of a con- in counts one and three are “continuing of- tinuing course of conduct that extended fenses” under the Toussie standard dis- beyond the effective date of the Guideline cussed Niven. provision applied by provi- the court. The sion was effect at the time the giving appli-

committed crimes rise to the of that provision. cation Guideline En- question There is no that “[cjonspiracy is a hancing penalties post-Guideline con- continuing Castro, offense.” United States v. duct on acts that occurred before the (9th Cir.1992). 972 F.2d 1112 A con- Guidelines run does not afoul of the ex spiracy presumed “is to continue until there post Here, facto clause. in as United is abandonment, affirmative evidence of with- Castro, States v. the defendant was not drawal, object disavowal or defeat of the any sentenced for individual offense based (citation omitted). conspiracy.” the Id. provision on a Guideline that became effec- conspiracy The charged against Morales in tive after that completed. offense was appears Count 1 ongoing to have been Rather, appellant the conduct for which before the effective date of the Guidelines beyond was sentenced extended the time through their amendment in 1989. Thus it provision when the relevant Guideline be- proper was to use the 1989 Guidelines in came effective. sentencing conspiracy charge. Morales on the (citations omitted). Op. at 917 not, however, This does that it mean was Alas, premise major- this is flawed and the necessarily proper to use the 1989 Guidelines ity dispute errs as a result. I do not the fact sentencing in everything charged Morales on that “the conduct for which Castro, under expressly we beyond sentenced extended the time when “rejected] government’s the claim that be- the relevant provision Guideline became ef- conspiracy beyond cause the lasted the effec- dispositive, fective.” But this fact is not tive date of the Guidelines ... all other irrelevant, precedents. indeed our under crimes committed conspiracy as of the In United States v. this court stat- should beyond be deemed to have lasted ed: date.” Id. continuing “[T]he doctrine of offenses applied only should be question in limited circum thus becomes whether brib- States, ery stances.” Toussie v. United corruption 397 or official defined 18 112, 115, 858, 860, 201(b)(2) § U.S. 90 S.Ct. 25 L.Ed.2d continuing U.S.C. is or is not a (1970). is, 156 An offense should not be offense under Toussie. If it then deemed explicit continuous “unless the lan properly treating district court acted all guage of the substantive criminal statute the Count 3 losses under the amended 1989 compels conclusion, not, such a or the nature of But if Guidelines. it is then the district the crime Congress involved is such that court sentenced Morales under the 1989 assuredly must have intended that be Guidelines for some crimes committed and treated as a one.” completed Id. As this before those Guidelines were clear, effect, passage analysis makes turns on with the result that Morales received final grant or up until denial have re- than he would a harsher sentence v. bankruptcy discharge, see United States at the time law as it existed ceived under (6th Percio, 1090, 1096 Cir. violating Ex Post Del of those offenses—thus 618(e), provides 1989); § which 22 U.S.C. Facto Clause. foreign agent of an the failure register “shall be consid as such nation II long for as as such offense ered requiring an interprets Toussie as Niven McGoff, exists,” v. see United States failure on the nature analysis that “turns (D.C.Cir.1987); F.2d 1071 conviction, and the offense” substantive 462(d), § tolls the start of the which U.S.C.A. that offense is statutory language failing limitations on the offense period of upon to exam- thus called are set forth. We create an register for the draft so as to 201(b)(2): § of 18 U.S.C. provisions ine the day an up until the that continues (b) Whoever — does, or, if registers, he never individual (2) person public official or se- being a long no twenty-six, and is thus day he turns official, directly or to be a lected register, required to see United er demands, seeks, re- indirectly, corruptly Cir.1988). Kerley, ceives, accepts, agrees or to receive or Neither, hand, this a stat- on the other anything personally or accept of value “clearly contemplates a language ute whose person entity, in return any other Toussie, 397 prolonged course of conduct.” for: Examples in at 863. at U.S. (A) perfor- being influenced may pun- category include statutes this act; any official mance of unlawfully “re- foreign ish: a seaman who (B) being to commit or aid influenced States, see United mains” in the United in, allow, committing, or to collude Cores, 405, 408, 356 States v. U.S. fraud, opportunity any or make (1958) (“the 875, 878, crucial 2 L.Ed.2d 873 fraud, any of on the United commission other permits no connotation word ‘remains’ States; or continuing presence”); deported alien a than (C) being omit to do induced to do or country, any in” this “is at time found who duty any of the official act violation Rincon-Jimenez, 595 States v. see United person; such official (9th Cir.1979) (“This lan- explicitly it a crime for an alien guage makes imprisoned ... or ... or shall be fined illegal country in this after an to remain both.... (dictum); recipient entry.”) or a of federal affecting his who “conceals” a fact benefits A right payment, see United continued clear that this is not a criminal It seems Payne, 978 F.2d States v. explicit language ... statute in which “the (dictum). Cir.1992) that the offense compels conclusion” [the] Niven, continuing is a one. 952 F.2d defined B Toussie). (quoting at 293 hand, whether the inquiry thus boils down to one this is not a statute On the 201(b)(2) a offense is expressly “nature” of section Congress which commanded assuredly Congress must have Ex- “such that that the offense be deemed to continue. continuing that it be treated as a § intended amples of such statutes are 18 U.S.C. (quoting Tous-s 952 F.2d at 293 says bankrupt’s one.” that concealment ie).1 continuing a offense” assets “shall be deemed 201(b)(2) continuing purposes of ... the be, government argues § a offense for con-

1. The templates quid pro quo part Logical may Sentencing a on the of the Guidelines.” Id. result, bribe, that, recipient a as a "where proscribes: precisely "the is what Toussie but it activity subject illegal ... that is the analysis on the nature of the substantive turns years, over a course of it is bribe continues specific characteristics of not on the continuing activity logical to treat this appears It prong crimes are nature of the Toussie test. The crime at generally offenses can identi- be issue Garcia kidnapping. Observing fied two interrelated characteristics. gravamen that the of the offense under the First, the commission of such crimes takes kidnapping federal statute was no different moment, place span not in a but over a law, what it had been at common id. at then-judge lucidly time. As Starr once ex- 344, we analysis endorsed the of the Califor- plained: nia Appeal: Court of “This is not a crime typically completed [A] criminal offense is where in one brief window of time the crime as soon as each element of the crime has is committed and perpetrator and victim example, larceny occurred. For a is com- go separate ways. Rather, their this is a pleted as soon as there has been an actual of continuing crime upon person, force taking property of another without minor, here a parents family while are consent, permanently with the intent kept in a constant anxiety.” state of Id. at deprive the owner of its use. The offense omitted). (quotation accordingly We does not “continue” over time. The crime concluded that the federal kidnap- crime of complete complete. when the act is A ping long “continues as as the victim is held.” offense,” contrast, “continuing is an un- Id. per- lawful course of conduct that does short, In generally it is the nature of a dure. ... example The classic of a con- (1) continuing offense that it involves an on- tinuing conspiracy. offense is going (2) course of conduct that causes a McGoff, United States v. long harm that lasts as as that course of (D.C.Cir.1987) (footnote omitted). Thus, the persists. conduct Although question distinguished Court in Toussie between of- perhaps one, close think principles these fenses that involve “continuing process” 201(b)(2) indicate that section and those that occur as “instantaneous statute does not define a offense. Toussie, events.” at 90 S.Ct. at displayed by 864. The other feature continu- point: essence, As to the first the stat- ing society offenses is that the harm done to proscribes ute demanding, seeking, receiving, through necessarily their commission contin- accepting, agreeing or to accept receive or a long ues on for as ongoing. as the crime is bribe. All these words describe instantane- Thus, Toussie observed that is in “[i]t acts, ous not courses of conduct. It is true conspiracy day’s nature of a that each acts requires the statute that the bribe be bring a renewed threat of the substantive made “in return for” some future influence Congress sought prevent” by making evil to discharge on the official’s of his duties. conspiracy a Similarly, federal crime. Id. However, whether that future event occurs the Court held in Bailey, United States v. absolutely or not is immaterial as far as 62 L.Ed.2d 575 201(b)(2) section is All concerned. that mat- (1980) escape a continuing is moment(s) things ters is the state of at the of part of continuing because “the to threat demanding, seeking, receiving, accepting, or society posed by escaped prisoner.” an Id. agreeing. 636; at 100 S.Ct. at see United v. (9th Cir.1989) Gray, point: This leads to the second Section (failure appear continuing is a 201(b)(2) penalize public does not a official “presents society because it a threat to performing an act he has been bribed to analogous posed by escaped pris- to that an perform, maintaining corrupt nor for a rela- oner”). tionship private with party. a this What explain office, These two punishes characteristics the hold- statute selling is one’s or Garcia, ing in holding United States v. 854 F.2d 340 Accordingly, it out for sale. I think (9th Cir.1988), (if very one of the Congress few cases the “substantive evil” intended this case) only not the that has deemed a federal statute to address is best described as the crime a betrayal offense under the public second trust. of conduct in the case at issue.” 952 F.2d at 293. did not constitute conduct way: society undeni- Morales’s criminal is another put

To it of several dis- single but consisted misfea- a offence by particular acts of ably harmed acts, I that the district crete believe part of on the nonfeasance or sance involved grouping Count when erred Society is also harmed public officials. conduct, with Count 3 corruption ongoing, pre-November whose it has officials beyond l’s for, paid and so enhance Morales’s bought and have been who years. five statutory sentence of maximum of their benefac- interest according to the act result, been Morales should have practical In opportunity arises. whenever tors level 33. 31 instead of however, they sentenced at level addition, perform if their even vacate and remand I thus would by soliciting accepting or Since properly, duties respectfully I dissent. resentencing, must they or would do suggest will officials bribes in and of itself also this otherwise —and intangible, The harm harm. done

causes undermining public of enough: the real

but

confidence, respect pride loss of simply cho- Congress institutions. our last kind “substantive address this of

sen to 201(b)(2). might have It section

evil” duty of individual derelictions

criminalized corrupt relationship, maintenance America, of UNITED STATES Instead, penalized the sale it did not. but Plaintiff-Appellee, office, betrayal public trust. RINCON, Defendant-Appellant. Hugo 201(b)(2) that section does thus believe When an offense. not describe No. 90-50491. pattern engages ongoing in an official Appeals, Court United States single seeking receiving bribes from a Ninth Circuit. did, source, apparently that does as Morales guilty “continuing” mean that he is not Dec. 201(b)(2) (or, for that of section violation matter, “continuing” of such viola- a series

tions). Instead, have been Morales could discrete, section

charged for each individual

201(b)(2) committed; but, he was violation he conduct, continuing nature not. WALLACE, Judge, Before: Chief

meanwhile, specific harm caused societal NELSON, TROTT, Judges. Circuit and T.G. having relation- by his maintained time, appropriately reflected court ship over is remanded to the district The case reexamining on 1 for con- separate purpose conviction for the limited remedy Congress spiracy. testimony offered admissibility expert That is the of the dealing con- light available for with the of Dauberb Mer made defendant Pharmaceuticals, Inc., somebody’s pock- tinuing being rell Dow (1993). -, L.Ed.2d 469 et. S.Ct. mandate, the complying with this district may hearings as hold such deems Ill appropriate and shall enter an appropriate, that, corrup- would hold because official rejection order, affirming previous either its 201(b)(2) not a continu- tion under section testimony taking such fur expert rights Ex under the ing Morales’s subject on that as its decision ther action Clause, Facto were when Post violated indicates. court enhanced Morales’s district 2Cl.l(b)(l) comply with this court shall points The district two under section time, no Further, but mandate reasonable Sentencing because within Guidelines.

Case Details

Case Name: United States v. Robert Morales, Sr.

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Dec 10, 1993

Citation: 11 F.3d 915

Docket Number: 92-50279

Court Abbreviation: 9th Cir.