UNITED STATES of America, Plaintiff-Appellee, v. Rajul RUHBAYAN, a/k/a Creme, a/k/a Kreem, a/k/a Day-Ja, a/k/a Deja, a/k/a Amir Ruhbayan, a/k/a Jibra‘el Ruhalamin, a/k/a Jibrael Ruhalamin, a/k/a James Vernon Wood, a/k/a James Vernette Johnson, Defendant-Appellant.
No. 04-4103
United States Court of Appeals, Fourth Circuit
Argued: Feb. 4, 2005. Decided: April 21, 2005.
402 F.3d 456
III.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
Before WILKINS, Chief Judge, and KING and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published opinion. Judge KING wrote the opinion, in which Chief Judge WILKINS and Judge DUNCAN joined.
OPINION
KING, Circuit Judge:
Rajul Ruhbayan appeals his multiple convictions and sentences in the Eastern District of Virginia for offenses arising from an obstruction of justice scheme in his earlier federal criminal trial. He makes several contentions on appeal, most notably that the district court erred in admitting evidence barred by attorney-client and work product privileges and the rules of evidence; in ruling that his conspiracy conviction was not defective under Wharton‘s Rule; and in enhancing his sentences on the basis of judge-found facts under the Sentencing Guidelines. As explained below, we reject each of Ruhbayan‘s challenges to his convictions. We vacate his sentences, however, and remand for resentencing pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and its progeny.
I.
The factual scenario underlying the convictions and sentences on appeal relates to Ruhbayan‘s scheme to have his former girlfriend, Yolanda Goodman, testify falsely during his September 2000 trial in the Eastern District of Virginia on drug trafficking and firearms charges (the “First Trial“). Following the First Trial, Goodman cooperated with the Government and provided evidence against Ruhbayan. As a result, Ruhbayan was indicted in February 2002 for five additional offenses arising from his obstruction of justice scheme. This indictment resulted in Ruhbayan‘s “Second Trial,” and the convictions and sentences from which this appeal ensues.
A.
On August 25, 2000, Ruhbayan was indicted for multiple felonies, including being a felon in possession of a firearm, in contravention of
In response to the Government‘s evidence, Ruhbayan presented the testimony of three witnesses, including himself and Goodman. In his defense, Ruhbayan admitted that he was a convicted felon, but denied that he was a drug dealer and had ever possessed or used firearms, including the pistol recovered from his van. Goodman testified on Ruhbayan‘s behalf that she was his girlfriend, that she had often been to his home, and that she had never seen him with either drugs or firearms. Importantly, she admitted that she was a convicted felon and had placed the pistol in the van without Ruhbayan‘s knowledge. Thereafter, the jury in the First Trial convicted Ruhbayan on two lesser-included
B.
1.
On February 2, 2001, Goodman was indicted by the grand jury, apparently as the result of her testimony in the First Trial. She was charged with being a felon in possession of a firearm and ammunition, in violation of
testified falsely [in the First Trial] that she had possessed the firearm and ammunition and that she had placed them in Ruhbayan‘s vehicle without his knowledge on or about April 14, 2000, in Suffolk, Virginia, when she knew in fact that she had never possessed the firearm and ammunition, had never placed them in Ruhbayan‘s vehicle, and was testifying falsely as requested by Ruhbayan in order to assist him in misleading the jury....
Goodman also agreed to testify against Ruhbayan in any subsequent trials, and she provided the Government with more than fifty letters he had written to her while awaiting his First Trial. In the letters, Ruhbayan first directed Goodman to find a non-felon to testify falsely for him by admitting possession of the pistol, and he eventually convinced Goodman to lie on his behalf about placing the pistol in his van.
On February 12, 2002, the grand jury returned a five-count indictment against Ruhbayan for the events relating to Goodman and the First Trial, charging him with (1) conspiracy to commit perjury and obstruct justice, in contravention of
2.
In Ruhbayan‘s Second Trial, the prosecution introduced the testimony of seven witnesses. As the district court observed, however, the prosecution‘s most important evidence was Goodman‘s testimony and the letters Ruhbayan had written to her prior to his First Trial. See United States v. Ruhbayan, No. 2:02cr29, slip op. at *4 (E.D.Va. Feb. 3, 2004).2 Goodman testified in the Second Trial that her testimony in the First Trial had been false, that she had never possessed the pistol recovered from Ruhbayan‘s van, that she had observed Ruhbayan with firearms on several occasions, and that he had been engaged in substantial drug trafficking activities. She also testified to Ruhbayan‘s mental and physical abuse, e.g., that Ruhbayan prohibited her from answering the door of their residence, required her to wear Muslim headdress and garb, pushed her off the porch, and beat and choked her. In addition, lawyer Melton testified that Ruhbayan had inquired before trial into possible sentences, under federal and state law, for possession of a firearm as a convicted felon, and that Goodman had contacted Melton about testifying for Ruhbayan in the First Trial, asserting that the pistol found in his van belonged to her.3 Several police officers from Martinsville and Suffolk also testified to Ruhbayan‘s possession of cash and cocaine, their discovery of the pistol in the van, and their subsequent execution of a search warrant for his home and the recovery of multiple firearms, drug resi-
Ruhbayan testified in his own defense in his Second Trial, maintaining, as he did in the First Trial, that the pistol found in the van was not his. He asserted that, by his letters to Goodman, he only sought to have her testify truthfully and that much of his language was an attempt at rap lyrics. On October 24, 2003, the Second Trial jury returned a guilty verdict on all five counts. Ruhbayan then sought judgment of acquittal and a new trial, which the district court denied on February 3, 2004. See United States v. Ruhbayan, No. 2:02cr29 (E.D.Va.).
3.
On February 4, 2004, the court conducted Ruhbayan‘s sentencing hearing. In determining Ruhbayan‘s sentencing range, the court enhanced his offense level by four levels for his leadership role in an “otherwise extensive” crime under
Ruhbayan‘s Presentence Report (the “PSR“) recommended a total Offense Level of 34 and a Criminal History Category of III, resulting in an applicable sentencing range of 188-235 months. Both Ruhbayan and the Government filed objections to the PSR: Ruhbayan contended, inter alia, that he should not receive a two-level enhancement under
Ruhbayan has filed a timely notice of appeal, and we possess jurisdiction under the provisions of
On appeal, Ruhbayan raises multiple contentions of error as to his convictions and sentences. First, he maintains that the trial court erred in admitting the testimony and work product of his former lawyer, and in its admission against him of prior bad acts evidence.7 He next contends that the court erred in failing to dismiss the conspiracy charge under the doctrine known as Wharton‘s Rule, as explained by the Supreme Court in Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975) (discussing history and application of Rule). In challenging his sentences, Ruhbayan maintains that they should be vacated pursuant to Booker, 125 S.Ct. 738. Alternatively, he asserts multiple sentencing errors, most significantly challenging the court‘s application to him of the leadership role enhancement under
A.
1.
In challenging the evidence admitted against him in the Second Trial, Ruhbayan makes, inter alia, two separate contentions. First, he contends that the court erred in concluding that the testimony of his former lawyer and the admission of letters written by Melton to Ruhbayan, see supra note 3, fell within the crime-fraud exception to the attorney-client and work product privileges. See United States v. Ruhbayan, 201 F.Supp.2d 682 (E.D.Va.2002); see also Ruhbayan, No. 2:02cr29, slip op. at *14-15 (E.D.Va. Feb. 3, 2004). In assessing such a contention, we review a trial court‘s factual findings for clear error, and we review its application of the legal principles de novo. In re Grand Jury Subpoena, 341 F.3d 331, 334 (4th Cir.2003). However, we will not, “absent a clear showing of abuse of discretion,” vacate the trial court‘s determination that the prosecution made a prima facie showing of the defendant‘s crime or fraud. In re Grand Jury Subpoena, 884 F.2d 124, 127 (1989). In light of the evidence on the crime-fraud point, particularly Ruhbayan‘s letters to Goodman and her testimony about contacting his lawyer, the court‘s finding that Ruhbayan had used his attorney to dupe the court and jury at the First Trial was not clearly erroneous. As a result, the court did not err in authorizing the prosecution to present Melton‘s testimony and three of his letters to Ruhbayan in the Second Trial.
Second, Ruhbayan maintains that the trial court also erred in permitting the prosecution to introduce evidence of his prior bad acts, including allegations of physical abuse against his former girlfriends. See Ruhbayan, No. 2:02cr29, slip op. at *13, 15-16 (E.D.Va. Feb. 3, 2004). We review such evidentiary rulings for abuse of discretion. See United States v. Godwin, 272 F.3d 659, 670 (4th Cir.2001). In so doing with respect to these contentions, we perceive no error in the court‘s admission of evidence relating to Ruhbayan‘s prior drug traffick-
2.
Ruhbayan next contends that the conspiracy charge lodged against him should have been dismissed, and that his conspiracy conviction should be vacated, because that charge is barred by Wharton‘s Rule. We review this contention de novo. See United States v. Castro, 887 F.2d 988, 996 (9th Cir.1989). Generally, a conspiracy to commit an offense and the actual commission of the offense constituting the object of the conspiracy do not merge into a single punishable act, and a defendant—or multiple defendants—can be prosecuted both for the conspiracy and for the substantive offense which was the conspiracy‘s object. United States v. Walker, 796 F.2d 43, 46 (4th Cir.1986). By Wharton‘s Rule, however, the courts have created a judicial exception to this proposition. Id. Under that Rule, “[a]n agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission.” Iannelli v. United States, 420 U.S. 770, 774 n. 5, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975) (quoting 1 R. Anderson, Wharton‘s Criminal Law and Procedure § 89, p. 191 (1957)). Thus, a person cannot, under Wharton‘s Rule, be prosecuted for conspiracy to commit such offenses as adultery, incest, bigamy, or dueling—the classic Wharton‘s Rule offenses—“since the substantive offense necessarily requires concerted criminal activity.” Walker, 796 F.2d at 46 (citing Iannelli, 420 U.S. at 782).
Ruhbayan contends that his convictions for witness tampering and subornation of perjury required the participation of at least two persons, thus precluding an additional conviction for conspiracy. Specifically, he asserts that the conduct punished by the subornation of perjury and witness tampering charges, and the conduct sought to be reached by the conspiracy charge, was sufficiently congruent to be barred by Wharton‘s Rule.
As the district court ruled in denying judgment of acquittal on Ruhbayan‘s conspiracy conviction, however, Wharton‘s Rule is inapplicable in the circumstances of this case. See United States v. Ruhbayan, No. 2:02cr29, slip op. at *8-9 (E.D.Va. Feb. 3, 2004). In Iannelli, the Court observed that Wharton‘s Rule is aimed at activities where “the immediate consequences of the crime rest on the parties themselves rather than on society at large.” 420 U.S. at 782-83. Here, as the trial court aptly observed, the immediate consequences of Ruhbayan‘s witness tampering and subornation of perjury crimes fell on society at large and on the criminal justice system itself, rather than on Ruhbayan and Goodman only. See Ruhbayan, No. 2:02cr29, slip op. at *9; see also, e.g., Unit-
B.
Turning next to Ruhbayan‘s sentencing contentions, we first examine, in light of the Supreme Court‘s recent decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), his assertion that his sentences violated the Sixth Amendment. Next, we assess the propriety of the contested sentencing enhancements. As explained below, Ruhbayan is entitled to resentencing under Booker and, in these circumstances, the four-level enhancement for his leadership role in the obstruction of justice scheme was improperly applied.
1.
Ruhbayan raised a Sixth Amendment challenge to his sentences for the first time on appeal. We are thus obliged to review that contention for plain error only, applying the principles of United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). See United States v. Hughes, 401 F.3d 540, 547-48 (4th Cir.2005). The plain error mandate of Olano is satisfied if: (1) there was error; (2) it was plain; and (3) it affected the defendant‘s substantial rights. 507 U.S. at 732. If these conditions are met, we may then exercise our discretion to notice the error, but only if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. (citation and internal quotation marks omitted).
First, the sentencing court‘s imposition of a life sentence on Ruhbayan for witness tampering, plus three sixty-month concurrent sentences for conspiracy, perjury, and suborning perjury constitutes constitutional error under Booker. See 125 S.Ct. at 746 (holding that Sixth Amendment contravened when sentencing court, acting pursuant to Guidelines, imposes sentence greater than maximum authorized by facts found by jury alone). At sentencing, the court, inter alia, increased Ruhbayan‘s offense level by four levels, applying the
Second, the court‘s sentencing error was plain, because “‘the law at the time of trial was settled and clearly contrary to the law at the time of appeal.‘” Id. (quoting Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). Third, the error affected Ruhbayan‘s substantial rights, in that it “‘actually affected the outcome of the proceedings.‘” Id. at 548 (quoting United
Finally, we are obliged to exercise our discretion to notice the error with respect to Ruhbayan‘s sentences. As a result of the error, Ruhbayan was sentenced to a total term of imprisonment greater than that authorized by the jury verdict, seriously affecting “the fairness, integrity or public reputation of [the] judicial proceedings.” Olano, 507 U.S. at 732; see also Hughes, 401 F.3d at 555-56. Furthermore, we have no indication as to what sentences the court would have imposed absent its impermissible fact-finding, in that its successive calculations, including the upward departure under
2.
Under the first step of the Booker remedial scheme, a sentencing court must determine the range prescribed by the Guidelines after making any necessary findings of fact. See Hughes, 401 F.3d at 556-57. As a result, the calculation issues raised in this appeal are likely to arise in the district court on remand. See id. We therefore briefly address Ruhbayan‘s most significant sentencing contention, that the sentencing court improperly applied a
Section
In this situation, however, the jurors in the First Trial were the objects of Ruhbayan‘s criminal scheme to obstruct justice, and they could hardly have been involved in the commission of the offenses. For that reason, this situation is readily distinguishable from that underlying United States v. Ellis, 951 F.2d 580 (4th Cir.1991) (Powell, J.), upon which the sentencing court relied. Ellis involved a scheme to corruptly secure the passage of legislation in West Virginia. Although the corrupt
III.
Pursuant to the foregoing, we affirm Ruhbayan‘s various convictions, but we vacate his sentences and remand for such resentencing proceedings as may be appropriate.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
Notes
The letters laid out a blueprint for Goodman to follow upon being convinced to testify that she placed the pistol in the van, including instructions on who to contact and what to say. Ruhbayan also told Goodman that other witnesses should be contacted to testify to his “none association” with guns or “coke.”once the right person is found to claim the gun then the lawer can really guide us. It‘s that simple.
We need to find a person for the gun, Think who would or could be possibilities, find out who doesn‘t have felonies. Its that simple....
I need a non-felon. I need it now. There are thousands upon thousands of people in Suffolk without felons.
Baby all I really have aginst me is a gun. Once you claim the gun; then we go to court. On the court date; they will drop the charges against me. & may may not pick them up on you.
Tell my lawyer that you are calling for Rajul Ruhbayan. That you would like to confess to the gun found in my van stuffed between the rear seat back cushions. That the gun is all black & that it did have some bullets in it..
As for the gun. Since I had no knowledge of it being in the van or you having it you are basically free to say what you want on how you got it.
Me doing 5 to 8 years doesn‘t help. You doing 18 months shows your real.