United States v. Turner

plea anyway though even the information America, Appellee UNITED STATES of robbery. the violent crime of proper speculate Is it about what could plea during proceed have occurred TURNER, Appellant. Peter R. My say yes. The

ings? colleagues Su No. 07-3107. says preme Shepard no. of Appeals, States Court L.Ed.2d 205 holds the “details District of Columbia Circuit. generically charging of a limited document any By “gener Argued Sept.

would do sort of case.” ically limited” the Court meant limited to Decided Dec. the violent offense contained in the statute.

By any sort “would do of case” the case, plea

Court meant that in a an infor charging only

mation the violent offense is

enough to show that the defendant com plurality

mitted a crime of violence. A point: Court reiterated the “without a

charging document narrows limits,

charge generic only certainty generic finding

of a lies in” the supplemen plea

tal records. S.Ct. 1254

(plurality opinion). charging But with a

document that charge narrows the to a violence,

crime of lim court’s inquiry

ited is at an end. See id. at (majority opinion).

S.Ct. 1254 majority imagines nevertheless having change

defendant a last minute

heart pleading something that was charged.

not logical Taken to its conclu-

sion, majority’s position generates a document,

new charging rule: no however

precise, can suffice to show that defen- pled guilty

dant to a crime of violence underlying

when the statute covers violent Shepard rejects non-violent crimes.

such a rule.

I therefore dissent.

RANDOLPH, Judge: Circuit appeal from a main issue in this trial, conviction, after a is whether defendant, Peter imposed sentence Turner, Ex Post Facto R. violated the of the Constitution. U.S. Const. Clause I, question § raises the art. 9. Turner also established his prosecution whether a doubt. The evi- guilt beyond reasonable verdict, dence, viewed favor evidence shows that there sufficient conviction. support his serving as a volunteer In while Af- Department of Veterans driver for Center, up struck a Turner fairs Medical Mayo, a relationship with Vester romantic Vester died nurse at the Medical Center. had taken out in December She federally- policy through life insurance beneficiary program. Her administered form, person- in her designation contained mother, file, Turner and her nel listed In Mayo, as Lorenza co-beneficiaries. a claim for his January Turner filed benefits and of the life insurance share market account money later received $20,562.90. valued claim, her Lorenza exam- preparing court, Luk, by the ar- appointed Arthur and concluded daughter’s papers ined her him on appellant. the cause for With gued beneficiary designation form that Vester’s Woods, appoint- Michele J. the briefs was The dates on the forgeries. contained the court. by inconsistent, name Lorenza’s form were Sullivan, Attorney, U.S. De- Vester’s misspelled, P. and address were Edward Justice, was incorrect. security the cause for number argued social partment authori- reported Daniel A. this to federal were Lorenza On the brief appellee. Attorneys. Brickley, ties. and Ann C. Pétalas III, Attor- McLeese Assistant

Roy W. revealed ensuing investigation ney, appearance. entered his life insurance shortly obtaining after $1,000 check from wrote payout, Turner RANDOLPH, ROGERS Before: friend, LaTanya An- his proceeds to TATEL, Judges. Circuit payroll technician Andrews was a drews. had worked Medical Center. She at the filed Circuit Opinion for section, which housed the human resources Judge RANDOLPH. located and was personnel files employees’ A payroll section. area as Judge in the same by Circuit Dissenting Opinion her in No- interviewed agent TATEL. vember 2005. At first Andrews said punishment she crease the for a crime its Jones, never received more than Tur- from commission.” $10 Garner agent ner. When the showed her the 146 L.Ed.2d 236 $1,000 (2000). check, she claimed Turner When Turner received his share of prove wrote the check to to a car dealer- the proceeds Mayo’s of Vester life insur 2001, ship checking policy she had a account. ance in the Guidelines set the agent When told her this made no base offense level for to de sense, Andrews said she borrowed the fraud the United States at 10. A 2004 money from purchase Turner to a car and amendment to the Guidelines increased him repaid sometime before March 2001. the base offense level for 14.1 his crime to Agents nothing found in Andrews’s bank This was the base level the 2006 Guide support records to her claim. lines the district court used when sentenc ing Turner in September 2007 to 33 grand jury charged The Turner and An- . imprisonment it, months’ As Turner sees drews with conspiracy to defraud the Unit- the district court violated the Ex Post States, 371, § in violation of 18 U.S.C. by applying Facto Clause the later edition bribery, and in violation of 18 U.S.C. thereby Guidelines and increasing 201(b). § Evidence a reasonable his range Guideline from 21-27 months to could credit showed that signa- Vester’s 33-41 months. Unlike his co-defendant beneficiary ture on the form had been Andrews, Andrews, see 532 F.3d at forged, that easy Andrews had access to preserved Turner this issue making personnel Vester’s containing file the ben- proper objection at sentencing. form, eficiary Lorenza Tur- saw forge ner her daughter’s signature on two government counters that the con- checks. The jury convicted both defen- spiracy through continued An- when dants on both counts. On sepa- Andrews’s investigators drews lied to the in order to appeal, rate we affirmed her conviction. conceal her role and Turner’s role in the Andrews, United v. 532 F.3d 900 fraud. Because the base offense level for (D.C.Cir.2008). We now affirm Turner’s. Turner’s when he committed 2005) (through offense was the same as court, A sentencing applying the the Guideline base offense level when he Guidelines, Sentencing must “use the (2007), was sentenced government says Manual Guidelines on effect the date post there is no ex problem. facto that the defendant is sentenced” unless the court determines that this would argument violate Turner’s govern and the the Ex Post Facto Clause of the Constitu ment’s answer require us to determine the tion, CONST, I, 9,§ art. in which case duration of the conspiracy him between the court “shall use the Guidelines Manual Typically, Andrews. questions about in effect on the date that the offense of when a ended arise cases in conviction was committed.” U.S. SENTENC which the defendant raises a statute of § 1B1.11. defense, The Ex limitations as Grunewald v. ING Guidelines Manual Post Facto Clause States, bars the ap retroactive United plication of (1957), “enactments which ... in L.Ed.2d 931 or in which the defen 1. The imposed two-point amendment public in- official under the amended Guidelines. crease in the offense level for a defendant Because we hold that the Ex Post Facto “public who is a official.’’ See U.S. Sentenc- required Clause the court to use the 2000 ing § 2C1.1 Guidelines Manual Guidelines, the repeated error will not be government concedes that the district court remand. erred when it determined that Turner awas Hitt, v. 249 F.3d ed States 1015-16 coconspirator’s state objects that a dant made (D.C.Cir.2001), it was not hearsay upon govern because which the ment conspiracy, ongoing of an in furtherance relies, simply strings together cita States, 336 U.S. in Krulewitch It from the cases. quotations tions and L.Ed. not, not, disagree does indeed Lutwak Lutwak. Grünewald (1953). Even 97 L.Ed. the duration must determine though we says proved it But the in a different context —sen conspiracy continuing just those cited such as tencing —cases of his fraud year reaped Turner the results controlling. $1,000 help. her for paid Andrews says conspira government The of government’s The evidence consisted the 2005 through because cy continued in 2005. investigators to lying Andrews’s the object that one of alleged indictment or had the conspiracy this of the part Was conspiracy the was “to conceal conspiracy The by then? indict conspiracy ended in further the acts committed itself and allege, government did not and the idea is government’s The ance thereof.” any express agreement be prove, did not the is language of indictment that “the and Andrews conceal tween Turner at If this is Br. 30. controlling.” Gov’t they pocketed the their after had offense look to mean that one need supposed might reason that be proceeds. Yet one the dura to determine at indictment the except cannot function conspiracy cause a is conspiracy, the tion of to avoid secrecy, agreement in detection an in Lut The indictment mistaken. quite theory plausible, but implicit. The is was 617, 481, wak, at 73 S.Ct. 344 U.S. in Lutwak and again across in transport a woman Krulewitch conspiracy to prostitution, purpose Supreme lines for the in again state once Grünewald in case'— the indictment and—like every “that in rejected part concealment of the crime alleged agreement conspiracy implicit there is Supreme Court conspiracy. Yet the conspirators for the part as a thereof did continue not held that conspiracy.” collaborate to conceal in The transportation occurred. after 616, Lutwak, at 73 S.Ct. 344 U.S. charged that “one in dictment Grünewald here is identical government’s position agreement was illegal of the terms “a it took in Grünewald: position to the made ‘to continuing efforts would be that being implied from conceal is conspiracy to by any prosecution avoid detection virtually in present will be elements which ” body.’ United governmental is, ease, secrecy plus every conspiracy (2d Grunewald, 556, Cir. F.2d 565 233 at 353 acts concealment.” U.S. overt 1956). Court held Yet the enough to 404, If this were 77 S.Ct. acts of concealment conspirators’ accomplish alive after keep conspiracy had object of the the central objects, the statute of central ment of its life not accomplished did extend until the con never run limitations would Grunewald, conspiracy. conviction, death, confession. spirators’ 963; S.Ct. see Forman 77 theory,” government’s “Sanctioning 416, 423-24, 80 Grunewald, 353 in U.S. the Court held overruled on 4 L.Ed.2d practical for all “would States, 437 by Burks v. United grounds out the statute limita purposes wipe 57 L.Ed.2d U.S. cases, as extend as well tions opinion this court’s Unit portion indefinitely hearsay the time within which agreement implicit, explicit, not declarations co-conspirators.” will bind Grunewald, every conspiracy. See 403-04, 963; Lutwak, U.S. at

Nothing we have written thus far is 481; Krulewitch, U.S. at Forman, inconsistent with U.S. at 69 S.Ct. 716. charge 80 S.Ct. 481. The main a conspiracy Forman was to evade income murky However just the distinction taxes. The Court seemed to agree—the mentioned, it is one that is of no conse- opinion is a opaque point bit on this —that quence discussed, in this case. As we have “subsidiary conspiracy” to conceal the only possible way an agreement to find conspira would not extend the between Turner and Andrews to conceal cy’s life. But the court added their conspiracy is to infer its existence conspiracy” “essence of the to evade taxes from Andrews’s encounter with the agents concealing income and be successful in 2005. That puts squarely the case with- concealing had to continue until the in the Krulewitch-Lutwalc-Grunewald 420, 424, statute of limitations ran. Id. at pattern and leads to the conclusion that Thus, 80 S.Ct. 481. a could have conspiracy the did not continue after 2001. found conspiracy that the in Forman con disagree We therefore tinued even the district after the tax returns were filed, it court’s ruling but could not base finding contin- subsidiary some conspiracy to through conceal the ued January 2006. main conspiracy.2 admit that We the For- brings This us to question the whether man line ais bit elusive. Grünewald itself sentencing Turner under the newer Guide- is not all that clear. The Court Grune- lines violated Ex the Post Facto Clause. wald hinted —but did not hold—that the The Guidelines in yielded effect might there have been extend sentencing range for Turner of 21 to 27 if, implied rather than an agreement, months’ imprisonment. Under the later express

there had been “an original agree Guidelines the district court came up with among the conspirators to continue a sentencing range of 33 to months. to act in concert order to up, cover for disparities These render Turner’s case their self-protection, own traces of the analogous Florida, to Miller v. crime after its commission.” 353 U.S. at 423, 424, 107 S.Ct. 96 L.Ed.2d 351 963; Pyramid see Secs. Ltd. Miller, In the Resolution, Inc., “pre- IB defendant’s v. 924 F.2d (D.C.Cir.1991). sumptive sentence” under the Florida The distinction between guidelines in “express” effect agreement when he committed to conceal and one the that is offense was easily justified— years’ imprisonment. inferred is not so to3% % By both would indefinitely have the effect of the time the court sentenced the defen- extending and, dant, the period limitations revisions in the guidelines state’s had recognized, the Court such a subsidiary presumptive increased his sentence to &h trying course, squeeze to this case into the For- got money, after Turner disclosure framework, that, man the dissent asserts "rightful” beneficiary of the would have done "essence” of the here was conceal- him and extending Andrews in. But the life ing "rightful” beneficiary’s identity. That of a exactly on that basis is what exceedingly is an odd formulation. One Supreme Court refused to do in Grüne- thought would have that the "essence” or wald and Lutwalc and Krulewitch. theAll objective getting main was hold of the insur- managed dissent has many in so words is to proceeds. ance Of course Turner and An- restate the reject. same those decisions detection, drews wanted to avoid and of judges after Booker district trial court One was imprisonment. years’ to 7 impose to sen “unfettered” freedom Supreme have sentence. The 7-year imposed range con- guidelines the newer tences outside held that pre law because not post range an ex sentences within stituted facto “substantially Demaree, disad- defendant had sumptively reasonable. 2446. It vantaged.” Id. new second was F.3d at that the defendant say no answer of an not be used because Guidelines sentence the same received might have judges district problem, post ex facto guidelines. version under old by saying problem get would around trial Florida Id., 2446. While the account the they just taking into were presump- give was not bound court to the new Guideline. information that led give sentence, court’s discretion tive limited, and quite sentence was a different reason, we re second to Demaree’s As in the change matter the practical so as a judges will misre district ject the idea that sen- defendant’s increased guidelines actions. basis for their the true present Graham, 450 Quoting Weaver tence. reason, first As to Demaree’s 67 L.Ed.2d U.S. appellate confirmed that Court has since that the new concluded the Court of reason may presumption apply courts pun- “more onerous guidelines made calcu court sentence ableness to district before committed for crimes ishment conformity with Guidelines. lated in Miller, enactment.” [their] Rita v. United system, 435,107 2446. In the federal (2007); 2456, see L.Ed.2d 203 168 S.Ct. Miller to relied on appeals of the courts 366, Dorcely, 454 F.3d 376 United States v. Guideline post-offense applying hold (D.C.Cir.2006). result, judges are As Post Facto violate the Ex would revisions the Guide likely to sentence within more a defen- revisions increased Clause scruti avoid the increased lines in order to United sentencing range. See dant’s imposing a likely to result from ny that is 1380, Seacott, F.3d 1384-86 15 v. States See, e.g., the Guidelines. sentence outside cases). Cir.1994) (7th (collecting Davis, Mandato & J.P. C. Mullen Graham Miller, has Supreme Court Since Oxymoronic State The ry Guidelines: of Sentencing Guide federal rendered Booker, v. United States Sentencing After v. only. United States advisory lines (2007). hardly It is Rich. L.Rev. 625 41 U. 738, 220, 160 Booker, 543 U.S. fall most federal sentences surprising that (2005). The Circuit 621 Seventh L.Ed.2d after Book ranges even within Guidelines post the ex alters Booker believes facto indeed, of Booker impact actual er— Demaree, v. States analysis. See United minor. See United sentencing has Cir.2006). (7th The F.3d 459 Sentencing Commission, Final Re States ex “that concluded appeals court V. STATES OF UNITED THE IMPACT PORT ON laws only to apply should facto post clause (2006); Sentenoing 57 Booker on Fedebal than ad bind regulations that rather Sentencing Commission, Fi United States ref vise, well established a principle YEAR FISCAL DATA REPORT nal QUARTERLY retroac parole guidelines whose erence (2008). appli Practically speaking, 2007 1 the ex challenged under application tive provide Sentencing Guidelines cable Garner, 529 (citing post facto clause.” judges and “anchor” for starting point 1362; 251, Cal. 120 S.Ct. U.S. judges the sentences likely to influence 499, Morales, U.S. v. 514 Dep’t Corr. Settles, 530 impose. See United 1597, L.Ed.2d 588 509, 131 (D.C.Cir.2008); Stepha 920, 923-24 F.3d (1995)). reasons. gave two The court 1100 Bibas,

nos Plea Bargaining Outside the to home confinement because of his medi- Trial, Shadow 117 Harv. L.Rev. cal condition. On remand the district (2004); Demaree, 2515-19 see also 459 court will of course consider Turner’s med- at 792. F.3d ical condition itas exists at time of resen- tencing. addition, under law of this So circuit the existence of ordered. discretion does not claim, foreclose an post ex as Demar- facto TATEL, Judge, Circuit dissenting in supposed. ee controlling “The inquiry,” part: we held in Reilly, Fletcher v. 433 F.3d (D.C.Cir.2006), parole Although is how the au I my colleagues’ share con- thority “exercises discretion in practice” implications cerns govern- about and whether “exercise[s] ... discretion ment’s I argument, cannot easily so dis- actually ‘create a significant [ ] risk pro States, miss Forman v. United ” longing [an inmate’s] incarceration’ S.Ct. L.Ed.2d 412 Garner, (quoting U.S. grounds by overruled on other Burks v. 1362). proper approach is therefore to conduct an “as applied” constitutional L.Ed.2d 1 Miller, analysis, see In Forman Court consid- 2446, not the analysis sort of facial ered whether the applicable six-year stat- conducted Demaree. When the district ute of limitations barred the court sentenced Turner to 33 im months’ from prosecuting a tax evasion prisonment, it pull did not number out years seven after the filing of the last air. thin Turner’s range un fraudulent tax return. conspirators der Guidelines then in effect 33-41 were two partners pinball in a machine months, see U.S. Guidelines SENTENCING business who robbed the machines at the Table, Manual, Sentencing or so the court locations, most profitable concealed the thought. It is obvious that the court de money from the location owners who were cided to sentence Turner at the low end of cut, entitled to and a omitted the “holdout the 2006 Guideline sentencing range. Had income” the partnership’s from books and Guidelines, the court used the 2000 Tur Forman, tax returns. 361 at ner’s range been would have time, S.Ct. 481. At the same Forman’s months, 21-27 and it likely is that Turner’s partner, Seijas, business kept re- diaries sentence would have been than less cording his purloined share of the profits months. Turner did not to have show paid but no individual income tax on them. definitively that he would received a have Id. at 80 S.Ct. 481. The indictment sentence had lesser the district court used charged partners with conspiracy to Miller, 2000 Guidelines. See 482 U.S. Seijas’s evade individual income taxes and at 107 S.Ct. 2446. It enough that provide to false statements to the Trea- using the 2006 Guidelines a sub created sury Department to conceal stantial his in- risk that true Turner’s sentence was liability. come tax severe, Id. at more resulting thus S.Ct. 481. in a violation juryA Ex partners of the Facto convicted the Post Clause. See id. at both counts. S.Ct. 2446. Id. appeal We therefore must On for resen- the Ninth Circuit remand acknowl tencing. rejected edged We have considered and record evidence that Forman partic Turner’s arguments, including ipated in his conspiracy a Seijas’s evade claim that he should have taxes, sentenced income that he made false state that the indict- the Court concluded the six the evasion within concealing ments indictment, supported immediately prior alleged and evidence years in holdout evasion, that concealment tax continuing conspiracy” “one his dia Seijas until turned continued held, words, come the Court id. In other just agents before to federal over ries years until conspiracy could continue seven Forman v. Unit the indictment. filing filing of the last fraudulent tax after (9th Cir. F.2d 133-34 acts of return because the concealment 1958). had been finding that the case But objective. conspiracy’s very furthered the theory foreclos jury on a to the submitted Indeed, rec- even the Grünewald Court States, namely ed Grunewald conspiracy that a could extend ognized to conceal subsidiary conspiracy that “a manner, though gov- it found that the implied from circumstantial may ... be on such a theo- proceeded ernment hadn’t conspir merely that the showing evidence ry in that case. There Court stated secret,” 391, 402, acy kept in further- that “acts of concealment done it re 1 L.Ed.2d 931 objectives criminal ance of the main Forman, 259 F.2d the conviction. versed conspiracy” prolong the be- can however, the rehearing, On 134-35. accomplishment of the cause “successful -with the agreed Ninth Circuit concealment”; by crime necessitates con- alternative permissible that a conviction, trast, it for a done after so remanded “acts of concealment support States, 261 objectives trial. Forman have been at- new these central Cir.1959). (9th Specifically, F.2d tained, covering purposes for the that the overt acts it concluded crime,” prolong cannot up indictment before the six-year period conspiracy. Id. well have been furtherance “could that this suggested Grünewald the as its ob conspiracy having during scope on the may turn more distinction conspir concealment of the jective not the alleged proven to the tax itself. conspiracy but evasion” ators’ acts of particular than on the conceal- Thus, disagreed although the Court ment. affirmed, agreeing Supreme Court to obtain concealing that acts attempt government could prosecu- barred rulings temporarily trial that prove a new conspira- furthered the for tax evasion tion last fraud- years seven after the continued ob- cy beyond date the defendants Forman, tax return. ulent emphasized it rulings, tained the 422-24, Critically for our 80 S.Ct. 481. the very conspir- could continue same acts on the exis- the Court relied not purposes, tax objective were to evade liabili- acy its “subsidiary conspiracy” between of a tence simply to ob- rather than ty permanently years to con- ensuing in the partners the rulings. temporary no-prosecution tain crime, but already-completed ceal their Indeed, 408-11, 77 S.Ct. 963. See id. at tax eva- possibility the rather on the defendant’s convic- the Court reversed until that continued sion itself this it doubted that sec- only tion because fraudulent filing the of date. Id. Because objectives conspiracy’s the ond of step in the “but the first tax returns at jury. the had submitted 423-24, evasion,” at of id. process 963. be partners would and because Forman’s, relevance, this Dismissing objective until the achieve their unable before us the case court concludes longer collect taxes could no government line of in cases income, fall the Grünewald at 80 S.Ct. must id. on the withheld because possible way “the proceeds find insurance properly distribut- agreement ed, between Turner and Andrews authority as well as wrong- to recover to conceal their is to infer its ful government distributions. The also Maj. Op. existence.” Perhaps produced agencies evidence that the actu- court proving means that a subsidiary ally conducted such an investigation and conspiracy to conceal the principal crimi- that overt concealment occurred during nal conspiracy after the latter realizes its words, the indictment objectives requires direct evidence of an charged government and the offered evi- agreement to conceal that lacking here. dence that the original receipt of insurance so, agree, If I holding but Forman’s proceeds step was “but the first in the reasoning require Grünewald’s that we process of’ defrauding the United States answer a question: second whether the Forman, government, 423-24, concealment could principal continue the ongoing and that the conceal- by furthering very its ob- itself goal. advanced this broader jectives. Sidestepping question, my my that, I colleagues’ share concern un colleagues observe that the tax evasion government’s theory, der the the statute of conspiracy in Forman continued because “ ” might limitations never run “until the con ‘essence’ tax of evasion is conceal- death, conviction, spirators’ confession,” ment, Maj. Forman, Op. at 1101 (quoting Maj. 481), Op. provided, course, 361 U.S. at without con- 1097— sidering conspirators whether the in engage “essence” of the con- overt acts spiracy here could in Indeed, amount to concealment concealment the meantime. Forman, as well. I believe ques- just the answer to that government yes. tion is Just as “the charge ‘essence of virtually any [a] conspiracy to commit conspiracy’ to evade taxes concealing [is] property crime as necessarily one that income,” Maj. Op. at (quoting For- See, continuing entails concealment. e.g., man, 481), 361 U.S. at the Grunewald, 353 U.S. at 77 S.Ct. 963 essence of the conspiracy here is conceal- (“[RJepainting a stolen car would be ing identity rightful beneficiary furtherance of a conspiracy to steal [be proceeds. federal insurance cause] successful accomplishment of concealment.”). crime necessitates

I see no basis for distinguishing this But these are the Forman, consequences case from Forman. As in where holding Court’s Forman the defendants conspiring reasoning its to make Grünewald. false statements Because I for purpose by both, feel “concealing from bound I reluctantly dissent. Treasury Department” conspirators’

true tax liability, 259 F.2d at

government here charged Turner An-

drews with conspiring to “defraud the impairing, impeding, and

defeating the lawful functions and duties” agencies charged with implementing

and overseeing the federal life insurance ¶ 7(a).

program, trial, Indictment At

government produced evidence that these

agencies have ongoing duties and investi-

gatory authority to ensure that federal life

Case Details

Case Name: United States v. Turner

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Dec 5, 2008

Citation: 548 F.3d 1094

Docket Number: 07-3107

Court Abbreviation: D.C. Cir.