United States v. Pennue , 770 F.3d 985 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-2156
UNITED STATES OF AMERICA,
Appellee,
v.
ALVIN PENNUE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, Jr., U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Barron, Circuit Judges.
Syrie D. Fried for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Peter F. Neronha, United States Attorney, was on brief, for
appellee.
November 5, 2014
SELYA, Circuit Judge. As long as human beings rather
than computers preside over jury trials, slips of the tongue will
occur. But not every such lapsus linguae requires setting aside a
jury verdict. In this case, the trial judge's slip of the tongue
during jury instructions elicited no objection and, when considered
in the context of the jury instructions as a whole, was highly
unlikely to have muddled the jury's understanding of the judge's
charge. Because we find neither reversible error in this respect
nor a shortfall in the district court's sentencing determinations,
we reject the defendant's appeal.
I. BACKGROUND
This case involves what is colloquially known as a black
money scheme. See generally United States v. Gayekpar, 678 F.3d
629, 633, 635 (8th Cir. 2012); United States v. Wright, 642 F.3d
148, 150-51 (3d Cir. 2011). In October of 2011, defendant-
appellant Alvin Pennue made the acquaintance of Wendell Bradford
while both men were enjoying the scenery and liquid refreshments at
a nightclub in Providence, Rhode Island. The pair later met to
discuss a possible business venture. The defendant showed Bradford
a bundle of black paper wrapped in cellophane and said that it was
genuine United States currency, which had been dyed black in order
to smuggle it out of Africa. The defendant explained that the
money could be "cleaned" by applying a combination of chemicals and
sandwiching clean bills between the blackened bills. A
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demonstration ensued: the defendant inserted a $20 bill supplied by
Bradford between two pieces of black paper, sprinkled the
"sandwich" with chemicals, wrapped it in aluminum foil, and applied
pressure. After a short interval, he opened the "sandwich" and
doused the paper with spring water. Three clean $20 bills emerged.
Bradford was impressed but not convinced. He agreed,
however, to meet with the defendant's associate, Anthony Chadheen.
The defendant and Chadheen came to the service station where
Bradford worked. They showed him a color photograph of what was
purported to be $2,000,000 of black money. After witnessing
another demonstration, Bradford swallowed the bait and agreed to
invest $5,000 in a black money transformation in exchange for a
fifty-percent share of the cleaned money.
Things that seem too good to be true usually are. On
October 21, Bradford withdrew $5,000 from a Massachusetts bank and
brought the cash to Providence. In a hotel room there, the
defendant and Chadheen sandwiched Bradford's money between sheets
purported to be black money. The defendant then took the
"sandwich" into the bathroom, doused it with chemicals, wrapped it
with foil and tape, and gave the package to Bradford to hold
(telling him that it would take roughly thirty minutes for the
cleaning process to run its course). The defendant and Chadheen
left Bradford with the package, which proved to contain nothing but
soggy black paper.
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In the same time frame, another potential dupe (Mark
Falugo) contacted the Secret Service about a similar scam. At the
authorities' behest, Falugo called the defendant and discussed a
prospective black money transformation. Falugo offered to invest
$25,000 and indicated that he had a friend who might be willing to
invest four times that amount.
As the sting evolved, Fred Mitchell, an undercover Secret
Service agent, assumed the persona of Falugo's friend. Falugo and
Mitchell met with the defendant and Chadheen in Warwick, Rhode
Island. Chadheen performed a cleaning demonstration for Mitchell.
As before, the process appeared to work, and Chadheen allowed
Mitchell to keep the cleaned money (two $100 bills). Mitchell was
also shown glossy photographs of stacks of black money and what
appeared to be genuine bills.
Mitchell subsequently arranged to meet with the defendant
and Chadheen to clean a large sum of black money. He purported to
bring $100,000 in cash to the meeting. The defendant and Chadheen
showed him bundles of what they claimed to be blackened currency,
which in fact consisted of nothing more than black construction
paper. Without further ado, the Secret Service arrested the
defendant and Chadheen.
A federal grand jury charged the defendant, inter alia,
with two counts of passing altered obligations of the United States
with intent to defraud, see 18 U.S.C. § 472, and one count of
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inducing the interstate transportation of currency with intent to
defraud, see id. § 2314.1 At trial, the government presented a
plenitude of evidence, including testimony of Bradford and
Mitchell, recordings of two of Mitchell's meetings with the scam
artists, and tapes of various telephone conversations. The jury
found the defendant guilty on all three counts. In due season, the
district court sentenced the defendant to a 21-month term of
immurement. This timely appeal followed.
II. ANALYSIS
On appeal, the defendant challenges both his convictions
and his sentence. We subdivide our analysis accordingly.
A. The Convictions.
The defendant's challenge to his convictions rests on a
claim of instructional error. He argues that the jury charge was
rendered infirm by a mis-description of the reasonable doubt
standard. Specifically, he points to the court's statement that:
Reasonable doubt exists when, after weighing
and considering all the evidence using
reasonable and common sense, jurors say that
they have a settled conviction of the truth of
the charge. On the other hand, reasonable
doubt does not exist when, after weighing and
considering all the evidence using reason and
common sense, jurors can say that they have a
settled conviction of the truth of the charge.
1
The grand jury charged Chadheen in the same indictment.
Chadheen absconded and remains a fugitive.
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It is readily apparent that the first sentence is missing a
negative: it should have read, "Reasonable doubt exists when, after
weighing and considering all the evidence using reasonable and
common sense, jurors cannot say that they have a settled conviction
of the truth of the charge." (Emphasis supplied). Given this
bevue, the quoted portion of the court's instruction twice defined
the absence of reasonable doubt and never defined its presence. In
the defendant's view, this error impermissibly diluted the
government's burden of proof.
When — as in this case — an appellant's claim is that the
trial court's jury instructions misstate the law, appellate review
is ordinarily de novo. See United States v. Barnes, 251 F.3d 251,
259 (1st Cir. 2001); United States v. Pitrone, 115 F.3d 1, 4 (1st
Cir. 1997). Here, however, the defendant did not object to the
challenged instruction at trial, thus failing to call the slip to
the court's attention so that it could have been corrected.
Consequently, appellate review is for plain error. See Johnson v.
United States, 520 U.S. 461, 465-66 (1997); United States v.
O'Shea, 426 F.3d 475, 481 (1st Cir. 2005).
The defendant resists this conclusion. He insists that,
even though no objection was interposed below, the error was
structural and, thus, demands automatic reversal. See, e.g.,
United States v. Yakobowicz, 427 F.3d 144, 153-54 (2d Cir. 2005).
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This is wishful thinking. Although the Supreme Court has
recognized that an incorrect reasonable doubt instruction may
constitute a structural error, see Sullivan v. Louisiana, 508 U.S.
275, 281-82 (1993), it has made pellucid that, in the federal
system, unpreserved claims of structural error are to be reviewed
under the plain error standard, see Johnson, 520 U.S. at 465-66.
Consistent with this approach, we repeatedly have stated that plain
error review is appropriate when a criminal defendant points out a
defect in a reasonable doubt instruction for the first time on
appeal. See United States v. Jones, 674 F.3d 88, 93 (1st Cir.
2012); O'Shea, 426 F.3d at 481; United States v. Colon-Pagan, 1
F.3d 80, 81 (1st Cir. 1993). That is the situation here.
The contours of plain error review are familiar. The
appellant must show "(1) that an error occurred (2) which was clear
or obvious and which not only (3) affected the defendant's
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings." United
States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). The appellant
must carry the devoir of persuasion as to each part of this four-
part standard. See United States v. Vega Molina, 407 F.3d 511, 521
(1st Cir. 2005). The defendant's claim of instructional error
stumbles at the third step.
Manifestly, the first sentence in the quoted instruction
contains an error. But not all errors in jury instructions affect
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a defendant's substantial rights. In evaluating a flawed jury
instruction, we look to whether the error was reasonably likely to
have misled the jury. See United States v. Troy, 618 F.3d 27, 33
(1st Cir. 2010); United States v. Romero, 32 F.3d 641, 651 (1st
Cir. 1994). In conducting this tamisage, we do not assess the
problematic instruction in isolation but, rather, inspect the jury
charge as a whole. See United States v. Van Anh, 523 F.3d 43, 58
(1st Cir. 2008); United States v. Cintolo, 818 F.2d 980, 1003 (1st
Cir. 1987).
Viewing the challenged instruction within this framework,
it is evident that the instruction was unlikely to have clouded the
jurors' understanding of the government's burden of proof. To
begin, the erroneous instruction was followed immediately by a
correct instruction. The two sentences were obviously intended to
set up a comparison. Together, they supplied a contrast between a
circumstance where jurors do not have a settled conviction of the
truth of the charge and one where the jurors do. This structure
makes it quite probable that the jury would have inferred the
missing word "cannot" in order to parse the instructions sensibly.
Cf. United States v. Lebron-Gonzalez, 816 F.2d 823, 830 (1st Cir.
1987) (concluding that missing "if" in jury instruction was not
reversible error where passage made sense only if missing "if" was
inferred).
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Such a conclusion is reinforced by the fact that the
defendant did not object. See United States v. Flores, 454 F.3d
149, 158 (3d Cir. 2006) (remarking that "counsel's failure to
object leaves us with the impression that the misstatement in the
oral charge was hardly noticeable"). Indeed, no one seems to have
noticed the court's slip of the tongue at the time it happened.
The effect of the problematic instruction is also
palliated because the district court was reading from a manuscript.
Although the court misspoke when it read the challenged portion of
the charge, the written copy of the instructions that it furnished
to the jury for use during deliberations contained no error.
Although we would hesitate to rely on written instructions alone as
a basis for concluding that the jury was not likely to be misled by
an incorrect oral instruction, cf. Guam v. Marquez, 963 F.2d 1311,
1315-16 (9th Cir. 1992) (expressing concern that jurors may not
read written instructions), the fact that the jury received correct
instructions in writing bolsters our confidence that the error
complained of here was harmless.
To cinch matters, the erroneous instruction was
surrounded by instructions that emphasized the government's heavy
burden of proof. We offer some examples.
C The court told the jury: "It is not sufficient
for the Government to establish a probability,
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though a strong one, that a fact charged is more
likely true than not true."
C The court stated that probability "is not enough
to meet the burden of proof beyond a reasonable
doubt."
C The court referred to the government's "strict
and heavy burden" and cautioned that
"[p]ossibilities or even probabilities are not
sufficient."
C The court left no doubt that the defendant
"should not be convicted on suspicion or
conjecture."
C The court declared no fewer than five times that
the burden of proving the defendant's guilt
rested solely and entirely with the government.
C The court referenced the government's burden to
prove guilt no fewer than twenty times, and it
aptly described the presumption of innocence at
least four times.
Given the tenor of the charge as a whole, it would take the
elevation of hope over reason to believe that the district court's
lapsus linguae diluted the government's burden of proof. See,
e.g., Van Anh, 523 F.3d at 58-59; United States v. Ranney, 298 F.3d
74, 80 (1st Cir. 2002); Romero, 32 F.3d at 651-52.
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That ends this aspect of the matter. We conclude that,
in all likelihood, the error in the spoken charge did not
compromise the jury's understanding of the reasonable doubt
standard. It follows that the district court's slip of the tongue
did not affect the defendant's substantial rights. As such, plain
error was plainly absent.
B. The Sentence.
The defendant's claim of sentencing error implicates the
district court's calculation of the guideline sentencing range
(GSR). To set the stage, we start with the presentence
investigation report (PSI Report), which recommended sorting the
offenses of conviction into two groups. See USSG §3D1.1. Group 1
comprised the two convictions for passing altered obligations.
These convictions, respectively, were based on the defendant's
passing of two blackened $100 bills to Mitchell and two blackened
$20 bills to Bradford. Group 2 comprised the conviction for
fraudulently inducing the interstate transportation of currency
based on Bradford's carriage of $5,000 across state lines.
The base offense level for Group 1 was 9. See id.
§2B5.1(a). The base offense level for Group 2 was 6. See id.
§2B1.1(a)(2). However, the PSI Report recommended a 10-level
upward adjustment for Group 2 based on a loss in excess of
approximately $130,000. See id. §2B1.1(b)(1) (establishing 10-
level enhancement for losses between $120,000 and $200,000). This
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proposed adjustment took account of the intended (but not realized)
losses involving Falugo and Mitchell.
The PSI Report, using conventional grouping principles,
see id. §§3D1.1-3D1.4, concluded that Group 2's adjusted offense
level (16) controlled and recommended that the defendant be placed
in criminal history category I. These calculations yielded a GSR
of 21-27 months.
The district court convened the disposition hearing on
September 6, 2013. With one exception, the parties acquiesced in
the guideline calculations adumbrated in the PSI Report. The lone
objection was voiced by the defendant. He argued that he could not
have intended both the $25,000 loss to Falugo and the $100,000 loss
to Mitchell because, believing that Falugo and Mitchell were
associates, he would have anticipated that, once one was defrauded,
the other would learn of the scam. The district court rejected
this speculative objection and adopted the guideline calculations
limned in the PSI Report.2 The court then sentenced the defendant
to a term of imprisonment at the nadir of the GSR (21 months).
In this venue, the defendant shifts gears. He abandons
his original objection to the loss calculation and argues instead
2
All concerned — the defendant, the government, the probation
department, and the district court — assumed that the total offense
level was 16. Withal, a proper application of USSG §3D1.4
produces a total offense level of 17. But no one — then or on
appeal — has seized upon this discrepancy; and because any error in
this respect inured to the benefit of the defendant, we do not
press the point.
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that the sentencing court impermissibly considered intended losses.
As a fallback, he argues that even if intended losses are not
categorically banned, the intended losses here were not relevant
for the purpose of calculating his GSR.
In the ordinary course, we review the district court's
application of the sentencing guidelines de novo and review its
subsidiary factfinding for clear error. See United States v.
LaCroix, 28 F.3d 223, 226 (1st Cir. 1994). When a claim of
sentencing error is unpreserved, however, plain error review
obtains. See Duarte, 246 F.3d at 59-60.
The claims of error mounted by the defendant are new. In
the proceedings below, he never opposed the inclusion of intended
losses as a specie.3 Even though he objected to the amount of the
loss calculations attributable to the Falugo and Mitchell swindles,
he never suggested that intended losses could not be considered.
Our review, therefore, is for plain error.
Section 2B1.1(b)(1) of the sentencing guidelines
expressly provides for enhancing the offense level applicable to a
fraud charge for amount of loss. See USSG §2B1.1, comment.
(n.3(A)) (stipulating that "loss" is the greater of the actual or
intended loss). The defendant's argument to the contrary appears
3
Indeed, in written objections to the preliminary PSI Report,
the defendant acknowledged that "[i]t is axiomatic that 'intended
losses' can be utilized in determining an offense level for theft
and fraud."
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to be based on a misapprehension. Although an enhancement based on
intended loss is not authorized under section 2B5.1 for
counterfeiting offenses, see Wright, 642 F.3d at 154, such a
proscription does not apply to fraud charges, see USSG §2B1.1; see
also United States v. Appolon, 695 F.3d 44, 66 (1st Cir. 2012).
This brings us to the amount of intended loss found by
the district court. The record contains evidence both of a scheme
to hoodwink Falugo in a $25,000 black money transformation and a
plan to bilk Mitchell in a like $100,000 transformation. For
guidelines purposes, the phrase "intended loss" may include
intended pecuniary loss that is unlikely (or even impossible) such
as, say, a loss projected from a government sting operation. See
USSG §2B1.1, comment. (n.3(A)(ii)(II)). Given this construct, the
amounts involved were appropriately classified as intended losses.
See United States v. Stergios, 659 F.3d 127, 135 (1st Cir. 2011)
(defining "intended loss" as a loss that would have been expected
by an objectively reasonable person in the defendant's position at
the time of the fraud). With this evidence before it, the
sentencing court had a solid basis for concluding that the intended
loss was more than $120,000.
Of course, due to the operation of grouping principles,
the offense of conviction that drove the defendant's sentence
involved the interstate transportation of currency with intent to
defraud Bradford. Here, however, the sentencing court did not err
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in cataloguing the conduct underlying the other counts (the
defendant's abortive efforts to hornswoggle Falugo and Mitchell) as
relevant conduct. Section 1B1.3(a)(2) of the sentencing guidelines
provides that, with respect to offenses where grouping of multiple
counts is required by section 3D1.2(d), the offense level should be
determined by considering not only the conduct underlying the
offense of conviction but also any "relevant conduct." The term
"relevant conduct" is a term of art that encompasses all acts and
omissions that were part of the same "course of conduct or common
scheme or plan as the offense of conviction." USSG §1B1.3(a)(2);
see United States v. Eisom, 585 F.3d 552, 557 (1st Cir. 2009).
The record amply supports a conclusion that the
defrauding of Bradford and the planned defrauding of Falugo and
Mitchell were part of the same course of conduct. After all, each
of the swindles took place in the same area and in the same time
frame. They shared many pertinent characteristics, including the
methods used, the nature of the artifice employed, a common
fraudster, a common accomplice, and a common modus operandi. Those
shared characteristics were sufficient to ground a finding that the
gammons were cut from the same cloth and, thus, formed part of a
pattern. See USSG §1B1.3, comment. (n.9); see also Eisom, 585 F.3d
at 557; United States v. Jaca-Nazario, 521 F.3d 50, 55-56 (1st Cir.
2008). There was no sentencing error, plain or otherwise.
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III. CONCLUSION
We need go no further. For the reasons elucidated above,
the judgment below is
Affirmed.
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