United States v. Lennie Fulwood ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-11821
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D. C. Docket No. 4:11-cr-00012-RH-CAS-1
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
versus
LENNIE FULWOOD,
Defendant – Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(June 16, 2014)
Before PRYOR, Circuit Judge, and WOOD * and EDENFIELD, ** District Judges.
PER CURIAM:
*
Honorable Lisa Godbey Wood, Chief United States District Judge for the Southern
District of Georgia, sitting by designation.
**
Honorable B. Avant Edenfield, United States District Judge for the Southern District of
Georgia, sitting by designation.
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Lennie Fulwood appeals his conviction on four counts of tax evasion and his
57-month prison sentence. He raises myriad arguments about the fairness of his
trial and the sentencing guidelines calculation. After review, and with the benefit
of oral argument, we affirm.
I. BACKGROUND
The United States charged Fulwood with four counts of tax evasion for the
years of 2006 through 2009 as well as with twenty counts of structuring currency
transactions to evade reporting requirements. Assistant Federal Defender William
Clark provided representation from early in the case through trial.
Just prior to the original trial date, witness David Edwards contacted Clark
with information that could constitute a new defense for Fulwood. Edwards, a
lottery winner and old acquaintance of Fulwood, told Clark that he had gifted
Fulwood one million dollars from his lottery winnings. Clark reacted with hostility
because Edwards’s story contradicted Fulwood’s account to the attorney. Fulwood
then travelled from Florida to Kentucky—in violation of the terms of his pretrial
release—to film a statement by Edwards regarding the large gift. At the time of
the videotaped statement, Edwards was confined to a nursing home with two
amputated legs and multiple other ailments.
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Fulwood returned to Florida and provided Clark with a DVD of Edwards’s
statement, upon receipt of which, Clark filed for a continuance of the trial and
provided a copy of the DVD to the prosecutor. The Government then investigated
and contacted Edwards, at which point he recanted his statement and testified
under oath at deposition that he lied about the gift to appease Fulwood and halt his
persistent requests for Edwards to lie.
After a total of three continuances, trial occurred in August 2011. Fulwood
made an unsuccessful motion to replace Clark with other appointed counsel
immediately before opening arguments. During trial testimony, a police officer
referenced “bootleg, counterfeit DVDs,” and another witness referenced “illegal
clubs.” Witnesses also provided testimony about Fulwood’s finances and the
prosecution presented Edwards’s videotaped deposition. The jury convicted
Fulwood on all tax evasion charges but deadlocked or acquitted on all currency
transaction charges.
The trial court sentenced Fulwood to 57 months of incarceration based upon
a total offense level of 22 and a Criminal History Category II. The base offense
level was 18 and the court added two points for obstruction of justice and two
points for magnitude of the loss. The court also ordered Fulwood to pay
$285,044.00 in restitution and serve a three-year term of supervised release. The
court calculated tax loss based on a 28% rate.
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II. DISCUSSION
Fulwood raises nine enumerations of error for appeal. After careful
consideration of the record, the Court summarily holds that the arguments of
witness tampering, deprivation of choice of counsel, discovery violations,
cumulative error, and improper denial of post-trial motions lack merit. The Court
takes up the remaining arguments.
A. Attorney-Client Privilege
Fulwood argues that Clark breached the attorney-client privilege by
revealing Edwards’s DVD recording to prosecutors upon receipt. He further
argues that Federal Rule of Criminal Procedure 16 excludes the videotaped
statement from reciprocal discovery obligations. The Court reviews Sixth
Amendment right to assistance of counsel claims de novo. United States v. Terry,
60 F.3d 1541, 1543 (11th Cir. 1995). The Defendant bears the burden to establish
that a communication was privileged. Bogle v. McClure, 332 F.3d 1347, 1358
(11th Cir. 2003).
“The attorney-client privilege exists to protect confidential communications
between client and lawyer made for the purpose of securing legal advice . . . .” In
re Grand Jury Proceedings 88-9 (MIA), 899 F.2d 1039, 1042 (11th Cir. 1990). In
order to establish a valid privilege, Fulwood must establish:
(1) the asserted holder of the privilege is or sought to become a client;
(2) the person to whom the communication was made (a) is (the)
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member of a bar of a court, or his subordinate and (b) in connection
with this communication is acting as a lawyer; (3) the communication
relates to a fact of which the attorney was informed (a) by his client
(b) without the presence of strangers (c) for the purpose of securing
primarily either (i) an opinion on law or (ii) legal services or (iii)
assistance in some legal proceeding, and not (d) for the purpose of
committing a crime or tort; and (4) the privilege has been (a) claimed
and (b) not waived by the client.
In re Grand Jury Proceedings, 517 F.2d 666, 670 (5th Cir. 1975).
Clark did not disclose a communication by Fulwood, but rather disclosed the
video of Edwards. Fulwood cannot claim attorney-client privilege on this ground
alone. Furthermore, “[c]ourts have refused to apply the privilege to information
that the client intends his attorney to impart to others.” United States v. Pipkins,
528 F.2d 559, 563 (5th Cir. 1976). Fulwood obviously took this “shotgun
deposition” with the intent of presenting it for his benefit at trial. As the
Government rightfully remarks, Fulwood “never intended for the Edwards video to
remain confidential; he only wanted to hide it long enough to sandbag the
prosecution.” Brief for Appellee at 27.
Fulwood’s reliance on the discovery segment of the Federal Rules of
Criminal Procedure is off target. Clark properly provided the video pursuant to
Federal Rule of Criminal Procedure 16(b)(1)(A) & (c), which requires prompt
disclosure of “data” and “photographs.” The DVD is nothing more than a
compilation of sound data and moving photographs. The reciprocal discovery rule,
16(b)(2)(A), does not authorize inspection of “reports, memoranda, or other
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documents made by the defendant.” But here, Edwards made the statement;
Fulwood merely produced (and apparently directed) the film. Clark did not violate
the attorney-client privilege by disclosing the video of Edwards.
B. Ineffective Assistance of Counsel
Fulwood argues that Clark’s representation constitutes ineffective assistance
of counsel. “Except in the rare instance when the record is sufficiently developed,
we will not address claims for ineffective assistance of counsel on direct appeal.”
United States v. Verbitskaya, 406 F.3d 1324, 1337 (11th Cir. 2005). Fulwood
argues that the Court benefits from the written record of a Florida Bar Complaint,
but Fulwood has only presented two letters written by Clark in his own defense.
Doc. No. 118. This is far from a record sufficiently developed to analyze
Fulwood’s claim pursuant to Strickland v. Washington, 466 U.S. 668 (1984), and
its progeny. The Court therefore declines to adjudicate the issue of Clark’s
effectiveness on direct appeal.
C. Testimony About Counterfeit Goods
Fulwood argues that presentation of testimony regarding counterfeit goods
and an illegal nightclub amount to reversible error and prosecutorial misconduct:
because none of the charges against Fulwood involved the nature of his business,
such questioning amounts to a “clear violation of basic trial procedure.” United
States v. Greene, 578 F.2d 648, 654 (5th Cir. 1978). The Court reviews preserved
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claims about admission of evidence for abuse of discretion. United States v.
Jiminez, 224 F.3d 1243, 1249 (11th Cir. 2000).
A prosecutor may not violate the basic rules of trial practice by offering
unprofessional commentary entirely unrelated to the case. Greene, 578 F.2d at
654. But the prosecutor may present testimony that is “linked in time and
circumstances with the charged crime.” United States v. McLean, 138 F.3d 1398,
1403 (11th Cir. 1998).
The term “counterfeit” 1 came up at trial during the testimony of a
Tallahassee police officer. The prosecutor asked about how he came to know
Fulwood’s business.
Q. And did you perform an undercover operation [in Fulwood’s
music store]?
A. Yes, ma’am.
Q. What exactly did you do?
A. I went into the store with an attempt to buy bootleg, counterfeit
DVDs.
Q. Okay, what happened when you went there?
A. I went to the counter. I asked for – it was Russell Jenkins,
another movie which I knew was still in theaters.
Doc. No. 95 at 185. This specific testimony came to light as the witness explained
his job. Likewise, Fulwood’s commercial landlord mentioned “illegal clubs” on
cross-examination in discussing the layout of the space. Doc. 96 at 323. This
testimony is part of the complete story of the alleged financial offense.
1
Clark objected to the use of the term “counterfeiter.” Doc. No. 95 at 184. No witness used
this term.
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Furthermore, the nature of Fulwood’s business goes to his motive in evading
taxation of the income, and evidence of motive is admissible. United States v.
Utter, 97 F.3d 509, 515 (11th Cir. 1996); see also Fed. R. Evid. 404(b)(2)
(providing that evidence of crimes, wrongs, or other acts “may be admissible for
another purpose, such as proving motive”). Fulwood may have wished to evade
taxes on his income to prevent alerting the Government to the nature of his
enterprise. The high profit margin nature of Fulwood’s business also explains how
he amassed $1.1 million in unreported income by selling CDs from a flea market
store that shared space with a barber shop and an internet café. “A tax deficiency
may be proved by circumstantial evidence . . . .” United States v. Carter, 721 F.2d
1514, 1538 (11th Cir. 1984), vacated in part by United States v. Lightsey, 886 F.2d
304 (11th Cir. 1989). Under all measures, the district court did not abuse its
discretion by admitting this testimony.
D. Sentencing Guidelines Calculation
Fulwood argues that the district court erred by imposing an enhancement for
obstruction of justice under U.S.S.G. § 3C1.1 based on its finding that he willfully
gave false trial testimony, and that the district court erred in determining the
appropriate tax-loss calculation under § 2T1.1. With respect to sentencing, the
Court reviews the district court’s finding of facts for clear error and the
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interpretation and application of the guidelines de novo. United States v. Massey,
443 F.3d 814, 818 (11th Cir. 2006).
Fulwood contends that a finding of willful obstruction of justice is not
supported by a neutral view of the evidence. In relevant part, § 3C1.1 provides for
a two-level increase to the offense level when the defendant “willfully obstructed
or impeded, or attempted to obstruct or impede, the administration of justice with
respect to the investigation, prosecution, or sentencing of the instant offense of
conviction.” At trial, Edwards’s sworn deposition chronicled Fulwood’s persistent
requests that Edwards lie on his behalf. Fulwood repeatedly called Edwards, sent
him an untraceable phone, and travelled from Florida to Kentucky—in violation of
the terms of his pretrial release—to film a false statement by Edwards. Edwards
recanted his statement to prevent any harm to himself, revealing that he initially
agreed to make the video in part because he did not believe that an unsworn
statement could be used at trial. Given Fulwood’s behavior and Edwards’s sworn
statement, we are far from being “left with a definite and firm conviction that a
mistake has been committed,” United States v. Crawford, 407 F.3d 1174, 1177
(11th Cir. 2005), and therefore conclude that the district court did not commit clear
error in assessing an enhancement for obstruction of justice.
Fulwood contends that the district court erred by calculating the tax loss at a
rate of 28% pursuant to § 2T1.1(c)(1)(A), and that the court should have used the
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20% tax rate of § 2T1.1(c)(2)(A) because he failed to file a return. § 2T1.1(c)(1)
states: “If the offense involved tax evasion . . . the tax loss shall be treated as equal
to 28% of the unreported gross income . . . .” § 2T1.1(c)(2) states: “If the offense
involved failure to file a tax return . . . the tax loss shall be treated as equal to 20%
. . . .”
Fulwood indeed failed to file a tax return. But the crime of failure to file a
tax return, 26 U.S.C. § 7203, differs from the provision for tax evasion, 26 U.S.C.
§ 7201, and Fulwood was charged with and convicted of tax evasion. When
reading § 2T1.1(c) as a whole, the district court selected the correct tax loss
calculation using the rate of 28%.
III. CONCLUSION
Based on the foregoing discussion, we affirm Fulwood’s convictions and
sentence. The Court declines to rule on the issue of ineffective assistance of
counsel on this direct appeal.
AFFIRMED.
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