United States v. Timothy C. Moses ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 5, 2007
No. 06-11316 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00508-CR-1-CAP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TIMOTHY C. MOSES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 5, 2007)
Before BLACK, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Timothy Moses appeals his convictions and sentence for securities fraud, 18
U.S.C. §§ 2, 1348(1)-(2), and perjury, 18 U.S.C. § 1621(1). He argues that the
deposition on which his perjury conviction was based should have been suppressed
by the district court, or at least he was entitled to an evidentiary hearing on the
matter; the district judge and the prosecution improperly commented on his
decision not to testify at trial; and the district court erred in basing his sentence on
an estimated amount of loss caused by his activities instead of the exact amount of
loss. We affirm.
We review the denial of a motion to suppress under a mixed standard,
reviewing findings of fact for clear error and the application of the law to those
facts de novo. United States v. Rhind, 289 F.3d 690, 693 (11th Cir. 2002). All
facts are construed in the light most favorable to the prevailing party. United
States v. Roy, 869 F.2d 1427, 1429 (11th Cir. 1989). The decision not to hold an
evidentiary hearing is reviewed for abuse of discretion. United States v. Slocum,
708 F.2d 587, 600 (11th Cir. 1983). The denial of a motion for mistrial based on
improper commentary on the decision of a defendant not to testify is reviewed for
abuse of discretion. United States v. Knowles, 66 F.3d 1146, 1163 (11th Cir.
1995). We review questions of law arising under the Sentencing Guidelines de
novo. United States v. Crawford, 407 F.3d 1174, 1177 (11th Cir. 2005).
Moses argues that his deposition should not have been suppressed without
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an evidentiary hearing because he made a prima facie case of government
misconduct–specifically, that the SEC knew, when his deposition occurred, that the
United States Attorney was contemplating a criminal investigation. The SEC filed
a civil complaint against Moses on February 6, 2003, after he issued a series of
false press reports. The SEC deposed Moses on February 11. As required by
federal regulation, the SEC sought permission from the United States Attorney to
have FBI agents testify in its civil proceeding. 28 C.F.R. § 16.21. On February 13,
the United States Attorney initiated a criminal investigation, but the indictment
against Moses was filed on September 29, 2004.
Moses argues that the close proximity of his deposition to the initiation of
the criminal investigation, coupled with the fact that there was contact between the
SEC and the United States Attorney to obtain permission for FBI agents to testify
in the civil action, established a prima facie case that the SEC knew the United
States Attorney was contemplating a criminal investigation at the time of the
deposition. We disagree. It is well established that the federal government may
pursue civil and criminal actions either “simultaneously or successively,” Standard
Sanitary Manufacturing v. United States, 226 U.S. 20, 52, 33 S. Ct. 9, 16 (1912),
and a federal statute expressly allows the SEC and the Department of Justice to
share information relating to parallel investigations, see 15 U.S.C. § 78u(d).
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Whenever the United States Attorney is required to give permission for FBI
agents to testify in a civil proceeding, he or she will inevitably consider, at least to
some minimal degree, the possibility of initiating a criminal investigation,
depending on how the civil record develops. The bare conclusion that the United
States Attorney was contemplating a criminal investigation does not establish a
prima facie case of government misconduct. Moses presents no evidence that the
contemplation of the United States Attorney, at the time of Moses’s deposition, had
reached any significant level.
The SEC had a legitimate purpose in bringing its civil action, and Moses
attributes nothing in his deposition to either the direct or indirect influence of the
United States Attorney. Moses argues that he would not have perjured himself had
he known the United States Attorney was contemplating a criminal investigation,
but Moses was given ample warning that civil depositions are often used in
criminal prosecutions. Moses was also told his false testimony could lead to a
charge of perjury, and he could invoke his Fifth Amendment right against self-
incrimination.
The close proximity of the deposition to the initiation of the criminal
investigation is readily explained by the fact that Moses’s wrongdoing had recently
come to light. It is not a cause for alarm that both the SEC and the United States
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Attorney sought swiftly to address a newly discovered wrongdoing. The district
court did not abuse its discretion in denying Moses an evidentiary hearing, and
because Moses failed to make even a prima facie case of prosecutorial misconduct,
the district court did not err in denying the motion to suppress Moses’s deposition.
Moses next argues that two statements, one by the district court and one by
the government, constituted impermissible commentary on his decision not to
testify. First, when Moses rested his case and the government gave no rebuttal, the
district judge remarked to the jury that the case ended “a little quicker than I
figured” and told the jury they would be excused for lunch while a charge
conference was held. Second, during closing arguments, counsel for Moses argued
that when the press releases were issued, Moses believed the government was
interested in purchasing products from IBCL, and the government objected that
there was no evidence Moses was aware that the EPA had conducted further tests
on the product.
Moses cannot establish that either statement was “manifestly intended or
was of such a character that a jury would naturally and necessarily take it to be a
comment on the failure of the accused to testify.” United States v. Dearden, 546
F.2d 622, 625 (5th Cir. 1977) (emphasis added). The surprise of the district judge
is just as easily explained by the decision of the government not to present any
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rebuttal evidence as by the decision of Moses not to testify, and it does not
necessarily follow from the objection of the government that it was commenting on
Moses’s refusal to testify. The district court did not abuse its discretion.
Finally, Moses argues that the district court impermissibly based its loss
calculation on estimated figures when the government could have obtained more
exact data. Dr. Hugh Cowen, an adjunct professor at the Goizueta Business School
at Emory University, examined actual trading data from 86 million of the 118
million trades (73 percent) in IBCL stock between January 29 and February 6,
2003, and, after deriving an average closing price for these shares, determined that
the 539 investors who purchased ICBL stock lost a total of $1.65 million. Cohen
extrapolated an additional loss of $560,000 based on the remaining 27 percent of
trades for a total loss of $2.2 million. Moses argued that the government was
required to obtain specific purchase and sale figures on each stock traded because
that information was available to it.
The commentary to Guidelines section 2B1.1 provides that the district court
“need only make a reasonable estimate of loss” which “shall be based on available
information.” “There are cases where it would be unduly cumbersome [to
calculate the exact loss of each victim], potentially requiring large expenditures of
time and resources to determine large amounts of detailed information. Such a
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rigid rule is not required by the Guidelines.” United States v. Orton, 73 F.3d 331,
335 (11th Cir. 1996).
The amount of loss fixed by the district court was reasonable. Dr. Cohen
used actual trading data to derive a loss estimate for 73 percent of the sales, and
extrapolated a figure to estimate the loss derived from the remaining 27 percent.
The district court only held Moses responsible for the first of these figures. Moses
does not argue that calculating the loss using the actual purchase and sale prices of
100 percent of the shares in question would result in a lower amount. The district
court did not err.
Moses’s convictions and sentence are
AFFIRMED.
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