United States v. Moncrieffe , 319 F. App'x 249 ( 2009 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 08-4344
    UNITED STATES OF AMERICA,
    Plaintiff – Appellee,
    v.
    DONOVAN ANTHONY MONCRIEFFE,
    Defendant – Appellant.
    Appeal from the United States District Court for the Eastern
    District of Virginia, at Alexandria.  Claude M. Hilton, Senior
    District Judge. (1:07-cr-00177-CMH-1)
    Submitted:    February 11, 2009             Decided:   March 24, 2009
    Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Christopher R. K. Leibig, Andrea L. Moseley, ZWERLING, LEIBIG &
    MOSELEY, P.C., Alexandria, Virginia, for Appellant.       Chuck
    Rosenberg, United States Attorney, Daniel J. Grooms, Edmund P.
    Power, Assistant United States Attorneys, Alexandria, Virginia,
    for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Donovan Anthony Moncrieffe was convicted after a jury
    trial   of   racketeering     conspiracy,      in    violation   of   18   U.S.C.
    § 1962(d) (2006), and conspiracy to launder money, in violation
    of 18 U.S.C. § 1956(h) (2006).              The district court sentenced
    Moncrieffe to thirty-three months’ imprisonment, and he timely
    appealed.     We affirm.
    On appeal, Moncrieffe first argues that the district
    court erred in denying his motion for judgment of acquittal as
    to the racketeering count because the Government failed to prove
    that he knew of the entirety of any of the three overarching
    purposes     of   the   conspiracy   alleged    in    the   indictment.     This
    court reviews the district court’s decision to deny a Rule 29
    motion de novo.         United States v. Smith, 
    451 F.3d 209
    , 216 (4th
    Cir. 2006).        This court will affirm the denial of a Rule 29
    motion if “viewing the evidence in the light most favorable to
    the [G]overnment, any rational trier of facts could have found
    the defendant guilty beyond a reasonable doubt.”                 United States
    v. Tresvant, 
    677 F.2d 1018
    , 1021 (4th Cir. 1982).                     This court
    reviews both direct and circumstantial evidence, and permits the
    “government the benefit of all reasonable inferences from the
    facts proven to those sought to be established.”                 
    Tresvant, 677 F.2d at 1021
    .
    2
    Our review of the record leads us to conclude that the
    evidence was sufficient to establish Moncrieffe’s participation
    in at least two of the purposes of the conspiracy - both the
    illegal      gambling      and     money     laundering,          and    therefore,         the
    Government     was    not    required       to    prove    he     participated        in    the
    other   conspiratorial           acts.      United       States    v.    Banks,      
    10 F.3d 1044
    , 1054 (4th Cir. 1993).
    Moncrieffe       next       claims    the    district       court      erred    in
    denying his motion for judgment of acquittal on the conspiracy
    to launder money count.             Moncrieffe relies on the recent Supreme
    Court plurality opinion United States v. Santos, 
    128 S. Ct. 2020
    (2008) (Stevens, J., concurring).                   As Santos was decided after
    Moncrieffe’s trial, and Moncrieffe did not raise this particular
    insufficiency claim in the district court, his claim is reviewed
    for plain error.            See United States v. Wallace, 
    515 F.3d 327
    ,
    331-32 (4th Cir. 2008); United States v. Beaver, 
    515 F.3d 730
    ,
    741   (7th    Cir.     2008).         Plain       error    requires          Moncrieffe      to
    establish that: (1) there was error; (2) the error was “plain;”
    and   (3)    the   error     affected       his    substantial          rights.       United
    States v. Olano, 
    507 U.S. 725
    , 732 (1993).                              Even if he makes
    this showing, “Rule 52(b) leaves the decision to correct the
    forfeited     error     within      the    sound    discretion          of   the    court    of
    appeals,     and     the    court    should       not     exercise       that      discretion
    unless the error seriously affect[s] the fairness, integrity, or
    3
    public       reputation        of   judicial         proceedings.”            
    Id. (quoting Untied States
       v.    Young,     
    470 U.S. 1
    ,    15     (1985)      (internal
    quotations omitted)).
    We    reject    Moncrieffe’s         claim.            First,    Moncrieffe’s
    case       is    factually      distinguishable          from      Santos.          Unlike     the
    situation in Santos, there was no possibility that Moncrieffe’s
    act    of       supplying      payroll     checks      and    false        W-2s     merged   the
    conduct of the Bansals’ illegal gambling and bookmaking with the
    laundering of the profits from that gambling.                                 Moreover, even
    under the Santos “profits” definition of “proceeds,” Moncrieffe
    was    properly          convicted    of    conspiring            to    violate     the    money
    laundering         statute      because    the       “no-show”         jobs   and    false     W-2
    forms       Moncrieffe         provided    constitute         evidence        from     which    a
    reasonable            fact-finder        could       have     found        that      Moncrieffe
    laundered         the     profits    of    the       Bansals’          gambling     operation. 1
    Accordingly, Moncrieffe’s second argument is without merit.
    Moncrieffe next alleges that the district court erred
    in limiting his closing argument to twenty minutes.                                       “It is
    axiomatic that the limitation of time for arguments of counsel
    1
    Moncrieffe argues that the Government failed to establish
    that funds loaned to him by the Bansals were the proceeds or
    profits of their gambling operation.    That Moncrieffe may have
    also been a victim of the Bansals’ loan sharking operation is
    irrelevant to his money laundering conviction.
    4
    is within the sound discretion of the trial judge.”                  Butler v.
    United States, 
    317 F.2d 249
    , 257 (4th Cir. 1963).                   This court
    will       reverse    a   district   court’s   decision    regarding   closing
    argument only “when there is a clear abuse of its discretion.”
    United States v. Rhynes, 
    196 F.3d 207
    , 236 (4th Cir. 1999),
    vacated in part on other grounds on reh’g en banc, 
    218 F.3d 310
    (4th Cir. 2000).
    The record indicates that defense counsel’s inability
    to cover every point in his closing argument resulted, not from
    a “clear abuse of discretion” by the district court, but rather
    from counsel’s inability to conform to the district court’s time
    limitation.          We conclude that the district court did not abuse
    its    discretion         in   limiting   Moncrieffe’s    closing   argument. 2
    
    Rhynes, 196 F.3d at 236-37
    (citation omitted).
    Moncrieffe next alleges the district court committed
    prejudicial errors by rejecting certain of his proposed jury
    instructions.          A district court’s refusal to give a requested
    instruction is reviewed for abuse of discretion.               United States
    v. Brooks, 
    928 F.2d 1403
    , 1408 (4th Cir. 1991).                     A district
    court’s refusal to give an instruction “is reversible error only
    if the instruction (1) was correct; (2) was not substantially
    2
    We note that the district court limited the Government
    even more severely, restricting it to a total of fifteen minutes
    for both closing argument and rebuttal.
    5
    covered by the court’s charge to the jury; and (3) dealt with
    some point in the trial so important, that failure to give the
    requested instruction seriously impaired the defendant’s ability
    to conduct his defense.”             United States v. Patterson, 
    150 F.3d 382
    , 388 (4th Cir. 1998).
    Moncrieffe first argues that the district court erred
    in refusing to instruct the jury that the purposes of the RICO
    conspiracy       were     contained     in    paragraph      seventeen      of     the
    indictment.       Moncrieffe’s argument fails because his proposed
    instructions       were       substantially       covered     by     the      court’s
    instructions.
    Moncrieffe        next    complains     that    the    district      court
    committed error in refusing to give his proposed instructions
    numbered    20    and   20A.     According     to   Moncrieffe,      the    district
    court never explicitly defined the critical terms in Virginia
    Code § 18.2-328 or told the jury that it must find a violation
    of § 18.2-328 to convict him of the RICO conspiracy.                        We have
    reviewed the transcript and conclude that Moncrieffe’s argument
    fails because the district court’s instructions included all of
    the aspects of illegal gambling that the jury needed to find in
    order to convict Moncrieffe of the RICO conspiracy and provided,
    as   an    example      of    illegal    gambling,     the    only    portion       of
    § 18.2-328       that   the    Government     alleged       had    been    violated.
    Moncrieffe’s two proposed instructions would have instructed the
    6
    jury on portions of the Virginia statute not alleged to have
    been violated and on an exception to the Virginia statute that
    the    evidence      at     trial    did    not     support.         Accordingly,      the
    district      court       did       not     err     in      rejecting        Moncrieffe’s
    instructions 20 and 20A.
    Moncrieffe next claims that the district court erred
    in denying his requested instruction regarding the testimony of
    an admitted perjurer.            The district court substantially covered
    Moncrieffe’s requested instruction through its instructions on
    witnesses     credibility.            Further,      there    was    no    impairment    to
    Moncrieffe’s defense as he was able to fully argue to the jury
    the credibility and admitted acts of perjury by the witness.
    Moncrieffe next argues that the district court erred
    in denying his good faith defense instruction.                               Moncrieffe’s
    argument regarding a good faith defense is simply a claim of
    lack of knowledge or intent of the underlying criminal activity
    or    the   goals    of   the    conspiracies.           The      district    court   gave
    detailed instructions related to the mens rea requirements for
    both    counts,       and     was,        therefore,     not       required     to    give
    Moncrieffe’s good faith defense instruction.                         United States v.
    Mancuso, 
    42 F.3d 836
    , 847 (4th Cir. 1994).
    In     his   last      argument      related    to    jury   instructions,
    Moncrieffe     claims       that,     based    on   Santos,       the    district     court
    erred in instructing the jury on the meaning of “proceeds” in
    7
    the money laundering statute.               Moncrieffe failed to object to
    the district court’s instruction, and therefore his claim is
    reviewed on appeal for plain error.
    Even if we assume that the district court erred in its
    instruction, Moncrieffe fails to establish that he is entitled
    to   relief.     Moncrieffe      cannot      show   that    any    error    by   the
    district court was plain because at the time of Moncrieffe’s
    trial, the definition of “proceeds” in § 1956 was unsettled.
    See 
    Olano, 507 U.S. at 734
    ; United States v. Scialabba, 
    282 F.3d 475
    , 475 (7th Cir. 2002); United States v. Grasso, 
    381 F.3d 160
    ,
    167 (3d Cir. 2004), vacated on other grounds, Grasso v. United
    States, 
    544 U.S. 945
    (2005).           Also, Moncrieffe cannot establish
    that the error affected his substantial rights because there was
    overwhelming evidence that he assisted the Bansals in disguising
    their illegal income.          Johnson v. United States, 
    520 U.S. 461
    ,
    470 (1997).    Accordingly, this claim fails.
    Moncrieffe next argues that the district court erred
    in   not   providing   the     jury   with    a   written   copy    of     the   jury
    instructions    for    their    reference     during    their      deliberations.
    The decision to provide a set of written instructions to the
    jury is within the sound discretion of the trial court and will
    not be reversed absent an abuse of that discretion.                      See United
    States v. Conley, 
    503 F.2d 520
    , 522 (8th Cir. 1974); United
    States v. Parent, 
    954 F.2d 23
    , 24 n.1 (1st Cir. 1992); United
    8
    States v. Smith, 
    452 F.3d 323
    , 332 (4th Cir. 2006).                  This court
    has stated that “we presume that a properly instructed jury has
    acted in a manner consistent with the instructions.”                      United
    States v. Alerre, 
    430 F.3d 681
    , 692 (4th Cir. 2005).                      At no
    point did the jury express confusion or ask to be reinstructed.
    In light of these facts, Moncrieffe fails to establish error by
    the district court.
    Moncrieffe   next   raises     several     claims      related   to
    sentencing.       Following United States v. Booker, 
    543 U.S. 220
    (2005), a district court must engage in a multi-step process at
    sentencing.      First, it must calculate the appropriate Guidelines
    range.    It must then consider the resulting range in conjunction
    with the factors set forth in 18 U.S.C. § 3553(a) (2006), and
    determine an appropriate sentence.
    Appellate review of a district court’s imposition of a
    sentence is for abuse of discretion.                  Gall v. United States,
    
    128 S. Ct. 586
    , 597 (2007); see also United States v. Pauley,
    
    511 F.3d 468
    , 473 (4th Cir. 2007).                The appellate court must
    first ensure that the district court committed no procedural
    error, such as failing to calculate (or improperly calculating)
    the   Guidelines    range,   treating      the   Guidelines     as    mandatory,
    failing to consider the § 3553(a) factors, selecting a sentence
    based    on   clearly   erroneous   facts,       or   failing   to    adequately
    explain the chosen sentence - including an explanation for any
    9
    deviation from the Guidelines range.                    
    Gall, 128 S. Ct. at 597
    .
    If there are no procedural errors, the appellate court
    then considers the substantive reasonableness of the sentence.
    
    Id. A substantive reasonableness
    review entails taking into
    account the totality of the circumstances, including the extent
    of any variance from the Guidelines range.                         
    Pauley, 511 F.3d at 473
    (quotations and citation omitted).                        Even if the reviewing
    court would have reached a different sentence result on its own,
    this    fact    alone    is   insufficient        to    justify       reversal    of   the
    district court.         
    Id. at 474. Moncrieffe
        first   alleges          that    the     district    court
    committed procedural error in imposing his sentence by failing
    to adequately address his argument at sentencing or explain the
    basis for his sentence.           Although the district court was terse,
    the    context    and    record    make    clear       the    court    considered      and
    rejected       Moncrieffe’s       argument        based       on     the   Government’s
    response.       Rita v. United States, 
    127 S. Ct. 2456
    , 2469 (2007).
    Moncrieffe,       therefore,      fails      to     show       the     district    court
    committed      procedural     error   in     announcing        its     reason    for   his
    sentence.
    Moncrieffe next alleges the district court committed
    procedural error in calculating his advisory Guidelines range on
    the money laundering count.                We have reviewed the sentencing
    transcript and reject Moncrieffe’s argument.                        Moreover, any such
    10
    error would be irrelevant because, under the grouping rules, his
    base offense level was established by his RICO conviction and
    not his money laundering conviction.
    Finally,     Moncrieffe         argues         his     sentence         was
    substantively         unreasonable     in      that    it     created      unwarranted
    sentencing        disparities        among      his      fellow       co-defendants.
    Moncrieffe       attempts       to   compare     his    sentence      to       those   of
    co-defendants who cooperated or were acquitted of charges of
    which    he    was    convicted.      This     court    may    presume     a    sentence
    within    the        advisory    Guidelines      range        is    reasonable,        and
    Moncrieffe has failed to demonstrate that such a presumption is
    unwarranted here.         Rita, 
    127 S. Ct. 2459
    .
    Accordingly, we affirm the judgment of the district
    court.        We dispense with oral argument as the facts and legal
    contentions are adequately presented in the materials before the
    court and argument would not aid the decisional process.
    AFFIRMED
    11
    

Document Info

Docket Number: 08-4344

Citation Numbers: 319 F. App'x 249

Judges: Gregory, Niemeyer, Per Curiam, Wilkinson

Filed Date: 3/24/2009

Precedential Status: Non-Precedential

Modified Date: 11/5/2024

Authorities (22)

United States v. Santos , 128 S. Ct. 2020 ( 2008 )

united-states-v-willie-james-rhynes-aka-big-will-united-states-of , 196 F.3d 207 ( 1999 )

United States v. Wallace , 515 F.3d 327 ( 2008 )

United States v. Michael Craig Patterson , 150 F.3d 382 ( 1998 )

united-states-v-william-kenneth-banks-aka-kenny-united-states-of , 10 F.3d 1044 ( 1993 )

Gall v. United States , 128 S. Ct. 586 ( 2007 )

United States v. Michael J. Grasso, Jr. , 381 F.3d 160 ( 2004 )

United States v. Michael Sevane Rhynes, United States of ... , 218 F.3d 310 ( 2000 )

United States v. Barry H. Parent , 954 F.2d 23 ( 1992 )

United States v. John Conley, Jr. , 503 F.2d 520 ( 1974 )

United States v. Lawrence Scialabba and Robert T. Cechini , 282 F.3d 475 ( 2002 )

Grasso v. United States , 125 S. Ct. 1696 ( 2005 )

United States v. Beaver , 515 F.3d 730 ( 2008 )

Rita v. United States , 127 S. Ct. 2456 ( 2007 )

United States v. Ricardo U. Alerre, United States of ... , 430 F.3d 681 ( 2005 )

United States v. Eddie Brooks, United States of America v. ... , 928 F.2d 1403 ( 1991 )

United States v. Pauley , 511 F.3d 468 ( 2007 )

United States v. Eric Bernard Smith, A/K/A E, A/K/A Pac-Man,... , 451 F.3d 209 ( 2006 )

United States v. Olano , 113 S. Ct. 1770 ( 1993 )

Johnson v. United States , 117 S. Ct. 1544 ( 1997 )

View All Authorities »