United States v. Michael Roussel , 705 F.3d 184 ( 2013 )

Case: 11-30908 Document: 00512115568 Page: 1 Date Filed: 01/16/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 16, 2013
No. 11-30908 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MICHAEL ROUSSEL,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
Before JOLLY, JONES, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
Michael Roussel (“Roussel”) appeals his conviction along with the sentence
imposed. For the reasons articulated below, we AFFIRM the conviction,
VACATE the sentence, and REMAND for resentencing.
FACTS AND PROCEEDINGS
I. Procedural History
Roussel, a New Orleans Police Department (“NOPD”) Captain and Traffic
Division commander, and Joey Branch (“Branch”), a Texas businessman, were
indicted on five counts of wire fraud and one count of conspiracy involving a
scheme to defraud Entergy Services, Inc. (“Entergy”), a New Orleans-based
utilities provider. Branch pleaded to conspiracy, entered into a plea agreement
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whereby he agreed to the statutory maximum five-year sentence, and cooperated
with the government.
Roussel proceeded to trial. At trial, the district court read to the jury the
Fifth Circuit Pattern Jury Instruction’s “deliberate ignorance”1 charge, which
relates to the mens rea required for conviction. The district court also read to
the jury a modified version of the circuit’s pattern jury instruction regarding
limitations for consideration of “other acts” under Federal Rule of Evidence
404(b). The district court allowed Roussel’s attorney to cross-examine Branch
about his sentencing reduction in exchange for cooperating with the government,
but limited detailed inquiry into the magnitude of the benefit Branch received.
The jury returned a partial verdict, convicting Roussel of conspiracy and two
wire fraud counts, acquitting him on one wire fraud count, and remaining
undecided on the remaining two wire fraud counts.
On September 8, 2011, the district court sentenced Roussel. The court, in
determining the advisory range under the United States Sentencing Guidelines
(“sentencing guidelines”) § 2C1.1, found that Roussel was a public official and a
high-level public official, that more than one bribe was anticipated, and that the
reasonably expected benefits from the fraudulent scheme were between
$1,000,000.01 and $2,500,000.00. This resulted in an offense level of 38 and a
sentencing guidelines range of 235-293 months, equivalent to the base offense
level for second degree murder. U.S. Sentencing Guidelines Manual § 2A1.2.
The district court, however, determined that the “guidelines themselves came
to an unreasonable result,” granted a downward variance, and imposed a 136-
month sentence—99 months below the bottom of the advisory range. Roussel
timely appealed, asserting that the district court committed numerous errors
during trial and at sentencing.
1
This is also known as the “willful blindness” charge.
2
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II. Facts
The conspiracy to defraud Entergy centered around a bribery plan of
Roussel and Branch, along with Louis Dabdoub (“Dabdoub”), the Entergy
security manager who assisted the FBI in the investigation. Roussel, as the
NOPD Traffic Division commander, helped coordinate traffic for hurricane
evacuations. Branch owned Gladius Inc. (“Gladius”), a Texas company that
provided security guards to other companies. Dabdoub, a retired NOPD
Captain, was Entergy’s security manager. He assisted with hiring security
guards for Entergy for natural disasters, including hurricanes.
In 2008, Branch, through Gladius, provided armed security guards to
Home Depot in New Orleans following Hurricane Gustav. NOPD officers
complained that Gladius’s guards did not have proper certifications. A friend
put Branch in touch with Roussel, who assisted in solving the problem. Roussel
later assisted Branch with other paid details.
On June 10, 2010, Branch visited New Orleans and asked Roussel if he
knew any big companies willing to work with Gladius. Branch told Roussel
that he paid “finder’s fees” to assist Gladius in obtaining contracts. Roussel told
Branch he knew Dabdoub, Entergy’s security manager. Branch asked if
Dabdoub was a decision-maker, and Roussel allegedly responded, “Yes, but he’s
going to want a piece of it.” Roussel later denied making this statement in
testimony. Roussel then called Dabdoub himself to explain Branch’s operation.
During the call, he allegedly told Dabdoub, “man, have I got some money for
you.” Roussel later testified that he was simply repeating to Dabdoub what
Branch had told him.
Dabdoub became suspicious of the plan. In fact, as Roussel’s NOPD
commander in 1997, Dabdoub had accused Roussel of tipping off a drug dealer
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about an impending raid and then lying about his whereabouts.2 Ultimately, the
accusation that Roussel had obstructed justice by tipping off the drug dealer was
not sustained, though the accusation that he lied about his whereabouts was
sustained. He was therefore suspended without pay for three days. According
to Roussel, this was the only blemish on his record.
After Roussel’s call about the Gladius proposal, Dabdoub called NOPD
Major James Treadaway. Treadaway passed on the information to the NOPD
Superintendent, who called the FBI. Dabdoub assisted by acting as a corrupt
security manager for Entergy. Dabdoub placed a recorded call to Roussel on
June 14, 2010, agreeing to meet Branch. On the call, Roussel said, “[T]here is
some money for us.”
Branch flew his plane to New Orleans Lakefront Airport later that day.
Roussel, in his NOPD uniform and driving an NOPD vehicle reserved for
dignitaries, drove Branch and his associates to Entergy. At the video recorded
meeting, Branch and Dabdoub discussed the deal, while Roussel, sitting in the
back, listened, texted, and occasionally commented when the conversation was
directed to him. He left to use the bathroom when discussions turned to paying
Dabdoub, and returned about a minute-and-a-half later. While he was out,
2
In that incident, a narcotics officer received a call from an informant stating where
a known drug dealer could be found. When police arrived to apprehend the suspect, the
suspect possessed no drugs. However, he had a pager, which had received a page from the
NOPD Sixth District station’s main number at the same time as or just after the informant’s
call was placed to the officer. Though Roussel was not on the narcotics squad, he later arrived
at the scene in his personal car and spoke briefly to the suspect.
The NOPD’s Public Integrity Bureau had conducted an investigation into the 1997
matter. The two officers involved in the telephone conversation with the informant stated that
they saw only Roussel come in and out of the room while the phone conversation was
occurring. As part of the investigation, Dabdoub questioned Roussel about his whereabouts
at the time of the informant’s call. Roussel denied being at the Sixth District station on the
day of the call, although Dabdoub remembered seeing him earlier that day at the station.
Later, Roussel told investigators that he never spoke with Dabdoub about his whereabouts on
the day of the raid.
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Dabdoub and Branch decided Dabdoub’s wife would become employed by
Gladius. Roussel was told about this arrangement when he returned.
Again in Roussel’s presence, Dabdoub and Branch arranged for Entergy
to pay Gladius $89.50 per guard per hour, which was inflated about $15 over
what Gladius needed to make a profit. Branch and Dabdoub discussed dividing
the excess $15, agreeing, after Branch stated, “I have to have my consultant
here,” that they and Roussel would split it three ways. Roussel testified at trial
that he was “bored” during the meeting, that the talk was above him, and that
he “didn’t give it any thought” that the men could be scheming to defraud
Entergy.
Afterwards, Roussel and Branch had dinner in the French Quarter and,
according to Branch, talked about early retirement from all the money they
would make. On June 16, 2010, Dabdoub placed a recorded call to Roussel to
request “good faith” money from Branch, to ensure that Branch would not
deceive them. Roussel said he would call Branch later that day, but the parties
dispute whether or not he ever made the call. On June 20, 2010, Branch called
Roussel and Roussel told him about Dabdoub’s request for “good faith” money.
This upset Branch. Roussel testified that he suggested Branch take Dabdoub
out to dinner to show his “good faith.” Branch testified that he told Roussel he
would pay $10,000, but after Roussel said it was too much, Branch said he would
pay $1,000.
On June 22, 2010, Branch flew back to New Orleans to execute the
contract. Roussel, again in his NOPD uniform and driving an NOPD vehicle,
drove Branch and his associates to Entergy. During the ride, Branch gave
Roussel $500.3 Immediately before the group meeting among Branch, Roussel,
Dabdoub, and several Entergy and Gladius staff, the three met privately in
3
Roussel testified that this was money owed to him for coordinating a prior detail,
while Branch testified that this was his “good faith” money to Roussel for the Entergy deal.
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Dabdoub’s office. In Roussel’s presence, Branch gave Dabdoub an envelope
containing the $1,000 in “good faith” money. Branch also gave Dabdoub the
paperwork for Gladius to hire Dabdoub’s wife, and the two joked about
Dabdoub’s wife being “the best-paid secretary” ever. When Dabdoub began to
discuss the amount of money the three could make from the deal, Roussel
replied, rhetorically, “I don’t even want to know.” The three then returned to the
group conference room and the parties signed the fraudulent contract.
Afterwards, agents arrested Branch and Roussel. When questioned,
Roussel stated that the contract would never be carried out because Branch
would not follow through.
DISCUSSION
Roussel asserts that the district court committed three errors during trial
and four errors during sentencing. Regarding the trial errors, he argues that the
district court committed error in: (1) its issuance of this circuit’s “deliberate
ignorance” pattern jury instruction; (2) its Federal Rule of Evidence 404(b)
instruction to the jury on “other acts;” and (3) limiting Roussel’s counsel’s
cross-examination of Branch regarding Branch’s plea agreement, which denied
Roussel his constitutional right to confront his accuser.
With respect to sentencing, Roussel asserts that the sentencing guidelines
enhancements were improper because the district court clearly erred in: (1)
finding that Roussel was a public official and a high-level public official; (2)
finding that more than one bribe occurred; and (3) its calculation of the expected
monetary benefit from the fraudulent contract. Additionally, Roussel contends
the district court violated the Supreme Court’s ruling in Apprendi v. New Jersey,
530 U.S. 466 (2000), in considering a 30-year statutory maximum sentence when
the evidence presented to the jury was only sufficient to convict on a crime with
a 20-year maximum. We address each of these claims in order.
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I. Whether the district court’s issuance of this circuit’s “deliberate ignorance”
pattern jury instruction was, even if erroneous and in violation of Supreme Court
precedent, harmless error.
A. Standard of Review
The parties dispute the applicable standard of review. The government
argues that Roussel did not “inform the court of the specific objection [to the jury
instruction] and the grounds for the objection,” which requires a review of the
district court’s decision to issue the jury instruction and the content of the
instruction for plain error. Fed. R. Crim. P. 30(d). Roussel argues that he
properly objected, and that we “review preserved error in jury instructions under
an abuse of discretion standard and ask whether the court’s charge, as a whole,
is a correct statement of the law and whether it clearly instructs jurors as to the
principles of the law applicable to the factual issues confronting them.” United
States v. Brooks, 681 F.3d 678, 697 (5th Cir. 2012) (quotation omitted).
Nonetheless, “[a]ny error is subject to harmless error review,” United States v.
Mendoza-Medina, 346 F.3d 121, 132 (5th Cir. 2003) (citation omitted), rendering
moot the parties’ disagreement regarding the applicable standard of review.
B. Analysis
Though the deliberate ignorance instruction was improper, the district
court’s error was harmless.
Roussel argues that the district court’s decision to give the instruction was
improper because it lowered the required mens rea, and that the circuit’s pattern
instruction is in violation of Supreme Court precedent. The government argues
that both the court’s decision to give the instruction and the language of the
instruction were proper.
This circuit’s pattern jury instructions state that “ ‘knowingly’ . . . means
that the act was done voluntarily and intentionally, not because of mistake or
accident.” 5th Cir. Pattern Jury Instructions: Criminal § 1.37 (2001). If a
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deliberate ignorance instruction is warranted, the judge may continue reading
from the pattern instruction as follows:
You may find that a defendant had knowledge of a fact if you find
that the defendant deliberately closed his eyes to what would
otherwise have been obvious to him. While knowledge on the part
of the defendant cannot be established merely by demonstrating
that the defendant was negligent, careless, or foolish, knowledge can
be inferred if the defendant deliberately blinded himself to the
existence of a fact.
Id.
“[A] deliberate ignorance instruction is warranted when a defendant
claims a lack of guilty knowledge and the proof at trial supports an inference of
deliberate indifference.” Brooks, 681 F.3d at 701 (quotation omitted). “The
evidence at trial must raise two inferences: (1) the defendant was subjectively
aware of a high probability of the existence of the illegal conduct; and (2) the
defendant purposely contrived to avoid learning of the illegal conduct.” Id.
(quotation omitted).
In Mendoza-Medina, we explained:
We have often cautioned against the use of the deliberate
ignorance instruction. Because the instruction permits a jury to
convict a defendant without a finding that the defendant was
actually aware of the existence of illegal conduct, the deliberate
ignorance instruction poses the risk that a jury might convict the
defendant on a lesser negligence standard—the defendant should
have been aware of the illegal conduct.
Mendoza-Medina, 346 F.3d at 132 (quotation omitted).
Last year, we further elaborated that “[d]eliberate indifference
instructions are inappropriate in the usual case, where the evidence presents a
simple choice between a version of the facts in which the defendant had actual
knowledge, and one in which the defendant was no more than negligent or
stupid.” United States v. Jones, 664 F.3d 966, 979 (5th Cir. 2011) (quotation
omitted), cert. denied, 132 S. Ct. 2728 (2012).
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Nevertheless, we have “consistently held that an error in giving the
deliberate ignorance instruction is . . . harmless where there is substantial
evidence of actual knowledge.” United States v. Threadgill, 172 F.3d 357, 369
(5th Cir. 1999) (quotations omitted); accord Jones, 664 F.3d at 979 (holding that
any erroneous issuance of deliberate ignorance jury charge was harmless in that
case). In Threadgill, we found that the defendants had actual knowledge of their
participation in a money laundering scheme, and there was thus no need to
address whether the deliberate ignorance instruction was properly submitted.
Id. “We concede, after reviewing the record, that there is little evidence that the
defendants purposefully contrived to avoid knowing that their actions were
unlawful. In fact, the evidence reveals just the opposite, that the defendants
knew that their conduct was criminal and took elaborate measures to hide it.”
Id.Here, the district court’s issuance of the deliberate ignorance charge,
though erroneous, was harmless error. As in Threadgill, there was substantial
evidence of Roussel’s actual knowledge of the illegal scheme. The record reflects
that, to the extent he attempted to take any exculpatory actions, they had the
purpose of hiding his involvement in the fraud, not to avoid knowledge of it
altogether. Roussel was an essential player in the three-way scheme from the
beginning. He connected Branch and Dabdoub, facilitated and participated in
meetings and telephone calls, shuttled Branch back and forth to those meetings,
stayed involved throughout the negotiations of the fraudulent contract, assented
to receiving a portion of the kickback, and advised Branch on the amount of
“good faith” money that Branch would pay Dabdoub. He also admitted to having
at least some knowledge of Branch’s untruthful ways when questioned after his
arrest, calling Branch a “bullshit artist.”
During the sentencing proceedings, the district court elaborated on the
overwhelming evidence against Roussel:
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The whole crime, basically, was committed on videotape, and
I watched Mr. Roussel, not only listened to his words but watched
his body language, his facial expressions, his conduct on the
videotapes.
Although, it is true, he sort of sat back and let Mr. Branch and
Mr. Dabdoub do most of the talking, there is no doubt in my mind
that he was clearly involved, very involved in what they were
discussing, very aware of what they were discussing, and his
testimony that he didn’t understand, was not aware that they were
talking about something that was illegal just, frankly, was
preposterous to me.
To the extent Roussel contends that he was merely a “consultant” and his
only interest was to receive a “finder’s fee,” he remained intimately involved in
the transaction for a much longer period of time than was necessary or
reasonable to maintain such an innocent role.
Whether Roussel was bored and texting during the June 14, 2010 meeting
at Entergy is not dispositive of his knowledge of, or involvement in, the scheme.
Nor is Roussel’s leaving to use the bathroom “almost immediately when
discussions turned to paying Dabdoub,” Gov’t App. Br. at 8, proof of Roussel’s
lack of knowledge (as he claims) or proof that he was acting to deliberately avoid
knowledge of the kickback scheme (as the government claims). He was told upon
his return that Branch would hire Dabdoub’s wife and that they would split the
$15 overpayment three ways. That is substantial knowledge of the illegal
scheme. Therefore, the district court’s issuance of the deliberate ignorance
instruction was erroneous, but the error was harmless.
Since we find harmless error, there is no need to address Roussel’s
argument that this circuit’s pattern deliberate ignorance instruction is improper
in light of Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011).
Nonetheless, we have already expressly approved continued use of the pattern
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instruction post-Global-Tech.4 United States v. Brooks, 681 F.3d 678, 702-03
(5th Cir. 2012) (“although this [Fifth Circuit pattern deliberate ignorance]
instruction obviously does not use the same language as Global-Tech, the same
meaning is conveyed.”). Therefore, Roussel’s argument is without merit.
II. Whether the district court erred in its Rule 404(b) instruction to the jury on
“other acts.”
Rule 404(b) reads:
(1) Evidence of a crime, wrong, or other act is not admissible to
prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.
(2) This evidence may be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident. On request by a
defendant in a criminal case, the prosecutor must:
(A) provide reasonable notice of the general nature of any
such evidence that the prosecutor intends to offer at trial; and
(B) do so before trial—or during trial if the court, for good
cause, excuses lack of pretrial notice.
Fed. R. Evid. 404(b).
The evidence at issue here was Dabdoub’s 1997 accusation that Roussel
tipped off drug dealers about an impending raid and then lied about his
whereabouts to cover it up. The NOPD’s Public Integrity Bureau did not sustain
the accusation against Roussel for tipping off the drug dealer, but it did sustain
the accusation of “untruthfulness” for lying to Dabdoub about his whereabouts
that day.
What makes this case different from the typical Rule 404(b) dispute is
that, here, the defense sought to introduce evidence of other acts. During trial,
the district court stated that “the government originally offered [evidence of the
4
In Global-Tech, the Supreme Court considered deliberate ignorance in the civil
context, stating that deliberate ignorance requires proof that: (1) the defendant subjectively
believed that there was a high probability that a fact exists and (2) the defendant took
deliberate actions to avoid learning of that fact. Global-Tech, 131 S. Ct. at 2070 (citations
omitted).
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1997 NOPD incident] as a 404(b) evidence, and . . . I was inclined to keep it out
of this case completely until the defense injected it into the case for other
reasons.” Roussel “marshaled this evidence in support of its theory that Roussel
would not have knowingly approached Dabdoub, his dogged prior accuser, with
a solicitation for illegal activity.” Roussel App. Br. at 22. Therefore, as the
district court correctly recognized, the standard Rule 404(b) jury instruction
would need to be modified to account for the atypical situation and to ensure
that the evidence of the 1997 incident would not be used to prove Roussel had
a propensity to commit the crimes in the indictment.
To the extent the introduction of the evidence was erroneous, the doctrine
of invited error applies to this situation; when injection of inadmissible evidence
is attributable to the actions of the defense, the defense cannot later object to
such “invited error.” United States v. Raymer, 876 F.2d 383, 388 (5th Cir. 1989)
(citing, e.g., United States v. Lemaire, 712 F.2d 944, 948-49 (5th Cir. 1983), cert.
denied, 464 U.S. 1012 (1983)), cert. denied 110 S. Ct. 198 (1989). Roussel invited
any erroneous Rule 404(b) instruction by injecting the evidence of the 1997
incident into the case. Now that he has lost this risky bet, he attempts to
demonstrate that the district court’s instruction was improper all along. On
appeal, he asserts a new and inapplicable argument that “[t]he other
acts—unsubstantiated, fourteen-year-old misconduct allegations against Mr.
Roussel—were dissimilar from the charged offense, were remote in time, and
had no proper bearing on Mr. Roussel’s guilt for the charged offense.” Roussel
Reply Br. at 23. Indeed, it appears that he is now making a typical 404(b)
argument that the evidence should never have been introduced in the first place.
Given that he requested the introduction of the evidence, however, he invited
any error in the issuance of the instruction.5
5
The government contends that Roussel’s ultimate assent to the Rule 404(b) instruction
constitutes a waiver, citing United States v. Jefferson, 432 F. App’x 382, 387-88 (5th Cir. 2011)
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III. Whether the district court erred in limiting Roussel’s counsel’s cross-
examination of Branch regarding Branch’s plea agreement, and, if so, whether
that error violated Roussel’s right to confront his accuser.
A. Standard of Review
A constitutional question merits de novo review. See United States v.
Asibor, 109 F.3d 1023, 1037 (5th Cir. 1997). Once the Confrontation Clause of
the Sixth Amendment has been satisfied, limitation of cross-examination is
reviewed for abuse of discretion. United States v. Davis, 393 F.3d 540, 548 (5th
Cir. 2004).6
B. Analysis
Reviewing the constitutional question de novo, there was no violation of
Roussel’s Sixth Amendment right to confront his accuser. Beyond that,
reviewing the limitation of Roussel’s counsel’s cross-examination of Branch for
any other impropriety, the district court did not abuse its discretion.7
Roussel argues that his Sixth Amendment right to confront his accuser
was violated and that the district court’s limitation on his counsel’s cross-
examination of Branch about Branch’s actual exposure under the guidelines was
otherwise improper. “While the scope of cross-examination is within the
discretion of the trial judge, this discretionary authority comes into play only
after there has been permitted as a matter of right sufficient cross-examination
(“The defense counsel’s agreement to the instructions constitutes a waiver.”)). We need not
consider this argument, however, since Roussel invited any error in the district court’s
instruction.
6
Again, Roussel and the government disagree on the applicable standard of review.
The government asserts that Roussel did not preserve his objection, and that review is
therefore limited to plain error. We need not address this disagreement because, even
assuming Roussel preserved his objection, as explained below, the district court did not err in
limiting the cross-examination.
7
After Roussel’s counsel repeatedly questioned Branch about the sentencing guidelines’
effect on the magnitude of his benefit, the district court stated “[w]e’ve beat this horse to
death, Mr. Reed. We really have. We’re not going into sentencing guidelines.”
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to satisfy the Sixth Amendment.” United States v. Restivo, 8 F.3d 274, 278 (5th
Cir. 1993). The Sixth Amendment’s Confrontation Clause is violated if “the
defendant [can] show that a reasonable jury might have had a significantly
different impression of the witness’s credibility if defense counsel had been
allowed to pursue the questioning.” Davis, 393 F.3d at 548.
In Davis, we ruled that there was no Sixth Amendment violation or abuse
of discretion regarding the court’s limitation on cross-examination because
defense counsel was able to elicit information on the effect of a plea agreement
on the dismissal of the indictment against the witness. Davis, 393 F.3d at 547-
48. Additionally, in Restivo, we held that there was no Sixth Amendment
violation or abuse of discretion regarding the court’s limitation on cross-
examination because defense counsel had elicited sufficient testimony to infer
the witness’s bias. Restivo, 8 F.3d at 278.
Roussel argues that his counsel was unable to question Branch about
Branch’s actual exposure under the guidelines or further benefits that Branch
may receive through his cooperation. Nevertheless, the jury had more than
enough information to infer Branch’s potential bias in testifying against Roussel,
including Branch’s maximum statutory penalty on the initial charges (30 years),
the government’s agreement to prosecute Branch on only one of the six charges
and Branch’s agreement to plead guilty on that charge, and the resulting
statutory cap on Branch’s sentence (five years). Additionally, the jury had a copy
of Branch’s full plea agreement. Beyond that, the jury knew that the
government could ask for an even lesser sentence depending on the value of
Branch’s cooperation.
This was more than sufficient to satisfy the Confrontation Clause, and
does not indicate that the district court abused its discretion by limiting
questioning into Branch’s possible exposure under the sentencing guidelines.
Given that he had not yet been sentenced at the time of his testimony, Branch’s
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own estimate of his sentence under the sentencing guidelines8 would have been
speculative and confusing to the jury.
That the jury knew about a possible 25-year sentencing reduction and
Branch’s plea to only one of six counts in exchange for his cooperation was more
than enough information to infer Branch’s bias as a witness, and, therefore,
there was no Confrontation Clause violation nor abuse of discretion in limiting
Roussel’s counsel’s cross-examination.
IV. Whether the district court clearly erred in finding Roussel was a public
official and a high-level public official for the purposes of the sentencing
guidelines enhancements.
A. Standard of Review
We review purely legal conclusions or interpretations of the meaning of a
sentencing guideline de novo, and review the trial court’s findings of fact for
clear error. United States v. Mann, 493 F.3d 484, 492 (5th Cir. 2007). Clear
error exists if we are left with a definite and firm conviction that a mistake has
been made. United States v. Griffin, 324 F.3d 330, 365 (5th Cir. 2003). We may
affirm the district court’s judgment on any basis supported by the record. United
States v. Le, 512 F.3d 128, 134 (5th Cir. 2007) (quotation omitted).
B. Analysis
The district court did not err in applying sentencing enhancements based
on its findings that Roussel was a public official, and a high-level public official
or a public official in a sensitive position.
Section 2C1.1(a) of the sentencing guidelines requires a base offense level
of 14 “if the defendant was a public official.” Otherwise, the base offense level
is 12. Id. The commentary to the section, in relevant part, defines “public
official” as:
8
In any case, the sentencing guidelines are advisory only. United States v. Booker, 543
U.S. 220, 246, 259-60 (2005).
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(C) An officer or employee or person acting for or on behalf of a
state or local government, or any department, agency, or branch of
government thereof, in any function, under or by authority of such
department, agency, or branch of government, or a juror in a state
or local trial.
***
(E) An individual who, although not otherwise covered by
subdivisions (A) through (D): (i) is in a position of public trust with
official responsibility for carrying out a government program or
policy; (ii) acts under color of law or official right; or (iii) participates
so substantially in government operations as to possess de facto
authority to make governmental decisions . . . .
U.S. Sentencing Guidelines Manual § 2C1.1 cmt. n.1.9
Additionally, § 2C1.1(b)(3) requires that “[i]f the offense involved an
elected public official or any public official in a high-level decision-making or
sensitive position, increase by 4 levels.” The commentary to the section defines
a “high-level decision-making or sensitive position” as “a position characterized
by a direct authority to make decisions for, or on behalf of, a government
department, agency, or other government entity, or by a substantial influence
over the decision-making process.” U.S. Sentencing Guidelines Manual § 2C1.1
cmt. n.4. It provides examples of a public official in a high-level decision-making
position, “includ[ing] a prosecuting attorney, a judge, an agency administrator,
and any other public official with a similar level of authority.” Id. “Examples
of a public official who holds a sensitive position include a juror, a law
enforcement officer, an election official, and any other similarly situated
individual.” Id. (emphasis added).
Roussel argues that the district court erred in applying the § 2C1.1(a)
“public official” enhancement because he was not “acting for or on behalf of” the
9
“[C]ommentary in the Guidelines Manual that interprets or explains a guideline is
authoritative unless it violates the Constitution or a federal statute, or is inconsistent with,
or a plainly erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38
(1993).
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No. 11-30908
NOPD at the specific times he engaged in the criminal activity. He further
argues that his wearing his Captain’s uniform and use of his police vehicle while
off duty to chauffeur Branch were not indicative of his acting in an official
capacity, and that “his position provided him with no special access to Dabdoub,
who was an acquaintance from high school and no longer employed by the
NOPD.” Roussel App. Br. at 32-33. Despite this, the district court found that
he was acting in his official capacity or under the authority of his office at the
time the crimes were committed.
Irrespective of whether Roussel was acting for the NOPD at the time of the
criminal activity, he was “in a position of public trust with official responsibility
for carrying out a government program or policy,” U.S. Sentencing Guidelines
Manual § 2C1.1 cmt. n.1(E), and was therefore a “public official” for the purposes
of the sentencing guidelines. He was the commander of the NOPD’s Traffic
Division, responsible for the incredibly important job of coordinating hurricane
evacuations. This was clearly a position of public trust. Therefore, as we may
affirm a district court’s decision on any basis supported by the record, Le, 512
F.3d at 134, the “public official” sentencing enhancement was not clearly
erroneous.
The four-level sentencing enhancement based on Roussel’s high-level or
sensitive position was also appropriate. The commentary to § 2C1.1(b)(3)
explicitly identifies a police officer as a person holding a sensitive position. U.S.
Sentencing Guidelines Manual § 2C1.1 cmt. n.4(B). Additionally, as a Captain
in the NOPD, Roussel was clearly in a high-level position.
Roussel argues that the four-point “high-level or sensitive position”
sentencing enhancement was improper because he “was not the subject of the
bribe and his official role was not compromised.” Roussel App. Br. at 36 (citing
United States v. Barraza, 655 F.3d 375, 384 (5th Cir. 2011) (“The commentary
explains that the four-level enhancement should be applied ‘if the payment was
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for the purpose of influencing an official act by certain officials.’ ”) (quoting U.S.
Sentencing Guidelines Manual § 2C1.1 cmt. background) (erroneously attributed
to U.S. Sentencing Guidelines Manual § 1B1.1 cmt. background), cert. denied,
132 S. Ct. 1590 (2012)). Roussel deduces from this that the four-level
enhancement is precluded in any other situation.
In 2004, the sentencing guidelines were amended by removing language
requiring an eight-level enhancement where “the offense involved a payment for
the purpose of influencing an elected official or any official holding a high-level
decision-making or sensitive position.” See U.S. Sentencing Guidelines Manual
app. C, amend. 666.12. Following Amendment 666, this language is no longer
part of the guidelines, though it remains as an instructive example in the
background to the commentary.10 Instead, § 2C1.1(b)(3) was implemented to
apply a four-level increase when “the offense involves an elected public official
or any public official in a high-level decision-making or sensitive position.” The
amendment demonstrates an intention to expand the reach of the four-level
enhancement beyond public officials that receive direct payment bribes to
influence their official actions.
Furthermore, Roussel’s reliance on Barraza and other cases is
unpersuasive, as the courts there were merely applying the sentencing
enhancement based on the particular facts of those cases. This does not in any
way suggest that the “high-level or sensitive position” enhancement is improper
in any other situations.11
10
As the district court stated during the sentencing proceedings, the background is
“illustrative of examples of what they mean, but it doesn’t say that’s the only way this could
fit. It says, ‘[i]t applies to a person who offers or gives a bribe for a corrupt purpose,’ which
certainly applies here.”
11
“[A] guideline for the offense must be designed to cover diverse situations.” U.S.
Sentencing Guidelines Manual § 2C1.1 cmt. background.
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Though he states early in his opening brief that he will not argue this,
Roussel also asserts in his reply brief that Roussel should not receive the four-
level sentencing guidelines enhancement because Branch did not. He posits
that, since the guidelines require a four-level enhancement for crimes “involving”
a high-level or sensitive position, Branch should have also received the
enhancement. Roussel Reply Br. at 4. Branch’s lesser sentence, however, does
not assist Roussel because “a mere disparity of sentences among co-defendants
does not, alone, constitute an abuse of discretion.” United States v. Ochoa, 667
F.3d 643, 651 (5th Cir. 2012) (finding no abuse of discretion for sentencing one
defendant to 235 months and government cooperator to three years). In any
case, Roussel may have been more deserving of the enhancement because
“offenders who abuse their positions of public trust are inherently more culpable
than those who seek to corrupt them . . . .” U.S. Sentencing Guidelines Manual
app. C, amend. 666, reason for amendment.
For all the reasons stated above, the district court did not clearly err in
applying either the “public official” sentencing guidelines enhancement or the
“high-level or sensitive position” enhancement to Roussel.
V. Whether the district court clearly erred in finding that more than one bribe
occurred, meriting a sentencing guidelines enhancement.
A. Standard of Review
Again, we review purely legal conclusions or interpretations of the
meaning of a sentencing guideline de novo, and review the trial court’s findings
of fact—including the relevant conduct for determining whether more than one
bribe occurred—for clear error. See United States v. Mann, 493 F.3d 484, 492
(5th Cir. 2007) (citation omitted) (determining there was no clear error in district
court’s finding more than one act of extortion); United States v. Griffin, 324 F.3d
330, 365 (5th Cir. 2003) (citation and internal quotation marks omitted) (holding
that district court clearly erred in finding more than one bribe). Clear error
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exists if we are left with a definite and firm conviction that a mistake has been
made. Griffin, 324 F.3d at 365 (citation omitted).
B. Analysis
The district court clearly erred in finding that more than one bribe
occurred, and the two-level enhancement under § 2C1.1(b)(1) of the sentencing
guidelines was therefore improper. The guidelines’ commentary states that
[s]ubsection (b)(1) provides an adjustment for offenses involving
more than one incident of either bribery or extortion. Related
payments that, in essence, constitute a single incident of bribery or
extortion (e.g., a number of installment payments for a single
action) are to be treated as a single bribe or extortion, even if
charged in separate counts.
U.S. Sentencing Guidelines Manual § 2C1.1 cmt. n.2.
“The ‘offense’ referred to in section 2C1.1(b)(1) includes ‘the offense of
conviction and all relevant conduct under § 1B1.3 (Relevant Conduct) unless a
different meaning is specified or is otherwise clear from the context.’ ” Mann,
493 F.3d at 497 (5th Cir. 2007) (quoting U.S. Sentencing Guidelines Manual §
1B1.1 cmt. n.1) (affirming district court’s application of two-level sentencing
guidelines enhancement based on the commission of more than one act of
extortion).12 “Relevant conduct includes offenses that are part of the same
course of conduct or common scheme or plan as the offense of conviction.” Id.
12
§ 1B1.3 defines, in material part, the “relevant conduct” to be considered in
determining the guidelines range as follows:
(A) all acts and omissions committed, aided, abetted, counseled, commanded,
induced, procured, or willfully caused by the defendant; and
(B) in the case of a jointly undertaken criminal activity (a criminal plan,
scheme, endeavor, or enterprise undertaken by the defendant in concert with
others, whether or not charged as a conspiracy), all reasonably foreseeable acts
and omissions of others in furtherance of the jointly undertaken criminal
activity, that occurred during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to avoid detection or
responsibility for that offense.
U.S. Sentencing Guidelines Manual § 1B1.3(a)(1).
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(quotation omitted). “A district court’s determination of what constitutes
relevant conduct is reviewed for clear error.” Id.
During the sentencing proceedings, the district court found that:
[w]hat was intended was a series of actions over a period of time.
This contract was to continue for some period of time in the future
. . . . It could not be anticipated exactly when they would occur, but
whenever there would be a presidentially declared natural
catastrophe or emergency and Entergy would be required to
immediately beef up its security force, then . . . Gladius, would be
called upon to supply security officers, . . . but in any event, it seems
to me that that is very different from a one-time agreement to pay
a bribe that is then just paid over in installments. This was going
to be a series of actions. Effectively another bribe to be paid every
time there was another event that occurred.
Roussel requests that we adopt the Second Circuit’s test for determining
whether more than one bribe took place. In United States v. Arshad, 239 F.3d
276, 280-82 (2d Cir. 2001), the Second Circuit announced three factors to
determine whether multiple bribes occurred for the purposes of the two-level
sentencing guidelines enhancement: (1) whether the payments were made to
influence a “single action;” (2) whether the pattern and amount of payments bear
the hallmarks of installment payments, such as a regular schedule of payments
over a finite period of time toward a fixed final sum, rather than a series of
intermittent and varied bribes; and (3) whether the method for making each
payment remains the same. Arshad, 239 F.3d at 280-82. At least one other
circuit has applied the Arshad factors to find that multiple bribes took place. See
United States v. Weaver, 175 F. App’x 506, 509-11 (3d Cir. 2006).
Roussel, applying the Arshad factors, asserts that the bribe intended for
Louis Dabdoub was: (1) to influence a single action, the confection of the
fraudulent Entergy contract; (2) for a fixed amount of the fraudulent Entergy
contract with Gladius ($4.83 out of every $89.50, or approximately 5% of all
future security needs), a hallmark of installment payments; and (3) to be
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No. 11-30908
consistently paid to Dabdoub’s wife as compensation for her sham employment
with Gladius. Roussel Reply Br. at 9. Roussel also argues the consistently
immaterial point that, since Branch did not receive the enhancement, Roussel
should not have either.
We need not address the Arshad factors to come to the conclusion that
Roussel was not involved with the payment of more than one bribe. Simply put,
the government proved the payment of only one bribe—the $1,000 “good faith”
money to Dabdoub. The rest was all speculative. The defendant in Arshad, a
contractor who bribed a state building inspector for overlooking defective work,
paid the inspector at least four separate times. Arshad, 239 F.3d at 278. The
defendant in Weaver, a public school employee who received kickbacks under a
contract for laptop computers, received thirteen different bribe payments.
Weaver, 175 F. App’x at 510. § 1B1.3(a)(1) of the sentencing guidelines lists all
“relevant conduct” in the past tense. The government does not cite a single case
where unknown possible future payments were included in determining whether
more than one bribe occurred. Moreover, the district court seemed to improperly
characterize the contract as having an indefinite duration with an indefinite
number of future bribe payments; in fact, it was only a one-year contract, lasting
from June 16, 2010 until June 15, 2011. It is indeed illustrative to note that, as
a result of the speculative nature of the payments, the United States Probation
Office recommended a sentence for Roussel of 96 months—40 months below the
sentence imposed. See Sentencing Recommendation, 1-2. In sum, we are firmly
convinced that the district court erred in finding more than one bribe, and it
should have therefore declined to apply the corresponding two-level sentencing
guidelines enhancement.
VI. Whether the district court clearly erred in its expected benefit calculation.
A. Standard of Review
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Again, we review purely legal conclusions or interpretations of the
meaning of a sentencing guideline de novo, and review the trial court’s findings
of fact—including benefit calculations—for clear error. See Griffin, 324 F.3d at
365 (holding that district court clearly erred in its benefit calculation for the
purposes of the sentencing guidelines enhancement). Clear error exists if we are
left with a definite and firm conviction that a mistake has been made. Id.B. Analysis
For virtually the same reasons articulated with respect to the multiple
bribes enhancement, we find that the district court clearly erred in its
calculation of the fraudulent contract’s expected benefit to Roussel, Branch, and
Dabdoub.
The sentencing guidelines state:
If the value of the payment, the benefit received or to be received in
return for the payment, the value of anything obtained or to be
obtained by a public official or others acting with a public official, or
the loss to the government from the offense, whichever is greatest,
exceeded $5,000, increase by the number of levels from the table in
§ 2B1.1 (Theft, Property Destruction, and Fraud) corresponding to
that amount.
U.S. Sentencing Guidelines Manual § 2C1.1(b)(2). The guidelines require a 12-
level increase for expected benefits to Roussel, Branch, and Dabdoub between
$200,000.01 and $400,000.00, and a 16-level increase for expected benefits
between $1,000,000.01 and $2,500,000.00. U.S. Sentencing Guidelines Manual
§ 2B1.1(b)(1).
“[T]he loss need not be determined with precision. The court need only
make a reasonable estimate of the loss, given the available information.
Further, . . . if an intended loss that the defendant was attempting to inflict can
be determined, this figure will be used if it is greater than the actual loss.”
United States v. Ismoila, 100 F.3d 380, 396 (5th Cir. 1996) (emphasis added)
(quotation omitted) (holding that the intended loss was greater than the actual
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loss, and therefore the district court’s sentencing determination based on the
intended loss was correct); see also United States v. Chappell, 6 F.3d 1095, 1101
(5th Cir.1993) (quotation omitted).13
The district court applied a 16-level enhancement based on the
presentence investigation report’s recommendation of estimated benefits to
Branch, Roussel, and Dabdoub from the fraudulent overpayment of between
$1,000,000.01 and $2,500,000.00. The enhancement was based on Entergy’s
payments during the 2008 hurricane season, which included Hurricanes Ike and
Gustav, two abnormally costly storms.
Roussel first contends that the district court erred because there was no
actual benefit, as the entire deal was fraudulent. Nonetheless, recognizing that
the guidelines also require contemplation of benefits to be received, Roussel
argues that to calculate the expected benefits, the district court should have used
Entergy’s actual applicable security needs for the one year the fraudulent
contract was supposed to be in place, from June 16, 2010 until June 15, 2011.
Based on that year, which had no hurricanes and only one incident in the form
of the Mississippi floods, the benefit to Roussel, Branch, and Dabdoub would
have only been $231,570.00. This would have only merited a 12-level
enhancement, a four-level difference from the level applied by the district court.
In applying the guidelines enhancement, the district court observed that
there is a reasonable basis to conclude that from all of the evidence,
not only the evidence of what Entergy had, in fact, spent in other
similar events but also the testimony and the discussions among the
participants themselves as to what they anticipated being able to
receive from this scheme. They all talked about retiring in 2 or 3
13
For our analysis in this case only, we use “benefit” interchangeably with “loss”
because they are the same amount here; the sole distinction is whether the speaker is the
object or subject of the bribe (i.e. Entergy’s “loss” would have been Roussel/Branch/Dabdoub’s
“benefit”). In other cases, however, benefit and loss may not be the same amount.
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No. 11-30908
years, one or two big storms which would allow them to retire
comfortably; so, they were talking about substantial sums of money.
We find the district court clearly erred in its calculation of the expected
benefit. It is true that recent hurricanes were discussed during negotiations,
and Roussel and Branch considered those storms—and the costs associated with
them—as exemplars of what was to come. See United States v. John, 597 F.3d
263, 279 (5th Cir. 2010) (“In ascertaining the intended loss, the district court
must determine the defendant’s actual intent.”). Nonetheless, the district court’s
calculation of expected benefit was purely speculative. There was no reasonable
estimate of the “intended loss that the defendant was attempting to inflict.”
Ismoila, 100 F.3d at 396.
This case is distinguished from our holding in Griffin, in which the district
court was presented with a set of known amounts of profits from various land
deals allegedly resulting from a bribery scheme, and simply erred by including
certain amounts that it should not have included in calculating the expected
benefit from the scheme. This case is also distinguished from our holding in
Ismoila, in which we found that “[t]he intended loss consisted of credit card
charges of $85,203 and $6,200 that were attempted at [two stores]—charges that
the credit card companies declined to process.” Ismoila, 100 F.3d at 396. Again,
those were known amounts upon which the district court could concretely base
its calculation. Here, on the other hand, the district court arbitrarily based its
calculation on the previous hurricane season, which happened to be one of the
costliest in United States history. That arbitrariness is reflected in the district
court’s justification for the larger enhancement because “they were talking about
substantial sums of money.” “Substantial sums,” however, cannot constitute an
estimate of an intended benefit for the purposes of the sentencing guidelines
enhancement.
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There was a more accurate and straightforward way to estimate the
expected benefit. We agree with Roussel that the sounder method would have
been to calculate the benefit that Roussel, Branch, and Dabdoub would have
actually obtained during the contract’s duration—$231,570.00. This method
comports with the sentencing guidelines and our holdings in Griffin and Ismoila.
Our conclusion is further supported by the United States Probation Office’s
sentencing recommendation, which suggested a downward variance to Roussel’s
sentence because of the “speculative nature of the potential gain” and the fact
that “there was no actual loss in the instant offense.” Sentencing
Recommendation at 1-2. We are firmly convinced that the district court erred
in its calculation of the expected benefit, and that the correct amount would have
called for only a 12-level sentencing guidelines enhancement and not the 16-level
enhancement imposed.
VII. Whether the district court’s consideration of a 30-year statutory maximum
sentence constituted an Apprendi violation.
A. Standard of Review
“The applicability of Apprendi to this case is a question of law that we
review de novo,” subject to harmless error analysis. United States v. Matthews,
312 F.3d 652, 661, 665 (5th Cir. 2002).
B. Analysis
The Supreme Court has held that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
Nevertheless, “the Supreme Court’s decision in Apprendi does not effect [sic] [a
defendant’s] term of imprisonment [when] it does not exceed the statutory
maximum authorized by the jury’s findings.” United States v. Doggett, 230 F.3d
160, 165 (5th Cir. 2000) (citing United States v. Meshack, 225 F.3d 556, 575-76
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(5th Cir.2000)) (affirming sentence because it was not greater than statutory
maximum for crimes charged to jury and proved beyond a reasonable doubt).
18 U.S.C. § 1343, pursuant to which Roussel was charged, provides a 20-
year maximum sentence for wire fraud but increases the maximum sentence to
30 years where the “violation occurs in relation to, or involving any benefit
authorized, transported, transmitted, transferred, disbursed, or paid in
connection with, a presidentially declared major disaster or emergency . . . .”
Roussel contends that no evidence was presented at trial supporting the
assertion that Entergy would receive federal funds to subsidize its future
security needs, though he acknowledges that evidence at trial showed that
Entergy received federal funds for Hurricane Katrina-related needs. He argues
that, for the offense level of 38 that the district court imposed, the upper end of
the sentencing guidelines range was 293 months—almost four-and-a-half years
more than the correct 20-year statutory maximum. The government does not
contest Roussel’s assertion, but insists that any Apprendi error was harmless
because Roussel’s 136-month sentence was less than 20 years.
While the district court’s consideration at sentencing of the 30-year
statutory maximum instead of the 20-year maximum was improper, it was
harmless because Roussel’s proper offense level was 32, meriting a sentencing
guidelines range of 121-151 months. The correct guidelines range is well below
the 20-year statutory maximum for wire fraud not connected to a presidentially
declared major disaster or emergency. See Doggett, 230 F.3d at 165.
VIII. Whether the district court’s 99-month downward variance renders its
sentencing guidelines errors harmless.
The district court’s granting of a 99-month downward variance from the
lowest point of the applicable sentencing guidelines range because the
“guidelines themselves came to an unreasonable result” does not render
harmless the court’s starting from an incorrect sentencing guidelines range.
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“The Supreme Court has held that, if ‘the district court misapplied the
[g]uidelines, a remand is appropriate unless the reviewing court concludes, on
the record as a whole, . . . that the error did not affect the district court’s
selection of the sentence imposed.” United States v. Waskom, 179 F.3d 303, 312
(5th Cir. 1999) (quoting Williams v. United States, 503 U.S. 193, 203 (1992)). We
do not conclude that, on the record as a whole, the district court’s error did not
affect its selection of the sentence imposed.
In Waksom, we held that “[a]lthough Waskom’s sentence falls below the
corrected guideline range [because of the sentencing judge’s significant
downward departure], we cannot conclude that the [sentencing guidelines] error
was harmless.” Id. at 312. “We cannot discern from the record whether the
sentencing judge would have imposed the same sentence had he been departing
from the range set by an offense level of thirty-two, instead of thirty-five.” Id.(citing United States v. Bush, 70 F.3d 557, 560 n.3 (10th Cir.1995) (ruling that
an error in calculating the base offense level was not harmless because it might
have affected the extent of the downward departure that had resulted in a
sentence falling below the corrected sentencing range)).
Similarly, here the record does not reflect whether the district court would
have imposed a 136-month sentence had it departed from the 121-151 month
range for an offense level of 32, instead of the 235-293-month range for an
offense level of 38. While 136 months is the midpoint of the correct range, we
cannot assume the district court would not have granted a variance from the
correct range because of the speculative nature of the fraudulent contract, or for
any other reason. Therefore, the sentencing guidelines enhancement errors were
not harmless, and we remand the case to the district court for resentencing.
CONCLUSION
For the foregoing reasons, we AFFIRM the conviction, VACATE the
sentence, and REMAND for resentencing.
28