United States v. Isang ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 11, 2003
Charles R. Fulbruge III
Clerk
No. 02-10719
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
INCREASE EBONG ISANG,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
(3:01-CR-391-1-H)
--------------------
Before WIENER and CLEMENT, Circuit Judges and LITTLE, District
Judge.*
PER CURIAM:**
Defendant-Appellant Increase Ebong Isang, an illegal alien,
appeals his jury conviction for uttering a forged security in
violation of 18 U.S.C. § 513(a), contending that the evidence was
insufficient to support his conviction, that he was entitled to a
mistrial on grounds of prosecutorial misconduct, and that, even if
his conviction is affirmed, the portion of his sentence requiring
restitution should be vacated. We affirm.
*
Honorable F.A. Little, Jr., District Judge of the Western
District of Louisiana, sitting by designation.
**
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I. Fact and Proceedings
Isang was indicted on two counts of making, possessing, or
uttering a forged or counterfeit security of an organization, in
violation of 18 U.S.C. § 513. Evidence adduced by the government
at trial showed that Isang used aliases and false identifications
to open “doing business as” accounts at Washington Mutual Bank into
which he deposited forged or counterfeit checks drawn on accounts
maintained in other banks by Coca-Cola North America (“Coke”) and
the Dallas Area Rapid Transit Authority (“DART”). In a third
count, Isang was charged with illegal re-entry subsequent to a
felony conviction, in violation of 8 U.S.C. § 1326.
After the government presented its case, Isang moved for
judgment of acquittal under Federal Rule of Criminal Procedure 29
(Rule 29), which the district court denied. Isang put on no
defense, and the jury found him guilty on all counts.
Isang filed objections to the Probation Department’s
Presentence Investigation Report (PSR). One of Isang’s objections
opposed upward departure. When, at sentencing, the district court
denied the government’s upward departure motion, Isang withdrew all
remaining objections to the PSR.
In addition to imprisonment and supervised release, Isang’s
sentence included an order of restitution totaling in excess of
$85,000, payable to Compass Bank and Wells Fargo Bank. Isang
timely filed a notice of appeal.
II. Analysis
2
At the close of the government’s case Isang moved for a
judgment of acquittal, contending that the government had failed to
adduce sufficient evidence to prove each element of the crimes
charged beyond a reasonable doubt. Defense counsel’s insufficiency
motion was broadly general but was followed by a particularized
challenge to the sufficiency of the proof of Isang’s involvement in
the alleged offenses —— an “identity” challenge. In contrast,
Isang’s counsel never mentioned the sufficiency of evidence to
prove that the organizations whose securities were forged or
counterfeited met the interstate commerce element of § 513. The
government urges appellate review under the standard pronounced in
United States v. Herrera,1 which was decided after Isang’s trial
and after the district court’s denial of his Rule 29 motion; Isang
urges review under our pre-Herrera “any rational trier of fact”
standard.2 As we conclude that, under United States v. Chappell,3
the evidence is sufficient to support each element of the crime,
irrespective of which standard of review is applied, we need not
decide whether Herrera applies to this case.
1
313 F.3d 882 (5th Cir. 2002)(en banc).
2
United States v. Daniel, 957 F.2d 162, 164 (5th Cir. 1992)
(articulating the standard as “whether, after viewing the evidence
in the light most favorable to the verdict, any rational trier of
fact could have found the essential elements of the offense beyond
a reasonable doubt”).
3
6 F.3d 1095 (5th Cir. 1993).
3
We are satisfied that, even under the more defendant-friendly,
pre-Herrera standard of review for sufficiency of the evidence,
each element of the crimes charged —— including the requirement
that the organizations in question be legal entities operating in
interstate commerce or conducting activities that affect interstate
commerce —— is adequately supported by record evidence,
irrespective of the fact that the government did not parade an
array of witnesses to testify to the obvious, i.e., the interstate
aspects of each organization’s activities. If nothing else,
Chappell teaches that securities can belong to more than one
organization, such as the bank and its account owner, and, at least
by implication, that banks are, per se, § 513(c)(4) organizations.4
As for Isang’s claim of entitlement to a mistrial based on
prosecutorial misconduct, we are not persuaded. His objection to
the prosecutor’s closing argument statement in rebuttal —— “That
thing about the INS deal is the biggest red herring thing I have
seen in my life” —— was followed immediately by the district
court’s statements in open court sustaining Isang’s objection,
labeling the prosecution argument as impermissible, and instructing
the jury to disregard it. In denying Isang’s motion for a
mistrial, the district court expressly relied on its instruction to
the jury; and the government pointed to trial exhibits showing that
Isang was actually deported within the contested time period. We
4
Id. at 1099.
4
discern no reversible error in the court’s disposition of the
matter.
Finally, Isang’s complaint about the court’s restitution order
—— which was not objected to in the district court —— is reviewed
for plain error, as conceded by Isang. It is true that Isang’s PSR
recommended restitution under the Mandatory Victim Restitution Act
of 1996 (MVRA)5 and that, in United States v. Mancillas,6 we held
that “a defendant sentenced under the provisions of the MVRA is
only responsible for restitution for the conduct underlying the
offenses for which he has been convicted.”7 Despite the PSR’s
recommendation that restitution be imposed pursuant to the MVRA,
however, the record of the sentencing hearing contains no mention
of the MVRA. When the district court ordered restitution,
admittedly to two banks that were not involved in the transactions
underlying the offenses of conviction, it made no representation
that it was ordering restitution under the MVRA, and no reference
to the MVRA is reflected by the record.
Generally, when defendants are convicted for commercial crimes
like those at issue here, and have both intended and created
significant losses to victims, the court has wide latitude in
assessing restitution, as to both the amount and recipients of the
5
18 U.S.C. § 3663A (2000).
6
172 F.3d 341 (5th Cir. 1999).
7
Id. at 343 (emphasis added).
5
restitution. Thus, even if we were to infer that the district
court imposed restitution under the MVRA sub silentio, and were to
agree with at least two other circuits that ordering a defendant to
pay restitution to parties that were not implicated directly in the
offense of conviction constitutes plain error,8 our task still
would not be at an end. The existence of plain error is only the
penultimate determination: Once such error is found to exist, we
still must determine (1) whether it affects a substantial right of
the defendant, i.e., whether such error’s effect on the
proceeding’s outcome has prejudiced the defendant, and (2) whether
the nature of the error warrants relief.9 If the defendant cannot
show that the plain error’s effect on his substantial rights has
prejudiced him, no remedy is available.10 Furthermore, when the
defendant’s substantial rights have been affected by plain error,
the decision whether to correct such error remains within the
discretion of the appellate court.11 And, we are instructed by the
Supreme Court that such correction should be made only when the
8
See United States v. Tunning, 69 F. 2d 107, 115-16 (6th Cir.
1995); United States v. Wainwright, 938 F.2d 1096, 1098-99 (10th
Cir. 1991).
9
United States v. Calverley, 37 F.3d 160, 164 (5th Cir.
1994)(en banc).
10
Id.11
Id.6
error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.12
Both the harm intended and the harm actually caused by Isang
greatly exceeded the $85,576.04 that the district court imposed as
restitution. Even if we assume without conceding that restitution
was implicitly assessed under the MVRA and that plain error thus
occurred, we conclude that Isang has failed to demonstrate that
this putative plain error affected his substantial rights to the
extent of prejudice, much less justifies our correcting such error
in the face of the high hurdle of the “seriously affects” standard.
For these reasons, we decline to disturb the trial court’s
restitution order.
Isang’s conviction and sentence are, in all respects,
AFFIRMED.
12
Id. (citing United States v. Atkinson, 297 U.S. 157, 160
(1936)).
7