United States v. Marcus Little , 611 F. App'x 851 ( 2015 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0317n.06
Case No. 14-2003
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
May 01, 2015
UNITED STATES OF AMERICA, DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
MARCUS LITTLE, ) THE EASTERN DISTRICT OF
) MICHIGAN
Defendant-Appellant. )
)
)
) OPINION
)
BEFORE: NORRIS, SUTTON, and DONALD, Circuit Judges.
BERNICE BOUIE DONALD, Circuit Judge. Defendant-Appellant Marcus Little
(“Little”) appeals his conviction and sentence for jury tampering. In 2013, a jury convicted
Little of endeavoring to influence a juror in violation of 18 U.S.C. § 1503 and making a false
statement to a government official in violation of 18 U.S.C. § 1001. The district court sentenced
him to 34 months’ imprisonment, to be followed by two years’ supervised release. Little argues
that there was insufficient evidence to support his conviction and that the district court abused its
discretion in prohibiting gambling as a term of his supervised release. For the reasons that
follow, we AFFIRM.
Case No. 14-2003
United States v. Little
I.
In May and June of 2011, James Wiese (“Wiese”), Ilir Kikaj, and Tom Gjokaj were tried
in federal court in Ann Arbor, Michigan, for conspiracy, bank fraud, wire fraud, money
laundering, and aiding and abetting. During a break in the trial, on the evening of May 24, 2011,
one of the jurors, Vernelle Gardner (“Gardner”), opened her front door to find a man on her
doorstep. The man—later identified as Little—cordially introduced himself as “Miles” and
addressed her by her first name. Little then became more serious, and told her that he was
following the Wiese trial. Alarmed, Gardner told him to leave. Little became insistent, telling
her, “I have some information I have to tell you. The Government’s trying to steer you wrong.”
Little did not leave until Gardner’s husband came to the door. Gardner immediately reported the
incident to the police and court authorities. She was disqualified as a juror and replaced with an
alternate. The trial against Wiese and his co-conspirators continued.
Meanwhile, federal agents began investigating the incident. As part of their efforts to
identify Gardner’s visitor, they reviewed Wiese’s phone records. The records indicated that
Wiese repeatedly had been in contact with a number registered to Hannah Little (“Hannah”). In
early 2013, agents went to an address listed with the phone (the “Hannah Phone”), where they
met Little. Little explained that Hannah was his daughter, and that the number corresponded to
her phone from 2011. The agents asked Little why Hannah—a teenager—would have been in
contact with Wiese. Little responded that he did not know, and that he did not know Wiese.
Little called Hannah, who by that time was away at college, and handed the phone to one of the
agents. Hannah told the agent that the number was her former number, and that no one else had
used that phone.
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United States v. Little
After the call with Hannah, agents continued their discussion with Little. They asked him
again about Wiese, and Little again denied knowing him. When Little asked what their
investigation was about, the agents told him it related to a federal trial that had taken place in
Ann Arbor. Little told them he had never been to a federal trial in Ann Arbor.
Later that day, the agents called Hannah without Little present. She admitted that the
phone they had discussed earlier was actually used by her father, and that she had never used it.
Further analysis on the Hannah Phone revealed that Little had significant contact with Wiese
before and during Wiese’s trial. Cell tower data indicated that Little had traveled roughly 16
miles from the Detroit metro area to the Ypsilanti area, where Gardner lived, on the evening of
May 24, 2011.
Investigators later presented Gardner with a photo array, and she identified the image of
Little in connection with the May 24 incident. Several court security officers (“CSOs”) who
screened visitors and oversaw security at the court house in Ann Arbor also confirmed having
seen Little at the Wiese trial. The CSOs stated that, during the first part of the trial, Little
consistently sat in the back of the courtroom and observed the proceedings. One of the officers
even asked Little why he was attending so regularly. Little replied that he was there “to make
sure the prosecution g[a]ve the[ defendants] a fair trial.” Another officer later testified that
unlike most observers at a trial, Little “never paid attention to what was going on in the
courtroom[;] he just ke[pt] watching the jury.” Despite his frequent attendance during the first
part of the trial, none of the officers recalled seeing Little in court after the incident at Gardner’s
home. Three CSOs identified Little in a photo array, video footage from the court house lobby,
or both.
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United States v. Little
The government brought charges against Little, and in September 2013, a jury convicted
him of endeavoring to influence a juror and making a false statement to a government agent.
The presentence investigation report (“PSR”) submitted for sentencing indicated that Little had
been unemployed in the three and a half years leading up to sentencing, that he gambled on a
daily basis, and that he “most likely had some sort of gambling problem.” The district court
sentenced Little to 34 months’ imprisonment and two years’ supervised release, during which
Little was prohibited from gambling or entering a gambling establishment, and was required to
attend Gamblers Anonymous meetings. Little did not object to these conditions at sentencing.
II.
On appeal, Little claims that there was insufficient evidence to sustain his conviction for
endeavoring to influence a juror in violation of 18 U.S.C. § 1503.1 He also claims that the
district court abused its discretion when it incorporated a prohibition on gambling into the terms
of his supervised release. Neither of these arguments is persuasive.
A.
Little first argues that the prosecution failed to present sufficient evidence that he had the
necessary intent to influence a juror as defined by the statute. We review de novo a defendant’s
claim of insufficient evidence. United States v. Wright, 774 F.3d 1085, 1088 (6th Cir. 2014).
“The question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (internal
quotation marks omitted)); see also United States v. Siemaszko, 612 F.3d 450, 462 (6th Cir.
2010)). “We may rely upon circumstantial evidence alone to support the jury verdict, but we
1
Little does not challenge his conviction for making a false statement under 18 U.S.C. § 1001.
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United States v. Little
may not substitute our judgment for that of the jury.” United States v. Rogers, 769 F.3d 372, 377
(6th Cir. 2014) (citing United States v. Barnett, 398 F.3d 516, 522 (6th Cir. 2005); United States
v. Hilliard, 11 F.3d 618, 620 (6th Cir. 1993) (internal citations omitted). Reversal is appropriate
“only if, viewing the record as a whole, the judgment is not supported by substantial and
competent evidence.” Wright, 774 F.3d at 1088 (quoting United States v. Blakeney, 942 F.2d
1001, 1010 (6th Cir. 1991) (internal quotation marks omitted)). Therefore, a defendant
challenging his conviction on this basis “bears a very heavy burden.” Id. (citing United States v.
Prince, 214 F.3d 740, 746 (6th Cir. 2000)).
As discussed, Little was convicted of endeavoring to influence a juror under 18 U.S.C.
§ 1503. Section 1503 provides, in relevant part:
Whoever corruptly, or by threats or force, or by any threatening
letter or communication, endeavors to influence, intimidate, or
impede any grand or petit juror [in] any court of the United
States . . . in the discharge of his duty . . . shall be punished as
provided[.]
18 U.S.C. § 1503.
To convict a defendant under § 1503, the prosecution must prove that “(1) there was a
judicial proceeding; (2) the defendant had knowledge or notice of the pending proceeding; and
(3) the defendant acted corruptly with the intent of influencing, obstructing, or impeding the
proceeding in the due administration of justice.” United States v. Woodman, No. 98-4527, 2000
WL 1234328, at *7 (6th Cir. Aug. 21, 2000) (citing United States v. Collis, 128 F.3d 313 (6th
Cir. 1997)). Little does not dispute that there was a federal trial or that he attended it. Nor does
he deny that he showed up, uninvited, on Gardner’s doorstep on the evening of May 24, 2011,
and expressed his desire to discuss the case on which she was a juror. Instead, Little bases his
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appeal on the third element: Little insists that he acted “without evil intent”—that is, that his
actions were not “corrupt,” as required by the statute.
The Supreme Court established twenty years ago that a § 1503 conviction requires a
showing that the defendant acted “with an intent to influence judicial or grand jury proceedings.”
United States v. Aguilar, 515 U.S. 593, 599 (1995) (citing United States v. Brown, 688 F.2d 596,
598 (9th Cir. 1982)). The prosecution makes this showing when it establishes a “nexus” between
the defendant’s act and the judicial proceeding in “time, causation, or logic.” Id. (citing United
States v. Wood, 6 F.3d 692, 696 (10th Cir. 1993); United States v. Walasek, 527 F.2d 676, 679,
and n. 12 (3d Cir. 1975)). In other words, existence of this nexus demonstrates that the
defendant knew his action would have “the natural and probable effect of interfering with the
due administration of justice.” Id. (quoting Wood, 6 F.3d at 695; United States v. Thomas,
916 F.2d 647, 651 (11th Cir. 1990); Walasek, 527 F.2d at 679) (internal quotation marks
omitted). The defendant’s efforts to influence a juror need not be successful; the mere endeavor
suffices. Id. (citing United States v. Russell, 255 U.S. 138, 143 (1921)).
Moreover, we have rejected the notion that a defendant must express the specific intent to
obstruct justice to be convicted under § 1503. Woodman, 2000 WL 1234328 at *7 (explaining
that the defendant’s “actions need only have the natural and probable effect of impeding
justice. . . . An explicit specific intent to obstruct, therefore, is not necessary for conviction.)”.
Id. Rather, we can discern a defendant’s malicious intent under § 1503 by examining the context
and nature of his act, not merely from whether he openly acted with malicious intent. See
Aguilar, 515 U.S. at 599; Pettibone v. United States, 148 U.S. 197, 207 (1893).
In this case, the government presented ample evidence that Little “undert[ook] action
from which an obstruction of justice was a reasonably foreseeable result.” Id. Little attended the
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federal trial in Ann Arbor regularly, and while there, he studied the jury rather than the actual
proceedings. He explicitly told one of the CSOs that he was doing so “to make sure the
prosecution g[a]ve the[ defendants] a fair trial,” which suggests an inclination to influence the
proceeding if he saw something amiss. Phone records revealed significant contact between the
Hannah Phone and Wiese throughout the time of his trial, and Hannah Little testified that her
father was the only one who used that phone. Cell tower data showed that, on the night Little
approached Gardner, the phone had traveled from the Detroit metro area (where Little lived) to
Gardner’s Yspilanti neighborhood several miles away. Gardner and several CSOs identified
Little in connection with the Wiese trial and the May 24 incident. After the attempt to discuss
the trial with Gardner on May 24, Little ceased all contact with Wiese and did not return to the
trial.
More compelling than these circumstances, however, is the nature of Little’s act and its
predictable consequences. Gardner’s address was not a matter of public record regarding the
Wiese case, and with good reason: a juror’s ability to carry out her duties uninhibited by the
prospect of retaliation is a cornerstone of our judicial system. Yet, Little somehow acquired her
home address. He showed up unannounced and uninvited on her doorstep one evening, where he
introduced himself under a fake name. Little addressed Gardner by her first name, and
proceeded to tell her he wanted to discuss the trial on which she had been serving. When
Gardner interrupted Little and told him to leave, he did not. Little persisted until she called her
husband to the door. Predictably, Gardner felt intimidated. Ultimately, she was removed as a
juror from the Wiese trial.
That Little says he had no “evil” intent to influence the Wiese trial is inapposite. He
behaved in a manner that any reasonable person would believe had the power to influence the
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outcome of the trial. Based on this record, we find that a rational jury could have found the
essential elements of the crime under § 1503 beyond a reasonable doubt. The conviction stands.
B.
Little also challenges the terms of his supervised release, under which he is prohibited
from gambling, may not enter a gambling establishment, and must attend Gambler’s Anonymous
meetings. Little argues that the district court abused its discretion when it imposed these
restrictions because he is a professional gambler. In particular, he claims that we must reverse
the district court because the gambling conditions in his sentence: 1) do not reasonably relate to
his crime or rehabilitation under 18 U.S.C. § 3553; 2) deprive him of his livelihood in violation
of his Fourteenth Amendment right to liberty; and 3) constitute an unconstitutional Bill of
Attainder targeted solely at Little’s “legitimate, legal, and even respectable profession.”
As Little did not object to these conditions at sentencing, we review the district court’s
decision for plain error. United States v. Dotson, 715 F.3d 576, 583 (6th Cir. 2013) (citing
United States v. Inman, 666 F.3d 1001, 1003 (6th Cir. 2012) (per curiam)). To demonstrate plain
error, Little must establish that “(1) an error occurred; (2) the error was plain, that is, obvious or
clear; (3) the error affected his substantial rights; and (4) the error seriously affected the fairness,
integrity, or public reputation of the judicial proceedings.” Id. (citing United States v. Lucas, 640
F.3d 168, 173-74 (6th Cir. 2011)). Little fails to make this showing.
It is well-established that the district court may impose a condition on a defendant’s
supervised release “to the extent that such condition is reasonably related” to the sentencing
factors contemplated in § 3553(a). 18 U.S.C. § 3583(d). These sentencing factors include the
“history and characteristics of the defendant” as well as the obligation “to provide the defendant
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United States v. Little
with needed educational or vocational training, medical care, or other correctional treatment in
the most effective manner[.]” 18 U.S.C. § 3553(a)(1), (2)(D) (emphasis added).
A review of the record reveals a solid basis for the court’s imposition of the gambling ban
in Little’s case. At the time of sentencing in July 2014, Little was on probation for failure to pay
over $25,000 in child support.2 Little reported that he received some income from “poker[,]” but
did not indicate gambling was his profession: the PSR states that Little was unemployed from
February 2011 through 2014. The report also details Little’s education (a Bachelor of Science in
Business Marketing) and experience in various financial positions leading up to his period of
unemployment.
The probation officer who prepared the PSR flagged Little’s gambling as an issue
impacting his mental and emotional health. During the presentence interview, Little stated that
he wagered money playing poker on a nearly daily basis. When asked further about his
gambling, Little responded that he “doesn’t gamble; he plays poker” and stated that he did not
have any problems with gambling “because ‘he wins[.]’” To better assess this claim, the
probation officer had Little complete a South Oaks Gambling Screen, and found that the “self-
report tool indicat[ed] that [Little] most likely has some sort of gambling problem.” Little told
the officer that he had never considered his gambling a problem, had never attended a gambling
treatment or support group, and did not feel he was in need of treatment or support at that time.
When it sentenced Little, the district court explicitly stated that it had considered the facts
and circumstances of Little’s crime, the § 3553 factors, and the information contained in the
PSR. It then incorporated conditions—related not just to gambling, but also employment
generally—to rehabilitate Little on his release:
2
Little challenged this aspect of the PSR, but at his sentencing hearing, Little’s counsel acknowledged that this
payment was not legally excused at the time of sentencing.
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Due to the defendant’s lack of employment history, defendant shall
be lawfully and gainfully employed, participating in an educational
vocational program or a combination thereof, which would be the
equivalent of full-time employment. . . . Due to the defendant’s
history of gambling, defendant is prohibited from engaging in any
gambling activity, . . . from entering the premises of any gambling
casino or other place where gambling activity is conducted[,] . . .
[and] shall participate in a program approved by the probation
department for the treatment of gambling addiction.
While Little expounds at length on the legality of gambling and the existence of
professional gamblers, he presents nothing to negate the court’s implicit finding that, in his case,
gambling is an affliction that may prevent his post-release rehabilitation. Little thus fails to
demonstrate that the court’s sentence was in error, let alone that its error was plain, impacted his
substantial rights, or influenced the fairness of the proceedings on this claim.
Nor does Little establish plain error on any of a plethora of poorly-developed
constitutional arguments. Little first relies on United States v. Kingsley, 241 F.3d 828 (6th Cir.
2001), for the proposition that he has a right to employment. But the connection between Little’s
circumstances and Kingsley’s are minimal: in Kingsley, we upheld a condition of release
prohibiting Kingsley’s use of a motor vehicle in order to hinder future criminal activity and
protect the public. 241 F.3d at 838. Little asserts that, because the gambling conditions do not
relate to his crime of conviction or the public safety, they are invalid. However, nothing in
Kingsley dictates that conclusion, and under the terms of § 3583, the court is not limited to
imposing conditions only for public safety or prevention of future crimes—the court may
consider all the § 3553 factors. As discussed, that is precisely what the court did here when it
imposed a ban on gambling to aid Little’s rehabilitation.3
3
Little goes on to analogize part of our holding in Kingsley—that there exists no absolute right to drive a motor
vehicle—to a holding that, by contrast, there is a right to employment. As he makes this leap without legal or
logical support, we decline to address it further.
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Little also claims that, because gambling constitutes his “entire livelihood,” the court’s
ban on this activity for the term of his supervised release is an unconstitutional deprivation of his
liberty.4 However, to establish such a claim under the Constitution, Little must show more than
a limitation of his options: “[a] charge that merely makes a plaintiff less attractive to other
employers but leaves open a range of opportunity does not constitute a liberty deprivation.”
Gregory v. Hunt, 24 F.3d 781, 788 (6th Cir. 1994) (citing Chilingirian v. Boris, 882 F.2d 200,
n.8 (6th Cir. 1989)). Even if Little can show that gambling was in fact his profession at the time
of sentencing, he fails to explain how the court’s conditions render him unable to rely on his
education and experience to qualify for a range of positions unrelated to gambling. Accordingly,
we find that he has not shown that the court committed plain error on these grounds.
III.
For the foregoing reasons, we AFFIRM the decision of the district court.
4
In another argument, Little claims that the ban on gambling during his period of supervised release constitutes a
“bill of attainder” that seeks to punish professional gamblers—a legislative act prohibited under the Constitution.
U.S. CONST. ART. I, § 9, cl. 3. As the matter at hand is not a legislative act and Little presents no foundation for this
claim, we also decline to address this argument.
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