United States v. Eldon Gene Nattier ( 1997 )


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  •                         United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 96-2380
    ___________
    United States of America,             *
    *
    Plaintiff-Appellee,       *
    *
    v.                              *
    *
    Eldon Gene Nattier,                   *
    *
    Defendant-Appellant.      *
    ___________
    Appeals from the United States
    No. 96-2451                         District Court for the
    ___________                         Eastern District of Missouri.
    United States of America,             *
    *
    Plaintiff-Appellee,       *
    v.                              *
    *
    James Franklin Coley,                 *
    *
    Defendant-Appellant.      *
    _____________
    Submitted: January 13, 1997
    Filed:     October 3, 1997
    _____________
    Before WOLLMAN and HANSEN, Circuit Judges, and MONTGOMERY,1
    District Judge.
    _____________
    HANSEN, Circuit Judge.
    Eldon Gene Nattier and James Franklin Coley were convicted by a jury on
    several counts of conspiracy, money laundering, and making false statements in
    violation of federal law. They appeal their convictions and sentences. We affirm.
    I.
    Count I of the 19-count indictment in this case charged Eldon Nattier, James
    Coley, and Nattier's son Jonathan Marc Nattier (Marc) with conspiracy (1) to embezzle
    funds from Mercantile Bank of St. Louis, in violation of 18 U.S.C. § 656 (1994), and
    (2) to launder the embezzled funds in violation of 18 U.S.C. § 1956(a)(1)(A)(i) and
    (a)(1)(B)(i) (1994). Count I listed 19 overt acts in furtherance of the conspiracy,
    including that the three men opened a new bank account in Cape Girardeau, Missouri,
    some distance from St. Louis, in the name of International Realty Investments, Inc.
    (IRI), which was a legitimate Missouri corporation with Eldon Nattier as the president,
    Coley as the chief operating officer, and Marc as the secretary/treasurer. The
    corporation was formed years before the conspiracy began and existed as a real estate
    1
    The Honorable Ann D. Montgomery, United States District Judge for the
    District of Minnesota, sitting by designation.
    2
    investment company. Marc fraudulently caused Mercantile Bank (his employer) to
    issue to IRI checks totaling $479,341.19. This money did not belong to IRI but to
    another corporation having a name similar to IRI. The conspiracy count charged that
    the defendants deposited the embezzled checks into IRI's newly established bank
    account and caused IRI to purchase various parcels of real property in St. Louis with
    the embezzled funds.
    Counts III through VI2 charged Nattier and Coley with making false statements
    to obtain food stamps. Count VII charged Nattier with making false statements to the
    Internal Revenue Service (IRS). The remainder of the indictment charged Nattier and
    Coley with specific counts of money laundering, in violation of 18 U.S.C.
    § 1956(a)(1)(A)(i) and (a)(1)(B)(i). These instances of money laundering included the
    same purchases of real property in St. Louis referenced as overt acts in count I, along
    with one property in Kentucky and one 1991 Ford Explorer -- all purchased with
    checks drawn on IRI's newly established corporate account which contained the
    embezzled funds.
    A jury convicted Nattier and Coley on all counts against them. The district
    3
    court grouped all of the counts for sentencing, with the money laundering counts being
    the most serious offenses. The district court imposed on Nattier a sentence of 78
    months of imprisonment on the money laundering counts. Because the conspiracy and
    the false statement counts were limited by a statutory maximum penalty, the district
    court imposed separate concurrent sentences of 60 months of imprisonment for these
    offenses. Likewise, the district court sentenced Coley to 63 months of imprisonment
    2
    Count II related solely to Marc, who pleaded guilty and is not a party to this
    appeal.
    3
    The Honorable Jean C. Hamilton, Chief Judge, United States District Court for
    the Eastern District of Missouri.
    3
    on the money laundering counts and concurrent 60-month sentences on the conspiracy
    and the false statement counts.
    Nattier and Coley appeal, challenging the denial of Nattier's motion to dismiss
    count I, the sufficiency of the evidence to sustain their money laundering convictions,
    the jury instructions, and the district court's calculation of their sentences. Additionally,
    Coley contends that the government coerced him into not presenting expert testimony
    concerning the effects of domestic violence.
    II.
    A. Motion to Dismiss
    Nattier contends that the district court erred by denying his motion to dismiss
    count I of the indictment as duplicitous, arguing that count I charged two separate
    objects of the conspiracy. We review de novo the district court's denial of Nattier's
    motion to dismiss count I of the indictment. See United States v. Sykes, 
    73 F.3d 772
    ,
    773 (8th Cir.), cert. denied, 
    116 S. Ct. 2503
    (1996). Federal Rule of Criminal
    Procedure 8(a) provides that the government may charge two or more connected
    offenses in the same indictment, provided each is charged in a separate count.
    "Duplicity is the joining in a single count of two or more distinct and separate
    offenses." United States v. Street, 
    66 F.3d 969
    , 974 (8th Cir. 1995) (internal quotations
    omitted). "The principal vice of a duplicitous indictment is that the jury may convict
    a defendant without unanimous agreement on the defendant's guilt with respect to a
    particular offense." United States v. Karam, 
    37 F.3d 1280
    , 1286 (8th Cir. 1994), cert.
    denied, 
    513 U.S. 1156
    (1995). The risk inherent in a duplicitous count, however, may
    be cured by a limiting instruction requiring the jury to unanimously find the defendant
    guilty of at least one distinct act. 
    Id. The jury
    instructions in this case acknowledged that count I of the indictment
    charged a conspiracy to commit two separate offenses -- conspiracy (1) to embezzle
    4
    funds and (2) to launder the unlawful proceeds of the embezzlement. The relevant
    instruction stated as follows:
    It would be sufficient if the Government proves, beyond a reasonable
    doubt, a conspiracy to commit one of those offenses; but, in that event, in
    order to return a verdict of guilty, you must unanimously agree upon
    which of the two offenses was the subject of the conspiracy. If you
    cannot agree in that manner, you must find the defendants not guilty.
    (Appellant Nattier's Adden., Jury Instr. No. 14.). "We assume, as we must, that the
    jury followed these instructions." 
    Karam, 37 F.3d at 1286
    . We conclude that this
    limiting instruction was sufficient to cure the risk of a nonunanimous verdict on the
    conspiracy charge, and the district court did not err by denying Nattier's motion to
    dismiss count I.
    B. Sufficiency of the Evidence
    We next address the defendants' contention that the government presented
    insufficient evidence to sustain their convictions on the substantive counts of money
    laundering. When considering whether the evidence is sufficient to support a guilty
    verdict, "we view the evidence in the light most favorable to the government, giving the
    government the benefit of all reasonable inferences." United States v. Herron, 
    97 F.3d 234
    , 236 (8th Cir. 1996), cert. denied, 
    117 U.S. 998
    (1997). We reverse only "if no
    reasonable jury could have found the defendant[s] guilty beyond a reasonable doubt."
    United States v. Taylor, 
    82 F.3d 200
    , 201 (8th Cir. 1996) (internal quotations omitted).
    Nattier and Coley argue that the general verdicts on the money laundering counts
    must be set aside because the government did not prove every element of each form of
    money laundering charged. Each money laundering count charged that the specified
    conduct violated two subsections -- 18 U.S.C. § 1956(a)(1)(A)(i) and 18 U.S.C.
    § 1956(a)(1)(B)(i). The two subsections, each requiring proof of three elements, share
    5
    two common elements. Both subsections require the government to prove that the
    defendants (1) engaged in the specified transactions involving illegal proceeds and (2)
    knew that the funds were illegal proceeds. See United States v. Rounsavall, 
    115 F.3d 561
    , 565 (8th Cir. 1997) (setting forth the requirements under 18 U.S.C.
    § 1956(a)(1)(B)(i)), petition for cert. filed (Aug. 20, 1997) (No. 97-5687); United
    States v. Jenkins, 
    78 F.3d 1283
    , 1288 (8th Cir. 1996) (setting forth the requirements
    under 18 U.S.C. § 1956(a)(1)(A)(i)). Nattier and Coley do not dispute that they
    engaged in the specified financial transactions and knew that the proceeds of unlawful
    activity were involved. Thus, the first two elements of each subsection are satisfied.
    Nattier and Coley challenge only the government's proof on the final element of
    each subsection. The final element of subsection (a)(1)(A)(i) requires proof that the
    defendants intended to promote the carrying on of embezzlement, and the final element
    of subsection (a)(1)(B)(i) requires proof that the defendants knew that the transaction
    was designed to conceal the illegal proceeds. Because the general verdict on each
    money laundering count does not indicate which alternative the jury found in this case,
    we examine the sufficiency of the evidence under each subsection.
    First, the defendants argue that the transactions specified in the indictment could
    not have furthered or promoted the carrying on of the embezzlement within the meaning
    of subsection (a)(1)(A)(i), because the embezzlement was complete by the time these
    transactions took place. We disagree. Nattier and Coley were engaged in an
    embezzling and money laundering scheme designed to promote the goals of and to reap
    a profit for IRI, their real estate investment company. The scheme was devised and
    carried out after the defendants discovered a similarity in name between IRI and one
    of Mercantile Bank's customers to whom dividends were owing but unclaimed. Due
    to this similarity in name between the two companies, IRI and its financial transactions
    were integral to the embezzlement scheme. While the unlawful act of embezzlement
    may have been complete at the time Marc obtained the checks for IRI, the funds could
    not benefit the overall criminal scheme until successfully deposited in IRI's bank
    6
    account and made available for the real estate and other financial transactions specified
    in the indictment. All of the defendants' financial transactions after first depositing the
    embezzled checks in IRI's account furthered this scheme and contributed to the overall
    prosperity of the conspiracy and the act of embezzlement. See United States v.
    Cavalier, 
    17 F.3d 90
    , 93 (5th Cir. 1994) (holding a defendant can conduct a financial
    transaction to promote, or contribute to the prosperity of, a completed unlawful activity
    for purposes of section 1956(a)(1)(A)(i)); See also United States v. Montoya, 
    945 F.2d 1068
    , 1076 (9th Cir. 1991) (holding deposit of bribery proceeds into a bank account
    was a transaction intended to promote the carrying on of the bribery by characterizing
    the proceeds as legitimate funds) (cited with approval in United States v. Morris, 
    18 F.3d 562
    , 569 (8th Cir. 1994)); United States v. Pellulo, 
    961 F. Supp. 736
    (D.N.J.
    1997) (holding even if embezzlement was completed when funds were transferred to
    account, additional financial transactions were necessary to realize a benefit from the
    embezzlements, so transactions were within the scope of 18 U.S.C. § 1956(a)(1)(A)(i)).
    But see United States v. Heaps, 
    39 F.3d 479
    , 485-86 (4th Cir. 1994) (criticizing and
    disagreeing with both Montoya and Cavalier).
    Second, Nattier and Coley contend that their actions did not demonstrate an
    intent to conceal their identity and relationship to the funds because they were readily
    identifiable as officers of the corporation through which they were spending the funds.
    Regardless of whether Nattier and Coley attempted to conceal their ownership of or
    relationship to the funds, their intent to conceal the nature or source of the funds within
    the meaning of section 1956(a)(1)(B)(i) was evident. Nattier and Coley concealed the
    nature and source of the funds by placing the embezzled funds in the seemingly
    legitimate business account of IRI and passing them off as funds of a legitimate
    business. Also, Count XIX charged that Nattier laundered funds by settling an $86,539
    tax debt with payment of $3,600 of embezzled funds. Nattier concealed the source and
    ownership of the funds used to extinguish his tax debt by depositing them first in IRI's
    account, then transferring them to an account in Harlingen, Texas, in the name of his
    father and himself. Nattier told the IRS that he had no funds with which to pay the tax
    7
    debt and further represented to the IRS that he had borrowed the money from his father
    to pay the settlement amount. Thus, even though the defendants did not use false
    names in an attempt to conceal their identity, they used their legitimate real estate
    business and Nattier's father in an attempt to conceal the source of the funds within the
    meaning of subsection (a)(1)(B)(i).
    The defendants also argue that allowing their convictions to stand would turn the
    money laundering statute into "a money spending statute," contrary to our prior holding
    in United States v. Rockelman, 
    49 F.3d 418
    , 422 (8th Cir. 1995). See also 
    Herron, 97 F.3d at 237
    . We conclude that Rockelman and Herron are distinguishable from this
    case. In Rockelman, we reversed a money laundering conviction for lack of
    concealment where the defendant purchased a cabin with cash, which consisted of
    illegal proceeds, placed the title in the name of his business, and made no attempt to
    conceal either his own identity or the source of the 
    funds. 49 F.3d at 422
    . In Herron,
    we reversed a money laundering conviction for lack of concealment where the financial
    transaction at issue was a wire transfer of funds and the defendant made no attempt to
    conceal his 
    identity. 97 F.3d at 237
    . In the present case, however, the defendants first
    deposited the embezzled Mercantile Bank’s checks in IRI's business bank account and
    then invested the illegal proceeds in property by drawing checks on IRI's account, thus
    representing the illegal proceeds as funds of their legitimate business. Additionally,
    Nattier transferred some of the illegal funds from IRI's account to the Texas bank
    account and represented the funds as money borrowed from his father. "This was not
    a case of a person simply using illegally obtained funds to purchase personal items,"
    
    Cavalier, 17 F.3d at 93
    ; therefore, an affirmance of these convictions will not convert
    the money laundering statute into a money spending statute.
    We conclude that a reasonable jury could have found beyond a reasonable doubt
    that, by investing the illegal proceeds through their business, Nattier and Coley
    intended "to promote the carrying on of specified unlawful activity" within the meaning
    of section 1956(a)(1)(A)(i), and also that they knew they were concealing the nature
    8
    or source of the proceeds of the unlawful activity within the meaning of section
    1956(a)(1)(B)(i).
    C. Jury Instruction
    Nattier and Coley challenge the separate money laundering convictions on the
    basis of the jury instructions. Coley contends that the instructions did not correctly
    state the difference between the two types of money laundering charged. As already
    indicated, each money laundering count charged that the specified conduct violated two
    different subsections of the money laundering statute -- 18 U.S.C. § 1956(a)(1)(A)(i)
    and 18 U.S.C. § 1956(a)(1)(B)(i) -- and Instruction No. 17 permitted the jury to enter
    a general guilty verdict if it found either an intent to promote the carrying on of
    embezzlement or knowing concealment of the source, ownership, or nature of the
    embezzled funds. Instruction No. 17 advised the jury that the defendants could be
    found guilty of conducting an illegal financial transaction if (1) they engaged in the
    specified financial transactions involving the proceeds of embezzlement, (2) they knew
    that the funds were proceeds of some form of unlawful activity, and (3) they either (a)
    intended to promote the carrying on of the embezzlement (necessary for subsection
    (a)(1)(A)(i) money laundering) or (b) knew the transaction was designed to conceal the
    nature, ownership, source, or control of the embezzled funds (necessary for subsection
    (a)(1)(B)(i) money laundering). In this manner, Instruction No. 17 accurately set forth
    the elements of proof required for each subsection and properly instructed the jury on
    each element of the crime. See 
    Rounsavall, 115 F.3d at 565
    (setting forth the
    requirements under 18 U.S.C. § 1956(a)(1)(B)(i)); 
    Jenkins, 78 F.3d at 1288
    (setting
    forth the requirements under 18 U.S.C. § 1956(a)(1)(A)(i)).
    Nattier contends that Instruction No. 17 failed to require the jury to unanimously
    agree on which statutory alternative the defendants violated. Because Nattier did not
    object at trial to Instruction No. 17, we review for plain error. See 
    Herron, 97 F.3d at 238
    ; Fed. R. Crim. P. 52(b). Under plain error review, we must determine whether the
    9
    district court committed an error that is plain under current law and whether it "'affected
    the defendant's substantial rights.'" 
    Id. (quoting United
    States v. Olano, 
    507 U.S. 725
    ,
    732 (1993)). When a plain error has affected substantial rights, we have discretion to
    correct the forfeited error "if the error seriously affects the fairness, integrity or public
    reputation of judicial proceedings." 
    Olano, 507 U.S. at 736
    (internal quotations
    omitted).
    The district court did not commit plain error in this case. Instruction No. 17
    specifically provided that "[t]o find the defendants . . . guilty of the offenses, you must
    agree unanimously that one or more of the objectives charged were proved beyond a
    reasonable doubt." (Appellant Nattier's Adden. at Def.'s Ex. 3.) "The court
    conceivably might have been clearer in its explanation of the workings of the unanimity
    principle in this case, but we cannot conclude that this instruction constituted error,
    much less plain error." United States v. Blumeyer, 
    114 F.3d 758
    , 770 (8th Cir. 1997).
    See United States v. Gruenberg, 
    989 F.2d 971
    , 975 (8th Cir.) ("A general unanimity
    instruction usually protects a defendant's sixth amendment right to a unanimous
    verdict."), cert. denied, 
    510 U.S. 873
    (1993).
    D. Sentencing
    The defendants contend that the district court erred in calculating their sentences,
    because the general verdicts are ambiguous and the Sentencing Guidelines calculation
    provides disparate sentencing ranges for the two types of money laundering charged
    and the two possible objects of the single charged conspiracy. On count I, the jury did
    not specify whether embezzlement, money laundering, or both were found to be the
    object of the conspiracy; likewise, on each money laundering count, there is no
    indication from the verdict whether the jury found money laundering through promotion
    of the specified unlawful activity under subsection (a)(1)(A)(i), through concealment
    of the source of the funds under subsection (a)(1)(B)(i), or both. While we agree with
    10
    the defendants that the verdicts are ambiguous, we do not believe resentencing is
    required.
    Generally, we have held that where more than one possible object of a drug
    conspiracy is stated in the indictment, a district court should use a special verdict form
    to permit the jury to indicate its finding as to what drug was the object of the
    conspiracy where the establishment of the defendant's base offense level requires such
    a determination and where the Sentencing Guidelines provide disparate sentencing
    ranges for each. See United States v. Owens, 
    904 F.2d 411
    , 415 (8th Cir. 1990). If
    a general jury verdict is utilized in such a case, the district court should sentence the
    defendant on the alternative that yields a lower sentencing range. Id.; see also United
    States v. Wiggins, 
    104 F.3d 174
    , 177-78 (8th Cir. 1997) ("When defendants are
    convicted by a verdict that is ambiguous as to what type of drug they possessed or
    distributed, they may not be sentenced based upon the alternative producing the higher
    sentencing range."); United States v. Baker, 
    16 F.3d 854
    , 858 (8th Cir. 1994) (noting
    this principle "has frequently been applied to general verdicts in conspiracy cases").
    "When a defendant is convicted by an ambiguous verdict that is susceptible of two
    interpretations for sentencing purposes, he may not be sentenced based upon the
    alternative producing the higher sentencing range." 
    Id. at 857-58;
    see 
    Owens, 904 F.2d at 415
    .
    Where, however, the trial evidence is so strong that we can confidently say the
    jury must have been convinced beyond a reasonable doubt that one particular drug
    carrying a heavier penalty, as opposed to another carrying a lower penalty, was
    involved in the criminal activity, we have affirmed the imposition of the higher
    sentence. See 
    Wiggins, 104 F.3d at 178
    (“However, when trial evidence leaves no
    doubt as to the substance involved, it is not error to sentence a defendant consistent
    with that evidence.”); accord United States v. Watts, 
    950 F.2d 508
    , 514 (8th Cir. 1991)
    (distinguishing Owens as a case where the trial evidence was unclear as to the type of
    drug involved in the conspiracy); 
    Baker, 16 F.3d at 858
    n.4 (“Because the trial
    11
    evidence does not permit us to clear up the ambiguity in the verdict, this case is
    distinguishable from [Watts].”).
    At the time of the original sentencing, the district court properly grouped all the
    counts together and determined the sentences based upon the substantive money
    laundering counts, which were the most serious offenses of conviction. See U.S.
    Sentencing Guidelines Manual, §§ 3D1.2, 3D1.3 (1995) (describing the method of
    grouping closely related counts and mandating that the offense level for the group will
    be the highest offense level of the highest individual count in the group). The base
    offense level is 23 for a financial transaction under subsection (a)(1)(A)(i), which
    involves money laundering by promoting a specified unlawful activity. See USSG
    § 2S1.1(a)(1). In contrast, the base offense level is 20 for a financial transaction under
    subsection (a)(1)(B)(i), which involves knowing concealment of the proceeds. See
    USSG § 2S1.1(a)(2). Pursuant to USSG 2X1.1 the base offense level for the
    conspiracy count would be the same as that determined for the substantive offenses
    charged as the object of the conspiracy, i.e., embezzlement of bank funds and money
    laundering. Because the jury found the defendants guilty of the substantive money
    laundering counts, we have no difficulty in determining that the jury found that money
    laundering was an object of the convicted conspiracy. Accordingly, the offense level
    calculation for the conspiracy count would be the same as that for the money laundering
    counts.
    The district court concluded that both types of money laundering alleged -- (1)
    promoting unlawful activity and (2) concealing the proceeds -- were supported by the
    evidence offered for each money laundering count. Indeed, the district court was of the
    opinion that the evidence at trial proved both types of money laundering beyond a
    reasonable doubt. (Sent. Tr. at 836.) Thus, the district court based its sentencing
    calculations for the group on a base offense level of 23, the higher offense level of the
    two types of money laundering.
    12
    The money laundering counts controlled the sentencing determination for the
    whole group of counts involved in this case, except to the extent that the actual
    sentences which could be imposed on the conspiracy and the false statement counts
    were capped by a statutory maximum five-year (60-month) sentence applicable to each.
    18 U.S.C. §§ 371, 1001. Although the conspiracy count’s calculated offense level was
    tied to and the same as that determined for the money laundering counts, the existence
    of the statutory five-year cap also meant that the conspiracy count was of no real
    consequence in determining the applicable sentencing range for the grouped counts.
    The calculation of the range for the money laundering counts drove the length of the
    total punishment to be imposed on the grouped counts. In other words, the longer
    statutory maximum sentence available for the money laundering counts (20 years)
    would accommodate the total punishment indicated by the identified guideline ranges
    of 78-97 months for defendant Nattier and 63-78 months for defendant Coley on the
    money laundering counts if the district court was correct in its view that it could
    determine based on the strength of the trial evidence that the jury was convinced
    beyond a reasonable doubt that the defendants violated § 1956(a)(1)(A)(i), money
    laundering through the promotion of the specified unlawful activity, as well as violating
    § 1956(a)(1)(B)(i), money laundering by concealment of the source of the illegal funds.
    We have already determined that the evidence was sufficient for the jury to have
    convicted both defendants of the more serious (a)(1)(A)(i) mode of committing the
    offense, ante at 5-8, and we have noted that the district judge specifically found at
    sentencing that the trial evidence proved beyond a reasonable doubt that both types of
    money laundering had been committed by both defendants. Our own review of the trial
    evidence has convinced us that the district judge’s observation about the strength of the
    trial evidence is correct -- we likewise conclude that the trial evidence was so strong
    on each mode of violation that the jury must have found that the defendants did in fact
    violate both prongs of § 1956. Hence we conclude that, like in Watts and Wiggins, the
    district court was correct in imposing the guidelines sentence based on a violation of
    the (a)(1)(A)(i) alternative. It should be remembered that we are dealing with
    13
    alternative ways of violating a single statute, and that for either way the statute may be
    violated the maximum potential penalty is the same, i.e., 20 years in prison.
    The commentary to USSG § 1B1.2(d), in particular application note 5, lends
    support to our conclusion. In conspiracy cases where the jury’s verdict does not clearly
    indicate which of two or more offenses were found to be the object of the conspiracy,
    note 5 authorizes a sentencing judge to impose the sentence based on each object of the
    offense that the court, were it sitting as the trier of fact, would have convicted the
    defendant of conspiring to commit. As already mentioned, the district court in this case
    found that both methods of violating the money laundering statute were proven by
    evidence beyond a reasonable doubt. Thus, the defendants' challenge to the sentencing
    ramifications of the ambiguous verdict on the conspiracy count, contending that the two
    different objects of the conspiracy each yield different base offense levels, does not
    amount to reversible error. The same is true for their challenge to the sentences
    imposed on the money laundering counts.
    Defendant Nattier also argues that his sentences on the false statement counts
    were incorrectly determined. He contends that he should have been sentenced on those
    counts at the lower offense levels which the false statement counts standing alone
    would generate. His argument is of no avail. First, he made no objection to the
    grouping of all of his counts of conviction for sentencing purposes as proposed in the
    presentence investigation report. He can not be heard to complain now absent a
    showing of plain error. See United States v. Montanye, 
    996 F.2d 190
    , 192 (8th Cir.
    1993) (en banc). Nattier cannot show plain error because such a grouping was correct.
    See USSG § 3D1.2(d). Furthermore, the district court’s sentencing order was in full
    compliance with USSG § 5G1.2, Sentencing on Multiple Counts of Conviction, and its
    commentary providing, “Usually, at least one of the counts will have a statutory
    maximum adequate to permit imposition of the total punishment as the sentence on that
    count. The sentence on each of the other counts will then be set at the lesser of the
    total punishment and the applicable statutory maximum . . . .” As indicated, ante at 13,
    14
    the 20-year statutory maximum on the money laundering counts accommodated the
    guidelines range of 78-97 months determined to be the total punishment for Nattier’s
    conduct, and a sentence of 78 months was imposed on Nattier’s money laundering
    convictions. Because the false statement counts carried a five-year statutory maximum
    punishment, the 60-month sentences on those counts were, in compliance with the
    quoted commentary, correctly imposed at the lesser of the total punishment (78 months)
    and the statutory maximum (60 months).
    E. Waiver of Expert
    Finally, Coley argues that the government coerced him to withdraw his intent to
    use an expert witness, in violation of his right to a fair trial. We find no merit in this
    contention, and Coley's failure to raise this claim before the district court constitutes
    a waiver. See United States v. Hathcock, 
    103 F.3d 715
    , 719 n.4 (8th Cir.), cert.
    denied, 
    117 S. Ct. 2528
    (1997).
    III.
    For the reasons stated, we affirm the judgment of the district court with respect
    to each defendant.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    15
    

Document Info

Docket Number: 96-2380

Filed Date: 10/3/1997

Precedential Status: Precedential

Modified Date: 10/13/2015

Authorities (21)

United States v. Pelullo , 961 F. Supp. 736 ( 1997 )

united-states-of-america-appellantcross-appellee-v-virginia-t-morris , 18 F.3d 562 ( 1994 )

United States v. William E. "Jack" Street , 66 F.3d 969 ( 1995 )

United States v. Gregory W. Hathcock , 103 F.3d 715 ( 1997 )

United States v. Ben J. Wiggins , 104 F.3d 174 ( 1997 )

Fed. Sec. L. Rep. P 97,418 United States of America v. ... , 989 F.2d 971 ( 1993 )

United States v. Joseph B. Montoya , 945 F.2d 1068 ( 1991 )

United States v. James Franklin Rounsavall A/K/A Frank ... , 115 F.3d 561 ( 1997 )

United States v. Marshall Taylor , 82 F.3d 200 ( 1996 )

United States v. Donald Vivian Owens, III , 904 F.2d 411 ( 1990 )

United States v. Gary Ross Rockelman , 49 F.3d 418 ( 1995 )

United States v. Lamond Sykes, Also Known as Q , 73 F.3d 772 ( 1996 )

united-states-v-thomas-edward-watts-united-states-of-america-v-david , 950 F.2d 508 ( 1991 )

united-states-v-marvin-herron-also-known-as-spook-united-states-of , 97 F.3d 234 ( 1996 )

United States v. Dwight Erwin Baker , 16 F.3d 854 ( 1994 )

United States v. Cavalier , 17 F.3d 90 ( 1994 )

united-states-v-nafez-anthony-karam-also-known-as-tony-karam-united , 37 F.3d 1280 ( 1994 )

United States v. Ronald D. Jenkins , 78 F.3d 1283 ( 1996 )

United States v. Ira Nathan Heaps , 39 F.3d 479 ( 1994 )

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

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