United States v. Kevin Small

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
1-23-2009
USA v. Kevin Small
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3971
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"USA v. Kevin Small" (2009). 2009 Decisions. Paper 1994.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1994
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 07-3971
__________
UNITED STATES OF AMERICA,
Appellee,
vs.
KEVIN WILLIAM SMALL,
Appellant.
__________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 06-cr-00139)
District Court Judge: Honorable Christopher C. Conner
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
January 8, 2009
___________
Before: FUENTES, FISHER and ALDISERT, Circuit Judges
(Opinion Filed: January 23, 2009)
___________
OPINION
___________
FUENTES, Circuit Judge:
Kevin Small’s attorney has filed a motion to withdraw as counsel, and submitted a
brief pursuant to Anders v. California, 386 U.S. 738 (1967). Counsel has adequately
fulfilled the requirements and we agree that there are no nonfrivolous issues for appeal.
Accordingly, we grant the motion to withdraw as counsel and affirm the sentence
imposed by the District Court.
I.
Because we write for the parties, we discuss only the facts relevant to our
conclusion. On January 31, 2007, Small was indicted by a grand jury of four counts of
filing false federal tax returns in violation of 18 U.S.C. § 287, and one count of mail fraud
in violation of 18 U.S.C. § 1341. Specifically, Small was charged with filing four false
IRS Form 1040s seeking tax refunds totaling $1,023,903 while he was incarcerated in
Pennsylvania. After a full trial, Small was convicted on the four counts of filing false
federal tax returns, and acquitted on the mail fraud count.
At trial, Small did not dispute that the IRS received the tax forms or that they
included false information. Instead, his defense was that he had not filed those tax
returns; he called several other inmates who testified that they were responsible for filing
the false tax returns. In turn, the Government produced evidence from Small’s mail and
Small’s cell directly linking him to the tax forms, including but not limited to letters sent
to the IRS, requests for IRS forms, applications for bank accounts, letters to foreign
2
embassies regarding offshore bank accounts, a request for a duplicate social security card,
handwritten notations of figures corresponding to the falsified tax forms, and
correspondence with Pershing LLC, which was falsely listed as the employer in one of the
tax forms.
At the sentencing hearing, Small requested a two-level reduction for acceptance of
responsibility pursuant to U.S.S.G. § 3E1.1. He claimed that he deliberately instigated
the investigation by sending letters to various authorities, and that he also repeatedly
attempted to contact the prosecutor in order to cooperate. He explained that he did so
because he had committed the crimes not for financial gain, but rather to get transferred to
the federal penitentiary system where he believed he might be able to receive parole.
After consideration, the District Court imposed a sentence of 135 months, which
was in the middle of the Guideline range of 120 to 150 months. The District Court cited
Small’s extensive criminal history and the facts that he “fabricated a defense and
produced false documents at trial” and that “he not only filed false IRS returns claiming
that he was owed tax refunds, but also established bank accounts to receive those
moneys.”
II.
Third Circuit Local Appellate Rule 109.2(a) provides: “Where, upon review of the
district court record, trial counsel is persuaded that the appeal presents no issue of even
arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant
3
to Anders v. California . . . .” Our inquiry is twofold: “(1) whether counsel adequately
fulfilled the rule’s requirements; and (2) whether an independent review of the record
presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.
2001).
In his Anders brief, Small’s counsel presents several possible issues for appeal and
adequately explains why each has no merit: (1) whether the District Court lacked
jurisdiction; (2) whether there was insufficient evidence for the jury to reach its verdict;
(3) whether the District Court erred in its jury charge, its evidentiary rulings, or its rulings
on various motions; (4) whether the District Court erred under Batson v. Kentucky, 476
U.S. 79 (1986), in allowing the Government to strike from the jury the only member of
the jury panel who was African-American; and (5) whether the sentence imposed was
unreasonable, specifically with regard to a request for a downward departure for
acceptance of responsibility.
In addition, Small filed a pro se brief raising these additional complaints: (1)
whether venue was improper given that Small was not within the Middle District of
Pennsylvania at all relevant times of the offense; (2) whether the Government violated
Brady v. Maryland, 373 U.S. 83 (1965), in withholding certain evidence; (3) whether trial
counsel was ineffective for failure to object to a Government exhibit and failure to call
witnesses; and (4) whether the District Court erred in failing to order a psychological
evaluation before trial.
4
Looking at the issues raised by Small’s counsel, we are convinced that they lack
merit. First, we cannot say the evidence presented by the Government was insufficient
for a reasonable jury to find that Small filed false tax returns. United States v. Gibbs, 190
F.3d 188, 197 (3d Cir. 1999). The only issue in contention at trial was whether the
returns were filed by Small or whether they were filed by someone else, and the
Government linked Small to the returns via overwhelming evidence including letters,
prison address, social security number, bank accounts, handwritten notations, and
fingerprints.
Second, the District Court did not commit clear error under Batson. In striking the
only African-American juror from the panel, the Government explained that the juror’s
son had been convicted of armed robbery and had served time in state prison, resulting in
a risk of partiality. The District Court credited this race-neutral explanation, and we are
therefore required to give “great deference on appeal” to this decision, which represents a
finding of fact. Hernandez v. New York, 500 U.S. 352, 364 (1991); accord United States
v. Milan, 304 F.3d 273, 281 (3d Cir. 2002).
Third, with regard to the District Court’s refusal to reduce the sentence for
acceptance of responsibility, Small’s counsel properly notes that the question of whether a
defendant has “accepted responsibility” is a factual question reviewed for clear error.
United States v. Rodriguez, 975 F.2d 999, 1008 (3d Cir. 1992); U.S.S.G. § 3E1.1
Application Note 5 (noting that the determination of the sentencing judge regarding
5
acceptance of responsibility “is entitled to great deference on review”). Here, the District
Court noted that section 3E1.1 is generally “not intended to apply to a defendant who puts
the government to its burden of proof at trial by denying the essential factual elements of
guilt, is convicted, and only then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1
Application Note 2. Accordingly, we cannot say that the District Court committed clear
error in denying the sentence reduction.
Finally, the District Court had jurisdiction under 18 U.S.C. § 3231. Moreover,
counsel’s brief thoroughly addresses the propriety of the various other rulings made by
the District Court at or before trial.
This leaves only the additional issues raised by Small in his pro se brief, all of
which we find frivolous. The objection to venue was waived and cannot be raised for
direct review on appeal. United States v. Robinson, 167 F.3d 824, 829 (3d Cir. 1999)
(“[A] defendant must raise the issue of improper venue before the jury returns a
verdict.”). Likewise, none of the Brady objections were raised before the District Court,
so we decline to review them in the first instance. United States v. Ferri, 778 F.2d 985,
997 (3d Cir. 1985) (declining to opine on the merits of the Brady claim in the first
instance but noting that its decision is without prejudice). Third, the ineffective
assistance claims also were not raised below, and we do not review these claims on direct
appeal unless ineffectiveness is apparent on the record. United States v. Olfano, 503 F.3d
240, 246-47 (3d Cir. 2007) (citing United States v. McLaughlin, 386 F.3d 547, 555 (3d
6
Cir. 2004)). Here, neither of the ineffectiveness claims asserted suggest that the result of
the proceeding would have been different; moreover, we observe that Small admitted he
lied to his counsel and commended his counsel’s performance despite that fact. Cf.
United States v. Monzon, 359 F.3d 110, 120 (2d Cir. 2004) (finding no ineffectiveness
where counsel performed skillfully taking into account that his client was lying to him).
Finally, a psychological examination was never requested, and we cannot say the District
Court committed plain error by failing to order one sua sponte; by all accounts, there was
no reason to suspect that Small was incompetent to stand trial.
III.
For the foregoing reasons, we grant counsel’s motion to withdraw and affirm the
District Court’s judgment sentencing Small to 135 months’ imprisonment.
7