United States v. Heijnen

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4036
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTONIUS HEIJNEN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. G. Ross Anderson, Jr., District
Judge. (CR-03-45)
Submitted: August 3, 2005 Decided: September 19, 2005
Before WILKINSON, WILLIAMS, and KING, Circuit Judges.
Affirmed in part, vacated, and remanded by unpublished per curiam
opinion.
Jessica Ann Salvini, SALVINI & BENNETT, LLC, Greenville, South
Carolina, for Appellant. David Calhoun Stephens, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Antonius M. Heijnen appeals his convictions after a jury
trial on one count of conspiracy against the United States, in
violation of 18 U.S.C. § 371 (2000), and five counts of wire fraud,
in violation of 18 U.S.C. § 1343 (2000), and the 188-month
sentence. We affirm Heijnen’s convictions, but vacate his sentence
and remand for resentencing.
Heijnen asserts that, because he never left New Mexico or
was ever physically present in South Carolina during the time
period alleged in the indictment, the district court in South
Carolina did not have jurisdiction over the charges against him and
that venue was improper in South Carolina. Heijnen presented these
arguments to the district court in pretrial motions to dismiss.
Congress established the criminal jurisdiction of the
district courts by statute: “The district courts of the United
States shall have original jurisdiction, exclusive of the courts of
the States, of all offenses against the laws of the United States.”
18 U.S.C. § 3231 (2000); see generally United States v. Cotton, 535
U.S. 625, 629-31 (2002) (discussing criminal jurisdiction of
district courts). The indictment in this case alleged that Heijnen
violated sections 2, 371, and 1343 of Title 18, United States Code.
(R. Vol. 1, Tab 11). Because the indictment properly alleged
offenses against the laws of the United States, the district court
had jurisdiction over Heijnen and the charged crimes.
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The venue statute generally applicable to criminal cases
provides that “[e]xcept as otherwise expressly provided by
enactment of Congress, any offense against the United States begun
in one district and completed in another, or committed in more than
one district, may be inquired of and prosecuted in any district in
which such offense was begun, continued, or completed.” 18 U.S.C.
§ 3237 (2000). We have recognized that “a conspiracy may be
prosecuted in any district in which the agreement was formed or in
which an act in furtherance of the conspiracy was committed.”
United States v. Gilliam, 975 F.2d 1050, 1057 (4th Cir. 1992), and
that the acts of one member of a conspiracy can be attributed to
all other co-conspirators for venue purposes. United States v.
Al-Talib, 55 F.3d 923, 928-29 (4th Cir. 1995). The indictment
alleged overt acts in furtherance of the conspiracy that included
two of the co-conspirators traveling to South Carolina and meeting
with undercover agents posing as potential investors. We therefore
conclude that the district court properly rejected Heijnen’s motion
to dismiss the conspiracy count for lack of venue.
The wire fraud counts charged that Heijnen participated
in telephone conversations with undercover agents located in South
Carolina and sent documents by telefax in which he made
representations related to the investment scheme. In the context
of a wire fraud prosecution, we have held that “wire fraud [is] a
‘continuing offense,’ as defined in § 3237(a), properly tried in
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any district where a . . . wire communication was transmitted in
furtherance of [the] fraud scheme,” and that “[e]ach of [the]
transmittals occurred ‘both where it was sent and where it was
received.’” United States v. Ebersole, 411 F.3d 517, 527 (4th Cir.
2005) (quoting United States v. Kim, 246 F.3d 186, 191 (2d Cir.
2001)). Because the indictment alleged that Heijnen caused wire
communications in furtherance of the fraud scheme that were
received in South Carolina, venue for the wire fraud counts was
proper in the District of South Carolina.
Heijnen asserts that he was entrapped because he did not
approach the undercover agents posing as potential investors,
rather they approached him. Heijnen did not request an instruction
on entrapment at trial. Entrapment is an affirmative defense that
requires that the defendant first establish that the government
induced him to commit the charged offense. United States v. Hsu,
364 F.3d 192, 198-201 (4th Cir. 2004). Our review leads us to
conclude that the evidence does not in any way indicate that the
undercover agents induced Heijnen into participating in the
conspiracy or the wire fraud. Rather, at most, the evidence shows
merely that agents provided an opportunity to Heijnen to commit
these crimes, which does not demonstrate inducement. Jacobsen v.
United States, 503 U.S. 540, 549 (1992).
Heijnen next asserts that a proposed defense witness was
improperly blocked from appearing at trial when his visa was
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revoked. The Government objected to this witness’ potential
testimony, as Heijnen failed to provide prior notice of an expert
witness as required by Fed. R. Crim. P. 16(b)(1)(C). Heijnen
provides no evidence beyond his assertions to show that the
revocation of this person’s visa was in any way improper or
instigated by the Government in order to block the witness’
testimony. Moreover, Heijnen’s statements to the court describing
this witness’ expected testimony and the written statement provided
by the witness demonstrate that the court was correct in concluding
that this person would present expert testimony rather than fact
testimony based upon personal knowledge of this case. Because
Heijnen admittedly did not provide the notice required by Fed. R.
Crim. P. 16(b)(1)(C), the district court would not have abused its
discretion in excluding the witness if he had appeared at trial.
Accordingly, Heijnen’s arguments provide no basis to question the
propriety of his conviction.
Heijnen next asserts that the district court erroneously
prevented him from introducing exculpatory documentary evidence at
trial. Heijnen did not object to these evidentiary rulings by the
court and never made a proffer of the evidence to the court. On
appeal Heijnen does not specify the evidence he desired to present
that was improperly excluded. A district court’s exclusion of
evidence under the Federal Rules of Evidence is reviewed for an
abuse of discretion. United States v. Francisco, 35 F.3d 116, 118
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(4th Cir. 1994). The district court’s evidentiary rulings will not
be reversed unless they are “arbitrary or irrational.” United
States v. Powers, 59 F.3d 1460, 1464 (4th Cir. 1995). Our review
leads us to conclude that the district court properly prevented
Heijnen from introducing documents downloaded from the internet
generally, as these documents are hearsay, and Heijnen provided no
indication that he could establish a proper foundation to admitting
this evidence, or to authenticate it. Moreover, because Heijnen
did not make a proffer of the evidence to the district court, he
has failed to preserve this issue. See Fed. R. Crim. P. 51(b),
Fed. R. Evid. 103(a)(2).
Heijnen next argues that his offense level under the
Sentencing Guidelines1 was improperly enhanced by facts not found
by the jury, in violation of United States v. Booker, 125 S. Ct.
738 (2005), and that the proper sentence would be less than the
time he has already served. He does not assert any error in the
determination of his base offense level. In Booker, the Supreme
Court applied the rationale of Blakely v. Washington, 542 U.S. 296(2004), to the federal sentencing guidelines and held that the
mandatory guidelines scheme that provided for sentence enhancements
based on facts found by the court violated the Sixth Amendment.
Booker, 125 S. Ct. at 746-48, 755-56 (Stevens, J., opinion of the
Court). The Court remedied the constitutional violation by
1
U.S. Sentencing Guidelines Manual (USSG) (2002).
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severing and excising the statutory provisions that mandate
sentencing and appellate review under the guidelines, thus making
the guidelines advisory. Id. at 756-57 (Breyer, J., opinion of the
Court).
Subsequently, in United States v. Hughes, 401 F.3d 540,
546 (4th Cir. 2005), we held that a sentence that was imposed under
the pre-Booker mandatory sentencing scheme and was enhanced based
on facts found by the court, not by a jury (or, in a guilty plea
case, admitted by the defendant), constitutes plain error that
affects the defendant’s substantial rights and warrants reversal
under Booker when the record does not disclose what discretionary
sentence the district court would have imposed under an advisory
guideline scheme. Hughes, 401 F.3d at 546-56. Sentencing courts
were directed to calculate the appropriate guideline range,
consider that range in conjunction with other relevant factors
under the guidelines and 18 U.S.C.A. § 3553(a) (West 2000 & Supp.
2004), and impose a sentence. If the district court imposes a
sentence outside the guideline range, the court should state its
reasons for doing so. Id. at 546.
Because Heijnen did not assert a Sixth Amendment
objection at sentencing, we review the district court’s guideline
calculation for plain error. United States v. Olano, 507 U.S. 725,
732 (1993); Hughes, 401 F.3d at 547. Under the plain error
standard, Heijnen must show: (1) there was error; (2) the error was
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plain; and (3) the error affected his substantial rights. Olano,
507 U.S. at 732-34. Even when these conditions are satisfied, we
may exercise our discretion to notice the error only if the error
“seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” Id. at 736 (internal quotation marks
omitted).
The jury in Heijnen’s trial, by special verdict, found
that the amount intended to be invested in the scheme was $100
million,2 which resulted in a twenty-four level enhancement of his
base offense level. See USSG § 2B1.1(b)(1)(M). At sentencing,
Heijnen argued against this enhancement in two ways. First, he
asserted that, because no real money was ever involved or at risk,
there was no loss or even a possibility of loss. Second, he argued
that the jury’s verdict found only the amount intended to be
invested, not an amount lost or intended to be lost, and therefore
the enhancement was not supported by the jury’s verdict.
The Guidelines require that, for purposes of determining
the offense level for property and financial crimes, loss is the
greater of actual or intended loss. Those terms are defined as
follows:
2
The question posed to the jury was “[i]f your verdict as to
any of the counts in the indictment is guilty, what was the amount
of money proposed to be invested by the Defendant?” On the blank
line following the question, the foreperson wrote in
“$100,000,000.00.” (R. Vol. 3, Tab 153).
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(i) Actual Loss. - “Actual loss” means the
reasonably foreseeable pecuniary harm that resulted from
the offense.
(ii) Intended Loss. - “Intended loss” (I) means the
pecuniary harm that was intended to result from the
offense; and (II) includes intended pecuniary harm that
would have been impossible or unlikely to occur (e.g., as
in a government sting operation, or an insurance fraud in
which the claim exceeded the insured value.)
USSG § 2B1.1, comment. (n.2(A)). The plain language of these
definitions refutes Heijnen’s assertion that because there were
never any actual funds involved, there could be no loss. Moreover,
we have adopted “the majority view, and [held] as a matter of law
that the Guidelines permit courts to use intended loss in
calculating a defendant’s sentence, even if this exceeds the amount
of loss actually possible, or likely to occur, as a result of the
defendant’s conduct.” United States v. Miller, 316 F.3d 495, 502
(4th Cir. 2003).
We also reject Heijnen’s argument that the jury’s special
verdict does not support a finding of intended loss. When viewed
in the context of the charges on which the same jury convicted
Heijnen, and the evidence at trial, it is apparent that the jury
fully understood that the amount intended to be invested equated to
the amount Heijnen hoped to convince the potential investors to
invest so that he could eventually steal that amount of money from
their accounts. Because the twenty-four level enhancement was
based upon a fact specifically found by the jury, we conclude that
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no Sixth Amendment error occurred in the imposition of that
enhancement.
Heijnen’s offense level was also enhanced by two levels
based upon his misrepresentations that the investment programs he
offered were backed by the Federal Reserve or otherwise associated
with an agency of the United States Government. At sentencing, the
district court overruled Heijnen’s objection to this enhancement,
adopting the PSR’s finding that the evidence at trial established
that Heijnen stated that he worked with a task force that was
purportedly connected to the Government. Because the jury’s
verdict does not include any findings with regard to any
representations by Heijnen that he or the program he offered were
connected to the Government, we conclude that imposition of this
enhancement was error that was plain.3 If this enhancement were
removed, Heijnen’s total offense level would be thirty, and his
sentencing range would be 121 to 151 months. Because the 188-month
sentence imposed does not fall within the guideline range
calculated without the two-level enhancement, we conclude that this
error affects Heijnen’s substantial rights and requires
3
Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Heijnen's sentencing.
See generally Johnson v. United States, 520 U.S. 461, 468 (1997)
(stating that an error is ‘plain’ if “the law at the time of trial
was settled and clearly contrary to the law at the time of
appeal”).
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resentencing pursuant to Booker and Hughes. Although the
Sentencing Guidelines are no longer mandatory, Booker makes clear
that a sentencing court must still "consult [the] Guidelines and
take them into account when sentencing." 125 S. Ct. at 767. On
remand, the district court should first determine the appropriate
sentencing range under the Guidelines, United States v. Hughes, 401
F.3d 540, 546 (4th Cir. 2005). The court should consider this
sentencing range along with the other factors described in 18
U.S.C. § 3553(a), and then impose a sentence. Hughes, 401 F.3d at
546. If that sentence falls outside the Guidelines range, the
court should explain its reasons for the departure, as required by
18 U.S.C. § 3553(c)(2). Hughes, 401 F.3d at 546. The sentence
must be "within the statutorily prescribed range and . . .
reasonable." Id. at 547.
Finally, Heijnen makes several assertions of judicial
bias on the part of the trial judge. Specifically, Heijnen argues
that the revocation of his pretrial bond, the judge’s evidentiary
rulings and restrictions on his cross-examination of Government
witnesses, and the denial of bond pending appeal indicate that the
judge was prejudiced. Our review of the record convinces us that
this argument is completely meritless.
We have considered the remaining assertions of error in
Heijnen’s interlocutory notice of appeal and his informal brief,
and find them to be without merit. We therefore affirm Heijnen’s
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convictions but vacate his sentence and remand for resentencing.
We deny Heijnen’s “Motion for Intervention of Right and Application
for Writ in the Nature of Quo Warranto, and Official Notice of
Identification of Parties.” We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED IN PART,
VACATED, AND REMANDED
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