United States v. LaShay, John W.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3378
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN LASHAY,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
Nos. 03-CR-35 & 03-CR-270—Rudolph T. Randa, Chief Judge.
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ARGUED JULY 6, 2005—DECIDED AUGUST 3, 2005
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Before COFFEY, RIPPLE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. A jury found John LaShay guilty
of conspiracy to defraud the United States, 18 U.S.C. § 371,
and tampering with a witness, id. § 1512(b)(1). At sentenc-
ing, the district court treated the sentencing guidelines as
advisory and imposed concurrent terms of 24 months on the
conspiracy count and 6 months on the witness-tampering
count. LaShay now argues that there was insufficient
evidence to support the witness-tampering conviction, and
that the district court should have submitted sentencing
2 No. 04-3378
issues to a jury.1 We affirm the convictions but vacate the
sentences and remand for resentencing.
Beginning in June 2002, LaShay was involved in a
scheme to help Pakistani nationals obtain permanent resi-
dent status in the United States by finding United States
citizens for them to marry. LaShay’s employer at a local gas
station, Faryad Hussain, asked him if he knew anyone who
would marry an acquaintance who needed a green card, and
LaShay suggested that his daughter might do so. LaShay’s
daughter eventually married one of Hussain’s acquain-
tances and sponsored his application for permanent resi-
dency. LaShay afterward approached several other women
about marrying Pakistani nationals, including his daugh-
ter’s mother and a former co-worker. According to Hussain,
LaShay was promised $400 or $500 for his role in the
conspiracy, but the payments were never made.
During the investigation of this scheme, a government
agent discovered that LaShay had cashed a $2000 check
written out to him by Hussain. This amount matched the
sum LaShay’s daughter had told authorities she was offered
for her marriage. Because of this, and because $2000 was a
much larger amount than Hussain typically gave employees
for business purposes, the agent considered this check
significant and followed up on it in a July 2003 interview
with James Clark, LaShay’s friend and fellow gas station
employee. As Clark recounted that interview at trial, he
told the agent that the station did keep cash on hand to
cash paychecks for customers, but that $2000 was more
than the customary amount. Hussain, however, testified at
1
Although counsel reported at argument that LaShay has now
been released from imprisonment, his appeal is not moot because
he is still serving his term of supervised release. United States v.
Trotter, 270 F.3d 1150, 1152 (7th Cir. 2001). On remand, the
district court could still alter LaShay’s overall sentence. Id.No. 04-3378 3
trial as a government witness that he indeed gave LaShay
the check to use for petty cash at the gas station, and that
it was not a payment for participation in marriage fraud.
According to Clark’s trial testimony, LaShay mentioned
the $2000 check to him several times in the three days
immediately preceding his interview with the government
agent. LaShay told Clark that Hussain had given him the
check to provide funds for cashing checks for customers, but
that he was “worried” about the check because immigration
authorities had a copy of it. He asked if Clark remembered
Hussain giving him the check, but, according to his testi-
mony, Clark responded that there was no way he could
have been present for the event because he and LaShay
worked different shifts. Nonetheless, LaShay raised the
subject daily for three days, stating that he wanted to make
sure Clark remembered that the check had been for petty
cash. Clark responded that he wasn’t going to lie for
anyone. On cross-examination, though, Clark conceded that
he did not feel LaShay had been trying to threaten or
intimidate him. When asked on redirect if he felt LaShay
had been asking him to lie, he responded yes, although on
re-cross he also contradicted that statement by agreeing
that defense counsel was “correct” in saying that LaShay
hadn’t really been asking him to lie.
After the guilty verdicts, the district court proceeded to
sentencing. It stated that, in light of Blakely v. Washington,
124 S. Ct. 2531 (2004), and United States v. Booker, 375
F.3d 508 (7th Cir. 2004), it did not believe the sentencing
guidelines bound its sentencing determination. Rather, the
district court decided to proceed with “[t]he Guidelines used
as just that, a guide.” Although LaShay had filed objections
to the presentence report based on upward adjustments
made to his offense level for committing the offense while
on pretrial release and having a leadership role in the
conspiracy, the district court did not resolve them. Instead,
taking into account matters of punishment, deterrence,
4 No. 04-3378
retribution, rehabilitation, and the safety of the public, the
district court accepted the government’s recommendation of
24 months’ imprisonment.
The witness-tampering count alleges that LaShay “did
knowingly attempt to corruptly persuade James Clark with
the intent to influence his testimony” at LaShay’s trial, in
violation of 18 U.S.C. § 1512(b)(1). LaShay argues that
there was insufficient evidence to support the jury’s guilty
verdict on this charge. He argues that there was no evi-
dence that he threatened, intimidated, or harassed Clark,
or in any way encouraged him to lie.
In reviewing for the sufficiency of the evidence, we
consider the evidence in the light most favorable to the
government and ask whether any rational jury could have
found the elements of the offense beyond a reasonable
doubt. United States v. Henningsen, 387 F.3d 585, 589 (7th
Cir. 2004). We neither reweigh the evidence nor substitute
our judgment of the facts for that of the factfinder.
United States v. Masten, 170 F.3d 790, 794 (7th Cir. 1999).
In relevant part, § 1512(b)(1) subjects to imprisonment
anyone who “knowingly uses intimidation, threatens, or
corruptly persuades another, or attempts to do so,” with the
intent to “influence, delay, or prevent the testimony of any
person in an official proceeding.” To have convicted LaShay
of this offense as alleged in the indictment, the government
was required to prove that: 1) Clark was a witness or
prospective witness; 2) LaShay attempted to persuade
Clark to provide false testimony; and 3) LaShay acted
knowingly and with the intent to influence Clark’s testi-
mony. United States v. Arocho, 305 F.3d 627, 639 (7th Cir.
2002), superseded by statute on other grounds as stated in
United States v. Rodriguez-Cardenas, 362 F.3d 958 (7th Cir.
2004); United States v. Johnson, 903 F.2d 1084, 1087 (7th
Cir. 1990).
The jury’s verdict is supported by sufficient evidence.
LaShay focuses on the fact that he never threatened Clark,
No. 04-3378 5
but a defendant need not use physical force or intimidation
to be guilty of witness tampering, so long as he attempts to
“corruptly persuade” a witness to testify falsely.
United States v. LaFontaine, 210 F.3d 125, 133 (2d Cir.
2000); United States v. Pennington, 168 F.3d 1060, 1066
(8th Cir. 1999); United States v. Gabriel, 125 F.3d 89, 102
(2d Cir. 1997); see also Arocho, 305 F.3d at 640 (holding
that conviction under § 1512(b)(1) was supported by suffi-
cient evidence where defendants never threatened witness
but repeatedly urged him to change his story and wrote
false statement that witness signed). For instance, “corrupt”
persuasion occurs “ ‘where a defendant tells a potential
witness a false story as if the story were true, intending
that the witness believe the story and testify to it.’ ” Gabriel,
125 F.3d at 102 (quoting United States v. Rodolitz, 786 F.2d
77, 82 (2d Cir. 1986)). In Gabriel, the defendant faxed a
witness a false account of a meeting relevant to the govern-
ment’s investigation of whether the defendant made
misrepresentations in pursuit of government contracts.
Gabriel, 125 F.3d at 93-94. He urged the witness to “think
this through” before answering any questions about his
memory of that meeting. Id. at 94. The Second Circuit held
that this was sufficient to support a conviction for witness
tampering. Id. at 105. Here, LaShay similarly placed a
story before Clark in the hopes that he would adopt it if
interviewed.
Similarly, the Second Circuit upheld a district court’s
finding of witness tampering where the defendant tried to
persuade a witness to give a false account that tracked the
defendant’s position. LaFontaine, 210 F.3d at 132 (affirming
revocation of bail based on “practical probability” of witness
tampering). The defendant had done nothing more than
“remind” the witness that her mother had undergone a
hernia operation, when in fact the mother had received
cosmetic procedures which the defendant’s clinic disguised
as a hernia operation when billing the insurance company.
6 No. 04-3378
Id. at 128. This case presents a similar situation, with
LaShay repeatedly urging Clark to “remember” that he saw
Hussain hand over the $2000 check for petty cash, when
Clark knew he had not actually seen the check change
hands. A jury could properly view LaShay’s remarks as an
unstated invitation to lie. Id. This is true even though the
evidence at trial never established that LaShay’s account of
the check was false; LaShay was suggesting that Clark
claim personal knowledge of the transaction when in fact he
had none. See id. at 132-33 (practical probability of witness
tampering even though defendant had some evidence to
suggest that the version of events she proposed to witness
could be true).
In his opening brief, which he filed before United States
v. Booker, 125 S. Ct. 738 (2005), LaShay argues that the
district court’s use of the sentencing guidelines as a refer-
ence violated the Sixth Amendment. He contends that the
court should have submitted the question whether he was
an organizer or manager in the conspiracy to a sentencing
jury. But this position is no longer tenable; Booker holds
that application of the sentencing guidelines does not
violate the Sixth Amendment so long as the district court
treats them as advisory rather than mandatory. 125 S. Ct.
at 750. The district court here made clear that it did not
consider itself bound by the guidelines, but still found them
to be a useful reference. Under those circumstances,
LaShay had “no right to a jury determination of the facts
that the judge deems relevant.” Id.
In his reply brief, however, LaShay for the first time
argues that the district court erred when it failed to resolve
the dispute over the applicable guideline range before
sentencing him. Typically, arguments first raised in a reply
brief are considered waived. Kelso v. Bayer Corp., 398 F.3d
640, 643 (7th Cir. 2005). But LaShay’s argument here is
based on Booker, which was not decided until after his
opening brief had already been filed, meaning he raised the
No. 04-3378 7
argument as soon as it was reasonably available to him.
Accordingly, we will review the district court’s sentence for
harmless error, since LaShay raised a Blakely objection in
the district court. United States v. Schlifer, 403 F.3d 849,
854 (7th Cir. 2005).
LaShay is correct that, though the guidelines are no
longer mandatory, district courts still must consult them
and take them into account when sentencing. United States
v. Baretz, 411 F.3d 867 (7th Cir. 2005). The district court
should have calculated the guideline range accurately and
then explained any deviation it chose to make in LaShay’s
case. United States v. George, 403 F.3d 470, 473 (7th Cir.
2005). Here, the district court did not bother to calculate a
range at all, but simply accepted the government’s sen-
tencing recommendation. This was error. Id.Nor can this error can be considered harmless. Although
the government conceded at sentencing that LaShay had
not committed the offense while on pretrial release, leaving
only his purported leadership role in the conspiracy in dis-
pute, this dispute might seriously have impacted LaShay’s
term of imprisonment. The government contended that the
applicable guideline range was 21 to 27 months, but with-
out this three-level increase in the offense level, LaShay’s
range would have been 12 to 18 months. LaShay’s counsel
argued for 14 months at sentencing. Under these circum-
stances, the government cannot demonstrate that the
district court’s failure to calculate the guideline range did
not impact LaShay’s sentence.
Accordingly, although we AFFIRM LaShay’s convictions,
we REMAND this case to the district court for resentencing.
8 No. 04-3378
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-3-05