United States v. Wardell Washington

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-2586
___________
United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Wardell Washington, *
*
Defendant - Appellant. *
___________
Submitted: December 10, 1996
Filed: March 24, 1997
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Before FAGG, FLOYD R. GIBSON, and LOKEN, Circuit Judges.
___________
LOKEN, Circuit Judge.
Wardell Washington appeals his bank fraud conviction and sentence.
He raises upward departure, suppression, and venue issues and argues that
the district judge1 should not have conducted the sentencing after
participating in earlier plea discussions. We affirm.
In June 1993, a prison acquaintance was arrested for bank fraud and
left his automobile and check protector in Washington's care. For the next
eight months, Washington used these items in his own bank fraud scheme.
He obtained blank birth certificates and taught his drug addict
accomplices, Kim LeFevers and Pam Swaffar, how to acquire Arkansas
identification that could be used
1
The HONORABLE HARRY F. BARNES, United States District Judge
for the Western District of Arkansas.
to open bank accounts in different names around the State. Washington
drove LeFevers to various banks where she opened fictitious accounts.
Using the check protector, Washington created bogus checks payable to the
fictitious account holders. LeFevers deposited the checks and withdrew
cash before the checks bounced. She turned half the proceeds over to
Washington, who was never seen in the banks.
Washington was charged with conspiracy to defraud five banks and with
four specific counts of bank fraud in violation of 18 U.S.C. §§ 371 and
1344. The jury convicted him on all five counts. Imposing an upward
departure, the district court set the guidelines sentencing range at 57 to
71 months and sentenced Washington to seventy-one months in prison. On
appeal, Washington raises two sentencing issues, a group of related
suppression issues, and a venue challenge to one of the bank fraud counts.
We will discuss those issues in the order raised, setting forth additional
background facts relevant to each.
I. The Upward Departure.
Washington's presentence report recommended a base offense level of
fourteen and a criminal history category of IV, producing a guidelines
range of 27 to 33 months. Citing U.S.S.G. §§ 4A1.3 and 5K2.0, the district
court departed upward to a base offense level of eighteen and criminal
history category VI, producing a guidelines range of 57 to 71 months. The
court explained:
The defendant has been involved in criminal activity
since he was sixteen or seventeen years old. This activity
consists of . . . [a]ssault, disturbing the peace, burglary,
grand larceny, carrying prohibited weapons, possession of
restricted drugs, possession of heroin, distributing heroin,
forgery, numerous counts and now conspiracy to commit bank
fraud and I haven't touched all of them.
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Mr. Washington, you have exhibited no remorse or
contrition for your behavior. You have exhibited no efforts to
correct your lifestyle, from [age] sixteen to now. You have
continued to cheat, to defraud, to steal, to burglarize and
deal in drugs from your early youth to now. You have used
people . . . . you've sued your first lawyer, you've sued the
probation officer, you've been appointed another lawyer and now
I understand you've got a suit against the FBI agent. . . .
Obviously the Sentencing Commission . . . could not have taken
all of this into consideration when structuring these
guidelines.
* * * * *
In this case you used the identity of Edith Cass[a]dy to
perpetuate the fraud. Edith Cass[a]dy is an innocent victim.
. . . [W]arrants for arrest had been issued to her. [The]
Sentencing Guideline makes no provision for this type of
situation.
Washington argues that the district court erred in imposing an upward
departure because his criminal history and the minor emotional injury to
victim Cassady do not put this case beyond the Guidelines "heartland." The
district court has discretion to depart if there is an "aggravating or
mitigating circumstance of a kind, or to a degree, not adequately taken
into consideration by the Sentencing Commission in formulating the
guidelines that should result in a sentence different from that described."
18 U.S.C. § 3553(b). We review departure decisions under a "unitary abuse-
of-discretion standard," United States v. Koon, 116 S. Ct. 2035, 2048
(1996), deferring to the district court on most departure issues "including
the critical issue[] of ‘[w]hether a given factor is present to a degree
not adequately considered by the Commission.’" United States v. Kalb, 105
F.3d 426, 428 (8th Cir. 1997), quoting Koon, 116 S. Ct. at 2047. "If the
special factor is an encouraged factor, the court is authorized to depart
if the applicable Guideline does not already take it into account." Koon,
116 S. Ct. at 2045.
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In this case, the district court based its upward departure on
special factors that are "encouraged" in the Guidelines. First, as to
criminal history, § 4A1.3 encourages a departure if defendant's criminal
history category "does not adequately reflect the seriousness of the
defendant's past criminal conduct or the likelihood that the defendant will
commit other crimes." The district court concluded that Washington's
extensive criminal history puts him outside the "heartland" of offenders
falling within criminal history category IV.2 We agree. Washington was
52 years old when sentenced. He began committing serious crimes at age 16.
His many serious offenses prior to 1975, which were excluded in determining
criminal history category, see § 4A1.2(e), may be considered under § 4A1.3.
See U.S.S.G. § 4A1.2, comment. (n.8). In addition, Washington has been
incarcerated one-half of his adult life for a wide variety of serious
offenses. He has resumed criminal activity promptly upon each release from
prison, committing the instant offenses, and earlier offenses, while on
parole. It would seem that only incarceration kept his criminal history
as low as category IV. The district court did not abuse its sentencing
discretion in departing upward to category VI. See United States v.
Nomeland, 7 F.3d 744, 747-48 (8th Cir. 1993); United States v. Saunders,
957 F.2d 1488, 1492 (8th Cir.), cert. denied, 506 U.S. 889 (1992).
Second, the district court departed upward four base offense levels
under § 5K2.0, primarily because Washington opened a fictitious account at
Superior Federal Bank in the name of Edith Cassady, an elderly Hot Springs
waitress. As a result of this fraud, which resulted in a rather small loss
to the bank, a warrant
2
Washington's PSR listed the following offenses leading to
convictions: assault (9/60); disturbing the peace (7/61); burglary
(11/64); carrying prohibited weapon (9/65); grand larceny (6/68);
restricted drugs possession (4/70); heroin possession (3/74 and
10/74); heroin distribution (2/75); and forgery (12/87 and 8/88).
According to the PSR, he was incarcerated from 4/70 to 4/71; 7/75
to 1/83; 7/88 to 4/93; 3/94 to 8/94; and 5/95 to 7/95.
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issued for Cassady's arrest, and police questioned her at home before
concluding she was innocent of the fraud. Once again, the district court
acted upon an encouraged departure factor. See § 2F1.1 comment. (n.11)
(false identification documents offense may warrant upward departure "where
the actual loss does not adequately reflect the seriousness of the
conduct"). Here, though the monetary loss to each defrauded bank was not
large, Washington preyed upon his drug addict accomplices, directed his
scheme at numerous banks and other merchants, and caused anguish to the
elderly Ms. Cassady. In view of his history as an "unrepentant,
incorrigible recidivist," the district court did not abuse its discretion
in imposing a four-level upward departure under § 5K2.0. See United States
v. Lara-Banda, 972 F.2d 958, 960 (8th Cir. 1992).
II. Judicial Participation in Plea Negotiations.
Washington next argues that the district court should not have
sentenced him after participating in earlier plea negotiations. In
September 1995, Washington pleaded guilty to one count of bank fraud.
However, when the PSR recommended a guidelines range of 37 to 46 months in
prison, Washington moved to withdraw the plea. At the February 1996 motion
hearing, the district court concluded its remarks as follows:
Well, I think there was some mention of eighteen months and I
think as we sat here with your attorney and . . . looked at the
charges, your participation, your acceptance of responsibility,
and whether you were a major or a minor participant in the
scheme, in looking a the sentencing guidelines, [counsel] and
I looked at what we thought the guidelines would reveal.
I acknowledge that I participated at least to that extent
and I think it would be a tragedy to the rights of human beings
in this country to make you stand by that plea. I'm not going
to do that. I'm going to grant your motion to withdraw your
plea.
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Washington was then tried and convicted on all five counts. Early in his
sentencing hearing, counsel argued that Washington is entitled to an
acceptance of responsibility reduction even though he sued the probation
officer. The district court interjected:
THE COURT: . . . I want Mr. Washington to understand
what occurred at that point. . . . [W]e attempted, [counsel]
attempted to see if they couldn't work out a plea and they
talked about principal role, amount in controversy, acceptance
of responsibility and all of those. It was represented to me
that there might well be an avenue and opening of some 17 to 21
months and I think counsel for the government and [defense
counsel], in your behalf, said would you accept -- could you
accept something in that range. . . . Then [the probation
officer] took what he understood the facts to be without a
trial and came up with the [PSR] and that [PSR] is just that.
It's a tool to assist me in sentencing. So . . . I can
understand that you might have felt that something was going
[on] here, but it was not. . . . I want the record to say that
this court is not some back room where we work deals to put you
in [prison]. . . .
COUNSEL FOR WASHINGTON: I appreciate it your Honor. I
think that's absolutely accurate. I think the problem is that
Mr. Washington was not himself privy to those conversations.
On appeal, Washington argues that he has a right to be resentenced by
another judge. He did not raise this issue in the district court, so the
question is whether the court committed plain error.
Rule 11(e)(1) of the Federal Rules of Criminal Procedure provides
that the district court "shall not participate" in any discussions
concerning a possible plea agreement. This is an "absolute prohibition."
United States v. Adams, 634 F.2d 830, 835 (5th Cir. 1981). It applies to
judicial participation in plea negotiations between counsel, as well as to
discussions held in the defendant's presence. See United States v.
Barrett, 982 F.2d 193, 194 (6th Cir. 1992).
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In this case, the district court acknowledged it participated in
discussions prior to Washington's guilty plea and granted his motion to
withdraw the plea. This remedy cured any possibility that the court had
somehow coerced Washington into pleading guilty. However, that is not the
only purpose served by Rule 11(e)(1). It also furthers "the sound
principle that the interests of justice are best served if the judge
remains aloof from all discussions preliminary to the determination of
guilt or innocence so that his impartiality and objectivity shall not be
open to any question or suspicion when it becomes his duty to impose
sentence." United States v. Werker, 535 F.2d 198, 203 (2d Cir.), cert.
denied, 429 U.S. 926 (1976); accord Barrett, 982 F.2d at 195; Adams, 634
F.2d at 840. Thus, the issue here is not whether the district court
violated Rule 11(e)(1). The real issue is one of remedy -- did the court
commit plain error by not recusing from the case, either before trial or
before sentencing?
We answered part of this question in In re Larson, 43 F.3d 410 (8th
Cir. 1994), another case in which the district court, before trial,
acknowledged it had improperly commented on the parties' plea negotiations.
Defendants immediately petitioned for a writ of mandamus. We denied that
petition because a violation of Rule 11(e)(1) does not provide "a basis for
the remedy of recusal at this stage of the litigation." Id. at 416.
Larson confirms that the court did not commit plain error by presiding over
Washington's trial after it granted his motion to withdraw the guilty plea.
That leaves a more difficult question -- whether the court was
obliged to recuse, sua sponte, after Washington's conviction and before his
sentencing. That was the remedy mandated by the Fifth Circuit in Adams,
634 F.2d at 842, where the district court's Rule 11(e)(1) violation was
both unacknowledged and more egregious. We noted the issue but adopted a
more cautious position in Larson: "the remedy of recusal could become
available later in the litigation . . . Petitioners may request a different
sentencing
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judge in the event of a conviction after trial." 43 F.3d at 416 n.7,
citing Adams (emphasis added).
In this case, the district court advised Washington of the court's
earlier participation when it granted his motion to withdraw the plea. The
court reminded him of the incident early in the sentencing hearing. Fully
apprised of the situation, Washington made no request for a different
sentencing judge. Because footnote 7 in Larson defines the right to a
different judge as one that must be requested, we cannot conclude that the
district court committed plain error in sentencing Washington after he
failed to raise the issue. Moreover, in our view, the Larson footnote
states the proper rule. Though Washington is now dissatisfied with his
sentence, he made a conscious decision to be sentenced by Judge Barnes and
should not be entitled to revisit that decision. Stated differently, there
was no plain error.
III. Suppression Issues.
Police Detective David Davis and FBI Agent Travis Sorrows
investigated this fraud scheme in the fall of 1993. In February 1994,
LeFevers opened an account at a bank in Russellville, Arkansas, under the
name Nikki Hester. A bank employee recognized LeFevers as the woman who
opened an account under a different name in October. The employee notified
Detective Davis, telling him that LeFevers left the bank in a car driven
by a man. Three days later, a Russellville police officer saw the same car
at 3:00 a.m. with its trunk open. He followed the car to a convenience
store, asked the two occupants where they were staying, and allowed them
to leave. The woman passenger said her name was Cindy White, but a store
attendant told the officer she had discarded an identification card bearing
the name Nikki Hester.
Police then went to the motel where the two said they were staying
and knocked on the door of a room registered to Nikki
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Hester. There was no answer, but they heard people moving about and paper
shredding, and the room's smoke alarm sounded. Thirty minutes later, the
officers stopped Washington and LeFevers as they left the motel in the same
car. Claiming to be Nikki Hester, LeFevers admitted falsely identifying
herself and was arrested for criminal impersonation. She consented to a
search of the motel room, where police found a word processor, numerous
documents, and burned document scraps. Later that morning, when Detective
Davis learned "Nikki Hester" had been arrested, he proceeded to the motel
and arrested Washington for bank theft, a state offense.
A. Washington argues that this arrest was not supported by probable
cause, an issue we review de novo. See Ornelas v. United States, 116 S.
Ct. 1657, 1663 (1996). In conducting that review, we determine from the
totality of the circumstances whether a prudent person would believe
Washington had committed or was committing a crime, giving Detective Davis
"substantial latitude in interpreting and drawing inferences from factual
circumstances." United States v. Hawkins, 59 F.3d 723, 727 (8th Cir.
1995), vacated and remanded on other grounds, 116 S. Ct. 1257 (1996).
Having carefully reviewed the record, we agree with the district court that
Detective Davis had probable cause to believe that Washington had
participated with LeFevers in a bank theft scheme.
B. Agent Sorrows interviewed Washington at the Polk County jail.
Washington agreed to answer questions but refused to sign a Miranda rights
waiver form. He admitted providing LeFevers with birth certificates and
blank checks to defraud various banks. He also agreed to surrender tools
of the scheme to Sorrows, including the check protector. Washington
declined to talk about the involvement of others until he had consulted an
attorney. Later that evening, Washington's son Rodney delivered numerous
checks, fake IDs, birth certificates, and the check protector to Sorrows.
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Washington argues that interrogation was improper after he refused
to sign a Miranda rights waiver form. Based upon suppression hearing
testimony, the district court found that Washington was informed of and
expressly waived his Miranda rights, a credibility determination that is
not clearly erroneous. See, e.g., United States v. Heath, 58 F.3d 1271,
1275 (8th Cir.), cert. denied, 116 S. Ct. 240 (1995). His refusal to sign
a waiver form is not dispositive. See North Carolina v. Butler, 441 U.S.
369, 373 (1979); United States v. House, 939 F.2d 659, 662 (8th Cir. 1991).
Washington further argues that Sorrows conducted the questioning after
Washington's Sixth Amendment right to counsel had attached, citing Brewer
v. Williams, 430 U.S. 387, 398 (1977). This issue was not raised in the
district court. There was no plain error because Washington, properly
warned, waived his Sixth Amendment rights by electing to answer Sorrows's
questions. See Patterson v. Illinois, 487 U.S. 285, 292-93 (1988).
Finally, Washington asserts that Sorrows improperly continued the
questioning after Washington requested an attorney, citing Edwards v.
Arizona, 451 U.S. 477, 484 (1981). However, "[n]othing in Edwards requires
the provision of counsel to a suspect who consents to answer questions
without the assistance of a lawyer." Davis v. United States, 114 S. Ct.
2350, 2356 (1994). Washington did not request that an attorney be present.
He simply declined to answer any questions regarding the involvement of
others until he had spoken to an attorney.
C. Washington also asserts that consensual searches of his automobile
and storage unit and the surrender of incriminating evidence were
unconstitutionally coerced. The record does not support that contention.
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IV. The Venue Issue.
Count Two of the indictment charged Washington with executing a
scheme to defraud the Superior Federal Bank, located in the Western
District of Arkansas. However, at trial the government proved that
LeFevers opened a fictitious account and cashed bogus checks at Superior
Federal branches located in the Eastern District of Arkansas. Washington
therefore argues that the conviction on Count Two violates his Sixth
Amendment right to be tried in the "district wherein the crime shall have
been committed." See also Fed. R. Crim. P. 18.
The government argues that venue was proper in the Western District
because Superior Federal is federally insured at its main office in the
Western District, all fifty-eight branches "operate as sub-offices of the
main institution," and therefore the fraud's effect was on a Western
District financial institution. In this age of interstate banking, we
suspect that the government's theory would expand bank fraud venue far
beyond what is reasonable or sufficiently sensitive to Sixth Amendment
concerns, yet the government carefully avoids discussing the full
ramifications of its venue theory. Here, for example, Superior Federal had
branches in Oklahoma and was owned by a large St. Louis bank. We will put
aside the government's superficially argued theory and look more closely
at the specific facts of the offense in question.
Venue "must be determined from the nature of the crime alleged and
the location of the act or acts constituting it." United States v.
Anderson, 328 U.S. 699, 703 (1946). An offense begun in one district and
completed in another, or committed in more than one district, may be
prosecuted in any district in which it was begun, continued, or completed.
See 18 U.S.C. § 3237(a); United States v. Brakke, 934 F.2d 174, 176 (8th
Cir. 1991). Count Two charged Washington with executing "a scheme or
artifice to defraud a financial institution," 18 U.S.C. § 1344. As the
words suggest,
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a "scheme to defraud" is, at least in most cases, a series of acts designed
to obtain money or property fraudulently, not simply the one specific act
of using the mails (mail fraud) or cashing a bogus check (bank fraud). See
United States v. Garfinkel, 29 F.3d 1253, 1259 (8th Cir. 1994); United
States v. Hubbard, 889 F.2d 277, 280 (D.C. Cir. 1989). Thus, for purposes
of § 3237(a), it is nearly as broad as a criminal conspiracy, for which
venue is proper in any district in which any conduct comprising the
conspiracy occurred. See United States v. Guy, 456 F.2d 1157, 1163 (8th
Cir.), cert. denied, 409 U.S. 1001 (1972).
In this case, Washington provided instruments of fraud and training
to commit bank fraud to LeFevers, a resident of the Western District.
Washington travelled to the Western District and drove LeFevers to various
Arkansas banks, where she executed the scheme to defraud. One of those
banks was a branch of Superior Federal, where LeFevers (i) opened a
fictitious account in the name of Edith Cassady, another resident of the
Western District, and (ii) signed a bank signature card reciting the bank's
location in the Western District. In these circumstances, we conclude that
the Count Two offense was committed in part in the Western District for
purposes of determining venue under § 3237(a). Moreover, trial of Count
Two in the Western District along with other offenses that were part of the
same scheme did not subject Washington to the "unfairness and hardship [of]
trial in an environment alien to [him]." United States v. Johnson, 323
U.S. 273, 275 (1944). His venue motion was properly denied.
The judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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