United States v. Robert John Kane

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-2355
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the District
v. * of Minnesota.
*
Robert John Kane, * [UNPUBLISHED]
*
Appellant. *
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Submitted: February 10, 2003
Filed: February 26, 2003
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Before BOWMAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Robert John Kane pleaded guilty to mail fraud, 18 U.S.C. § 1341 (2000),
conspiracy to commit mail and wire fraud, 18 U.S.C. § 371 (2000), and income tax
evasion, 26 U.S.C. § 7201 (2000). The district court* sentenced Kane to 63 months
in prison. Kane appeals his sentence, and we affirm.
*
The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.
First, Kane argues the evidence did not support the district court’s application
of a two-level “sophisticated means” enhancement under U. S. Sentencing Guidelines
Manual § 2F1.1(b)(6) (2000). At Kane’s sentencing hearing, the evidence showed
Kane used offshore bank accounts and multiple corporate shell companies to conceal
his fraudulent scheme from the government and from his sixty-two investors across
the United States who lost approximately $2.3 million over a period of eight years.
The district court stated, “The fraud perpetrated by [Kane] is one of the most
sophisticated the Court has seen . . . .” We thus conclude the district court’s factual
findings and its related application of the sophisticated means enhancement are not
clearly erroneous. United States v. Waldman, 310 F.3d 1074, 1079 (8th Cir. 2002)
(standard of review).
Second, Kane contends the district court was required to give him a three-level
acceptance of responsibility reduction under U.S.S.G. § 3E1.1 (2000). United States
v. Ervasti, 201 F.3d 1029, 1043 (8th Cir. 2000) (standard of review). We disagree.
A defendant who receives the two-level acceptance of responsibility of reduction, as
Kane did, becomes eligible for an additional one-level reduction by entering a timely
guilty plea or providing complete information about the offense. U.S.S.G. § 3E1.1(b)
(2000). Kane, however, disputed the charges against him from March 2001 until he
pleaded guilty on October 26, 2001–three days before his trial was to begin.
Additionally, the district court found Kane did not provide a complete accounting of
the proceeds from his extensive fraudulent scheme. Under these circumstances, we
conclude the district court did not commit clear error when it granted Kane a two-
level, rather than a three-level, acceptance of responsibility reduction.
Finally, Kane claims the district court improperly denied his motion for access
to ex parte letters victims sent directly to the district court. Kane claims this denial
violates his due process rights under Federal Rule of Criminal Procedure 32. There
is no indication the district court relied on the ex parte letters when sentencing Kane,
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however. Instead, the court stated it was “seriously, seriously affected by the victim
impact statements” summarized in the presentence report. The forty-four statements
were provided to the U.S. Probation Office and were available to Kane’s attorney.
Because Kane had full access to the forty-four victims’ statements sent to the
probation officer, he had notice of the victims’ intensely emotional demands that he
receive severe punishment. Smith v. United States, 206 F.3d 812, 813 (8th Cir. 2000)
(per curiam). Kane’s attorney counseled the judge against weighing the victims’
statements too heavily, thus satisfying the due process requirement of the right to be
heard. Id. Thus, the district court’s decision to deny Kane access to the ex parte
letters was not erroneous.
For the reasons stated above, we affirm Kane’s sentence.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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