Guideline Errors Harmful Despite 99-Month Downward Variance; Fifth Circuit Still Likes Pattern “Deliberate Ignorance” Charge

United States v. Roussel, No. 11-30908 (Jan. 16, 2013) (Jolly, Jones, Graves)

Roussel, a New Orleans Police Department Captain and Traffic Division commander, was convicted of conspiracy and 2 counts of wire fraud involving a scheme to defraud a New Orleans-based utilities provider. Roussel’s strategy at trial seemed to be "Yeah, I was there when other people discussed defrauding the company and the related bribery scheme, but I really wasn’t paying attention to what they were saying. It was way over my head, I was bored and busy texting, and I went to the bathroom right when they were finalizing the bribery plans. Basically, I’m on the tapes, but I had no idea what was going on."

The district court included the Fifth Circuit pattern charge on "deliberate ignorance." Roussel appealed, arguing, among other things, that inclusion of the deliberate ignorance charge lowered the required from mens rea and violates Supreme Court precedent. The panel suggests that the deliberate ignorance charge should not have been given, but found that any error was harmless because "there was substantial evidence of Roussel’s actual knowledge of the illegal scheme." The panel bypassed any substantive review of the deliberate ignorance pattern language but suggested that it is consistent with the Supreme Court’s decision in Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011) because it conveys the same meaning, even though it uses different words.

With regard to sentencing, the panel affirmed the use of the public official sentencing enhancement as well as the enhancement based on Roussel’s high-level or sensitive position. The panel found the district court clearly erred, however, in finding that more than one bribe occurred for a 2-level enhancement under 2C1.1(b)(1) and in calculating the expected benefit for a 16-level increase under 2C1.1(b)(2). "[T]he district court’s calculation of expected benefit was purely speculative." The court arbitrarily relied on a previous, historically costly hurricane season to predict the benefit. If the court had relied on the hurricane season that actually applied, Roussel would have only received a 12-level enhancement.

The panel found that these sentencing calculation errors were not harmless. The district court had granted a 99-month downward variance, resulting in a 136 month sentence. The correct advisory guideline range, though, was 121-151 months instead of 235-293 months. Even though the given sentence was in the middle of the correct range, the panel could not assume that the court would not have granted a variance from the correct range. On remand, the district court will have a chance to do just that.

Convictions Reversed for Insufficiency and Cumulative Error; Good Discussion of Deliberate Ignorance

United States v. Delgado, No. 07-41041 (5th Cir. Jan. 19, 2011) (Wiener, Dennis; Clement, J. dissenting)

A common fact pattern, an uncommon result:

Defendant-Appellant Maria Aide Delgado was convicted of (1) possession of marijuana with the intent to distribute and (2) conspiracy to commit the same offense, 21 U.S.C. § 841(a)(1) & (b)(1)(B); 18 U.S.C. § 371.0. She was sentenced to a concurrent term of 100 months imprisonment for each conviction. Delgado appealed. For the reasons assigned herein, we vacate her convictions and sentences, dismiss the conspiracy charge of the indictment because the government failed to introduce sufficient evidence to convict her of conspiracy, and remand the case to the district court for further proceedings on the possession with intent to distribute charge.

The evidence presented by the prosecution was not sufficient to support a finding by a jury beyond a reasonable doubt that Delgado was guilty of conspiracy. Delgado’s unconsummated “agreement” with a produce broker’s agent to commingle marijuana with produce in a motor freight shipment was not an actual agreement as required for the crime of conspiracy: the broker’s agent was an undercover government informer, who only pretended to agree to the scheme with Delgado pursuant to ICE officers’ plan to incriminate Delgado and seize contraband marijuana. The evidence was also not sufficient to support a finding by a jury beyond a reasonable doubt that Delgado agreed with the unknown person who supplied the marijuana, the unknown prospective recipient, or any other person, to commit a crime that amounted to more than a buyer-seller relationship. The district court did not inform the jury that neither an agreement with a government informer who intends to frustrate the conspiracy, nor a simple buyer-seller relationship, is legally sufficient to amount to a conspiracy. Because there was no evidence that Delgado entered into an agreement with anyone other than the informer to engage in anything beyond a simple buyer-seller transaction, the conspiracy charge must be dismissed due to insufficient evidence.

In addition, Delgado’s trial was rendered fundamentally unfair by the cumulative effects of several errors. Two members of the prosecution team engaged in trial misconduct that was unfairly prejudicial to Delgado. The prosecutor, in his closing argument, told the jury that Delgado (who did not take the witness stand) had lied when she told the investigating government agents that she was unaware that marijuana had been hidden in the sleeping compartment of the truck. In addition, a law enforcement officer witness made an uncalled-for comment during his testimony to the effect that Delgado’s trucking company had been involved in a prior, uncharged, drug-related crime. Furthermore, the district court improperly instructed the jury that it could find Delgado guilty of possession if it found that she had been deliberately ignorant as to whether the marijuana was located inside a truck on her premises; that instruction was erroneous because the government failed to lay the required predicate for it by introducing evidence of circumstances indicating that Delgado was subjectively aware of a high probability that the marijuana was in the truck and consciously avoided discovering it. And the record on appeal does not contain a complete transcript of the proceedings at trial, thereby limiting the ability of Delgado’s new appellate counsel to present an effective appeal. These errors, in the context of this case, were cumulatively sufficient to render the proceedings fundamentally unfair. Delgado is therefore entitled to a new trial as to the remaining charge against her.

Judge Clement dissented:

The panel majority disregards the substantial evidence supporting Delgado’s conviction and substitutes its own judgment for that of the jury. Although Delgado never raised the buyer-seller exception or challenged the sufficiency of the evidence at trial or on appeal, the panel majority raises the issue sua sponte. In order to justify the result, the majority panel opinion significantly rewrites and expands this circuit’s buyer-seller exception.

Discussing the cumulative error doctrine in the habeas context, this court recognized that it “is an infinitely expandable concept that, allowed to run amok, could easily swallow the jurisprudence construing the specific guarantees of the Bill of Rights and determining minimum standards of procedural due process.” Derden v. McNeel, 978 F.2d 1453, 1457 (5th Cir. 1992) (en banc). The majority’s decision is a manifestation of precisely that danger. Its holding that prejudicial errors occurred distorts this court’s prosecutorial misconduct and conspiracy doctrines. The majority also misapplies this court’s cumulative error jurisprudence by expanding the doctrine to cover unrelated weak or non-existent errors. It is the rare trial that proceeds without a single miscue; “[a] defendant is entitled to a fair trial, not a perfect one.” United States v. Ragsdale, 438 F.2d 21, 28 (5th Cir. 1971). Delgado’s trial was far from unconstitutionally unfair. The majority’s holding to the contrary will be read to cast doubt on the outcomes of similarly routine trials. I would affirm the jury’s verdict and must respectfully dissent.

It's a long opinion (66 pages), but well worth a read, especially the majority's deliberate ignorance discussion.