United States v. Alice Pirchesky , 180 F. App'x 838 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-12674 MARCH 31, 2006
Oral Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 01-00608 CR-PAS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALICE PIRCHESKY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 31, 2006)
Before DUBINA and HULL, Circuit Judges, and RESTANI*, Judge.
__________
*Hon. Jane A. Restani, United States Court of International Trade Chief Judge, sitting by
designation.
PER CURIAM:
Alice Pirchesky appeals her convictions and sentences for conspiracy to
defraud the United States, making false claims against the United States, making
false statements in a matter within the jurisdiction of the Department of Defense
(“DOD”), conspiracy to commit mail fraud, mail fraud, conspiracy to launder
proceeds of mail fraud, laundering proceeds of mail fraud, conducting monetary
transactions in excess of $10,000 with proceeds of mail fraud, conspiracy to
defraud the Internal Revenue Service (“IRS”), and aiding and assisting the filing
of a false income tax return, all in violation of 18 U.S.C. §§ 287, 371, 1001(a)(2),
1341, 1956(a)(1)(B)(i), 1956(h), and 1957, and 26 U.S.C. § 7206.
I.
The record in this case demonstrates that Pirchesky worked as the
accounting manager and comptroller for a consortium of companies that provided
cable television service to private individuals and the DOD. She and the owner of
the cable television companies embarked on a scheme to defraud the IRS, the
cable networks who supplied television content, and the DOD out of millions of
dollars. The scheme was enacted by falsifying the books and records of the
companies, underreporting the number of cable subscribers to reduce the amounts
owed to content providers, and the submission of false invoices to the DOD for
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non-existent construction costs. Counts 9, 19, 64 and 65 of the indictment were
dismissed with the government’s consent. Additionally, the government moved to
dismiss counts 70 and 71; the district court granted the motion and dismissed
those counts. The jury found Pirchesky guilty on all remaining counts.
II.
The following issues are presented for appellate review:
(1) Whether the district court abused its discretion in excluding expert
testimony that Pirchesky’s mental condition precluded the formation of specific
intent;
(2) Whether the district court erred in denying Pirchesky’s motion to sever
the false statement and claim charges;
(3) Whether the district court erred in denying Pirchesky’s motion to
dismiss the indictment for multiplicitousness;
(4) Whether there existed sufficient evidence to support Pirchesky’s
convictions for mail fraud, money laundering, false claims and statements, and the
filing of false tax returns; and
(5) Whether Pirchesky’s sentence violated the Ex Post Facto Clause of the
United States Constitution.
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III.
The exclusion of psychological opinion testimony is reviewed for abuse of
discretion. United States v. Brown, 415 F.3d 1257, 1265 (11th Cir. 2005).
Denials of motions to dismiss the indictment on the grounds of misjoinder or
multiplicity are reviewed de novo. United States v. Castro, 89 F.3d 1443, 1450
(11th Cir. 1996) (misjoinder); United States v. Sirang, 70 F.3d 588, 595 (11th Cir.
1995) (multiplicity).
Denials of motions for judgment of acquittal based on the alleged
insufficiency of the evidence are reviewed de novo, with the evidence viewed in
the light most favorable to the prosecution, and all reasonable inferences and
credibility choices made in the government’s favor. United States v. Calderon,
127 F.3d 1314, 1324 (11th Cir. 1997).
“We review constitutional challenges to a sentence de novo.” United States
v. Chau, 426 F.3d 1318, 1321 (11th Cir. 2005).
IV.
After reviewing the record, reading the parties’ briefs, and having the
benefit of oral argument, we first conclude that the proffered psychological
testimony was properly excluded because it failed to meet statutory and
evidentiary requirements. Second, we conclude that the DOD conspiracy was
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properly joined with the cable television conspiracy because, under Fed. R. Crim.
P. 8(a), they were similar offenses. Joinder was also proper under Fed. R. Crim. P.
8(b), since the DOD scheme had a direct logical and evidentiary connection to the
cable television scheme, and was further related to it based on their mutual
interdependence with the IRS conspiracy. Moreover, we conclude from the record
that the indictment was not multiplicious.
Because ample evidence supported the jury’s verdicts, the district court
correctly denied Pirchesky’s motions for judgment of acquittal on the substantive
offenses.
Finally, we conclude that the district court did not violate the Due Process
or Ex Post Facto Clauses by enhancing Pirchesky’s sentences based on facts not
alleged in the indictment or proven to a jury. Following the Supreme Court’s
decision in United States v. Booker, 543 U.S. 220 (2005), which was rendered
prior to Pirchesky’s sentencing and which governed that proceeding, the use of
extra-verdict facts to enhance a sentence does not run afoul of the Constitution,
and the only relevant maximum is the statutory maximum. See United States v.
Duncan, 400 F.3d 1297, 1302-03 (11th Cir.), cert. denied, 126 S. Ct. 432 (2005).
This court previously has rejected arguments similar, if not the same, to
Pirchesky’s due process and ex post facto arguments, holding that the statutory
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maximum as provided in the United States Code did not change between the
commission of the crimes and sentencing and satisfied due process concerns. See
id. at 1307-08.
Based on the foregoing discussion, we affirm Pirchesky’s convictions and
sentences.
AFFIRMED.
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