United States v. Jeffrey Ferdinand Block , 148 F. App'x 904 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPTEMBER 22, 2005
No. 04-11774
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 03-60057-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEFFREY FERDINAND BLOCK,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 22, 2005)
Before ANDERSON, BIRCH and HULL, Circuit Judges.
PER CURIAM:
Jeffrey Ferdinand Block appeals his convictions and sentences for
conspiracy to commit wire and mail fraud, mail fraud, wire fraud, conspiracy to
commit money laundering, and money laundering. After reviewing the record and
the arguments of the parties, we AFFIRM.
I. BACKGROUND
Block was indicted for conspiracy to commit wire and mail fraud (Count 1);
mail fraud (Counts 63 and 65); wire fraud (Counts 80, 85, 88, 90, 91, 95, 96, and
99); conspiracy to commit money laundering (Count 105); and money laundering
(Counts 106-114). At Block’s trial, testimony revealed that Block worked with his
codefendant, Nicholas Rubbo, at International Foreign Trading Group (“IFTG”)
and several successor companies (known collectively as “the Rubbo Companies”).
Through the Rubbos Companies, Block and Rubbo operated a foreign currency
fraud scheme.
In the scheme, the company’s salespeople would convince investors to
invest in foreign currency options, the option would expire after 35 days, and the
company would retain the investor’s money. According to Rubbo, the investors
were told that the money was sent to a trading house in an offshore account. After
the option expired, a certain portion was paid to the salesperson “to make it look
legitimate.” R15 at 2381. The company provided sales tickets or other
documentation to show that the money was invested. Trade or transaction tickets
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showed the “strike price,” or the price at which the currency would make money
for the investors.
According to Rubbo’s testimony, Block attended a training session about
managing salespeople and the workings of the foreign exchange market. As the
sales manager, Block hired, trained, and supervised salespeople for IFTG. He
handled customer complaints and explained, when they inquired about their
investments, that the strike price had not been reached. Additionally, Block was
responsible for setting the strike prices. He also produced false trading tickets that
were sent to investors.
According to Rubbo, when the police began investigating IFTG, Rubbo
decided to relocate the company to avoid law enforcement. The group also created
a new company, International Exchange (“IE”). Rubbo testified that he conducted
the same fraudulent operation at IE as at IFTG. After law enforcement officials
searched IE, the company moved to another location and changed its name to New
World Exchange (“NWE”). When Rubbo learned the Federal Bureau of
Investigation (“FBI”) was involved in an investigation, he decided to move again
and change the company’s name, but to incorporate it under someone else’s name.
Block agreed to put the new business under his name for a larger commission. The
3
new company was called Lamat Investments (“LI”). The LI bank account was in
Block’s name.
A. Admission of Documents at Trial
FBI agent Kathleen Antona testified that she was the team leader for the
execution of a search warrant on the premises of NWE. Antona testified about the
procedure generally followed in the execution of a warrant. According to Antona,
agents secure the location, identify the individuals present, and then photograph the
entire location before the search is performed. As team leader, Antona monitors
the seizures made by the agents, takes possession of items seized, and notes them
on an inventory property receipt. The evidence is then transported to an FBI
evidence locker. Antona stated that this procedure was followed in the execution
of the warrant at NWE. She further testified that Block was on the premises of
NWE at the time of the search. According to Antona, the bates stamping on the
seized documents indicates their location at the time of the seizure.
Antona identified copies of a property receipt that was filled out and signed
at the scene. From examining the property receipt, she testified that Box 10 was
seized from the desk designated H-5, which contained business cards for Jeffrey
Block, listing his title as vice-president of trading for NWE. She further testified
that she could tell the location of a document from the NWE seizure by examining
4
the bates stamp and property receipt. Antona stated that the exhibits were in
substantially the same condition as when they were seized.
FBI Special Agent Steffan Nass testified that he participated in the execution
of the search warrant at NWE. According to Nass, Block was behind desk H-5
when the agents first entered the room. Nass searched desk H-5 and he found on
the desk a display of business cards, which had the name Jeffrey Block and the title
vice-president of trading on them. Nass admitted that he did not recollect
specifically the documents found, and that he relied on the bate numbers to show
the location from which the documents were seized.
John Van Etten, owner of International Legal Imprints (“ILI”), testified that
his company provided copying services to the U.S. Attorney’s Office in this case.
According to Van Etten, ILI is located in locked, secured facility. A code is
required to enter its production facility and the storage room is under a separate
lock and key. ILI obtained authorization to provide photocopying services to the
U.S. Attorney’s Office after an inspection of the company’s facilities and a
criminal background check on its employees. ILI’s employees are trained using
dummy boxes, which are checked by an experienced staff member.
Van Etten testified that ILI followed its usual procedure in providing
copying services to the U.S. Attorney’s Office in this case. Either Van Etten or
5
one of the account managers picked up the documents to be copied and brought
them to ILI’s facility. Next, the boxes were labeled and taken to the production
facility. The pages inside the box were numbered consecutively with any prefixes
or other information provided by the U.S. Attorney’s Office. After the documents
were labeled, ILI’s production team made copies of the documents.
According to Van Etten, ILI also followed its standard procedure for
labeling documents contained in envelopes. A label was placed on the envelope
and each of the documents inside, the documents were returned to the envelope,
and the envelope was returned to the box. The production supervisor checked the
boxes as the copying was done. Other than adding the bates labels, the documents
were not altered. In this case, ILI made two copies of the documents. ILI returned
the originals and one set of copies to the U. S. Attorney’s Office, and it kept the
other set of copies. On cross-examination, Etten admitted that he had no
independent proof that ILI’s procedures were followed in this case.
The government offered the documents into evidence. Block objected for
lack of foundation and no proof of the chain of custody. The district court
overruled Block’s objections. The district court then instructed the jury:
[O]ne of the issues in this case is where did certain documents come
from. Okay? That is a matter that has to be proved to the jury. So the
fact that it has been received into evidence doesn’t mean that [t]he
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Court has passed on that. This is now for you to determine based on
what you have heard . . . .
[O]ne of those factual issues that is before the jury . . . is . . .
where did the document come from and can the Government prove to
you beyond a reasonable doubt that the particular document has
reference to a particular Defendant in the case.
R12 at 1781-82.
B. Closing Arguments
During closing arguments, the prosecutor stated,
They move, they are still conducting the same operation. Why do
testify [sic] to change names? Gee, Mr. Block, you left one company
and start working for another company with a different name, you
look around, all the same people, isn’t that kind of suspicious?
R25 at 4799. The prosecutor continued, “[W]hat could anybody working in that
company believe when you move and change the name of the corporation . . . looks
mighty suspicious.” Id. Block reserved a motion for a mistrial and later argued
that the prosecutor, in posing a direct question to Block, shifted the burden of proof
and implicitly commented on Block’s decision not to testify. The district court
analyzed the context of the prosecutor’s statement and found that the prosecutor
merely was suggesting that there were suspicious circumstances and that Block’s
defense that he did not know about the fraud was not credible. Consequently, the
district court denied Block’s motion.
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Additionally, in his closing argument, the prosecutor stated that Block
incorporated LI and opened a bank account using his name. The prosecutor argued
that Block “is the only one who has powers to withdraw or deposit funds in that
account.” R25 at 4822. According to the prosecutor, “only Jeffrey Block has
authority to move this money. And we all know it is done to facilitate the crime
and try to conceal the proceeds, eventually wash it through offshore accounts . . . .”
Id. at 4823. Block did not object to these comments.
In his closing argument, Block’s attorney, Leonard Fenn, discussed the
testimony of witness Charles Stewart. Fenn stated:
When I asked the question, he responded one way, to the great
enjoyment of the Government, and he even referred to it as a slug fest
. . . I am not looking up for a fight.
I hold up the driver’s license picture . . . Mr. Stewart, is that Mr.
Block? I don’t know, I don’t have a DNA test. Now, there is a
cautious guy . . . . Look at the signatures. Does it look the same? I
am not a handwriting expert . . . .
...
Should that give you some hesitation in accepting everything he
said about what Mr. Block did? Doesn’t it show some kind of a
personal, either animosity, personal bias, something? And who could
blame him, he got ripped off. The only guy he could take out his
anger on is Mr. Block, and I guess me, but Mr. Block because
everybody else is gone.
Id. at 4952-53. During his rebuttal argument, the prosecutor responded to Fenn’s
argument:
8
Mr. Fenn complained how Charles Stewart answered his questions, he
is still on the attack of Mr. Stewart. Remember I said Charles Stewart
in the documents showing in the internal documents he hit a strike
price, I said it was a smoking gun. Well, I regret that, I should have
said it was a nuclear strike, and that is what it was.
He knew Stewart hurt him bad. On cross examination he was
on the attack of Mr. Stewart. Even in the closing argument . . . [Fenn
is] trying to show that this is somebody who is not going to be candid
in his testimony. . . .
....
Now, a big problem with that argument is that when shown the
driver’s license photograph, contrary to Mr. Fenn’s claim, Mr. Stewart
did not try to play fast and loose and try to deny it. He said when
shown it, looks like him to me. . . .
....
He is being agreeable. Even that wasn’t enough. Twice he said
looks like him to me. That wasn’t enough for Mr. Fenn. He comes
back on the attack, not being satisfied, he said, you can’t testify that
this is the man sitting in front of you? That is when he said, I don’t
have DNA or anything. . . .
And then [Fenn] said the Government—slapped his hand a little
bit, about speaking objections no matter how well deserved. That is
not what the judge said how well deserved, [if] memory serves me
correctly, no matter how tempting that might be.
Ladies and gentlemen, he is still on the attack of Mr. Stewart.
Mr. Stewart hurt him bad. Mr. Stewart definitively proves the fraud
of his client.
R27 at 5077-80. The prosecutor later stated:
9
Before we leave Mr. Stewart, it wasn’t enough for Mr. Fenn to
conduct his cross examination in such an aggressive manner, then we
have, if you recall this, this was beautiful cross examination by Mr.
Schoeppl [co-defendant’s counsel].
....
What is their point? They are not going to take his money if he
lied about his occupation or didn’t disclose what his occupation was?
Come on. They had to slap Mr. Stewart around because he was a, one
of the nuclear strikes in this case.
Did Mr. Fenn attack the Government agents?
Yes, there is room for improvement in every case. Lashing out at the
government agents, this is the evidence that was connecting to his
client.
Id. at 5081-82. Block’s counsel reserved a motion for mistrial. Id. at 5082. Later,
Block’s counsel argued that the prosecutor made a “series of personal attacks on
my techniques ris[ing] to the level of saying that I had improper and dishonest
motives, attacking my credibility without which I cannot properly defend my
client.” Id. at 5086-87. He contended that the statements rose to the level of
impermissible argument because it attributed improper motives to Fenn, as Block’s
defense lawyer. The district court cautioned the attorneys to avoid attacking the
motivations of counsel but found that the prosecutor’s arguments had not crossed
the line into a personal attack on counsel’s tactics.
The jury found Block guilty on all counts.
10
C. Sentencing
The Presentence Investigation Report (“PSI”) calculated Block’s base
offense level as 6. With enhancements for the amount of loss, for involvement in a
scheme to defraud more than one victim, for committing the offense through mass
marketing, for relocation to another jurisdiction to evade law enforcement, for
being an organizer or leader of a criminal activity involving five or more
participants, Block’s total offense level was 31. Block’s criminal history category
was calculated to be I. His guidelines range was 108 to 135 months of
imprisonment.
Block filed numerous written objections to the PSI. He objected, inter alia,
to the amount of loss attributed to him. In response, the government stated that the
amount of fraud loss figure was based on an examination of the bank account
records for the four Rubbo companies. The government attached a list of payments
to Block from the LI corporate account. This list shows five withdrawals from the
LI account. Four withdrawals contain black spaces in the “Endorsement” column.
R2-165, Attachment A. One withdrawal indicates that it was endorsed by “J
Block.” Id. Block did not raise any objection based on Apprendi v. New Jersey,
530 U.S. 466, 476, 120 S. Ct. 2348, 2355 (2000), Blakely v. Washington, 542 U.S.
296, 124 S. Ct. 2531 (2004), or any other constitutional ground.
11
During sentencing, the district court set Block’s guidelines range at 97 to
127 months of imprisonment. The district court noted that the crime was “an
outright theft” and “a terrible fraud scheme” that caused “substantial” harm to its
victims. R31 at 153-54. After stating its intention to impose a sentence within the
guidelines, the district court stated that “the conduct in this case was
reprehensible,” that the defendants “acted not only callously but almost joyfully as
they ripped off a person,” and that the crime was “really serious activity, and my
fear, my concern is that Mr. Block has not learned his lesson.” R31 at 156-57.
Noting that the consequences to Block were “just and fair,” id. at 157, the district
court then sentenced Block to 60 months of imprisonment on Counts 1, 63, 65, 80,
85, 88, 90, 91, 95, 96, and 99, and 108 months of imprisonment as to Counts 105
through 114, to be served concurrently. The court also ordered Block to pay joint
and several restitution in the amount of $8,158,660.56.
II. DISCUSSION
Block advances three main arguments on appeal. First, he contends that the
district court erred in admitting certain documents because they were not properly
authenticated. Second, he avers that the district court abused its discretion by
denying Block’s motion for a mistrial based on alleged prosecutorial misconduct
during closing arguments. Third, he asserts that the district court plainly erred
12
under Booker v. Washington, 543 U.S. ___, 125 S. Ct. 738 (2005), by enhancing
his sentence based on facts not charged in the indictment or found by the jury. We
review each of Block’s arguments in turn.
A. Authentication of Documents
We review evidentiary rulings of the district court for clear abuse of
discretion. See United States v. Elkins, 885 F.2d 775, 784 (11th Cir. 1989). Under
Federal Rule of Evidence 901, the requirement that evidence be authenticated or
identified before admission “is satisfied by evidence sufficient to support a finding
that the matter in question is what its proponent claims.” F ED. R. E VID. 901(a).
The rule provides that an example of evidence conforming to this rule is
“[e]vidence describing a process or system used to produce a result and showing
that the process or system produces an accurate result.” F ED. R. E VID. 901(b)(9).
Other examples include: “[t]estimony that a matter is what it is claimed to be”; and
“[a]ppearance, contents, substance, internal patterns, or other distinctive
characteristics, taken in conjunction with circumstances.” F ED. R. E VID. 901(b)(1),
(4). We have held that
[a]uthentication or identification under rule 901 merely involves the
process of presenting sufficient evidence to make out a prima facie
case that the proffered evidence is what it purports to be. Once that
prima facie showing has been made, the evidence should be admitted,
although it remains for the trier of fact to appraise whether the
proffered evidence is in fact what it purports to be.
13
United States v. Caldwell, 776 F.2d 989, 1001-02 (11th Cir. 1985) (citation and
internal quotations omitted). “Use of circumstantial evidence alone to authenticate
a document does not constitute error. There is no evidence of adulteration or
forgery; thus, there is no reasonable probability of misidentification.” Elkins, 885
F.2d at 785 (internal citations omitted). “The decision of whether or not a
particular piece of evidence has been appropriately identified falls within the
discretionary function of the district court, and that determination will not be
disturbed on appeal absent a showing that there is no competent evidence in the
record to support it.” Caldwell, 776 F.2d at 1001 (citation and internal quotations
omitted).
Additionally, we have held that “[c]hallenge to the chain of custody goes to
the weight rather than the admissibility of the evidence.” United States v. Lopez,
758 F.2d 1517, 1521 (11th Cir. 1985). Once the proponent of the evidence makes
a threshold showing that reasonable precautions were taken against alteration of
the evidence, the question of whether the evidence was altered is left for the jury to
decide. Ballou v. Henri Studios, Inc., 656 F.2d 1147, 1155 (5th Cir. 1981).
In this case, we reject Block’s argument that documents seized from NWE
were not properly authenticated because the government did not prove that the
copying procedure followed by ILI produces an accurate result, as required by
14
Federal Rule of Evidence 901(b). Nass testified that he personally searched and
seized documents from Block’s desk. Antona testified to the process by which the
documents were seized, placed in boxes, numbered, and entered on to the property
receipt. She further testified that, from this property receipt, she could identify
which box number was seized from which desk. She stated that she could identify
the location from which the individual documents were seized by referring to the
bates stamp and property receipt. Furthermore, Van Etten explained the bates
stamping procedure used by his company, by which the documents inside each box
received a stamp with a prefix specifying the box in which they had been placed,
and were numbered consecutively. Because this testimony is sufficient to support
a finding that the documents in question are what the government
claims—documents seized from Block’s desk during execution of the search
warrant at NWE—the requirement of authentication for the admissibility of this
evidence is satisfied. See F ED. R. E VID. 901(a). Furthermore, to the extent that
Block is arguing that documents were altered or mislabeled by the procedures at
ILI, these are chain of custody arguments that go to the weight of the evidence
rather than its admissibility. See Lopez, 758 F.2d at 1521. The district court
specifically instructed the jury that the fact that the documents had been received
into evidence did not mean that the court had determined where the documents
15
were found because the government had to prove to the jury beyond a reasonable
doubt “that the particular document has reference to a particular Defendant in the
case.” R12 at 1781-82. Thus, the district court did not abuse its discretion in
admitting the documentary evidence. See Elkins, 885 F.2d at 784 ; Caldwell, 776
F.2d at 1001.
B. Prosecutorial Misconduct
On appeal, Block contends that the prosecutor committed prosecutorial
misconduct by: (1) attacking the integrity and professionalism of Block’s counsel
because he put forth a “vigorous defense,” Appellant’s Initial Brief at 20; (2)
asking a question directly to Block in his closing argument and thereby
commenting implicitly on Block’s failure to testify; and (3) misstating the evidence
relating to the money laundering charges against Block when he argued in closing
argument that Block had sole control over the LI bank account. Consequently,
Block argues that he is entitled to a mistrial.
We review a district court’s refusal to grant a mistrial for abuse of
discretion. See United States v. Knowles, 66 F.3d 1146, 1163 (11th Cir. 1995).
A new trial is required for prosecutorial misconduct if we find (1) that a
prosecutor’s remarks during closing argument were improper, and (2) that they
prejudiced the defendant’s substantial rights. United States v. Hernandez, 145 F.3d
161433, 1438 (11th Cir. 1998). To assess the prejudicial effect of the prosecutor’s
comments, we “evaluate them in the context of the trial as a whole and assess their
probable impact on the jury.” Id. “A defendant’s substantial rights are
prejudicially affected when a reasonable probability arises that, but for the
remarks, the outcome would be different.” United States v. Hall, 47 F.3d 1091,
1098 (11th Cir. 1995). A prosecutor’s personal attacks on defense counsel may
constitute prosecutorial misconduct. See, e.g., United States v. Young, 470 U.S. 1,
9, 105 S. Ct. 1038, 1043 (1985) (noting that counsel “must not be permitted to
make unfounded and inflammatory attacks on the opposing advocate”); United
States v. Diaz-Carreon, 915 F.2d 951, 958 (5th Cir. 1990) (holding that
prosecutor’s remarks that defense counsel was “a zealot in the courtroom,” and
“[t]hank God he’s a defense attorney and not part of the Government,” were
improper).
Additionally, a prosecutor impermissibly comments on the defendant’s right
to remain silent where: “(1) the statement was manifestly intended to be a
comment on the defendant’s failure to testify; or (2) the statement was of such a
character that a jury would naturally and necessarily take it to be a comment on the
failure of the accused to testify.” Knowles, 66 F.3d at 1162-63 (citation and
internal quotation omitted). A remark about the failure of defense counsel, as
17
opposed to the defendant, to counter or explain evidence does not violate the
defendant’s Fifth Amendment privilege. See id. at 1163; Hernandez, 145 F.3d at
1439. Again, we look at the allegedly improper comment in context so as to
discern the prosecutor’s motive and evaluate the prejudicial impact of the
statement. See Knowles, 66 F.3d at 1163.
In this case, we conclude that the district court correctly denied Block’s
motion for a mistrial. First, assuming arguendo that the prosecutor improperly
attacked Block’s attorney in closing arguments, Block’s substantial rights were not
prejudiced. The government introduced overwhelming evidence of Block’s guilt,
such as the testimony of his codefendant and former employer, Rubbo, and
documentary evidence that Block set the strike prices, handled angry customers,
and incorporated LI in his own name following the FBI’s search. Accordingly, we
conclude the outcome would not have been different had the prosecutor not made
the improper attack on Block’s counsel. See Hall, 47 F.3d at 1098.
Second, we agree with the district court that the prosecutor’s statement that
began “Gee, Mr. Block . . . ” did not comment impermissibly on Block’s failure to
testify. When the statement is read in context, it is apparent that the prosecutor
was challenging as implausible Block’s defense that he did not know that any
illegal activities were taking place. See Knowles, 66 F.3d at 1162-63; Hernandez,
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145 F.3d at 1439. The prosecutor was not commenting on the defendant’s failure
to testify.
Finally, we conclude that Block’s arguments regarding the government’s
summary of withdrawals from the LI account are without merit. The summary
does not show that withdrawals were made by “unknown individuals,” Appellants
Initial Brief at 22, as Block alleges, and it does not contradict the prosecutor’s
statements in closing that Block was “the only one that has control over the
account.” R27 at 5085. Consequently, the district court did not abuse its
discretion in denying Block’s motions for mistrial.
C. Booker Error
On appeal, Block argues that the district court committed plain error under
Booker by enhancing his sentence based on facts not charged in the indictment or
found by the jury. He further contends that the error affected his substantial rights
in that the district court “explicitly expressed both . . . frustration with the
restraints imposed by the guidelines regarding the relative sentences of the co-
defendants . . . and that [Block] was being sentenced in accord with the
Guidelines.” Appellant’s Supplemental Brief at 3.1
1
Block also argues that our opinion in United States v. Rodriguez, 398 F.3d 1291, 1298
(11th Cir.), cert. denied, ___ U.S. ___, 125 S. Ct. 2935 (2005), runs contrary to Booker and
Eleventh Circuit precedent. We are required to follow Rodriguez under the prior precedent rule.
See United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir. 1993) (“[I]t is the firmly established
rule of this Circuit that each succeeding panel is bound by the holding of the first panel to
19
Where a defendant fails to raise an objection below, we review for plain
error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied,
___ U.S. ___, 125 S. Ct. 2935 (2005). To satisfy the plain-error standard, we must
find that (1) the district court committed “error,” (2) the error was “plain” or
obvious, and (3) the error “affect[ed] substantial rights” in that the error was
prejudicial. United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 1776
(1993). If these criteria are met, we have discretion to correct the plain error if it
“seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (internal quotations and citation omitted).
Applying Booker, we have held that the first and second prongs of the plain
error test are satisfied where “[u]nder a mandatory guidelines system, [a
defendant’s] sentence was enhanced as a result of findings made by the judge that
went beyond the facts admitted by the defendant or found by the jury.” Rodriguez,
398 F.3d at 1298. To satisfy the third prong of the plain-error test, a defendant
address an issue of law, unless and until that holding is overruled en banc or by the Supreme
Court.”).
20
must establish a reasonable probability that if the district court had
considered the guidelines range it arrived at using extra-verdict
enhancements as merely advisory, instead of mandatory, and had
taken into account any otherwise unconsidered [18 U.S.C.] § 3553
factors, the court would have imposed a lesser sentence than it did.
Id. at 1302. If we cannot determine from the record whether the district court
would have increased or decreased the defendant’s sentence under an advisory
guidelines scheme, the defendant has not satisfied this burden. Id. at 1301.
In this case, we conclude that Block has not established that his substantial
rights were affected by the district court’s Booker error. As Block points out in
supplemental briefing, the district court stated that application of the 5K.1
provision “makes you stop and pause” because it results in individuals who
exercised less responsibility in a conspiracy, but who did not plead guilty,
obtaining higher sentences than those who played major roles, but pleaded guilty.
R31 at 131. After making this comment, however, the district court emphasized
that it believed that it could exercise discretion to lower Block’s sentence but
declined to do so based on the facts of this case. Further, the district court denied
Block’s motion for a downward departure, imposed on Block a sentence in the
middle of the guidelines range, and stated that the “consequences” of Block’s
“reprehensible” conduct were “just and fair.” Id. at 156-57. We thus conclude that
Block cannot establish a reasonable probability that the district court would have
21
imposed a lesser sentence had it believed the guidelines to be advisory rather than
mandatory. Accordingly, we reject Block’s argument that the district court
committed reversible Booker error, and we affirm Block’s sentence.
III. CONCLUSION
As we have explained, because the government introduced the testimony of
the agents who seized the documents, as well as testimony regarding the process by
which the documents were seized, bates stamped, and photocopied, the district
court did not abuse its discretion in admitting the documentary evidence. In
addition, the district court did not abuse its discretion by denying Block’s motion
for a mistrial because: (1) the prosecutor’s comments about Block’s counsel did
not affect prejudicially Block’s substantial rights due to the overwhelming
evidence of his guilt; (2) the prosecutor did not impermissibly comment on
Block’s failure to testify; and (3) the prosecutor did not misstate the evidence in
his closing argument. Finally, Block cannot show a reasonable probability that if
the district court had considered the guidelines range as merely advisory it would
have imposed a lesser sentence. Accordingly, we AFFIRM.
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