United States v. Boothe ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________________
Nos. 94-20617 & 96-20619
_______________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KELLY LYN BOOTHE,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(CR-H-93-257-4)
_________________________________________________________________
October 24, 1996
Before KING, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Kelly Lyn Boothe and his codefendants James Aaron Martin and
Ambrose Onye Esogbue appealed their convictions for conspiracy,
wire fraud, and money laundering. We remanded Boothe’s appeal
because the district court had not ruled on his motion for new
trial. The district court subsequently denied the motion, and
now Boothe’s appeal is properly before this court. As the facts
are set out in our first opinion, we will not repeat them here.
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
Boothe argues on appeal that the trial court erred in
denying his motions for continuance and for a new trial and erred
in its application of the United States Sentencing Guidelines.
Boothe also argues that the trial court erred in refusing to
allow the impeachment of a witness, Steven Overstreet, and in its
questioning of a witness from the bench. However, Boothe’s
codefendants asserted these later points, and we adopt here our
prior disposition for the government.1
Motion for Continuance
Boothe contends that the trial court erred in denying his
requests for continuance. The granting or denial of a motion for
continuance is entrusted to the trial judge’s sound discretion
and will not be reversed absent abuse of discretion. United
States v. Jackson, 978 F.2d 903, 911 (5th Cir. 1992), cert.
denied, 508 U.S. 945, and cert. denied, 509 U.S. 930 (1993);
United States v. Shaw, 920 F.2d 1225, 1230 (5th Cir.), cert.
denied, 500 U.S. 926 (1991). “[T]he question is whether the
district court abused its discretion by unreasonably and
arbitrarily insisting on an expeditious trial.” Jackson, 978
F.2d at 912; accord Morris v. Slappy, 461 U.S. 1, 12 (1983).
1
In support of his contention that the trial court erred
in questioning a witness, Boothe points to one additional
question not mentioned by the other codefendants. However, it is
similar in nature to the other questions and does not affect the
analysis made in our previous decision.
2
Furthermore, Boothe must show that he was “materially prejudiced
by the lack of preparation time.” Jackson, 978 F.2d at 912.
Harry Loftus was Boothe’s attorney at least from Boothe’s
arraignment on February 10, 1994. The trial date was set for
March 15. On March 1, Loftus filed a motion for continuance for
seventy-five days, asserting that he had not had a chance to
proceed with discovery and that this was a complex case with a
“voluminous amount” of materials. At the pretrial conference on
March 8, Loftus argued in support of his continuance motion,
contending that because of the volume of paperwork he would not
be prepared for trial for at least thirty days. The government
opposed the motion, even though the prosecutor conceded “that
there is a large volume of paper in this case and rather complex
transactions underlying the case.” The court granted the motion
in part by granting a one week continuance and resetting the
trial for March 22.
On March 22, Loftus made a proffer of comments which Boothe
wished to have before the court:
MR. LOFTUS: Our position is that based upon the amount
of time that Mr. Boothe and I have been given to
prepare the case and the fact that I was ill at the
time when we first started out, I didn’t inform Mr.
Booth of that. I just finished up the chemotherapy
that I’ve been taking since back before the first of
February. We have been working diligently and there
just aren’t enough hours in the day for us to get
prepared in such a short period of time, and that I’m a
solo practitioner. And Mr. Boothe is, I think, very
afraid that he’s not going to get a fair shake through
my representation.
3
The government made no response at that time.
The trial was delayed because of court business. On March
31, Boothe made another motion for continuance in order to obtain
new counsel. Boothe had expressed his belief that Loftus could
not adequately represent him due to Loftus’s illness. The court
questioned Loftus as follows:
THE COURT: Mr. Loftus, do you feel you are physically
unable to try a case?
MR. LOFTUS: No, Your Honor.
THE COURT: You’re okay to that extent?
MR. LOFTUS: I have a clean bill of health from my
doctor.
THE COURT: All right. . . .
. . . .
THE COURT: Let me ask you this, Mr. Loftus, do you
think you’re capable of proceeding and doing a
workmanlike job as an officer of the Court to defend
this case [given that it] won’t even be going early
next week, it would probably be mid next week based
upon the case I now have in trial?
MR. LOFTUS: Yes, Your Honor, I’m ready. But if my
client doesn’t have any more confidence in me than to
send me a letter and request this, then he would not
feel secure and it would just pile up on me.
The trial judge then questioned Loftus on his availability to
communicate with Boothe regarding the trial, and Loftus indicated
that they had been very diligent in conferring. The trial court
also noted that Loftus “has been around a long time as a member
of the bar of this court.”
4
The trial court then decided to let the prosecutor ask
Boothe questions as a vehicle for Boothe to voice his concerns
about Loftus’s ability to represent him:
MS. HARMON: Mr. Boothe, do you have a conflict with
your counsel so serious to create a total lack of
communication with him such that he would not be able
to present an adequate defense?
MR. BOOTHE: My counsel and myself get along very well
and I respect him. However, I do have some concerns
with his health. I had an uncle that suffered from
cancer—
THE COURT: I can’t hear you.
MR. BOOTHE: My counsel and myself have no personality
conflicts. I have concern about his health and his
ability to undergo perhaps a lengthy trial with a lot
of information. I had an uncle who suffered from
cancer and who was treated with chemotherapy. I recall
very vividly how that would affect his memory at times
and he would get exhausted. My position is that I
just—I’m 28. The rest of my life is before me one way
or the other here in this courtroom.
MS. HARMON: I understand, sir, and you did say that in
your letter. The answer to the first question is, no,
you do not have a lack of communication to prevent him
from presenting an adequate defense? That would be no?
MR. BOOTHE: No personality conflict.
MS. HARMON: Or lack of communication?
MR. BOOTHE: No, we communicate well.
MS. HARMON: All right. Then my second and last
question would be, is it your belief that Mr. Loftus is
currently experiencing problems, health problems or
emotional problems or mental problems so severe as to
call into doubt his ability to render competent
assistance at trial, or is this something you’re afraid
of or foresee during the trial?
MS. BOOTHE: I don’t know the exact extent of Mr.
Loftus’ health. However, my position is, once I’m in
5
this thing and I’m found guilty or not guilty, it’s a
little late for me to say, well, then perhaps his
physical state was a little worse than I presumed. I
just don’t feel like I can afford to take that chance.
If this were a civil proceeding, that would be
different.
MS. HARMON: So your concern is what might happen in
the future; is that correct, sir?
MR. BOOTHE: Beginning with the trial.
The trial court then denied Boothe’s motion.
It is apparent from the record that the trial court gave due
consideration to the issue. We cannot say that the trial court
acted unreasonably and arbitrarily. Boothe admitted that his
concerns were speculative and that he did not specifically know
of a current health problem that would impair Loftus’s abilities.
In the March 31 hearing regarding Boothe’s motion, Loftus clearly
and unequivocally indicated that he was ready to proceed to
trial. “In the face of an unequivocal and uncontradicted
statement by a responsible officer of the court that he was fully
prepared and ‘ready’ for trial, it was far from an abuse of
discretion to deny a continuance.” Slappy, 461 U.S. at 12.
Especially given Loftus’s long-time experience as a trial
attorney, the trial court was entitled to rely on Loftus’s
judgment that he was ready for trial.
Boothe argues that given Loftus’s prior statements that he
needed more time, the trial court should have “appreciated the
need to accommodate the appellant.” After working on the case
6
for several days, and considering that the trial would not start
for several more days, Loftus was certainly entitled to change
his prior assessment that he was not ready for trial. In effect,
Boothe is asking us to second guess the trial court’s refusal to
second guess Loftus’s unequivocal statement as an officer of the
court that he was ready for trial. That goes too far. The trial
judge did not act unreasonably and arbitrarily in denying
Boothe’s motion for continuance, and thus we find no abuse of
discretion.
Motion for New Trial
Boothe moved for a new trial on the basis that he was denied
effective assistance of counsel. In support of this motion,
Boothe submitted an affidavit indicating that when he found out
about Loftus’s cancer he “lost confidence in him,” that he felt
that Loftus was unprepared at trial, and that he did not testify
because he lost confidence in Loftus. The government apparently
filed no response, and the trial court denied the motion after we
previously remanded Boothe’s appeal.
We review the trial court’s ruling on a motion for new trial
for abuse of discretion. United States v. Logan, 861 F.2d 859,
865 (5th Cir. 1988). Logan held that the standard for evaluating
a motion for new trial based on ineffective assistance of counsel
is the basic test for ineffective assistance of counsel set forth
7
in Strickland v. Washington, 466 U.S. 668 (1984).2 The
Strickland test requires, inter alia, that the defendant show
that “‘the decision reached would reasonably likely have been
different absent the errors.’” Logan, 861 F.2d at 864 (quoting
Strickland). Boothe’s motion for new trial is supported only by
a cursory affidavit, and Boothe never even asserts that absent
his attorney’s alleged deficiences, the result of his trial would
likely have been different. Thus, the district court did not
abuse its discretion in refusing to grant Boothe’s motion for new
trial.
Sentencing
Boothe challenges his sentence for money laundering (counts
nine and ten), claiming that the sentencing court should have
determined his base offense level in reference to United States
Sentencing Guidelines (“USSG”) § 2F1.1, the fraud guideline,
rather than § 2S1.1, the money laundering guideline, because his
conduct was atypical of money laundering in that it was simply
2
Boothe argues that the rule in Logan should not apply in
this case for two reasons. First, he quarrels with the wisdom of
Logan. However, a panel of this court may not overrule the
decision of a prior panel in the absence of an en banc
reconsideration or a superseding decision of the Supreme Court.
Floors Unlimited, Inc. v. Fieldcrest Cannon, Inc., 55 F.3d 181,
185 (5th Cir. 1995). Second, he argues that his ineffective
assistance claim is not typical, and that his “unusual
circumstances” merit a different rule. Boothe cites no authority
for this proposition, and we are not persuaded that his
circumstances are so unusual as to warrant a departure from the
clear rule set forth in Logan.
8
the expenditure of fraud proceeds. Appendix A to USSG indicates
that “[i]f, in an atypical case, the guideline section indicated
for the statute of conviction is inappropriate because of the
particular conduct involved, use the guideline section most
applicable to the nature of the offense conduct charged in the
count of which the defendant was convicted.”
A sentencing court's factual findings must be supported by a
preponderance of the evidence, and we review such findings under
the clearly erroneous standard. The sentencing court's
interpretations of the guidelines, being conclusions of law, are
reviewed de novo. United States v. McCaskey, 9 F.3d 368, 372
(5th Cir. 1993), cert. denied, 114 S. Ct. 1565 (1994).
The district court correctly applied the USSG in computing
Boothe's sentence. The court, following the presentence report,
grouped Boothe's convictions and determined his offense level for
the most serious counts—the money laundering convictions under 18
U.S.C. § 1956(a)(1)(A)(i)—in compliance with USSG § 3D1.2 and
3D1.3. The base offense level was 23 because of the $54,500
amount of funds laundered. See USSG § 2S1.1(a). Boothe has
alleged no specific facts supporting his argument that his
conduct was atypical of money laundering. Furthermore, Boothe
has not challenged his money laundering conviction, where the
jury implicitly found, as per the trial court’s instructions,
that Boothe conducted financial transactions involving proceeds
9
from unlawful activity “with the intent to promote the carrying
on” of the activity. According to the USSG, that type of conduct
is the very conduct Congress intended to prevent. See USSG §
2S1.1 comment. Thus, Boothe’s argument is without merit.
Conclusion
For the foregoing reasons, we AFFIRM.
10