United States v. Shane Jowell Anderson ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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Nos. 08-3402/3436
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United States of America, *
*
Appellee, *
* Appeals from the United States
v. * District Court for the
* District of North Dakota.
Shane Jowell Anderson, *
*
Appellant. *
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Submitted: June 10, 2009
Filed: July 6, 2009
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Before MURPHY, ARNOLD and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
After a jury found Shane Jowell Anderson guilty of six counts of wire fraud in
violation of 18 U.S.C. § 1343, one count of making false statements in violation of 18
U.S.C. § 1014, and one count of failure to appear in violation of 18 U.S.C. § 3146, the
district court1 sentenced him to 49 months’ imprisonment. Anderson appeals his
conviction and sentence, arguing that the evidence presented at trial was insufficient
to support the jury’s verdict, that the district court abused its discretion by not
1
The Honorable Ralph R. Erickson, United States District Judge for the District
of North Dakota.
appointing new counsel, that the district court erred by applying the November 2007
United States Sentencing Guidelines (“U.S.S.G.”) manual, and that the district court
erred by denying his motion for a downward departure. For the reasons discussed
below, we affirm.
I. BACKGROUND
In August 2001, Anderson approached AgCountry Farm Credit Services
(“AgCountry”) to obtain a loan to expand his harvesting business. AgCountry granted
Anderson a loan based on its analysis of copies of federal income tax returns that he
claimed to have filed for 1998, 1999 and 2000. However, Anderson had not actually
filed those tax returns. AgCountry wired the loan proceeds from its branch in
Minnesota to Anderson’s North Dakota bank account. Using similarly fraudulent
copies of federal income tax returns for 2001 and 2002, Anderson also obtained loans
from AgCountry in March 2002 and March 2003. He eventually defaulted on the
loans.
In September 2006, a federal grand jury indicted Anderson on six counts of
wire fraud and one count of making false statements to a farm credit bank. Anderson
was eventually located and arrested on May 31, 2007. At Anderson’s arraignment,
the district court released him from custody pending trial subject to certain conditions,
including that he “appear at all proceedings as required” and that he “telephone his
[court-appointed] attorney at least twice a week and . . . his pretrial services officer at
least once a week.” After granting Anderson’s continuance motion, the district court
issued an order scheduling his trial date for September 4, 2007.
On August 28, 2007, the district court held a status conference to determine
Anderson’s whereabouts because he had not been in contact with either his pretrial
services officer or his attorney. During the conference, Anderson’s attorney refused
to answer the court’s questions regarding Anderson’s location, claiming attorney-
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client privilege. The court then issued an arrest warrant for Anderson, stating that if
he was not arrested or otherwise located by August 31, 2007, the court would dismiss
the jury but “leave the trial date so if he shows up we’ll figure out where we go at that
point.” Anderson was not located by August 31, and, therefore, the district court
issued an order dismissing the jury and continuing the trial on a day-to-day basis.
Anderson did not appear on September 4, 2007, the date that the trial had been
scheduled to begin.
Anderson was eventually arrested in Arizona on October 29, 2007. A grand
jury returned a second indictment charging with him with failure to appear. On
December 17, 2007, Anderson filed a motion to dismiss the second indictment,
arguing that he could not have failed to appear for his trial because there was no trial
date scheduled after the district court dismissed the jury. The district court denied that
motion.
On January 2, 2008, Anderson entered into a written plea agreement with the
Government, whereby he pled guilty to one count of wire fraud and one count of
making false statements in exchange for the dismissal of the remaining counts of wire
fraud and the indictment containing the failure to appear charge. After his change of
plea hearing but before his sentencing hearing, Anderson wrote a letter to the district
court complaining about his court-appointed counsel, Richard Henderson, and the plea
agreement. At a February 1, 2008 hearing to discuss the issues Anderson raised in the
letter, Anderson stated that he did not want a new attorney. Accordingly, the district
court did not appoint new counsel.
Anderson then sent two additional letters to the district court, again complaining
about Henderson but this time proclaiming his innocence as well. The district court
held a hearing on the two letters on February 26, 2008. At this hearing, Anderson
claimed that he was “backed into” the plea agreement, though he did not blame
Henderson. The district court then withdrew Anderson’s guilty plea. Anderson did
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not express any further dissatisfaction with Henderson, and Henderson stated that he
and Anderson had resolved the concerns Anderson mentioned in his letters.
Accordingly, the district court again did not appoint new counsel.
On March 11, 2008, Henderson filed an ex parte motion to withdraw as counsel,
claiming that Anderson refused to communicate with him. After conducting another
hearing, the district court denied that motion. The court concluded that Anderson was
responsible for the lack of communication with Henderson and that Anderson was
trying to manipulate the judicial system.
The district court joined Anderson’s wire fraud and false statements case with
his failure to appear case and scheduled the trial for April 28, 2008. After the
conclusion of the trial, the jury returned a guilty verdict on all counts.
Before the sentencing hearing, Anderson filed another motion for appointment
of new counsel. The district court granted this motion, stating that although “[t]he
Court is convinced that [Anderson’s] current request for a new attorney is still nothing
more than an attempt to manipulate the system[,]” there had been a “complete
breakdown of all communication[,] . . . [so] appointment of new counsel is
appropriate.”
At the sentencing hearing, the district court adopted the Presentence
Investigation Report (“PSR”) with minor factual changes. The PSR calculated an
advisory sentencing guidelines range of 46 to 57 months’ imprisonment based on a
total offense level of 21 and a criminal history category of III. The district court then
sentenced Anderson to 49 months’ imprisonment after denying his objection to the use
of the November 2007 U.S.S.G. manual and his motion for a downward departure
under U.S.S.G. § 4A1.3(b)(1). This appeal followed.
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II. DISCUSSION
A. Sufficiency of the Evidence
Anderson appeals his conviction, first arguing that the evidence presented at
trial was insufficient to sustain his convictions for wire fraud and failure to appear.
When reviewing the sufficiency of the evidence to sustain a conviction, we
“examin[e] the evidence in the light most favorable to the jury verdict and giv[e] the
verdict the benefit of all reasonable inferences.” United States v. Foxx, 544 F.3d 943,
949 (8th Cir. 2008). “The standard of review of an appeal concerning the sufficiency
of the evidence is very strict, and the verdict of the jury should not be overturned
lightly.” United States v. Scott, 64 F.3d 377, 380 (8th Cir. 1995). Because Anderson
“did not move for acquittal at the close of evidence, we review the district court’s
entry of judgment for plain error.” See United States v. Milam, 494 F.3d 640, 643 (8th
Cir. 2007). “Plain error exists when (1) there is error (2) which is plain and (3) affects
substantial rights, and we should only exercise our discretion to correct such error if
it seriously affects the fairness, integrity or public reputation of judicial proceedings.”
Id. We will find error only if, when viewing the evidence in the light most favorable
to the verdict, no reasonable fact-finder could have found Anderson guilty beyond a
reasonable doubt. See United States v. Londondio, 420 F.3d 777, 786 (8th Cir. 2005).
1. Wire Fraud
To convict a defendant of wire fraud, the Government must prove, beyond a
reasonable doubt, that the defendant “[1] voluntarily [participated in] a scheme to
defraud another out of money, [2] that he did so with intent to defraud, [3] that it was
reasonably foreseeable interstate wire communications would be used, and [4] that
interstate wire communications were used.” United States v. Slaughter, 128 F.3d 623,
628 (8th Cir. 1997). Anderson disputes the sufficiency of the Government’s evidence
on the third element—the reasonable foreseeability that interstate wire
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communications would be used. He contends that although the loan proceeds were
transferred interstate from AgCountry’s Minnesota branch to his bank in North
Dakota, the Government presented no evidence that he should have foreseen such an
interstate transfer, as opposed to an intrastate transfer from AgCountry’s North Dakota
branch to his North Dakota bank.
The Government presented evidence that Anderson used AgCountry’s online
banking system to receive and transfer money to his bank account. An AgCountry
employee testified that upon AgCountry’s approval of the loans, Anderson initiated
the wire transfers by accessing AgCountry’s online customer account and directing
the transfer of the loan proceeds to his bank account in North Dakota. The loan
proceeds were then wired from AgCountry’s branch in Minnesota to Anderson’s
North Dakota bank account.
In United States v. Goodson, 155 F.3d 963 (8th Cir. 1998), we held that
interstate wire transfers were reasonably foreseeable to a defendant because his
deposit “statement contained the notation ‘EFT,’ an abbreviation for ‘electronic funds
transfer,’” id. at 966. Similarly, in this case, because the Government presented
evidence that Anderson used AgCountry’s electronic banking system to transfer the
loan proceeds into his account, a reasonable jury could determine that it was
reasonably foreseeable to Anderson that the loan proceeds would be transferred
interstate by wire. See id. at 966-67. Accordingly, because the evidence presented at
trial was sufficient to support Anderson’s conviction for wire fraud, “the district court
committed no error, much less plain error, in failing to sua sponte direct a judgment
of acquittal at the close of all the evidence.” See Londondio, 420 F.3d at 787 (italics
omitted).
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2. Failure to Appear
To convict Anderson of failure to appear, the jury instructions stated that the
Government must prove, beyond a reasonable doubt, that “[1] [Anderson] was on
pretrial release; [2] [Anderson] was required to be in Court for his scheduled jury trial;
[3] [Anderson] was aware of this required appearance; and [4] [Anderson] willfully
failed to appear.”2 Cf. United States v. Ray, 768 F.2d 991, 994 (8th Cir. 1985)
(observing that notice and willfulness are two essential elements of a failure to appear
charge), overruled on other grounds, Henderson v. United States, 476 U.S. 321, 330
(1986). Anderson challenges only the sufficiency of the evidence supporting the
second element—that he was required to be in court for his scheduled jury trial on
September 4, 2007.3 He argues that because the district court dismissed the jury and
continued the trial on a day-to-day basis, his trial date was no longer set for September
4, 2007, and, therefore, he had no obligation to appear in court.
We conclude that the district court did not err, plainly or otherwise, in failing
to sua sponte direct a judgment of acquittal because there was sufficient evidence to
support Anderson’s conviction for failure to appear. Although the district court
dismissed the jury before the scheduled September 4 trial date, the court did not vacate
the actual trial date. During the status conference in which the court inquired about
2
Section 3146 provides that “[w]hoever, having been released under this
chapter[,] . . . knowingly . . . fails to appear before a court as required by the
conditions of release,” commits the offense of failure to appear. Anderson’s
conditions of release required him to “appear at all proceedings as required.” The
indictment and jury instructions were more specific, however, charging Anderson with
“knowingly fail[ing] to appear for said jury trial as required by conditions of his
release.”
3
Anderson also contends in his reply brief that his failure to appear was not
willful, a challenge to the fourth element. However, Anderson did not raise this
argument in his opening brief, so it is waived. See United States v. Barnum, 564 F.3d
964, 968 n.4 (8th Cir. 2009).
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Anderson’s whereabouts, the district court specifically stated that it would dismiss the
jury but “leave the trial date so if [Anderson] shows up we’ll figure out where to go
at that point.” (Emphasis added.) The district court’s order did not relieve Anderson
of his obligation to appear for trial. Rather, the court explained that it dismissed the
jury “for fiscal prudence reasons” but that if Anderson had shown up voluntarily on
September 4, the trial would have begun and jury selection would have begun shortly
thereafter.
Anderson relies on United States v. Fisher, 137 F.3d 1158 (9th Cir. 1998), in
support of his argument. Fisher, however, is clearly distinguishable from the present
case. When Fisher failed to appear for his pretrial hearing, the district court vacated
his upcoming trial date. Id. at 1163. Accordingly, the Ninth Circuit concluded that
there was insufficient evidence that Fisher was required to appear for the vacated trial
date. Id. at 1162. In this case, the district court did not vacate Anderson’s September
4 trial date, meaning that Anderson was not relieved of his obligation to appear. Thus,
based on all of the evidence presented at trial, a reasonable jury could conclude that
Anderson was required to appear for trial on September 4.
B. Requests for New Counsel
Anderson contends that the district court abused its discretion by denying his
requests for new counsel and that the court failed to make a thorough inquiry into his
dissatisfaction with Henderson following Anderson’s letters to the court. “We review
denial of a request for new counsel for abuse of discretion.” United States v. Boone,
437 F.3d 829, 839 (8th Cir. 2006). Anderson “must show justifiable dissatisfaction
with” Henderson, which “can arise from irreconcilable conflict, a complete breakdown
in communication, or any other factor interfering significantly with an attorney’s
ability to provide zealous representation.” See id. However, Anderson cannot
establish justifiable dissatisfaction merely by showing that he was frustrated with
Henderson’s performance or that he disagreed with Henderson’s “tactical decisions.”
See id.
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We find that the record does not support Anderson’s argument. With respect
to Anderson’s first letter complaining about Henderson, the court provided Anderson
with an opportunity to present his concerns during the February 1 hearing. Anderson
told the court that his letter never stated that he wanted new representation and that
“[t]here has been some reading between the lines there” when the district court
suggested the letter was a motion for new counsel. Given Anderson’s statements that
he did not want new counsel, we conclude that the district court made an adequate
inquiry into Anderson’s first complaint, see United States v. Webster, 84 F.3d 1056,
1062 n.2 (8th Cir. 1996) (finding that the district court made a satisfactory inquiry into
the basis of the defendant’s dissatisfaction where the court “granted [the defendant]
leave to freely explain the reason for his discontent”), and did not abuse its discretion
in finding that Anderson did not carry the burden of showing justifiable dissatisfaction
with appointed counsel, see United States v. Mentzos, 462 F.3d 830, 839 (8th Cir.
2006) (noting that “the defendant bears the burden of showing justifiable
dissatisfaction with appointed counsel”).
The district court held another hearing on February 26, 2008, concerning
Anderson’s next two letters. The district court again questioned Anderson and
Henderson about their relationship. Henderson stated that he and Anderson had
discussed Anderson’s concerns and that they no longer had a disagreement about
tactics leading up to sentencing. Anderson spoke only of his problems with the plea
agreement, and he did not express further dissatisfaction with Henderson. As a result,
the district court withdrew Anderson’s guilty plea. Because the district court gave
Anderson the opportunity to present his position and Anderson raised no criticisms
of Henderson at the hearing, we conclude that the district court made an adequate
inquiry into Anderson’s concerns, see Webster, 84 F.3d at 1062 n.2, and did not abuse
its discretion in failing to appoint new counsel after receiving Anderson’s second and
third letters, see Mentzos, 462 F.3d at 839.
Finally, at the hearing concerning Henderson’s ex parte motion to withdraw,
Henderson told the court that he “[did not] know exactly what the nature of
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[Anderson’s] problem is” and that he believed Anderson “just does not want to work
with [me] as his counsel.” Anderson agreed with Henderson’s account of their
relationship. The district court concluded that “the problem is mostly the failure of
[Anderson] to communicate effectively with Mr. Henderson.” Accordingly, the court
denied the ex parte motion, finding that “the only purpose for this motion from Mr.
Anderson’s point of view is purposes of delay and to manipulate the court into giving
him the lawyer that he wants.” As with the other incidents, we conclude that the
district court conducted an adequate inquiry into the facts underlying Anderson’s
complaints at the March 13 hearing, see Webster, 84 F.3d at 1062 n.2, and did not
abuse its discretion in denying Henderson’s ex parte motion because Anderson failed
to show that there was a total communication breakdown rather than an unwillingness
on Anderson’s part to communicate with Henderson, see United States v. Barrow, 287
F.3d 733, 738 (8th Cir. 2002) (affirming a district court’s denial of a defendant’s
motion for new counsel where “there was no total breakdown in communication, only
an unwillingness on [the defendant’s] part to communicate with counsel”); see also
United States v. Redd, 318 F.3d 778, 783 (8th Cir. 2003) (assuming without deciding
that a defendant can raise a challenge to the district court’s denial of defense counsel’s
motion to withdraw).4
4
Anderson also raises an ineffective assistance of counsel claim on appeal,
arguing that Henderson was ineffective by failing to seek appellate review of the
district court’s decision to detain him before sentencing, failing to contact and
sufficiently prepare witnesses before trial, and pressuring him to sign the plea
agreement. “In general, an ineffective assistance of counsel claim is not cognizable
on direct appeal” because “such a claim is properly raised in a 28 U.S.C. § 2255
action.” United States v. Lewis, 483 F.3d 871, 873 n.2 (8th Cir. 2007). “We will
consider an ineffective assistance of counsel claim on direct appeal only in
exceptional cases where the district court has developed a record on the
ineffectiveness issue or where the result would otherwise be a plain miscarriage of
justice.” Id. Neither exception applies in this case; therefore, we decline to address
Anderson’s ineffective assistance claim. See id.
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C. Sentencing Issues
Anderson argues that the district court erred by applying the wrong guidelines
manual and by denying his request for a downward departure. “We review a sentence
in two parts: first we review for significant procedural error, such as an improper
calculation of the advisory sentencing guidelines range; and second, absent significant
procedural error, we review for substantive reasonableness.” United States v. Barker,
556 F.3d 682, 690 (8th Cir. 2009). “In reviewing a sentence for procedural error, we
review the district court’s factual findings for clear error and its application of the
guidelines de novo.” Id. Application of the wrong guidelines manual would
constitute procedural error. See id.
1. Ex Post Facto Clause
Anderson contends that the district court violated the Ex Post Facto Clause of
the United States Constitution by applying the November 2007 U.S.S.G. manual to
all of the offense conduct. He claims that the court should have applied the November
2002 U.S.S.G. manual to his convictions for wire fraud because the last act in his wire
fraud scheme occurred before the November 2003 U.S.S.G. manual became effective.5
Using the November 2002 U.S.S.G. manual for the wire fraud offenses would have
resulted in an advisory guidelines range of 41 to 51 months’ imprisonment, as
opposed to the advisory guidelines range of 46 to 57 months’ imprisonment that the
district court determined after applying the November 2007 U.S.S.G. manual.6
5
Anderson does not contest the district court’s use of the November 2007
U.S.S.G. manual for his failure to appear conviction.
6
The higher advisory guidelines range is a result of an increase in the base
offense level for wire fraud offenses from 6 to 7, beginning with the November 2003
U.S.S.G. manual.
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The sentencing guidelines direct courts to apply the guidelines manual in effect
on the date of sentencing unless doing so would violate the Ex Post Facto Clause, in
which case the guidelines manual in effect on the date that the offense of conviction
was committed should be used. See U.S.S.G. § 1B1.11(a) and (b)(1).7 However, the
so-called “one-book rule requires that the ‘Guidelines Manual in effect on a particular
date be applied in its entirety.’” Carter, 490 F.3d at 643-44 (quoting U.S.S.G. §
1B1.11(b)(2)). “If the defendant is convicted of two offenses, the first committed
before, and the second after, a revised edition of the Guidelines Manual became
effective, the revised edition of the Guidelines Manual is to be applied to both
offenses.” U.S.S.G. § 1B1.11(b)(3). We have held that the one-book rule does not
violate the Ex Post Facto Clause, even when it results in a higher guidelines range,
because defendants have “fair warning” that the revised guidelines manual will apply
to grouped offenses. See United States v. Cooper, 63 F.3d 761, 762 (8th Cir. 1995)
(per curiam); see also United States v. Duane, 533 F.3d 441, 448-49 (6th Cir. 2008)
(noting that “the majority of circuits” have concluded that the one-book rule does not
violate the Ex Post Facto Clause and collecting cases).
Anderson’s wire fraud offenses continued through 2003. He failed to appear
for trial on those charges in September 2007. Pursuant to the one-book rule, because
Anderson had been convicted of two offenses, the first—wire fraud—committed
before, and the second—failure to appear—committed after, a revised edition of the
guidelines manual became effective, the revised edition of the guidelines should be
applied. See § 1B1.11(b)(3). Pursuant to § 1B1.11(a), the district court should use
the guidelines manual in effect on the date Anderson was sentenced, October 16,
2008, unless doing so would violate the Ex Post Facto Clause. Because there is no
relevant difference between the guidelines manual in effect on the date Anderson was
7
For purposes of Anderson’s appeal, we assume that the Ex Post Facto Clause
applies to a district court’s application of the sentencing guidelines even after the
Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005). See
United States v. Carter, 490 F.3d 641, 643 (8th Cir. 2007).
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sentenced, the November 2007 U.S.S.G. manual, and the version in effect on the date
the last offense was committed in September 2007, the November 2006 U.S.S.G.
manual, there is no additional Ex Post Facto Clause concern with using the November
2007 U.S.S.G. manual. Accordingly, we conclude that the district court properly
applied § 1B1.11(b)(3) and § 1B1.11(a) when it used the November 2007 U.S.S.G.
manual to sentence Anderson. Therefore, the district court did not commit significant
procedural error.
2. Downward Departure
Anderson argues that the district court erred by failing to grant a downward
departure under U.S.S.G. § 4A1.3(b)(1), claiming that his criminal history category
substantially over-represents the seriousness of his criminal history. However, we
have no authority to review the district court’s denial of Anderson’s request for a
downward departure because Anderson does not argue that the court had an
unconstitutional motive in denying his request and because the court recognized that
it had the authority to depart downward. See United States v. Saddler, 538 F.3d 879,
889-90 (8th Cir.), cert. denied, 555 U.S. ---, 129 S. Ct. 770 (2008).8
III. CONCLUSION
For the foregoing reasons, we affirm Anderson’s conviction and sentence.
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8
“After finding that the district court did not commit significant procedural
error, as we have here, we would ordinarily review the substantive reasonableness of
the district court’s sentence.” United States v. Fischer, 551 F.3d 751, 756 (8th Cir.
2008). But because Anderson “did not provide any argument in his briefs regarding
the reasonableness of his sentence, he is deemed to have waived this issue on appeal.”
See id.
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