U.S. v. Morales

• Decision Date: 10 December 1993
• Docket Number: No. 92-50279,92-50279
• Citation: 11 F.3d 915
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert MORALES, Sr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 915

11 F.3d 915

UNITED STATES of America, Plaintiff-Appellee, v. Robert MORALES, Sr., Defendant-Appellant.

No. 92-50279.

United States Court of Appeals, Ninth Circuit.

Argued March 2, 1993.

Submission Deferred March 2, 1993.

Resubmitted March 18, 1993.

Decided Dec. 10, 1993.

Philip Halpern, Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee.

Eugene G. Iredale, San Diego, CA, for defendant-appellant.

Appeal from the United States District Court for the Southern District of California.

Before: SCHROEDER, THOMPSON, and O'SCANNLAIN, Circuit Judges.

SCHROEDER, Circuit Judge:

Robert Morales, Sr., appeals his sentence following his guilty plea to multiple counts of various crimes arising out of corrupt practices Morales engaged in while an employee of the Internal Revenue Service. The crimes involved many transactions over a period of years ending when Morales was terminated from his employment in March of 1990.

The principal questions in this appeal pertain to his guilty plea to conspiracy to defraud the United States, Count 1, and to his conviction for bribery in violation of 18 U.S.C. Sec. 201 (1988), Count 3.

Appellant first maintains that a two-level enhancement of his sentence for bribery pursuant to Federal Sentencing Guideline 2C1.1(b)(1) constituted an ex post facto application of the Guidelines. That Guideline provision mandates a two-level increase in the base offense level if the offense "involved more than one bribe." That Guideline provision became effective November 1, 1989. The appellant contends that while he engaged in many bribery transactions, only one bribe occurred after the effective date of that Guideline. One of appellant's schemes involved receipt of payments in return for helping Mario Saikhon evade fourteen million dollars in taxes. Appellant maintains that the multiple payments he received from Mr. Saikhon after the effective date of the Guidelines and continuing until termination of his employment constituted installment payments for only one bribe. Citing the Commentary Note 6 to Guideline 2C1.1, Morales analogizes his receipt of bribery payments to installments akin to a weekly paycheck. Thus he contends his two level increase must have been based in part upon pre-guideline conduct.

The addendum to the Presentence Report termed this contention "ridiculous." As the addendum observed, the bribes came from various sources, and the numerous payments in 1989 and 1990 in different amounts and at different intervals, were separate acts of bribery. The district court concluded they were, and the record bears out this conclusion. Some of the appellant's bribery schemes were implemented by phony payroll checks to the appellant's brother-in-law (Cendejas) who did not in fact work for Saikhon. Also, after November 1, 1989, apart from the Cendejas checks, appellant continued to receive interest money from Saikhon. The criminal activity included investment and repayment of money in order to promote Saikhon's evasion of income taxes and enrich the appellant. There was no error in utilizing the enhancement provision for multiple bribes occurring after the effective date of the Guideline.

The same reasoning applies to appellant's contention that the total loss under U.S.S.G. Sec. 2F1.1 was improperly calculated so as to violate ex post facto principles. The record supports the district court's conclusion that there were post-amendment losses. Thus the application of Sec. 2F1.1 was appropriate.

Appellant also contends that the grouping of offenses that occurred both before and after the Guideline provisions violates the ex post facto clause. Appellant argues that the pre-Guidelines conduct alleged in Count 1 was used in Count 3 to increase the offense level by fifteen. He argues that the court "poured over" the loss from Count 1 onto the penalty available for Count 3 in violation of ex post facto principles.

Here the appellant has misinterpreted the district court's sentence. The district court did not "pour over" the loss from one count to another. Instead, the district court correctly and separately considered the pre and post-Guideline conduct for each of the counts. The bribery offenses were part of a course of criminal conduct that extended beyond the effective date of the Guideline provision applied by the court. The provision was in effect at the time that the appellant committed crimes giving rise to the application of that Guideline provision. Enhancing penalties for post-Guideline conduct on acts that occurred before the Guidelines does not run afoul of the ex post facto clause. See United States v. Ahumada-Avalos, 875 F.2d 681 (9th Cir.), cert. denied, 493 U.S. 837, 110 S.Ct. 118, 107 L.Ed.2d 79 (1989). Here, as in United States v. Castro, 972 F.2d 1107, 1112 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1350, 122 L.Ed.2d 731 (1993), the defendant was not sentenced for any individual offense based on a Guideline provision that became effective after that offense was completed. Rather, the conduct for which appellant was sentenced extended beyond the time when the relevant Guideline provision became effective. See also United States v. Niven, 952 F.2d 289, 293 (9th Cir.1991), where the defendant was sentenced on individual counts for offenses completed before the Guidelines became effective and we held that the same losses should not be aggregated in imposing a separate, post-Guideline sentence. No such double counting occurred here.

Judge O'Scannlain's dissent takes the view that conviction for bribery on Count 3 could not, as a matter of law, have extended over a period of time because bribery is not a "continuing offense." Neither United States v. Niven, supra, nor Toussie v. United States, 397 U.S. 112, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970), upon which the dissent principally relies, involved a crime of bribery and are wholly inapposite. The bribery offense which the government pleaded and proved in this case began before the Guidelines went into effect and extended well beyond that date. The crime was charged as follows:

Count 3

1. Paragraphs 1 through 12 and 14 through 48 of Count I are hereby realleged and incorporated by reference as if set forth in full herein.

2. Beginning at a time unknown to the grand jury and continuing up to and including

March 27, 1990, within the Southern District of California, and elsewhere, defendant ROBERT A. MORALES, SR., then a public official, did knowingly and corruptly seek, accept, receive, and agree to receive the use of millions of dollars from Mario Saikhon, in return for being influenced to commit, aid in committing, collude in or allow and make opportunities for the commission of frauds on the United States, that is, among other things, setting up sham corporations designed to assist Mario Saikhon in evading the payment of taxes; in violation of Title 18, United States Code, Section 201(b)(2)(B).

The doctrine of "continuing offense" has no applicability to a situation like this where the charged criminal conduct itself extends over a period of time. The doctrine comes into play where it is contended that the actual conduct of the defendant ended but the crime continued past that time. That was the situation claimed by the government in Toussie v. United States where the Supreme Court held that the crime of failing to register for the draft was not a continuing offense and did not extend the five-year limitation period. Here there is no need for the government to argue that the defendant's offense continued beyond the time that he stopped seeking and receiving the illegal fruits of his bribery scheme. We thus deal with a prosecution that charged and proved in one count a scheme that extended over a period of time. The government probably could have divided the scheme into multiple counts, but the form of the indictment has never been an issue in this case, ¹ and the sentence did not violate ex post facto principles.

Appellant also objects to the district court's decision not to grant him a two-level reduction for acceptance of responsibility. Appellant emphasizes that he pleaded guilty early to some charges and regretted the harm that he had done to his family. The district court rejected many of the defendant's factual assertions, pointing out that the defendant strung out his guilty pleas, forced members of his family to endure a difficult trial, and, as noted in the Presentence Report, continued to minimize his involvement in the case. The district court's determination of lack of acceptance of responsibility was not clearly erroneous. See United States v. Daly, 974 F.2d 1215, 1218 (9th Cir.1992).

Finally, appellant contends that the district court violated equal protection principles, discriminating against him as a member of the middle class, by assessing against him a greater sentence than against Saikhon. Appellant contends that the sentencing disparity results from the fact that Saikhon was able to negotiate for a lower sentence after agreeing to pay a fine of several millions of dollars. The difference in the sentences in fact arises from the calculations based upon the factors specified in the Guidelines, including, for this appellant, the absence of conduct qualifying him for an acceptance of responsibility reduction, his obstruction of justice, and his violation of the public trust. There is no basis for holding that the defendant's sentence or fine was in any way based upon his membership in the middle class, even if such membership qualified him for status as a member of a suspect class, which it did not. See Dandridge v. Williams, 397 U.S. 471, 483-87, 90 S.Ct. 1153, 1160-63, 25 L.Ed.2d 491 (1970).

AFFIRMED.

O'SCANNLAIN, Circuit Judge, concurring in part and dissenting in part:

Because I believe the majority opinion fails to perceive the Ex Post Facto Clause implications of the enhanced sentence imposed on Morales, I must respectfully dissent.

Implicit in the majority's approach to...