U.S. v. Rudisill

• Decision Date: 03 September 1999
• Docket Number: No. 98-6396,98-6396
• Citation: 187 F.3d 1260
• Parties: (11th Cir. 1999) UNITED STATES of America, Plaintiff-Appellee, v. Micah RUDISILL, Tim Hall Rudisill, a.k.a. Timothy Rudisill, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1260

187 F.3d 1260 (11th Cir. 1999)

UNITED STATES of America, Plaintiff-Appellee, v. Micah RUDISILL, Tim Hall Rudisill, a.k.a. Timothy Rudisill, Defendants-Appellants.

No. 98-6396.

United States Court of Appeals Eleventh Circuit.

Sept. 3, 1999.

Rehearing Denied Oct. 22, 1999

[Copyrighted Material Omitted] Appeals from the United States District Court for the Northern District of Alabama.(No. CR 97-B-266-S), Sharon L. Blackburn, Judge.

Before ANDERSON, Chief Judge, RONEY, Senior Circuit Judge, and COOK^*, Senior District Judge.

ANDERSON, Chief Judge:

Micah Rudisill ("Micah") and his father, Tim Rudisill ("Tim"), appeal various issues relating to their convictions and sentences on one count of conspiracy to defraud, 18 U.S.C. 371, 2314 (1994), eleven counts of interstate transportation of securities taken by fraud, id. at 2314, and one count of conspiracy to commit money laundering, id. at 1956(a)(1)(A)(i), 1956(h). After careful review of the record, we find no reversible error in the district court's rulings. Thus, we affirm the convictions and sentences in all respects.

I. FACTS

Micah Rudisill and Melvin White ("White") met in 1991 while working as salesmen for a telemarketing company known as the Great American Catalog Company. Both changed jobs frequently over the next few years and worked together at several similar places before they decided to form their own telemarketing company sometime in 1993 to be operated from a location in the Atlanta, Georgia area. Because Micah was only about 19 years old at the time, it was agreed that White would handle the financial end of the business, whereas Micah would be in charge of making the telemarketing calls. Company names were continuously changed in response to complaints to the Georgia Attorney General's office, until the formation of two companies known as Southern Health and American Distributing. These companies are the ones named in the indictment.

Individuals who received calls from Southern Health or American Distributing (most of whom were elderly) were told that they had won $50,000, but that they could not collect the prize until they paid a federal "transfer" fee. Generally, the fee was between $2,500 and $3,000. Upon receipt of this fee, the individual was told, the prize would be sent. Of course, there was no prize to be had.

Tim heads an organization known as the Society of Stewards, an allegedly religious entity that does not solicit contributions from its members. Tim first met White, albeit briefly, while visiting his son, after Micah went into business with White. Tim met White a second time for a slightly longer period, at which encounter White showed him around the office. Both of these meetings occurred prior to the formation of Southern Health and American Distributing. Nonetheless, at the second meeting, Tim was in the front room, where salesmen could be overheard making fraudulent pitches to their targets.

Micah and White established a mailing address in Georgia to receive the funds. The checks received were then deposited in banks in Birmingham, Alabama. The money in the Alabama accounts was then either used to pay business expenses of the telemarketing operation or distributed out as profit. White signed blank checks and also made out checks to Micah, Tim, and the Society of Stewards. On at least one occasion, Tim personally cashed one of White's checks under circumstances that aroused the suspicions of bank officials and caused them to question Tim about the funds. The checks to the Society of Stewards amounted to $32,150, and accounted for the entire amount in the Society's bank account other than $200 contributed by two unidentified individuals.

Eventually, bank officials at one of the Alabama banks with which White had opened an account became suspicious and requested that White close the account. He and Micah drove to Birmingham on January 24, 1995, to close the account. While White was in the bank, he was served with a grand jury subpoena to provide fingerprints, photographs, and handwriting exemplars. Soon thereafter, White met Micah at an Atlanta hotel, bringing with him $18,000 from the closing of the bank account. Micah encouraged White to become a fugitive instead of providing the information to the grand jury that was required by the subpoena. Micah suggested to White that the money might be marked and convinced White that he should turn over the money to Tim so that Tim could exchange it for non-marked money. Micah telephoned Tim and Tim came to the hotel. White gave the cash to Tim, in exchange for a receipt from the Society. White testified that he and Tim specifically discussed: the existence of the grand jury subpoena; the possibility that the money was marked; the need to have it exchanged for non-marked money; the need to return it to White so that he could have money to live on while in hiding; the possibility of White fleeing to countries without extradition treaties with the United States; and the protection afforded to Micah by virtue of White's decision to flee, for which Tim offered his gratitude to White. Upon White's departure from the hotel, Micah gave him $1,000 for use as he fled the authorities. White did not appear before the grand jury on January 31, 1995, as required. Micah provided White with an additional $4,000 while he was a fugitive.

White's fugitive status was short-lived; the authorities caught him in Fort Lauderdale, Florida, on March 26, 1995. Subsequently, White pled guilty to ten counts of interstate transportation of securities taken by fraud, in violation of 18 U.S.C. 2314 (1994). He was ultimately sentenced to 39 months in custody, along with restitution of $80,296 and three years of supervised release.

Based on the same conduct to which White pled guilty, a grand jury indicted Micah and Tim¹ in 1997 for eleven counts of interstate transportation of securities taken by fraud, as well as conspiracy to commit fraud and conspiracy to commit money laundering.² These counts were based on the activities undertaken by Southern Health and American Distributing between May of 1994 and January 24, 1995. At trial, White was the government's star witness. Also, Tim testified in his own defense at trial, but refused to testify as to the conversation between White and himself at the Atlanta hotel. Micah and Tim were ultimately found guilty on all counts.

In calculating Micah's sentence, the district court, inter alia, enhanced the sentence for obstruction of justice, and denied Micah's application for a downward departure based on the disparity between his sentence and that of White. With respect to Tim's sentence (as well as Micah's), the district court applied the enhancement for vulnerable victims. In this opinion, we address only these sentencing issues, as well as Tim's challenge to the sufficiency of the evidence with respect to the conspiracy convictions. The other claims of the appellants are rejected without need for discussion.

II. MICAH RUDISILL

A. Obstruction of Justice Enhancement

Micah contends that the district court wrongly enhanced his offense level by two points for obstruction of justice. See U.S.S.G. 3C1.1.³ After White had been detained by law enforcement officers and served with a grand jury subpoena to provide fingerprints, photographs and handwriting exemplars, Micah encouraged White to flee and become a fugitive. Micah argues that simply avoiding or fleeing from arrest does not justify the obstruction of justice enhancement, and therefore Micah's encouragement of this conduct certainly should not constitute obstruction of justice.

It is true that United States v. Alpert, 28 F.3d 1104 (11th Cir.1994) (en banc), stands for the proposition that avoiding arrest, alone, does not warrant the enhancement. See id. at 1107; see also U.S.S.G. 3C1.1, cmt. 4(d). We disagree with Micah, however, that Alpert compels the conclusion that urging and aiding someone else to flee from law enforcement authorities can never form the basis for an obstruction enhancement. In this case, White testified that he originally had planned to honor the subpoena, but that Micah convinced him to flee and become a fugitive, giving him cash to facilitate same. Micah also advised White that the $18,000 which White had withdrawn from the bank account shortly before might be marked, and arranged for his father, Tim, to exchange the potentially marked cash for clean cash, thus reducing the risk that the marked cash might abort White's fugitive status. The district court found that Micah's primary reason for assisting White in this manner was an attempt to avoid investigation into his own criminal activities because Micah feared that White would cooperate with law enforcement if he appeared pursuant to the grand jury subpoena.

We readily conclude that the district court's findings and its application of the obstruction of justice enhancement are not clearly erroneous. The Guidelines provide as an example of obstructive behavior "threatening, intimidating, or otherwise unlawfully influencing a co-defendant." See U.S.S.G. 3C1.1 cmt. 3(a).⁴ We found sufficient evidence of this type of conduct in United States v. Garcia, 13 F.3d 1464, 1471 (11th Cir.1994), in which the defendant brought a potential witness into a walk-in freezer at his place of business and asked the witness not to cooperate with an FBI investigation. The Eighth Circuit relied on our decision in Garcia to uphold an enhancement in a case with very similar facts to Micah's. See United States v. Alexander, 53 F.3d 888, 890--91 (8th Cir.1995). The defendant had provided money to a co-conspirator to assist him in fleeing the authorities. The court distinguished the Alpert situation, noting that "the acts in this case qualify as obstructing justice under section 3C1.1 not because Alexander helped Aldrich to flee justice, but because he attempted to put Aldrich out of the government's reach as a witness." Id. at 891. In our case,...