U.S. v. Milan

• Decision Date: 03 September 2002
• Docket Number: No. 01-2603.,01-2603.
• Citation: 304 F.3d 273
• Parties: UNITED STATES of America v. Milton MILAN, Appellant
• Court: U.S. Court of Appeals — Third Circuit

304 F.3d 273

UNITED STATES of America v. Milton MILAN, Appellant

No. 01-2603.

United States Court of Appeals, Third Circuit.

Argued May 20, 2002.

Filed September 3, 2002.

COPYRIGHT MATERIAL OMITTED

Richard Coughlin (argued), Julie A. McGrain, Office of the Federal Public Defender, Camden, NJ, for Appellant.

Robert J. Cleary, United States Attorney, Newark, N.J., Norman Gross (argued), Assistant United States Attorney, George S. Leone (argued), Chief, Appeals Division, Office of the United States Attorney, Camden, NJ, for Appellee.

Before: BECKER, Chief Judge, GREENBERG, Circuit Judge, and BARZILAY, Judge, U.S. Court of International Trade^*.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

This case comes on before this court on appeal from a final judgment of conviction and sentence entered in the district court following defendant-appellant Milton Milan's conviction by a jury on 14 counts of mail fraud, wire fraud, money laundering, and related criminal conspiracies in part for his activities undertaken while in public office. The district court sentenced Milan the former mayor and city council president of the City of Camden, New Jersey, to 87 months imprisonment.

On appeal, Milan advances three grounds to overturn his conviction on all counts. First, he contends that under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the district court erred in finding that the government's decision to exercise a peremptory challenge to a juror was not motivated by discriminatory intent. In the alternative, Milan maintains that the district court misapplied the legal standards the Supreme Court enunciated in Batson by improperly deferring to the prosecution's proffered legitimate justifications for using three of four of its peremptory challenges to strike African-American jurors from the panel. Lastly, Milan suggests that the district court erred by using the phrase "moral certainty" in its jury charge on reasonable doubt.

Milan also challenges specific counts of his conviction. First, he argues that we should reverse his conviction on counts 3 and 9 (wire fraud and conspiracy arising out of his illegal receipt of monies and other benefits during his tenure in office) because the government premised its case largely on testimony from a cooperating witness without disclosing material impeachment evidence (tape recorded conversations) in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which imposes a duty on the government to provide the defense with potential exculpatory or impeachment evidence. Second, Milan argues that we should reverse his conviction on counts 3, 9, 15, 16, and 17 because the government improperly vouched for the credibility of key witnesses whose testimony advanced Milan's convictions on those counts.

Finally, Milan maintains that we should vacate his sentence and remand the case for resentencing because the district court erred in applying a 3-level upward departure for Milan's acts of public corruption under U.S.S.G. § 2C1.7, Application Note 5, to the final combined offense level after grouping rather than to the offense level established for the public corruption charges only.

The panel unanimously agrees that the judgment of conviction should be affirmed on all counts and thus unanimously joins in all aspects of the opinion except for section II. E. "3-Level Upward Departure." Judge Greenberg, however, believes that the judgment should be reversed to the extent that it imposed the sentence and thus is filing a separate opinion dissenting from the affirmance of the sentence.

I. BACKGROUND

A. Milan's Crimes in his Private Capacity

The evidence at the trial demonstrated the following.¹ In October 1992, Milan formed the Atlas Contracting Company ("Atlas") with his friend, Gholam H. Darakhshan, to undertake commercial and residential construction projects in the Camden area. On August 11, 1994, Atlas obtained a contract for the construction of 13 homes at Arthur's Court in Camden. Inasmuch as the contract required Atlas to secure a performance and payment bond, it entered into a surety arrangement with Amwest Surety Insurance Company in which Amwest agreed to issue bonds for each phase of construction. Amwest, however, required Atlas to post collateral as a condition for Amwest issuing the bonds.

To satisfy this obligation to post security, Milan and Darakhshan borrowed $65,000 in cash from Jose Rivera, the owner of an automotive parts store which functioned in part as a front to launder the profits of local drug dealers. Realizing that Rivera had obtained the loan money from nefarious activities, Milan and Darakhshan concocted a scheme to utilize the narcotics-related proceeds without arousing the suspicions of the Internal Revenue Service to which, by law, domestic currency transaction reports for cash deposits of $10,000 or more must be sent. Specifically, they divided the cash into amounts of less than $10,000 which they distributed to friends and relatives who, in turn, transferred the money to Atlas in the form of bank checks or personal checks. Milan and Darakhshan also deposited some of the cash directly into an Atlas account. They then purchased a $60,900 certificate of deposit from a bank in Camden and assigned it to Amwest as collateral security. Subsequently, over the course of a few months, Milan and Darakhshan issued a series of checks in amounts of less than $10,000 made out from Atlas to themselves or to various friends and family members as ostensible "loan repayments."² Milan and Darakhshan eventually cashed the checks and repaid Rivera the $65,000 together with $10,000 in interest.

In addition to money laundering, Milan and Darakhshan used Atlas to perpetrate insurance fraud. In June 1994 and February 1995, Atlas entered into an agreement with AT&T Capital Leasing Corporation for the lease of two computers, two printers, and one copy machine. Atlas then secured commercial property insurance from Selective Insurance Company to protect against loss or damage to the machines.

On December 31, 1995, Milan and Darakhshan staged a sham burglary of the Atlas office, removing property and breaking a window. They later filed a false stolen property report with the Camden police and a lost property worksheet with the insurance company. Atlas received $4,743.50 from Selective in satisfaction of the false claim. Milan kept one of the computers for personal use until August 1997, when he sold it to a former student intern.

B. Milan's Crimes as a Public Official

Milan was elected a member of the Camden city council on November 7, 1995, and was elected its president on January 1, 1996. On May 13, 1997, Milan was elected mayor of Camden, a position to which he was sworn in on July 1, 1997.

In March 1996, Milan met Daniel Daidone, an associate of Ralph Natale, a notorious organized crime boss in Philadelphia. Natale previously had recruited Daidone and Caesar Ortiz, a Puerto-Rican businessman and electrical contractor, to manage and operate Trans-Aero, a government certified minority-owned business enterprise which was to compete for government contracts on Natale's behalf.

Correctly anticipating that Milan would be receptive to accepting kickbacks in exchange for helping Trans-Aero secure business projects in Camden, Daidone delivered an initial payment of $500 in cash to Milan, a transaction he reported to Natale. Thereafter, Daidone, acting on Natale's behalf, continued to deliver periodic bribes to Milan (occasionally at his office in Camden City Hall) until Milan's arrest in June 1998. All told, Milan received between $30,000 and $50,000 in cash, including a $1,433 payment toward a January 1998 Florida vacation for himself and his then fiance. Milan, in turn, did numerous favors for Natale and his organized crime associates, including lobbying on their behalf to secure federally-subsidized construction contracts in a Camden empowerment zone, attempting to contact the mayor of Cherry Hill, New Jersey, to obtain a liquor license for a restaurant owned by one of Natale's associates, and arranging a meeting between Natale's associates and government officials presiding over Camden waterfront renovation projects.³

In addition to cash, Milan received other improper benefits during his tenure in public office. On December 16, 1996, Milan arranged to have the title of a 1990 Chevrolet Lumina Van transferred to his fiance from Nick's Towing, an outfit which provided towing services to the City of Camden.⁴ Milan also obtained approximately ten months free use of a 1996 GMC Jimmy truck leased to Dominick Monaco, the owner of Nick's Towing. On March 27, 1997, the city council of Camden awarded a contract to Nick's Towing to provide towing services for a two-year term at a contract price not to exceed $480,000. Milan did not disclose publicly his receipt of these gifts from Nick's Towing on his state-mandated financial disclosure statements.

In June 1997, the James B. Ryan Air Conditioning Company executed a three-year contract with the City of Camden for the servicing and maintenancing of air conditioning and heating systems in various city-owned buildings. In May 1998, at Milan's request, the company installed an air conditioning system at Milan's personal residence. Milan did not pay for these services and did not disclose his receipt of them on his financial disclosure statements. The services, valued at $3,346, took two men six days to complete.

In April 1998, a concrete recycling company, Delaware River Recycling, applied to the Camden County Solid Waste Advisory Council for a permit to operate a recycling facility. That same month, Milan asked Robert Casey, the owner of Delaware River Recycling, to do home improvement work at Milan's private residence. Casey obliged, sending a work crew to tear down a garage and remove a tree. Casey also paid $700 for the installation of new carpeting at Milan's home. Milan, who...