32 F.3d 569 (6th Cir. 1994), 93-1674, U.S. v. Menichino
| Docket Number | 93-1674,93-1675. |
| Citation | 32 F.3d 569 |
| Date | 20 July 1994 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Andrew MENICHINO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Page 569
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA6 Rule 28 and FI CTA6 IOP 206 regarding use of unpublished opinions)
On Appeal from the United States District Court for the Western District of Michigan; No. 92-00093, Bell, J.
W.D.Mich.
AFFIRMED AND REMANDED.
Before: JONES, NORRIS, and DAUGHTREY, Circuit Judges.
PER CURIAM.
The defendant, Andrew Menichino, was charged in a 46-count indictment with various offenses related to bank fraud, including (1) conspiracy to commit bank fraud, criminal misapplication of bank funds, and making false entries in bank records, in violation of 18 U.S.C. § 371; (2) substantive crimes of bank fraud, criminal misapplication, and making false entries in bank records, in violation of 18 U.S.C. § 1344, 18 U.S.C. § 657, and 18 U.S.C. § 1006; and (3) engaging in a monetary transaction affecting interstate commerce in criminally derived property over $10,000, in violation of 18 U.S.C. § 1957. The indictment essentially accuses Menichino of participating in a $14 million "loan kiting" scheme to defraud Great Lakes Bancorp of Ann Arbor, Michigan.
Over a period of three years, Menichino and a group of co-conspirators formed a series of corporations. They used funds borrowed by a new corporation to pay off loans which were in the name of earlier-formed corporations. Obviously, some of the funds went into the co-conspirators' pockets, as well. It is unclear in the record whether these corporations ever engaged in any productive business, or were merely sham structures. At some point in time, the group decided to "branch out", and they expanded their operation from Michigan to Florida and Alaska, using the same method.
Eventually, three different indictments were filed against Menichino. Two were brought in the Middle District of Florida, carrying case numbers 90-216-CR-T-15(C) and 90-350-CR-T-(A). Both Florida indictments resulted in convictions. The conviction in case number 90-216 was affirmed in United States v. Menichino, 989 F.2d 438 (11th Cir.1993). The second case, number 90-350, apparently did not produce a reported opinion. The third is the instant case, in which Menichino pleaded guilty to 14 counts of bank fraud and was sentenced to 10 years in prison, to be served consecutively to the unexpired sentences from Florida in cases 90-216 and 90-350. He was also ordered to pay $5,316,635 in restitution to Great Lakes Bancorp prior to the termination of his three-year supervised release following incarceration.
On appeal, the defendant raises five issues for our consideration, alleging (1) that the district court erred in denying his motion to dismiss on double jeopardy grounds; (2) that the district court further erred in denying his motion to dismiss for prosecutorial misconduct; (3) that he was denied the effective assistance of counsel at sentencing; (4) that the district court erred in assessing the amount of restitution to be paid; and (5) that the district judge abused his discretion in various respects in determining Menichino's sentence. After reviewing the record on appeal, we conclude that Menichino's convictions should be affirmed but that a limited remand is necessary with regard to his sentence.
I. Double Jeopardy
The Fifth Amendment Double Jeopardy clause affords three protections for the criminal defendant. It protects against a second prosecution for the same offense after either (1) acquittal or (2) conviction, and (3) protects against multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165 (1977). Menichino alleges that he has been subjected to "successive prosecutions" in violation of the first and second double jeopardy principles. He further alleges that the indictment contains "multiplicitous charges", in violation of the third double jeopardy proscription.
When raising a claim of double jeopardy, the defendant must first show a factual basis that his claim is not frivolous. United States v. Jabara, 644 F.2d 574, 576 (6th Cir.1981). The government must then prove by a preponderance of the evidence that it is not seeking to prosecute the same offense a second time under a totality of the circumstances test. Id. at 576-77. On appeal, the trial court's factual findings are subject to a clearly erroneous standard, even if based solely on documentary evidence. Id. at 577. The legal issue of double jeopardy is subject to de novo review. Costo v. United States, 904 F.2d 344, 346 (6th Cir.1990).
A. Waiver
The government contends as a threshold matter that Menichino's double jeopardy claim is foreclosed by his guilty plea. Menichino initially raised the double jeopardy argument, then pleaded guilty, and then raised the same argument again in a motion to dismiss filed on the eve of sentencing.
When a defendant knowingly, willingly, and with the benefit of competent counsel, pleads guilty, he waives all non-jurisdictional defects. United States v. Cox, 464 F.2d 937 (6th Cir.1972). A guilty plea generally precludes claims of antecedent constitutional violations. Parker v. North Carolina, 397 U.S. 790 (1970). The Supreme Court has recognized, however, that a double jeopardy claim may constitute an exception to this rule. Blackledge v. Perry, 417 U.S. 21 (1974). The Court has further elaborated on Blackledge, explaining that the double jeopardy clause is distinctive, because it has the practical result of preventing a trial from taking place at all, rather than prescribing procedural rules that govern the conduct of a trial. Robinson v. Neil, 409 U.S. 505, 509 (1973). However, the Court specified, "We do not hold that a double jeopardy claim may never be waived. We simply hold that a plea of guilty to a charge does not waive a claim that--judged on its face--the charge is one which the State may not constitutionally prosecute." Menna v. New York, 423 U.S. 61, 63, n. 2 (1975) (per curiam). Indeed, the Court later held that a double jeopardy argument had been waived where the defendants had pleaded guilty to two separate conspiracy indictments within a single proceeding in the district court. The Court concluded that the double jeopardy argument (that the acts which formed the basis for the indictments were part of a single conspiracy, for which two prosecutions could not be had) was necessarily foreclosed by the admissions which inhered in their pleas. United States v. Broce, 488 U.S. 563, 576 (1989).
The rule which emerges from this line of cases is that waiver of a double jeopardy argument cannot be determined without a "peek" at the merits. Although this court has not addressed the specific question presented here, we have held that a double jeopardy allegation, raised at sentencing following a plea of guilty, must be deemed waived when not argued on appeal. Rauschenberg v. United States, 875 F.2d 866 (6th Cir.1989) (unpublished opinion).
Here, the issue has been raised on appeal, and, in an abundance of caution, we conclude that it should be addressed on its merits.
B. The Florida Charges
Menichino argues that the instant prosecution violates the proscriptions of the double jeopardy clause, because of the earlier Florida prosecutions. He alleges that the actions which formed the basis for the three indictments were part of but one conspiracy.
Double jeopardy does not bar a second prosecution where each statutory provision requires proof of a fact that the other does not. Blockburger v. United States, 284 U.S. 299, 304 (1982). The Sixth Circuit applies the "totality of the circumstances" test to determine whether successive conspiracy indictments charge the "same offense" within the meaning of the Double Jeopardy clause. United States v. Benton, 852 F.2d 1456, 1463-65 (6th Cir.1988),cert. denied, 488 U.S. 993 (1988). The test is applied to answer the question of whether a single conspiracy or multiple conspiracies existed. Id.
Under the "totality of the circumstances" test, five factors are considered: (1) time; (2) persons acting as co-conspirators; (3) the statutory offenses charged in the indictments; (4) the overt acts charged by the government or any other description of the offenses charged which indicates the nature and scope of the activity which the government sought to punish in each case; and (5) places where the events of the conspiracy took place. In re Grand Jury Proceedings, 797 F.2d 1377, 1380 (6th Cir.1986), cert denied, 479 U.S. 1031 (1987). Where several of these factors differ between the conspiracies, the conclusion follows that the alleged illegal conspiracies are separate and distinct offenses. Benton, supra, at 1462 (citing United States v. Sinito, 723 F.2d 1250, 1256-57 (6th Cir.1983)).
The district court in this case found a "wide divergence" of the factors among the conspiracies. The indictment in case number 90-216 contained six counts of allegations of conspiracy to commit bank, mail, and wire fraud, and substantive bank, wire, and mail fraud. Menichino and a John Hickman were accused of participating in a scheme to inflate the appraisal value of a yacht berthed in Florida so that a Georgia bank would grant a prospective purchaser of the yacht a loan exceeding the actual purchase price of the boat. The object of the conspiracy was to divide the excess sum between Menichino and the purchaser. These events occurred during November and December 1989.
The indictment in case number 90-350 charged four counts of conspiracy to commit bank fraud against a Florida bank; substantive bank fraud; and bribery of an officer of the bank. The crux of the indictment was that Menichino conspired with a loan officer of that bank to obtain a series of loans and a credit card for...
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