U.S. v. McDaniel
| Decision Date | 17 February 2005 |
| Docket Number | No. 03-2073.,No. 03-1940.,03-1940.,03-2073. |
| Citation | 398 F.3d 540 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Scott Allen McDANIEL (03-1940) and Gregory Warren Wade (03-2073), Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Craig A. Frederick, Grand Rapids, Michigan, Melvin Houston, Detroit, Michigan, for Appellants. Joan E. Meyer, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.
ON BRIEF:
Craig A. Frederick, Grand Rapids, Michigan, David L. Kaczor, Grand Rapids, Michigan, for Appellants. Daniel Y. Mekaru, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.
Before: MOORE and GILMAN, Circuit Judges; GWIN, District Judge.*
The instant appeal arises out of Defendants-Appellants Gregory Warren Wade's ("Wade") and Scott Allen McDaniel's ("McDaniel") convictions for conspiracy, theft of U.S. mail, and bank fraud. McDaniel contends on appeal that the district court erred in ruling that testimony by the Postal Inspector regarding statements made by McDaniel during the course of the Postal Inspector's investigation was inadmissible. McDaniel also urges this court to vacate his sentence and remand the case to the district court for resentencing in light of the Supreme Court's recent decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, ___ L.Ed.2d ___ (2005). Wade similarly requests that this court vacate his sentence and remand the case to the district court for resentencing in light of Booker. Wade also argues that the district court erred in calculating the amount of restitution owed and that the district court misapplied the United States Sentencing Guidelines ("Guidelines") by: (1) assessing a two-point offense-level enhancement based on the extent of Wade's involvement in the conspiracy, and (2) increasing Wade's offense level by four points due to the amount of loss involved. For the reasons set forth below, we AFFIRM the district court's refusal to permit McDaniel's counsel to elicit testimony from the Postal Inspector regarding statements made by McDaniel, and we VACATE both McDaniel's and Wade's sentences and REMAND the cases to the district court for resentencing in light of Booker.
In 2001, Wade was incarcerated in the Kent County Jail, serving a sentence for a prior, unrelated charge. During this period of incarceration, Wade met Donald Hardy ("Hardy"), to whom he outlined a plan to steal outgoing U.S. mail containing personal checks and then to cash the checks after altering the payees and dollar amounts. Following their release from the Kent County Jail, Wade and Hardy proceeded to carry out this scheme.
It appears that Wade directly participated in the theft and alteration of twenty-three checks, for a total sum estimated at $19,407.93. Twenty-one of these checks (totaling approximately $17,538.70) were altered so that Wade was listed as the payee; Wade shared the proceeds of one of these checks, which had a payment amount of $1,094.48, with Hardy. Wade jointly stole and altered the two remaining checks with Hardy and two of Hardy's friends (Cindy Koops and her brother, Jody Koops). One of these checks listed Cindy Koops as the payee; although this check could not be located by the Postal Inspector, its value has been estimated at approximately $930. The second check, listing Jody Koops as the payee, totaled $939.23. Thus, the three checks Wade shared with Hardy amounted to approximately $2,963.71.
On November 8, 2001, Wade was arrested for uttering and publishing in violation of Michigan law. See Mich. Comp. Laws § 750.249 (). On April 15, 2002, Wade pleaded guilty in the Twentieth Circuit Court in Grand Haven, Michigan and was sentenced to 180 days' imprisonment, $766.00 in fines and costs, and $725.00 in restitution. On May 29, 2002, Wade pleaded guilty in the Seventeenth Circuit Court in Grand Rapids, Michigan, receiving a sentence of ten months' imprisonment and $22,258.00 in fines, costs, and restitution. It appears that these convictions pertained only to the twenty-one checks (totaling $17,538.70) that listed Wade as the payee and did not involve the two checks Wade jointly stole with Hardy and the Koops.
Following Wade's arrest, Hardy continued the check-fraud scheme, recruiting several other persons, including McDaniel, to assist in the enterprise. After receiving several reports of stolen mail in Kent County, Michigan, the United States Postal Service launched an investigation that led to the arrest of six persons, all of whom named Hardy as the source of the fraudulent checks. Ultimately, the investigation revealed that, over a period of six months, Hardy and twelve of his recruits had stolen thirty-six checks and had defrauded various financial institutions of approximately $43,136.66.
On October 9, 2002, a superseding indictment was filed in the United States District Court for the Western District of Michigan charging nine people, including Wade and McDaniel, with conspiring to steal U.S. mail and to commit bank fraud, in violation of 18 U.S.C. §§ 371, 1708, and 1344.1 Six of the defendants entered into plea agreements with the Government, while Wade, McDaniel, and a third defendant were tried together before a jury. On April 25, 2003, the jury found Wade and McDaniel guilty of conspiracy, theft of U.S. mail, and bank fraud. On July 17, 2003, McDaniel was sentenced to forty-eight months' imprisonment, five years' supervised release, and $28,596.47 in restitution, and on July 24, 2003, Wade was sentenced to thirty-six months' imprisonment, three years' supervised release, and $17,538.70 in restitution. Wade and McDaniel timely appealed to this court.
McDaniel appeals his conviction on the ground that the district court erred in barring his counsel from eliciting testimony from Postal Inspector Patricia Locke ("Postal Inspector Locke") on cross-examination regarding statements McDaniel made to Postal Inspector Locke during the course of her investigation. "In reviewing a trial court's evidentiary determinations, this court reviews de novo the court's conclusions of law, e.g., the decision that certain evidence constitutes hearsay, and reviews for clear error the court's factual determinations that underpin its legal conclusions." United States v. Reed, 167 F.3d 984, 987 (6th Cir.), cert. denied, 528 U.S. 897, 120 S.Ct. 229, 145 L.Ed.2d 192 (1999) (citations omitted). This standard is consistent with the Supreme Court's admonition in General Electric Co. v. Joiner, 522 U.S. 136, 142, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997), that we review evidentiary decisions for an abuse of discretion, because it is an abuse of discretion to make errors of law or clear errors of factual determination. See United States v. Jones, 107 F.3d 1147, 1153-54 (6th Cir.1997). We conclude that the district court did not err in deeming McDaniel's statement to Postal Inspector Locke inadmissible hearsay.
Prior to trial, the Government filed a motion in limine requesting that the district court "prohibit any defense counsel from eliciting exculpatory statements of any defendant during the cross examination of any prosecution witness during the trial of this case." Joint Appendix ("J.A.") at 53 (Apr. 17, 2003 Mot. in Limine at 1). The district court granted the Government's motion, agreeing that "these types of statements are inadmissible hearsay." J.A. at 61 (Apr. 17, 2003 Order Granting Mot. in Limine). At trial, before beginning his cross-examination of Postal Inspector Locke, counsel for McDaniel informed the court (outside the presence of the jury) that "[his] client gave a statement to Inspector Locke, and in essence [he] would like to be able to question her about it." J.A. at 181 (Trial Tr. at 354). McDaniel's counsel proceeded to describe for the district court the contents of McDaniel's statement to Postal Inspector Locke, asserting that McDaniel's statement contained both inculpatory and exculpatory information. When asked by the district court why he would want to introduce inculpatory statements by his client, McDaniel's counsel explained that he "want[ed] the jury to know that [McDaniel] came forward when asked to come forward, that he admitted to his involvement in it and what his involvement was." J.A. at 184 (Trial Tr. at 357). After hearing arguments from both McDaniel's counsel and the Government, the district court denied the request to cross-examine Postal Inspector Locke regarding statements McDaniel made to her.
Federal Rule of Evidence 802 establishes that "[h]earsay is not admissible except as provided by [the Federal Rules of Evidence] or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress." As the Supreme Court has explained, Rule 802 Williamson v. United States, 512 U.S. 594, 598, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994). In contrast, "these dangers are minimized for in-court statements" because of "the oath, the witness' awareness of the gravity of the proceedings, the jury's ability to observe the witness' demeanor, and, most importantly, the right of the opponent to cross-examine." Id.
Not all out-of-court statements qualify as hearsay, however. For instance, Federal Rule of Evidence 801(d)(2) excludes admissions by a party-opp...
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