U.S. v. Grenoble

• Decision Date: 29 June 2005
• Docket Number: No. 04-3469.,04-3469.
• Citation: 413 F.3d 569
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald D. GRENOBLE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

413 F.3d 569

UNITED STATES of America, Plaintiff-Appellee, v. Ronald D. GRENOBLE, Defendant-Appellant.

No. 04-3469.

United States Court of Appeals, Sixth Circuit.

Argued: March 16, 2005.

Decided and Filed: June 29, 2005.

COPYRIGHT MATERIAL OMITTED

James J. West, West Long LLC, Harrisburg, Pennsylvania, for Appellant.

Thomas A. Karol, Assistant United States Attorney, Toledo, Ohio, for Appellee.

Before: DAUGHTREY and CLAY, Circuit Judges, SCHWARZER, Senior District Judge.^*

OPINION

SCHWARZER, Senior District Judge.

Ronald Grenoble appeals his convictions, after a jury trial, of conspiracy to commit wire fraud and wire fraud under 18 U.S.C. §§ 371 and 1343, respectively. He maintains that venue in the Northern District of Ohio was improper as to the wire fraud count and that the district court erred in denying his motion to dismiss the conspiracy count against him based upon the expiration of the applicable statute of limitations. Grenoble also appeals his sentence. For the reasons set forth below, we affirm Grenoble's convictions but remand his case for resentencing.

BACKGROUND

On December 4, 2002, Grenoble and Donald Calhoun were indicted on two counts: conspiracy to commit wire fraud and wire fraud, in violation of 18 U.S.C. §§ 371 and 1343. The indictment alleged that both of the offenses charged took place "in the Northern District of Ohio ... and elsewhere." According to the indictment, a group of conspirators including Grenoble solicited investors in a fraudulent investment program and then diverted the funds obtained from the investors to the coconspirators' personal use.

In Count One, the indictment alleged that the conspiracy had taken place from "in or about March, 1996, to in or about June, 1998." (The same dates appear in the allegations of wire fraud in Count Two of the indictment.) The dates of the specific overt acts in furtherance of the conspiracy alleged in Count One varied from this time frame, however; no overt act was alleged to have occurred before April 1996 or after January 1997.

The first overt act alleged in connection with Count One, the conspiracy count, was an April 1996 meeting between an unindicted coconspirator named Walter Metcalf and a group of potential investors. At the meeting, the victims were told about investment opportunities with an entity called Syzygy, LLC. Metcalf and Grenoble, the latter via telephone, represented themselves to the victims as coowners of Syzygy. Following this meeting, the investor-victims formed an investment partnership in Huron, Ohio. The coconspirators had the victims wire the partnership's funds from an account at a bank in Columbus, Ohio, to an account at a bank in New York City. From there, the coconspirators wired the funds to other banks in Canada and California. The overt acts alleged in Count One continued nearly to the end of 1996, with one additional act alleged to have occurred in January 1997. On or about December 13, 1996, Calhoun was alleged to have written checks from an account in Altadena, California, for his personal use. Then, in January 1997, according to the indictment, Grenoble had a conference call with a victim during which Grenoble represented a third party to be Deputy Director of the United States Treasury, and both Grenoble and the third party assured the victim that his investment proceeds were forthcoming.

Before trial, Grenoble moved to dismiss the indictment, partly on the basis that the applicable five-year statute of limitations, 18 U.S.C. § 3282, had run before the filing of the indictment. The magistrate judge denied the motion, holding that 18 U.S.C. § 3292, which permits the tolling of the statute of limitations between the request and receipt of evidence from a foreign country, made the indictment timely. In reaching this conclusion, the magistrate judge concluded that the conspiracy in this case had achieved its objective, and the statute of limitations had begun to run, no later than August 1996. Upon Grenoble's appeal of this ruling, the district court adopted the magistrate judge's report and denied Grenoble's motion to dismiss.

Grenoble's jury trial began on December 8, 2003. On December 9, during trial, the government moved to have the district court strike from Count One of the indictment the paragraph describing the January 1997 overt act and to substitute August 1996 for the June 1998 termination date appearing in the description of the conspiracy. Grenoble did not object to the district court order adopting these changes.

Following the government's presentation of its case, Grenoble moved under Federal Rule of Criminal Procedure 29 for a judgment of acquittal on Count Two of the indictment, the wire fraud count, on the ground that as to that count the government had failed to prove any basis for venue in the Northern District of Ohio. The district court denied the motion.

On December 10, 2003, the jury returned verdicts against Grenoble on both counts. On March 29, 2004, the district court sentenced Grenoble to 37 months' imprisonment on each count, the terms to run concurrently, and to three years of supervised release. It also ordered restitution in the amount of $145,000. Grenoble timely appealed his convictions and sentence.

STANDARDS OF REVIEW

"We review de novo the trial court's denial of a motion for judgment of acquittal. In conducting this review, we view the evidence in the light most favorable to the prosecution, and inquire whether a rational trier of fact could find that venue is proper. The Government's showing on this point need only be supported by a preponderance of the evidence." United States v. Zidell, 323 F.3d 412, 420-21 (6th Cir.2003) (citations omitted).

We also review de novo challenges to the sufficiency of an indictment. United States v. Gatewood, 173 F.3d 983, 986 (6th Cir.1999). A motion to dismiss based on the statute of limitations is such a challenge. See United States v. Pi, 174 F.3d 745, 750 (6th Cir.1999).

DISCUSSION

Grenoble argues on appeal that (1) the district court erred in denying his motion for judgment of acquittal on Count Two on the basis of lack of venue; (2) the district court erred in denying his motion to dismiss Count One on the ground that the statute of limitations barred the prosecution; and (3) the district court erred in sentencing Grenoble under a mandatory federal Sentencing Guidelines regime. These arguments are addressed in turn below.

I. VENUE

Grenoble argues that although Count Two of the indictment alleges that "in the Northern District of Ohio" he "did knowingly transmit and cause to be transmitted communications by means of wire communications in interstate and foreign commerce" in violation of 18 U.S.C. § 1343, the government produced no evidence that he had caused a wire transfer through the Northern District of Ohio. Thus, according to Grenoble, the government did not prove venue in the Northern District of Ohio as to Count Two. The government responds that Grenoble waived this argument by failing to raise it in a pretrial motion and, in the alternative, that the government did show that part of the charged offense occurred in the Northern District of Ohio.

Grenoble did not waive this argument. Although objections to defects in venue are usually waived if not asserted before trial, see United States v. Adams, 803 F.2d 722, 1986 WL 17714, at *9 (6th Cir. Sept.22, 1986) (unpublished op.), where the defect is not "apparent on the face of the indictment," United States v. Hill, 891 F.2d 293, 1989 WL 146502, at *3 (6th Cir.1989) (unpublished op.), and the defendant does not have notice of the defect through other means, a conclusion of waiver is not appropriate, see id.; Adams, 1986 WL 17714, at *9 (citing United States v. Black Cloud, 590 F.2d 270, 272 (8th Cir.1979)). As noted above, Count Two of Grenoble's indictment alleged that "in the Northern District of Ohio" he "did knowingly transmit and cause to be transmitted communications by means of wire communications in interstate and foreign commerce." Any defect in venue was therefore not apparent from the indictment itself, and the record contains no indication, nor has either party argued, that Grenoble otherwise had notice of any defect in venue. Accordingly, Grenoble did not waive this argument.

However, contrary to Grenoble's contentions, the government did carry its burden of showing venue with respect to Count Two. The wire fraud statute under which Grenoble was charged in Count Two provides:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money by false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire ... communication in interstate or foreign commerce, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both.

18 U.S.C. § 1343 (emphasis added). Under 18 U.S.C. § 3237, wire fraud is a continuing offense crime: "Any offense involving... transportation in interstate or foreign commerce ... is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce ... moves." Id. § 3237(a); United States v. Goldberg, 830 F.2d 459, 465 (3d Cir.1987). As noted, the government need only present proof sufficient to allow a rational trier of fact to conclude that venue was proper by a preponderance of the evidence. Zidell, 323 F.3d at 420-21.

At trial, the government presented evidence that Grenoble and others, doing business as Syzygy, LLC, "transmitt[ed] or cause[d] to be transmitted" faxes to victims in the Northern District of Ohio. 18 U.S.C. § 1343. There was evidence that these contacts induced the victims to create an investment partnership that deposited in an Ohio bank account funds eventually acquired by Grenoble and...