510 F.3d 1280 (10th Cir. 2007), 06-4208, United States v. Rakes

Docket Nº06-4208.
Citation510 F.3d 1280
Party NameUNITED STATES of America, Plaintiff-Appellee, v. Joe RAKES, Defendant-Appellant.
Case DateDecember 26, 2007
CourtUnited States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1280

510 F.3d 1280 (10th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,

v.

Joe RAKES, Defendant-Appellant.

No. 06-4208.

United States Court of Appeals, Tenth Circuit.

Dec. 26, 2007

Appeal from the United States District Court for the District of Utah (D.C. No. 2:05-CR-131-TS)

Page 1281

Jeremy M. Delicino, Salt Lake City, Utah, for Defendant-Appellant.

Jack B. Haycock, Assistant United States Attorney (Thomas E. Moss, United

Page 1282

States Attorney, with him on the brief), Pocatello, Idaho, for Plaintiff-Appellee.

Before LUCERO, BALDOCK, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.

Joe Rakes challenges his conviction and resulting sentence arising from an alleged conspiracy to impede the investigation and prosecution of a white supremacy group, the Soldiers of Aryan Culture. Specifically, he argues that (1) the evidence presented at trial was insufficient to establish a conspiracy between him and another participant in the alleged scheme; (2) the district court improperly rejected his plea agreement based on an undisclosed victim impact letter; and (3) the district court applied the wrong provision of the United States Sentencing Guidelines ("Guidelines") in calculating his sentence. While none of these arguments is without force, we ultimately conclude that none merits reversal under our governing standards of review.

I

A

In March 2004, an Assistant United States Attorney for the District of Utah in Salt Lake City received a threatening letter stating, "You stupid bitch! It is because of you that my brothers are in jail for the Rico. I know you live on the [street name redacted]. We will get you. til the casket drops." The letter apparently referred to an ongoing racketeering prosecution under the Racketeer Influenced and Corrupt Organization Act ("RICO") that the victim prosecutor was pursuing against members of the Soldiers of Aryan Culture. As a result of the letter, the prosecutor moved out of her home for a month, was assigned a United States Marshals detail to protect her for a time, and was eventually removed from the prosecution in question.

The Federal Bureau of Investigation's subsequent investigation of the letter led to a woman named April Dowding, a friend of two of the RICO defendants who was known to refer to them as her brothers. Ms. Dowding identified Mr. Rakes as being involved in writing or mailing the threatening letter, as did other witnesses, including Laura Scott and Doug Errett.

The government indicted Mr. Rakes in March 2005 in the District of Utah on two counts: mailing a threatening communication, 18 U.S.C. § 876, and conspiring to impede or injure an officer, 18 U.S.C. § 372. After initially pleading not guilty, Mr. Rakes agreed to enter a plea of guilty to the lesser offense misprision of a felony, 18 U.S.C. § 4, in exchange for an agreement from the government that the appropriate sentence was 9 months imprisonment, below the 18 to 24 months suggested by Section 2X4.1 of the advisory Guidelines. See Fed. R. Crim. P. 11(c)(1)(C). The court conditionally accepted the change of plea, subject to its receipt of a presentence report and subsequent sentencing hearing.

Prior to sentencing, the district court received a victim impact letter, see 18 U.S.C. § 3771(a)(4), from the victim prosecutor but did not disclose the existence of the letter either to defense counsel or counsel for the government. At sentencing, the district court opened the proceeding by expressing doubt about the parties' recommended sentence of nine months, remarking that it would like them to explain how such a sentence would be justifiable even though it represented only half what the advisory Guidelines recommended as a minimum sentence. After argument, the district court, apparently seeing no convincing reason for a below-Guidelines sentence, reversed its prior conditional approval of the plea agreement, indicated its belief that a more substantial sentence was

Page 1283

merited, and explained that it was concerned with

the very real victim impact presented by this case. This is a serious matter. The impact on a respected Assistant U.S. Attorney in her role as an Assistant U.S. Attorney is very real. Furthermore, the impact on her as an individual, on her family is very real. And the Court is concerned about the message that might be sent if this matter is not properly punished.

R. III at 10-11. With the plea agreement's recommended sentence rejected, the district court advised Mr. Rakes of his right to withdraw his guilty plea and proceed to trial, see Fed. R. Crim. P. 11(c)(5), a right Mr. Rakes decided to exercise.

B

At trial, Ms. Dowding, the government's primary witness, testified that the threatening letter was created in Mr. Rakes's apartment but otherwise offered contradictory factual scenarios concerning its genesis, stating variously that (1) Mr. Rakes threatened her into writing the letter; (2) she could have been threatened by someone else or the voices in her head; and (3) she wrote the letter willingly, with the help of Mr. Rakes or at his suggestion, because she was upset about the treatment of her "brothers" in the white supremacy group who were charged in the RICO case and were in jail.

Laura Scott was similarly equivocal in recalling her own involvement with the letter. She did testify, however, that she was a friend of Mr. Rakes and, at his direction and borrowing his car, went to the library to look up the address of the victim prosecutor. Ms. Scott brought the information back to Mr. Rakes at his apartment, where she saw Ms. Dowding was writing and had paper and envelopes.

Doug Errett testified that he was also a friend of Mr. Rakes, having known him in prison where they were both members of the Fourth Reich, a white supremacist prison gang. Mr. Errett stated that in February 2004 he was at Mr. Rakes's residence with Mr. Rakes and Ms. Dowding, where he saw the letter in question. At that time Mr. Rakes told him he and Ms. Dowding had written the letter to the prosecutor on the Soldiers of Aryan Culture case.

At the close of the government's case, Mr. Rakes moved for acquittal on both counts, see Fed. R. Crim. P. 29, which the district court granted as to Count I, mailing a threatening communication, but denied as to Count II, conspiring to impede or injure an officer. The jury thereafter found Mr. Rakes guilty of the surviving count, and the district court denied his renewed Rule 29 motion. Before sentencing, Mr. Rakes filed a motion for disclosure of any victim impact statements pursuant to Rule 32 of the Federal Rules of Criminal Procedure, which the district court granted, providing both parties the letter it had received from the victim prosecutor. Because the district court had not disclosed the letter at the plea agreement stage, Mr. Rakes moved the district court to reconsider the plea agreement and recuse itself so another judge could handle the inquiry. The district court denied the motion.

In preparing its presentence report, the probation office encountered a different sort of complication. Because Mr. Rakes's offense, conspiracy to impede or injure an officer, 18 U.S.C. § 372, does not have an assigned Sentencing Guidelines section, the probation office was required to analogize to another Guidelines section and ultimately chose to employ Section 2A6.1(a)(1), which covers certain crimes involving threatening or harassing communications and has a base offense level of 12. Mr. Rakes objected, arguing that the most

Page 1284

analogous guideline was Section 2A2.4, relating to obstructing or impeding a law enforcement officer, with a base offense level of 10. The district court overruled Mr. Rakes's objection and, employing Section 2A6.1(a)(1), sentenced Mr. Rakes to 63 months imprisonment.1

II

On appeal, Mr. Rakes first contends that the government presented insufficient evidence at trial on an essential element of his crime - namely, the existence of an agreement between him and another person to prevent the victim from discharging her duties by the use of force, violence, or intimidation. In assessing such sufficiency challenges, we review the evidence presented de novo, asking whether, viewing it in the light most favorable to the government, as the prevailing party, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In so doing, we do not weigh conflicting evidence or credibility, but ask only whether the government's evidence, credited as true, would establish the elements of the crime. United States v. Delgado-Uribe, 363 F.3d 1077, 1081 (10th Cir. 2004). While our standard of review is deferential to be sure, we will not uphold a conviction obtained by piling inference upon inference, and the evidence supporting a conviction must do more than raise a mere suspicion of guilt. United States v. Valadez-Gallegos, 162 F.3d 1256, 1262-63 (10th Cir. 1998).

Mr. Rakes argues that Ms. Dowding could not have been a willing coconspirator with him because she was threatened into writing the letter. See United States v. Williamson, 53 F.3d 1500, 1519 (10th Cir. 1995) (requiring some evidence that an alleged co-conspirator knowingly and voluntarily joined the conspiracy). This argument is, of course, addressed solely to whether a conspiracy existed between Mr. Rakes and Ms. Dowding and does not contemplate the possibility that, even without Ms. Dowding, the jury could have found a voluntary agreement between Mr. Rakes and Ms. Scott or perhaps Mr. Errett. Because in its briefing before us the government also pursues the theory that the conspiracy was primarily between Mr. Rakes and Ms. Dowding, and because we agree that sufficient evidence of such a conspiracy was presented, we accept for our current purposes Mr. Rakes's premise that the conspiracy was only between Ms. Dowding and himself.

Viewing the case in this light, we begin by...

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27 practice notes
  • United States v. Clark, 120920 FED10, 19-7046
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • December 9, 2020
    ...3 at 10 (PSR). [2] Clark argues that "[i]f an analogous guideline is 'within the ballpark,' see United States v. Rakes, 510 F.3d 1280, 1287 (10th Cir. 2007), then it should be used to correctly calculate the applicable Guidelines range." Aplt. Br. at 13. When r......
  • United States v. Clark, 111720 FED10, 19-7046
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • November 17, 2020
    ...3 at 10 (PSR). [2] Clark argues that "[i]f an analogous guideline is 'within the ballpark,' see United States v. Rakes, 510 F.3d 1280, 1287 (10th Cir. 2007), then it should be used to correctly calculate the applicable Guidelines range." Aplt. Br. at 13. When r......
  • 613 F.3d 1273 (10th Cir. 2010), 09-1031, United States v. Mullins
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • July 29, 2010
    ...jury could find that Ms. Mullins's fraud exposed a financial institution to a new or increased risk of loss. See United States v. Rakes, 510 F.3d 1280, 1284 (10th Cir.2007). And under that standard, we are constrained to affirm her The three counts Ms. Mullins challenges as time-barred invo......
  • 862 F.3d 365 (3rd Cir. 2017), 16-1200, United States v. Jackson
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Third Circuit
    • July 6, 2017
    ...to ask what analogous provisions were within the ballpark; it then had to ask which represented the best fit." Rakes, 510 F.3d at 1287. " We generally compare the elements of the defendant's crime to the elements of federal offenses already covered by specific ......
  • Request a trial to view additional results
27 cases
  • United States v. Clark, 120920 FED10, 19-7046
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • December 9, 2020
    ...3 at 10 (PSR). [2] Clark argues that "[i]f an analogous guideline is 'within the ballpark,' see United States v. Rakes, 510 F.3d 1280, 1287 (10th Cir. 2007), then it should be used to correctly calculate the applicable Guidelines range." Aplt. Br. at 13. When r......
  • United States v. Clark, 111720 FED10, 19-7046
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • November 17, 2020
    ...3 at 10 (PSR). [2] Clark argues that "[i]f an analogous guideline is 'within the ballpark,' see United States v. Rakes, 510 F.3d 1280, 1287 (10th Cir. 2007), then it should be used to correctly calculate the applicable Guidelines range." Aplt. Br. at 13. When r......
  • 613 F.3d 1273 (10th Cir. 2010), 09-1031, United States v. Mullins
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • July 29, 2010
    ...jury could find that Ms. Mullins's fraud exposed a financial institution to a new or increased risk of loss. See United States v. Rakes, 510 F.3d 1280, 1284 (10th Cir.2007). And under that standard, we are constrained to affirm her The three counts Ms. Mullins challenges as time-barred invo......
  • 862 F.3d 365 (3rd Cir. 2017), 16-1200, United States v. Jackson
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Third Circuit
    • July 6, 2017
    ...to ask what analogous provisions were within the ballpark; it then had to ask which represented the best fit." Rakes, 510 F.3d at 1287. " We generally compare the elements of the defendant's crime to the elements of federal offenses already covered by specific ......
  • Request a trial to view additional results