U.S. v. Ayers, Case No. 2:06–CR–129(3).

• Decision Date: 22 December 2010
• Docket Number: Case No. 2:06–CR–129(3).
• Citation: 759 F.Supp.2d 945
• Parties: UNITED STATES of America, Plaintiff,v.Donald H. AYERS, Defendant.
• Court: U.S. District Court — Southern District of Ohio

759 F.Supp.2d 945

UNITED STATES of America, Plaintiff,

v.Donald H. AYERS, Defendant.

Case No. 2:06–CR–129(3).

United States District Court, S.D. Ohio, Eastern Division.

Dec. 22, 2010.

Douglas W. Squires, Deborah F. Sanders, United States Attorney's Office, Columbus, OH, Kathleen McGovern, Washington, DC, N. Nathan Dimock, Colleen Ann Conry, Jeffrey Neiman, Leo Wise, N. Nathan Dimock, Nicole H. Sprinzen, U.S. Dept. of Justice, Criminal Division, Washington, DC, for Plaintiff.Peter C. Anderson, William R. Terpening, Anderson Terpening PLLC, Charlotte, NC, Gerald Gordon Simmons, Columbus, OH, John Edward Haller, Shumaker Loop & Kendrick, Columbus, OH, Todd A. Foster, Cohen, Foster & Romine, P.A., Tampa, FL, for Defendant.

OPINION & ORDER

ALGENON L. MARBLEY, District Judge.

I. INTRODUCTION

This matter is before the Court for the resentencing of Donald H. Ayers. For the reasons set forth below, pursuant to the Sentencing Reform Act of 1984, 18 U.S.C. § 3553(a), and § 5G1.2(d) of the Sentencing Guidelines, it is the judgment of this Court that Mr. Ayers is sentenced to 60 months on Count 1, 60 months on Count 2, and 60 months on Count 3, with Counts 1, 2, and 3 to run consecutively, and 60 months on Counts 4, 5, 6, and 7, with Counts 4, 5, 6, and 7 to run concurrently to Counts 1 through 3, for a total of 180 months. He is ordered to pay restitution in the amount of $2,384,147,105.09 jointly and severally with his co-defendants until the amount is paid.

II. BACKGROUND

National Century Financial Enterprises (NCFE) defrauded its investors of more than $2.4 billion. On March 13, 2008, a jury convicted Donald Ayers of multiple counts for his role in the fraud: six counts of securities fraud (Counts 2–7), and one count each of conspiracy (Count 1) and conspiracy to commit money laundering (Count 17). He was sentenced to a term of 180 months: 180 months on Count 17, and 60 months on each of Counts 1 through 7, with all sentences to run concurrently. He was ordered to pay restitution jointly and severally with his co-defendants in the amount of $2.4 billion. Mr. Ayers appealed, challenging the sufficiency of the evidence supporting each of his convictions. The Sixth Circuit affirmed the fraud convictions, overturned the money laundering conviction, vacated the total sentence, and remanded for resentencing. United States v. Ayers, 386 Fed.Appx. 558 (6th Cir., 2010).

III. LAW AND ANALYSIS

A. The Sixth Circuit's Mandate

According to the law of the case doctrine, “a legal decision made at one stage of a civil or criminal case ... becomes the law of the case for future stages of the same litigation.” United States v. Bell, 988 F.2d 247, 250 (citing Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243, 250 (D.C.Cir.1987)); United States v. Duchi, 944 F.2d 391, 393 (8th Cir.1991); see also United States v. Moored, 38 F.3d 1419, 1421 (6th Cir.1994). Once a decision has been made, the doctrine “precludes a court from ‘reconsideration of identical issues.’ ” Hanover Ins. Co. v. American Engineering Co., 105 F.3d 306 (6th Cir.1997) (quoting Petition of United States Steel Corp., 479 F.2d 489, 493 (6th Cir.), cert. denied, 414 U.S. 859, 94 S.Ct. 71, 38 L.Ed.2d 110 (1973)). Important policy concerns support this doctrine, including “stability in the decisionmaking process, predictability of results, proper working relationships between trial and appellate courts, and judicial economy.” Bell, 988 F.2d at 250 (quoting United States v. Rivera–Martinez, 931 F.2d 148, 151 (1st Cir.), cert. denied, 502 U.S. 862, 112 S.Ct. 184, 116 L.Ed.2d 145 (1991)).

One specific application of this doctrine is the mandate rule, which “requires lower courts to adhere to the commands of a superior court” on remand.¹ United States v. Moored, 38 F.3d 1419, 1421 (6th Cir.1994) (citing Bell, 988 F.2d at 251 (1st Cir.1993)). According to this rule, a lower court may not consider questions that the appellate court's mandate has indisputably answered. The court may, however, rule on issues that the superior court has left open or unanswered. See Sprague v. Ticonic Nat. Bank, 307 U.S. 161, 168, 59 S.Ct. 777, 83 L.Ed. 1184 (1939) (“The general proposition that [the lower court] was bound to carry the mandate of the upper court into execution and could not consider the questions which the mandate rule laid at rest-is indisuptable.”)

Remands can take two forms: general or limited. “Limited remands explicitly outline the issues to be addressed by the district court and create a narrow framework within which the district court must operate. General remands, in contrast, give district courts authority to address all matters as long as remaining consistent with the remand.” United States v. Campbell, 168 F.3d 263, 265 (6th Cir.1999) (internal citations omitted). As applied to resentencing, remand orders are presumed to be general, and allow the district court to “review sentencing matters de novo.” United States v. Campbell, 168 F.3d 263, 265 (6th Cir.1999) (citing Moore, 131 F.3d at 598; United States v. Caterino, 29 F.3d 1390, 1394–95 (9th Cir.1994)); United States v. Cornelius, 968 F.2d 703 (8th Cir.1992); United States v. Smith, 930 F.2d 1450, 1456 (10th Cir.), cert. denied, 502 U.S. 879, 112 S.Ct. 225, 116 L.Ed.2d 182 (1991); United States v. Sanchez Solis, 882 F.2d 693, 699 (2d Cir.1989). This presumption of de novo resentencing gives the district court the discretion to consider and balance all of the elements relevant to a sentencing determination. Campbell, 168 F.3d at 266. It can only be overcome by “an explicit limitation” that outlines with particularity the procedure the district court must follow. Campbell, 168 F.3d at 268 (quoting Moore III, 131 F.3d at 598). If the case is remanded without explicit limitations, the district court can start over, resentencing the defendant after considering the facts and charges that remain. See United States v. Moored, 38 F.3d 1419, 1422 (6th Cir.1994) (“absent explicit limitations in the appellate court's mandate, an order vacating a sentence and remanding the case for resentencing directs the sentencing court to begin anew, so that fully de novo resentencing is entirely appropriate ....”) (internal quotation omitted). But if the remand is limited, the district court is precluded from considering the decided issues and must tailor the new sentence to the scope of the appellate court's ruling. See United States v. O'Dell, 320 F.3d 674, 679 (6th Cir.2003) (citing United States v. Moore, 131 F.3d 595, 598 (6th Cir.1997)).

The case law does not establish universal standards for determining whether a remand is limited or general. Campbell, 168 F.3d at 266. The particular facts of each case are necessary to make a determination, but certain guiding principles apply. For example, in United States v. Santonelli, 128 F.3d 1233 (8th Cir.), the appellate court specifically directed the district court to reconsider the amount of drugs the defendant possessed. The district court correctly treated this as a limited remand because the appellate court mandated that it take certain actions at resentencing. Id. at 1237–38. By comparison, in United States v. Cornelius, 968 F.2d 703 (8th Cir.1992), the district court interpreted a remand order as prohibiting it from considering new evidence regarding whether the defendant was an armed career criminal. The appellate court, however, had only found that a prior breaking and entering conviction was a sentencing enhancement under 18 U.S.C. § 924(e). It did not determine whether the defendant was an armed career criminal. Id. at 706. The appellate court did not place any limits on the district court's ability to consider evidence, but simply reversed and remanded for resentencing. Thus, this order was general as opposed to limited. The district court was free to resentence Mr. Ayers de novo, so long as its sentence was consistent with the enhancement. Id.

Applying these standards, the Sixth Circuit's remand order in this case is general. In explaining its decision to vacate all of the sentences, the appeals court stated:

As we explained in Faulkenberry's appeal, had the district court known that the money-laundering conviction was invalid, it might have chosen to make some of Ayers's other sentences run consecutively, rather than concurrently. We therefore remand the case to allow the district court to determine, in the first instance, what Ayers's sentence should be in light of our decision.

Ayers, 386 Fed.Appx. at 566. Mr. Ayers argues that the lack of an explicit pronouncement regarding interdependency means that the Sixth Circuit did not find that Mr. Ayers's sentences were interdependent. The Sixth Circuit, however, uses its Faulkenberry rationale in support of its remand order. Turning to Faulkenberry, it is clear that the Sixth Circuit found Mr. Ayers's sentences to be interdependent. In that case, the court found that “[w]hen considering a multiple-count criminal judgment that produced ‘interdependent’ sentences, we may ‘vacate all sentences even if only one is reversed on appeal.’ ” United States v. Faulkenberry, 614 F.3d 573, 590–91 (6th Cir.2010) (citing United States v. Clements, 86 F.3d 599, 601 (6th Cir.1996)). It went on to determine, as it did in Ayers, that had the district court been aware of the invalidity of the money-laundering convictions, it might have imposed a different sentence. Id. The same reasoning is at work in Ayers and Faulkenberry; in both, the Sixth Circuit employs its “supervisory power to vacate and remand” this Court's entire sentencing package and orders it to reconsider the appropriate sentences “in the first instance.” Ayers, 386 Fed.Appx. at 566; Faulkenberry, 614 F.3d at 591. The appellate court takes no steps to direct this Court's procedure, and thus, does not overcome the presumption in favor of de novo resentencing. See Campbell, 168 F.3d at 267 (“A limited remand must convey clearly the intent to limit the scope...