U.S. v. Blackwell

• Decision Date: 01 March 1995
• Docket Number: Nos. 94-1404,94-2118,s. 94-1404
• Citation: 49 F.3d 1232
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dashielle BLACKWELL and David Harvey, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1232

49 F.3d 1232

UNITED STATES of America, Plaintiff-Appellee, v. Dashielle BLACKWELL and David Harvey, Defendants-Appellants.

Nos. 94-1404, 94-2118.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 7, 1994.

Decided March 1, 1995.

Chris R. Larsen, Asst. U.S. Atty. (argued), Milwaukee, WI, for plaintiff-appellee.

James J. Mathie (argued), Mitchell, Baxter, O'Meara & Mathie, Milwaukee, WI, for defendant-appellant.

Before CUDAHY, COFFIN ^* and ROUNER, Circuit Judges.

COFFIN, Circuit Judge.

Appellants Dashielle Blackwell and David Harvey were charged with conspiring to defraud banks and merchants by "kiting" checks they knew to be stolen, forged or otherwise not backed by sufficient funds. Both men pled guilty to one count of conspiracy to commit bank fraud and to possess stolen mail. Each now claims that the district court erred in sentencing. We affirm the term imposed on Blackwell, but conclude that Harvey must be resentenced.

I. Background

As described in their Presentence Investigation Reports ("PSI" or "presentence report"), ¹ the defendants and a number of cohorts employed a variety of techniques to defraud banks and merchants by using phony or stolen checks. In one typical scenario, the defendants would open accounts in false names, deposit stolen, forged or bad checks into the accounts, and withdraw cash from an automated teller machine before the banks realized the deposits were faulty. The defendants also wrote checks backed by insufficient funds to local merchants. The government developed documentary evidence of approximately $180,000 in losses resulting from the defendants' unlawful activities, which took place in several different states.

The appellants were sentenced separately. The court imposed a 21-month prison term on Blackwell and ordered him to pay restitution in the amount of $179,721.60. Harvey was sentenced to a 40-month term and assessed the same amount of restitution. Each defendant raises different claims of sentencing error. We address them seriatim.

II. Blackwell's Appeal

Blackwell asserts that the district court erred (1) in allowing a document containing hearsay into evidence at the sentencing hearing, and (2) in calculating the amount of loss properly attributable to him.

Both claims may be dispatched easily. First, the challenged document was introduced in conjunction with the testimony of Postal Inspector Mike Cashmer. Entitled "Request for Laboratory Examination," it contained handwritten circles around certain numbers on an itemized list. Cashmer stated that the items with circles, mostly checks or deposit slips, had been identified by the crime lab as containing Blackwell's fingerprints.

Blackwell's counsel objected to the document's admission, claiming that the government had presented no evidence that the document was reliable and, indeed, had not even identified the person who made the circles. The court nonetheless accepted the document into evidence, and implicitly relied upon it in determining that Blackwell's participation in the conspiracy was extensive.

We find no abuse of discretion in the court's action. As Blackwell recognizes, "there is little limit on the type of information the district court can consider in sentencing," United States v. Marshall, 719 F.2d 887, 891 (7th Cir.1983). So long as a defendant has an opportunity to rebut evidence that he believes is erroneous, a district court generally is not precluded from relying on hearsay in sentencing. Id.; see also United States v. Helton, 975 F.2d 430, 434 (7th Cir.1992); United States v. Cusenza, 749 F.2d 473, 478 (7th Cir.1984).

Defense counsel had the opportunity at the hearing to cross-examine Cashmer and thus to challenge the accuracy of the inspector's representation that the circles identified items containing Blackwell's fingerprints. Counsel made no effort to do this. We consequently cannot fault the district court's consideration of the document.

Blackwell's second contention is equally insubstantial. His presentence report contained attachments listing all fraudulent or "non-sufficient funds" checks identified by the government during the investigation. Blackwell did not object below to the total loss figure that was calculated based on these attachments, and he therefore may not now challenge the calculation. See United States v. Strauser, 21 F.3d 194, 197 (7th Cir.1994).

His effort to distance himself from some of the transactions, while preserved, fares no better. Guideline Sec. 1B1.3(a)(1)(B) directs the sentencing court to consider, in the case of a jointly undertaken criminal activity, "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity." United States v. Colello, 16 F.3d 193, 197 (7th Cir.1994). The district court's factual finding that the total fraud amount was "reasonably foreseeable" must be upheld absent clear error. United States v. Rosa, 946 F.2d 505, 508 (7th Cir.1991).

We find no such error. Through the "Request for Laboratory Examination," the government linked Blackwell to approximately $64,000 in losses--nearly one-third of the total amount attributed to the conspiracy. In addition, the court heard testimony from both the government and Blackwell about his efforts to assist others during the conspiracy, and his joint access to a box containing checks used by the conspirators. In these circumstances, the court properly concluded that Blackwell was aware of the broad scope of the check-kiting scheme, and reasonably should have anticipated losses resulting from the activities of other participants. He need not have had specific knowledge of each of the other transactions to be held responsible for them. See United States v. Flores, 5 F.3d 1070, 1083 (7th Cir.1993).

III. Harvey's Appeal

Harvey also asserts two sentencing errors: (1) that the court improperly considered testimony from codefendants' sentencing hearings in finding that he played a leadership role in the conspiracy, and (2) that the court abused its discretion in refusing to give him credit for 14 months of incarceration previously served for conduct related to the present offense.

Both of these issues warrant somewhat extended consideration.

A. Reliance on testimony from co-defendants' sentencing

Harvey's presentence report recommended a three-level increase in his base offense level, under Guideline Sec. 3B1.1(b), to reflect a supervisory role in the conspiracy. Although the government initially supported this recommendation, by the time of Harvey's sentencing hearing the prosecutor had concluded that such an increase would be inappropriate and declined to call witnesses on that issue. The prosecutor explained at the hearing that the change in position stemmed primarily from the result of Blackwell's sentencing, where the court found, based on similar facts, that there was insufficient evidence to support a role increase.

The court, however, evidently believed that the testimony presented at the other defendants' hearings, all of which took place before Harvey's, identified Harvey as the primary force behind the conspiracy. Thus, despite lengthy discussion in which both the prosecutor and defense attorney characterized the conspirators as a loosely knit group who sometimes helped each other and discussed their activities, without a real leader, the court imposed a two-level increase based on its belief that Harvey played a relatively more pivotal role in the conspiracy.

No evidence was presented at the hearing, which consisted almost entirely of colloquy between the court and the two lawyers. The probation officer, in response to a question from the court, did briefly relate conversations she had had with two codefendants concerning Harvey's role. See n. 6 infra. Harvey also made a statement after the court announced its finding on the role issue, but before formal imposition of sentence.

On appeal, Harvey argues that the district court's reliance on testimony from hearings that neither he nor his lawyer attended denied him a fair sentencing by depriving him of a meaningful opportunity to challenge the evidence against him. He therefore asserts that the case must be remanded for a new hearing and resentencing.

It is well established that a convicted defendant has the right to be sentenced on the basis of accurate and reliable information, and that implicit in this right is the opportunity to rebut the government's evidence and the information in the presentence report. See United States v. Agyemang, 876 F.2d 1264, 1270 (7th Cir.1989). The Supreme Court has emphasized that Fed.R.Crim.P. 32 "contemplates full adversary testing of the issues relevant to a Guidelines sentence and mandates that the parties be given 'an opportunity to comment upon the probation officer's determination and on other matters relating to the appropriate sentence.' " Burns v. United States, 501 U.S. 129, 135, 111 S.Ct. 2182, 2186, 115 L.Ed.2d 123 (1991) (quoting Fed.R.Crim.P. 32(a)(1)). ²

As discussed earlier, however, see supra at 1234, a trial judge has wide discretion in the matters it may consider when imposing sentence, and more than one circuit has condoned reliance on evidence from related trial proceedings of codefendants. See United States v. Berzon, 941 F.2d 8, 19 (1st Cir.1991); United States v. Pimentel, 932 F.2d 1029, 1032 (2d Cir.1991); United States v. Notrangelo, 909 F.2d 363, 365 (9th Cir.1990); United States v. Castellanos, 904 F.2d 1490, 1495-96 (11th Cir.1990). As with any other sentencing information, the court simply is obligated to give the defendant an opportunity to rebut such evidence.

In seeking a remand, Harvey relies heavily on the First Circuit's decision in Berzon, whose facts closely resemble the facts of this case. At issue there was the testimony of a Drug Enforcement Administration Special Agent, who commented on defendant Berzon's role in a narcotics ring in the course of testifying at a...