U.S. v. Dohan

• Decision Date: 28 November 2007
• Docket Number: No. 06-14320.,06-14320.
• Citation: 508 F.3d 989
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Scott DOHAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

508 F.3d 989

UNITED STATES of America, Plaintiff-Appellee, v. William Scott DOHAN, Defendant-Appellant.

No. 06-14320.

United States Court of Appeals, Eleventh Circuit.

November 28, 2007.

G. Richard Strafer, G. Richard Strafer, P.A., Miami, FL, for Dohan.

Lennard B. Register, III, Pensacola, FL, E. Bryan Wilson, U.S. Atty., Tallahassee, FL, for U.S.

Appeal from the United States District Court for the Northern District of Florida.

Before ANDERSON and PRYOR, Circuit Judges, and ALBRITTON,^* District Judge.

PER CURIAM:

William Scott Dohan appeals his conviction and sentence of 156 months of imprisonment for conspiracy to commit wire fraud and security fraud, and for conspiracy to engage in or attempt to engage in money laundering, all involving a multi-defendant "Ponzi scheme." 18 U.S.C. § 371; 18 U.S.C. § 1956(h). Dohan argues that (1) the prosecutor elicited and exploited false testimony from co-conspirator B. David Gilliland, regarding his plea agreement obligations; (2) the prosecutor impermissibly used religious and other "vouching" to bolster Gilliland's credibility; (3) the district court abused its discretion by barring evidence of Gilliland's net profits from the conspiracy; (4) the district court abused its discretion by rejecting a series of requested jury instructions concerning judicial neutrality, religious beliefs, witness perjury, and a "good faith" theory of defense; and (5) the cumulative impact of these same errors requires reversal. Finally, Dohan argues that his conviction for conspiracy to launder money must be reversed due to the omission in the court's instructions to the jury of "willfulness" as an essential element of that crime. After careful consideration, we affirm Dohan's convictions and sentence.

First, Dohan argues that the government improperly solicited, failed to correct, and exploited false testimony from Gilliland to the effect that, having completed his term of imprisonment, he was testifying of his own volition. Dohan contends that this suggested that he was no longer obligated under his plea agreement to appear and testify, even though the government knew that he was still on supervised release. Solicitation of or failure to correct false testimony requires a new trial only if such testimony "could . . . in any reasonable likelihood have affected the judgment of the jury." Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). As Dohan did not object to the testimony at trial, we additionally review for plain error. Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); United States v. Nixon, 918 F.2d 895, 905 (11th Cir.1990).

Gilliland's testimony was not patently false. Regardless of any technical obligations under the plea agreement, the prosecution's questions went to the more relevant credibility issue of Gilliland's beliefs regarding his obligations under the plea agreement, and thus his motivation to appear and testify truthfully. The agreement was made available to defense counsel long before trial, and he vigorously cross-examined Gilliland with respect to other portions of the plea agreement, but did not cross-examine him with respect to his belief regarding any consequences if he failed to testify. This court concludes that there was no error, and certainly none so plain and obvious that it affected Dohan's "substantial rights" or the "fairness, integrity, or public reputation of judicial proceedings." See Johnson, 520 U.S. at 469-70, 117 S.Ct. 1544.

Second, Dohan argues that the government improperly "vouched" for the credibility of Gilliland's testimony by suggesting it had been "checked" by the prosecutor, and also by the judge in earlier reducing Gilliland's sentence for giving substantial assistance, and violated FED. R.EVID. 610 by soliciting comments from Gilliland about being a "moral, Christian man."

Whether the government has improperly vouched for a witness's credibility is a mixed question of law and fact subject to plenary review. United States v. Eyster, 948 F.2d 1196, 1206 (11th Cir.1991). Viewing the comments referred to involving checking on the witness's story and the earlier sentencing of the witness in the context of the witness's overall testimony, we conclude that they neither were improper nor prejudicially affected the substantial rights of the defendant. Id. We find no error.

Dohan's contention that comments by Gilliland that he was a "moral, Christian man" violated FED.R.EVID. 610 fails. The government did not elicit the testimony on direct examination. The unsolicited comment came from the witness upon the prosecution's redirect examination, responding to defense counsel's having questioned him on why the jury should believe him at trial when he had previously committed perjury and other bad acts. Further questions by the prosecution were not for the purpose of showing that the witness's credibility was enhanced by his religious beliefs. At no time did defense counsel object, but instead attempted upon recross to ask his own impermissibly religious question. Furthermore, the government agreed not to mention the unsolicited religious reference in its closing argument, where it even invited the jury to disregard Gilliland's entire testimony if it wished, and convict on other evidence. The court concludes that there was no plain error.

Third, Dohan argues that the district court erred by excluding a chart and testimony from a witness showing Gilliland's net profits from the Ponzi scheme as compared to his own. A district court's evidentiary rulings are reviewed for abuse of discretion. United States v. Baker, 432 F.3d 1189, 1202 (11th Cir.2005), cert. denied, 547 U.S. 1085, 126 S.Ct. 1809, 164 L.Ed.2d 544 (2006). District courts are well within their discretion to exclude even relevant evidence for undue delay, waste of time, or needless presentation of cumulative evidence. FED.R.EVID. 403. Defense counsel was free to compare the relative profits in his closing argument based on other admitted evidence, without the benefit of the excluded chart and testimony. The government indicated that inclusion of the chart and testimony would require it to conduct extensive cross-examination. The district court did not abuse its discretion by excluding it.

Fourth, Dohan argues that the court erred in rejecting a series of four requested jury instructions. Reviewed for abuse of discretion, failure to give a requested instruction is reversible only where the instruction "(1) was correct, (2) was not substantially covered by a charge actually given, and (3) dealt with some point in the trial so important that failure to give the requested instruction seriously impaired the defendant's ability to conduct his defense." United States v. Eckhardt, 466 F.3d 938, 947-48 (11th Cir.2006) (internal citations omitted). Reviewing the jury instructions actually given, as a whole, this court will reverse the district court only if we are left with a substantial, ineradicable doubt as to whether the jury was properly guided in its deliberations in this regard. Id. at 948. Here, we have no such doubt.

Dohan's requested instruction regarding judicial...