U.S. v. Geddings

• Decision Date: 02 July 2007
• Docket Number: No. 5:06-CR-136-D.,5:06-CR-136-D.
• Citation: 497 F.Supp.2d 729
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: UNITED STATES of America v. Kevin L. GEDDINGS, Defendant.

497 F.Supp.2d 729

UNITED STATES of America v. Kevin L. GEDDINGS, Defendant.

No. 5:06-CR-136-D.

United States District Court, E.D. North Carolina, Western Division.

July 2, 2007.

COPYRIGHT MATERIAL OMITTED

Dennis M. Duffy, U.S. Dept. of Justice, Raleigh, NC, for United States of America.

ORDER

JAMES C. DEVER III, District Judge.

On September 20, 2006, Kevin L. Geddings (a former North Carolina Lottery Commissioner) went to trial accused of five counts of honest services mail fraud (counts 1-5) and three counts of honest services wire fraud (counts 6, 7, and 9). After a lengthy trial, on October 12, 2006, a jury convicted Kevin L. Geddings ("Geddings" or "defendant") of five counts of honest services mail fraud and aiding and abetting in violation of 18 U.S.C. §§ 1341, 1346, & 2. On May 7, 2007, the court sentenced defendant to 48 months imprisonment. See United States v. Geddings, No. 5:06-CR-136-D, Sentencing Order (E.D.N.C. May 7, 2007). Without objection from the government, the court granted defendant's motion to self-report to the Federal Correctional Institute ("FCI") designated by the Bureau of Prisons. The Bureau of Prisons ordered defendant to report to FCI Jessup on July 2, 2007.

On May 18, 2007, defendant filed a notice of appeal. On June 8, 2007, defendant filed a motion for release pending appeal pursuant to 18 U.S.C. §§ 3143(b) & 3145(c). On June 21, 2007, the government responded in opposition. On June 26, 2007, defendant filed a reply brief.¹ As explained below, defendant's motion for release pending appeal is denied.

I.

Section 3143(b) of Title 18, United States Code, governs when a defendant has been convicted and sentenced to a term of imprisonment, is appealing the conviction, and seeks to remain free during the appeal. See 18 U.S.C. § 3143(b).² Section 3143(b) imposes a presumption of detention. See, e.g., United States v. Vance, 851 F.2d 166, 169-70 (6th Cir.1988); United States v. Perholtz, 836 F.2d 554, 556 (D.C.Cir.1988) (per curiam); United States v. Shoffner, 791 F.2d 586, 589 (7th Cir.1986) (per curiam); United States v. Colon Berrios, 791 F.2d 211 (1st Cir.1986). A defendant may overcome the presumption by proving: (1) that he is unlikely to flee or pose a danger to any other person or the community, (2) that the appeal is not for the purpose of delay, (3) that the appeal raises a substantial question of law or fact, and (4) that if the question is resolved in the defendant's favor, a new trial or reversal of the conviction is likely. 18 U.S.C. § 3143(b). A "substantial question" is "a `close' question or one that very well could be decided the other way." United States v. Steinhorn, 927 F.2d 195 196 (4th Cir.1991) (per curiam). If a defendant plans to appeal his sentence, a defendant may overcome the presumption of detention "if the substantial question of law or fact is likely to result in a sentence that does not include a term of imprisonment, or a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process." JOHN L. WEINBERG, FEDERAL BAIL AND DETENTION HANDBOOK § 1304 (March 2007); 18 U.S.C. § 3143(b)(1)(B)(iii) & (iv).

The government does not contend that Geddings is a danger to the community, likely to flee, or that the appeal is for the purpose of delay. Gov't Resp. in Opp'n to Def.'s Mot. for Release Pending Appeal 4 (hereinafter "Gov't Resp. ____"). The court agrees. Accordingly, the court analyzes whether Geddings raises a substantial question of law or fact likely to result in a reversal of his conviction or a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process. See Steinhorn, 927 F.2d at 196; 18 U.S.C. § 3143(b).

Defendant argues that "[n]o fewer than five [substantial questions] exist in the instant case." Def.'s Mem. of Law in Supp. of Mot. for Release Pending Appeal 2 (hereinafter "Def.'s Mem. ____"). First, defendant argues, "a substantial question exists as to whether this case constitutes an expansion of honest services fraud inconsistent with prior decisions in the Fourth Circuit and the current state of the law." Id. at 12. Second, defendant argues, "a substantial question exists as to whether the rebuttal testimony of Tull Gearreald violated the collateral evidence rule and Rule 404(b), and whether the error was compounded by the preclusion of surrebuttal." Id. at 21. Third, defendant argues, "a substantial question exists as to whether defendant's conviction was tainted by spillover prejudice." Id. at 27. Fourth, defendant argues, "a substantial question exists as to whether the upward variance sentence was unreasonable under the evolving post-Booker federal sentencing law." Id. at 29. Fifth, defendant argues, "a substantial question exists as to whether it was reasonable to use U.S.S.G. § 2C1.1 as the baseline [offense level] for sentencing." Id. at 35. The court addresses each argument in turn.

II.

Defendant argues that the evidence presented at trial is not sufficient to permit a jury to convict him of honest services mail fraud. Id. at 13-21. In making this argument, defendant contends that the honest services mail fraud statute is unconstitutionally vague as applied to him. Id. Defendant essentially makes many of the same arguments that he made in his pre-trial motion to dismiss the indictment and in his post-trial Rule 29 motion for judgment of acquittal. Before trial, the court entered an order denying defendant's motion to dismiss the indictment and will not restate the analysis in this order. See Geddings, No. 5:06-CR-136-D, Order (E.D.N.C. Sept. 6, 2006). After trial, the court entered an order denying defendant's motion for judgment of acquittal. See id., Order (E.D.N.C. Nov. 28, 2006).

In order to assess defendant's argument, the court's analysis of November 28, 2006, bears repeating, in part:

On September 20, 2006, Kevin Geddings (a former North Carolina Lottery Commissioner) went to trial accused of five counts of honest services mail fraud (counts 1-5) and three counts of honest services wire fraud (counts 6, 7, and 9). On October 3, 2006, at the close of the government's case, the court denied the defendant's motion for judgment of acquittal. The defendant then presented evidence, including his own lengthy direct and cross-examination.

On October 10, 2006, after the close of all the evidence, the court granted the defendant's Rule 29 motion as to counts 6 and 7. The honest services wire fraud charges in counts 6 and 7 were predicated on conduct that took place before Geddings became a North Carolina Lottery Commissioner and before (on the evidence presented) he owed a duty of honest services. The court denied defendant's Rule 29 motion as to counts 1-5 and count 9. Counts 1-5 and count 9 were predicated on conduct that took place after Geddings was appointed a North Carolina Lottery Commissioner.

On October 11, 2006, the jury heard closing arguments and received the court's instructions. On October 12, 2006, the jury unanimously found Geddings guilty of counts 1-5. The jury unanimously acquitted Geddings of count 9.

A Rule 29 motion should be denied if "there is substantial evidence, taking the view most favorable to the government, to support [the convictions]." United States v. Moye, 454 F.3d 390, 394 (4th Cir.2006) (en banc). "Substantial evidence is evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." Id. (quotation omitted). A court may not grant a Rule 29 motion unless "the prosecution's failure is clear." Id. (quotation omitted). "In evaluating the sufficiency of the evidence to support a criminal conviction, [the court must] view the evidence in the light most favor able to the government, drawing all reasonable inferences in its favor." Id. A court also must "assume that the jury resolved all contradictions in testimony in favor of the government. [W]here the evidence supports differing reasonable interpretations, the jury will decide which interpretation to accept." Id. (citation omitted); see generally Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Lentz, 383 F.3d 191, 199 (4th Cir.2004); United States v. Wilson, 115 F.3d 1185, 1189-90 (4th Cir. 1997); United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir.1982).

The defendant's motion does not contain or attach a memorandum of law. Rather, the motion incorporated the "Motion for Judgment of Acquittal" filed in open court on October 3, 2006.... [Geddings] argue[s] that the statutory concept of honest services mail fraud and wire fraud under 18 U.S.C. §§ 1341, 1343, and 1346 is "void for vagueness."

"[T]he concept of honest services mail fraud or honest services wire fraud is not `void for vagueness.'" See United States v. Geddings, No. 5:06-CR-136-D, Order at 4-6 (E.D.N.C. Sept. 6, 2006). "The legal meaning of a deprivation of the intangible right to honest services has been extensively developed by the courts[.]" United States v. Bryan, 58 F.3d 933, 942 (4th Cir.1995) (quotation omitted), abrogated in part on other grounds by United States v. O'Hagan, 521 U.S. 642, 650, 117 S.Ct. 2199, 138 L.Ed.2d 724 (1997); see, e.g., United States v. Woodward, 149 F.3d 46, 62-63 (1st Cir.1998).

The court has examined the evidence presented at trial "in the light of the facts of the case at hand." Bryan, 58 F.3d at 942. There was more than ample evidence from which a rational jury could unanimously find beyond a reasonable doubt that Geddings committed the five counts of honest services mail fraud for which he was convicted. See Gov't Resp. to Mot. for J. of Acquittal at 7-8. Geddings' entities received approximately $160,000 from lottery vendor Scientific Games between 2000 and 2005, including $24,500 in 2005. See, e.g., Gov't Exs. 200-203. The jury was...