U.S. v. Lang

• Decision Date: 21 April 2004
• Docket Number: No. 02-4091.,No. 02-4103.,No. 02-4128.,No. 02-4075.,02-4075.,02-4091.,02-4103.,02-4128.
• Citation: 364 F.3d 1210
• Parties: UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Shari Lewis LANG, also known as Shari Lewis, also known as Shari King; Johnny Lang, also known as Melvin Pitchford, Defendants-Appellants/Cross-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

364 F.3d 1210

UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Shari Lewis LANG, also known as Shari Lewis, also known as Shari King; Johnny Lang, also known as Melvin Pitchford, Defendants-Appellants/Cross-Appellees.

No. 02-4075.

No. 02-4091.

No. 02-4103.

No. 02-4128.

United States Court of Appeals, Tenth Circuit.

April 21, 2004.

COPYRIGHT MATERIAL OMITTED

Jill M. Wichlens, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the briefs), Office of the Federal Public Defender for the District of Colorado, Denver, CO, for Defendant-Appellant/Cross-Appellee Shari Lewis Lang.

Stephen R. McCaughey, Salt Lake City, UT, for Defendant-Appellant/Cross-Appellee Johnny Lang.

Diana Hagen, Assistant United States Attorney (Paul M. Warner, United States Attorney, with her on the briefs), Office of the United States Attorney for the District of Utah, Salt Lake City, UT, for Plaintiff-Appellee/Cross-Appellant United States.

Before TACHA, Chief Circuit Judge, BRORBY, Senior Circuit Judge, and MURPHY, Circuit Judge.

TACHA, Chief Circuit Judge.

A jury convicted Defendant-Appellant Johnny Lang and Defendant-Appellant Shari Lewis Lang of the following: (1) obstructing justice under 18 U.S.C. § 1504, (2) acting as accessories after the fact to the distribution of heroin in violation of 18 U.S.C. § 3, and (3) conspiring to do both in violation of 18 U.S.C. § 371. The jury also convicted Mr. Lang of making a false statement to the FBI in violation of 18 U.S.C. § 1001 and found Mrs. Lang guilty of unlawfully removing a document from a federal clerk's office in violation of 18 U.S.C. § 2071(a).

After departing downward to offense levels of 21, the district court sentenced each of the Langs to a forty-six-month prison term. Both filed timely notices of appeal, and the government filed timely cross-appeals challenging the downward departures. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, REVERSE the downward departures, and AFFIRM the remainder of the district court's decision.

I. Background

While working for the clerk of a federal district court in Utah, Mrs. Lang copied and took home a sealed affidavit. Once home, she read the document, which authorized police to use a tracking device in a narcotics investigation, and discussed its contents with Mr. Lang, her husband.

Following this conversation, Mr. Lang traveled to a payphone at a nearby grocery store. Although neither of the Langs knew the subjects of the drug investigation, Mr. Lang called one of the suspects, German Perez. Because he knew that officers had tapped Mr. Perez's phone, Mr. Lang requested that Mr. Perez call him back from another phone. Because he spoke little English and did not fully understand Mr. Lang, Mr. Perez had an associate return the call on the same phone thus permitting FBI agents to record both calls.

During the second call, Mr. Lang informed the associate that federal agents had bugged the cell phone and were preparing to place a tracking device on one of their cars. Mr. Lang stated that he had obtained this information from a friend in the federal courthouse and that he had seen documents proving these facts. Mr. Lang then returned to his home, his absence allegedly unnoticed by his wife.

The next day, an individual visited the home of Galen Ure, a man listed in the stolen affidavit as buying heroin from Mr. Perez. The individual gave Mr. Ure the affidavit, stating that he received it "from somebody that thought he might know the people involved." Although Mr. Ure's heroin use impaired his memory, his description of the individual closely matched Mr. Lang.

That afternoon, federal agents interviewed Mrs. Lang. After first denying that she stole the documents, Mrs. Lang admitted that she had taken a copy of the affidavit home and discussed it with her husband. On hearing her husband's voice on an FBI recording of his conversations with Mr. Perez, Mrs. Lang exclaimed "that's my husband." When then asked about her activities after discussing the affidavit with her husband, Mrs. Lang stated that she went to bed between 6:30 and 7:00 p.m. When the officers informed her that Mr. Lang called Mr. Perez between 6:15 and 6:30 p.m., she claimed instead to have gone to bed closer to 6:00 p.m.

At trial, a jury convicted Mrs. Lang on all charges. At sentencing, the district court set Mrs. Lang's offense level at 30, resulting in a guideline range of 97 to 121 months. The district court, however, departed downward to an offense level of 21 based on (1) Mrs. Lang's brief involvement as an accessory, which the district court believed removed her from the heartland of accessory-after-the-fact cases, and (2) a belief that Mrs. Lang's theft was aberrant behavior given her education and employment history. The district court, ultimately, sentenced Mrs. Lang to a forty-six-month prison term, the maximum sentence for her offense level.

A jury also convicted Mr. Lang on all charges. At sentencing, the district court set Mr. Lang's offense level at 28, resulting in a guideline range of 78 to 97 months. After departing downward to an offense level of 21 based on Mr. Lang's allegedly brief involvement as an accessory, the district court sentenced him to a forty-six-month prison term, the maximum for his offense level. This appeal, and the government's cross-appeal, followed.

II. Discussion

We face several issues on appeal. First, the government on cross-appeal argues that the district court erred in departing downward based on (1) the Langs' limited participation in the conspiracy and (2) Mrs. Lang's allegedly aberrant behavior in committing the crimes in question. Next, the Langs both contend that the district judge erred in failing to recuse herself sua sponte pursuant to 28 U.S.C. § 455(a). In addition, Mrs. Lang urges that (1) the district court erroneously determined her base offense level under the United States Sentencing Guidelines ("the Guidelines"), and (2) it wrongfully convicted her under 18 U.S.C. § 2071. Finally, Mr. Lang (1) asserts that the district court mistakenly admitted evidence and (2) challenges the sufficiency of the evidence on his conspiracy charge. We address each issue in turn.

A. United States' Cross-Appeal: Downward Departures

1. Standard of Review

For most convictions, a sentencing court may depart from the sentence range set by the Guidelines only if it "finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." 18 U.S.C. § 3553(b)(1). We review both upward and downward departures under the four-part standard set forth in United States v. Jones, 332 F.3d 1294, 1299-1300 (10th Cir.), cert. denied, 540 U.S. 977, 124 S.Ct. 457, 157 L.Ed.2d 330 (2003).

Under Jones, we must first "ascertain whether the district court set forth, in a written order of judgment, its specific reasons for departure." Id. at 1299. Second, we must ensure that those reasons "advance the objectives set forth in section 3553(a)(2)," and do not violate "any specific prohibition in the Guidelines." Id. (citations omitted). We review this second prong de novo. Id. "Third, we must consider whether the factors the district court relied upon were authorized under section 3553(b) and justified by the facts of the case." Id. at 1299-1300 (internal quotations omitted). A factor is only "authorized" if it is "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." Id. at 1300 (citations omitted). We review this "application of the Guidelines to the facts" de novo, and review the district court's findings of fact for clear error. Id. at 1300 & n. 9. Finally, we must determine whether the sentence "departs to an unreasonable degree from the applicable guidelines range." Id. "In reviewing the degree of departure, we give due deference to the district court" and uphold its sentence absent an abuse of discretion. Id. (citations omitted).

Mrs. Lang argues that the standard of review set forth in Jones does not apply to her case because Jones only addressed upward departures.¹ We disagree. Title 18, section 3742(e) of the United States Code, the statutory subsection that mandates de novo review, does not distinguish between upward and downward departures, stating only that "[w]ith respect to determinations under subsection (3)(A) or (3)(B), the court of appeals shall review de novo the district court's application of the guidelines to the facts." 18 U.S.C. § 3742(e)(4). Further, subsections (3)(A) and (3)(B) apply to all sentences "outside the applicable guideline range." 18 U.S.C. § 3742(e)(3). This plain reading of the statutory language finds support in the decisions of other circuits. See United States v. Stockton, 349 F.3d 755, 764 (4th Cir.2003) (holding that 18 U.S.C. § 3742(e) applies to downward departures); United States v. Mallon, 345 F.3d 943, 945-47 (7th Cir.2003) (same). Therefore, based on the statute's plain text, we reject Mrs. Lang's argument and make explicit that 18 U.S.C. § 3742(e) mandates de novo review for both upward and downward departures.

2. Limited Participation Departure

The United States argues that we should reverse the Langs' downward departures because the district court departed based on unauthorized considerations. As noted above

[t]o determine whether the factors [employed by the district court] are authorized, we look to 18 U.S.C. § 3553(b)(1), which provides that a district court may depart if there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." Jones, 332 F.3d at 1300 (quotations omitted).

For factors already considered by the Guidelines, "departure from the applicable...