U.S. v. Lashay

• Decision Date: 03 August 2005
• Docket Number: No. 04-3378.,04-3378.
• Citation: 417 F.3d 715
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John LASHAY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

417 F.3d 715

UNITED STATES of America, Plaintiff-Appellee, v. John LASHAY, Defendant-Appellant.

No. 04-3378.

United States Court of Appeals, Seventh Circuit.

Argued July 6, 2005.

Decided August 3, 2005.

Tracy M. Johnson (argued), Michelle L. Jacobs, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Michael Holzman (argued), Rosen & Holzman, Waukesha, WI, for Defendant-Appellant.

Before COFFEY, RIPPLE, and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

A jury found John LaShay guilty of conspiracy to defraud the United States, 18 U.S.C. § 371, and tampering with a witness, id. § 1512(b)(1). At sentencing, the district court treated the sentencing guidelines as advisory and imposed concurrent terms of 24 months on the conspiracy count and 6 months on the witness-tampering count. LaShay now argues that there was insufficient evidence to support the witness-tampering conviction, and that the district court should have submitted sentencing issues to a jury.¹ We affirm the convictions but vacate the sentences and remand for resentencing.

Beginning in June 2002, LaShay was involved in a scheme to help Pakistani nationals obtain permanent resident status in the United States by finding United States citizens for them to marry. LaShay's employer at a local gas station Faryad Hussain, asked him if he knew anyone who would marry an acquaintance who needed a green card, and LaShay suggested that his daughter might do so. LaShay's daughter eventually married one of Hussain's acquaintances and sponsored his application for permanent residency. LaShay afterward approached several other women about marrying Pakistani nationals, including his daughter's mother and a former co-worker. According to Hussain, LaShay was promised $400 or $500 for his role in the conspiracy, but the payments were never made.

During the investigation of this scheme, a government agent discovered that LaShay had cashed a $2000 check written out to him by Hussain. This amount matched the sum LaShay's daughter had told authorities she was offered for her marriage. Because of this, and because $2000 was a much larger amount than Hussain typically gave employees for business purposes, the agent considered this check significant and followed up on it in a July 2003 interview with James Clark, LaShay's friend and fellow gas station employee. As Clark recounted that interview at trial, he told the agent that the station did keep cash on hand to cash paychecks for customers, but that $2000 was more than the customary amount. Hussain, however, testified at trial as a government witness that he indeed gave LaShay the check to use for petty cash at the gas station, and that it was not a payment for participation in marriage fraud.

According to Clark's trial testimony, LaShay mentioned the $2000 check to him several times in the three days immediately preceding his interview with the government agent. LaShay told Clark that Hussain had given him the check to provide funds for cashing checks for customers, but that he was "worried" about the check because immigration authorities had a copy of it. He asked if Clark remembered Hussain giving him the check, but, according to his testimony, Clark responded that there was no way he could have been present for the event because he and LaShay worked different shifts. Nonetheless, LaShay raised the subject daily for three days, stating that he wanted to make sure Clark remembered that the check had been for petty cash. Clark responded that he wasn't going to lie for anyone. On cross-examination, though, Clark conceded that he did not feel LaShay had been trying to threaten or intimidate him. When asked on redirect if he felt LaShay had been asking him to lie, he responded yes, although on re-cross he also contradicted that statement by agreeing that defense counsel was "correct" in saying that LaShay hadn't really been asking him to lie.

After the guilty verdicts, the district court proceeded to sentencing. It stated that, in light of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 375 F.3d 508 (7th Cir.2004), it did not believe the sentencing guidelines bound its sentencing determination. Rather, the district court decided to proceed with "[t]he Guidelines used as just that, a guide." Although LaShay had filed objections to the presentence report based on upward adjustments made to his offense level for committing the offense while on pretrial release and having a leadership role in the conspiracy, the district court did not resolve them. Instead, taking into account matters of punishment, deterrence, retribution, rehabilitation, and the safety of the public, the district court accepted the government's recommendation of 24 months' imprisonment.

The witness-tampering count alleges that LaShay "did knowingly attempt to corruptly persuade James Clark with the intent to influence his testimony" at LaShay's trial, in violation of 18 U.S.C. § 1512(b)(1). LaShay argues that there was insufficient evidence to support the jury's guilty verdict on this charge. He argues that there was no evidence that he threatened, intimidated, or harassed Clark, or in any way encouraged him to lie.

In reviewing for the sufficiency of the evidence, we consider the evidence in the light most favorable to the government and ask whether any rational jury could have found the elements of the offense beyond a reasonable doubt. United States v. Henningsen, 387 F.3d 585, 589 (7th Cir.2004). We neither reweigh the evidence nor substitute our judgment of the facts for that of the factfinder. United States v. Masten, 170 F.3d 790, 794 (7th Cir.1999).

In relevant part, § 1512(b)(1) subjects to imprisonment anyone who "knowingly uses intimidation, threatens, or corruptly persuades another, or attempts to do so," with the intent to "influence, delay, or prevent the testimony of any person in an official proceeding." To have convicted LaShay of this offense as alleged in the indictment, the government was required to prove that: 1) Clark was a witness or prospective witness; 2) LaShay attempted to persuade Clark to provide false testimony; and 3) LaShay acted knowingly and with the intent to influence Clark's testimony. United States v. Arocho, 305 F.3d 627, 639 (7th Cir.2002), superseded by statute on other grounds as stated in United States v. Rodriguez-Cardenas, 362 F.3d 958 (7th Cir.2004); United States v. Johnson, 903 F.2d 1084, 1087 (7th Cir.1990).

The jury's verdict is supported by sufficient evidence. LaShay focuses on the fact that he never threatened Clark, but a defendant need not use physical force or intimidation to be guilty of witness tampering, so long as he attempts to "corruptly persuade" a witness to testify falsely. United States v. LaFontaine, 210 F.3d 125, 133 (2d Cir.2000); United States v. Pennington, 168 F.3d 1060, 1066 (8th Cir. 1999); United States v. Gabriel, 125 F.3d 89, 102 (2d Cir.1997); see also Arocho, 305 F.3d at 640 (holding that conviction under § 1512(b)(1) was supported by sufficient evidence where defendants never threatened witness but repeatedly urged him to change his story and wrote false statement that witness signed). For instance, "corrupt" persuasion occurs "`where a defendant tells a potential witness a false story as if the story were true, intending that the witness believe the story and testify to it.'" Gabriel, 125 F.3d at 102 (quoting United States v. Rodolitz, 786 F.2d 77, 82 (2d Cir.1986)). In Gabriel, the defendant faxed a witness a false account of a meeting relevant to the government's investigation of whether the defendant made misrepresentations in pursuit of government contracts. Gabriel, 125 F.3d at 93-94. He urged the witness to "think this through" before answering any questions about his memory of that meeting. Id. at 94. The Second Circuit held that this was sufficient to support a conviction for witness tampering. Id. at 105. Here, LaShay similarly placed a story before Clark in the...