U.S. v. Porter

• Decision Date: 02 August 1990
• Docket Number: Nos. 89-5623,89-5669,s. 89-5623
• Citation: 909 F.2d 789
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Danny Nick PORTER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Thomas Lynn PORTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 789

909 F.2d 789

UNITED STATES of America, Plaintiff-Appellee, v. Danny Nick PORTER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Lynn PORTER, Defendant-Appellant.

Nos. 89-5623, 89-5669.

United States Court of Appeals Fourth Circuit.

Argued May 8, 1990.

Decided Aug. 2, 1990.

Russell Doyle Ghent, Spartanburg, S.C., argued (Weyman H. Dodson, Greenville, S.C., Parks N. Small, Federal Public Defender, Thomas P. Simpson, Columbia, S.C., on brief), for defendants-appellants.

David Calhoun Stephens, Asst. U.S. Atty., argued (E. Bart Daniel, U.S. Atty., Greenville, S.C., on brief), for plaintiff-appellee.

Before HALL and WILKINSON, Circuit Judges, and DUPREE, Senior United States District Judge for the Eastern District of North Carolina, sitting by designation.

K.K. HALL, Circuit Judge:

Thomas Lynn Porter ("Lynn") and his son Danny Nick Porter ("Nick") appeal from the judgments entered on their conditional pleas of guilt under Fed.R.Crim.P. 11(a)(2) to one count of conspiring to conduct an illegal gambling business, in violation of 18 U.S.C. Sec. 371; one count of operating an illegal gambling business, in violation of 18 U.S.C. Sec. 1955; one count of money laundering, in violation of 18 U.S.C. Sec. 1956(a)(1)(B)(i); numerous counts of using interstate communications to promote illegal gambling on sporting events, in violation of 18 U.S.C. Sec. 1084; and numerous counts of aiding and abetting, in violation of 18 U.S.C. Sec. 2. Lynn Porter also appeals his sentence imposed under the United States Sentencing Guidelines. Finding no error in the district court's acceptance of the Porters' guilty pleas or in the calculation of Lynn Porter's sentence, we affirm.

I.

During 1987 and 1988, Lynn Porter's extensive gambling operation, headquartered in Greenville, South Carolina, came under investigation. Nick Porter was also heavily involved in the business. In early 1988, upon hearing of the investigation, Lynn Porter fled the country to Pusan, South Korea. He returned briefly to South Carolina to engage an attorney to enter into plea negotiations with the government. When plea negotiations turned sour, he again left for Pusan. He eventually ended up in the Philippines, where he was joined by Nick.

In late April 1988, Lynn sold a residence in South Carolina for approximately $225,000. The home was purchased in early 1986 with money generated by illegal gambling activities. Lynn took $221,594.76 of the proceeds of the sale to South Korea.

In July 1988 an arrest warrant was issued for Lynn based on his illegal gambling activities. This triggered an international search to locate his whereabouts. In August, a grand jury returned a 13-count indictment charging the Porters with numerous gambling-related crimes and one count of money laundering, arising from the sale of the home.

The Porters were eventually located in the Philippines. On October 27, 1988, the State Department revoked their passports, and, on November 1, 1988, the Department, through the American Embassy, notified Filipino authorities of the Porters' fugitive status. On January 25, 1989, the Porters were taken into custody by Filipino authorities as undocumented aliens.

On February 2, 1989, the Philippine Commission on Immigration and Deportation ordered that the Porters be summarily deported because of their passport revocations. The Porters promptly requested a stay of deportation pending the outcome of a hearing before United States authorities over the revocation of their passports. See 22 C.F.R. Sec. 51.81. The American Embassy informed the Commission that such a hearing is purely administrative in nature and could be held in the United States. The Commission subsequently denied the request for a stay. On February 9, 1989, the Porters were escorted to the United States by Filipino authorities.

At the time the Porters boarded the plane to the United States, Lynn complained of being "giddy headed" and asked to see a doctor. ¹ He also asked to see his attorney. Both requests were denied. ²

On May 1, 1989, appellants entered conditional guilty pleas to all counts of the indictment, reserving the right to challenge the legality of their involuntary return to the United States. They raised this challenge in a motion to dismiss their indictment. On the recommendation of a magistrate, this motion was denied by the district court and judgment was entered on the pleas.

At Lynn's sentencing, pursuant to U.S.S.G. Sec. 3D1.2 the district court grouped all of the gambling counts together as closely-related offenses. The adjusted offense level for this group was 16. The court did not include in this group, however, the money laundering offense, which has a base offense level of 20. U.S.S.G. Sec. 2S1.1(a)(2). This base level was adjusted upward by two levels because of the amount of money laundered. U.S.S.G. Sec. 2S1.1(b)(2)(C). Because the adjusted offense level for this offense (22) was greater than that of the grouped gambling offenses (16), it was used to calculate Lynn's total offense level. U.S.S.G. Sec. 3D1.4. It was then enhanced by one level to reflect the effect of the less serious gambling offenses on Lynn's combined offense level. U.S.S.G. Sec. 3D1.4(b). After a two-level downward adjustment for acceptance of responsibility, Lynn's total offense level was 21, which, with his criminal history category of III, yields a guideline sentence range of 46-57 months. The district court imposed the maximum 57-month sentence.

This appeal followed.

II.

Both appellants argue that the circumstances surrounding their involuntary removal from the Philippines denied them due process and required dismissal of their indictments. They contend that by summarily revoking their passports without the benefit of a post-revocation hearing as per 22 C.F.R. Sec. 51.81, and by facilitating their deportation by Filipino authorities, the government deprived them of their "liberty" interest to travel abroad without due process of law. They also argue that these actions violated their rights under Filipino law to a hearing before deportation. They further contend that these actions, coupled with the denial of Lynn's pre-flight requests to see a doctor and an attorney, constitute outrageous government conduct that requires dismissal of their indictments. We are not persuaded.

In United States v. Wilson, 721 F.2d 967, 972 (4th Cir.1983), we confirmed our adherence to the Ker-Frisbie doctrine, i.e., "the general rule that a court's power to try a criminal defendant is not impaired by the government's use of even forcible abduction to bring the defendant within the court's jurisdiction." Id., citing Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511-12, 96 L.Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 229-30, 30 L.Ed. 421 (1886). Appellants here, as did the appellant in Wilson, urge us to recognize a due process exception to this rule. In United States v. Toscanino, 500 F.2d 267, 275 (2d Cir.1974), the Second Circuit held that where, in bringing an accused to justice, the government commits "deliberate, unnecessary and unreasonable" violations of that person's constitutional rights, which are "outrageous" and "shocking to the conscience," due process will not allow a court to exercise jurisdiction over that person. Appellants argue that if we accept this reasoning, it compels dismissal of their indictments. We disagree.

Just as we did in Wilson, we conclude that even assuming the validity of Toscanino in this Circuit, an issue we do not decide, we would not find that it requires dismissal of these indictments. In Toscanino, the defendant was forcibly kidnapped, tortured for over two weeks, and drugged before being brought onto U.S. soil. Id. at 269-70. The government's conduct in the instant case certainly did not rise to this level. Here, it is uncontested that except for Lynn Porter's last minute requests, he was given adequate medical treatment and unfettered access to counsel. And, even if the government's actions in revoking appellants' passports and securing their deportation were in some way unconstitutional, they are still not the type of deliberate outrageous government conduct that justifies dismissal of these indictments. Accordingly, we affirm the lower court's denial of appellants' motion to dismiss.

III.

Lynn Porter challenges his sentence on several grounds. First, he contends that the district court erred in not grouping his money laundering conviction with his gambling convictions under U.S.S.G. Sec. 3D1.2 as closely-related counts. He argues that the money laundering count is inextricably tied to the gambling counts because the money laundered was illegal gambling proceeds. Second, he contends that the enhancement of his offense level under U.S.S.G. Sec. 2S1.1(b)(2)(C), based on the specific offense characteristic of the amount of money laundered, violates the ex post facto clause. This is so, he argues, because the provision substantially disadvantages him by increasing his punishment based on conduct, the initial accumulation of the money to purchase the home, which occurred entirely before the November 1, 1987, effective date of the guidelines. Third, he argues that the district court abused its discretion in sentencing him at the top of his guideline range. We address these issues in turn. ³

Our analysis of appellant's contention that his money laundering conviction is closely related to his gambling convictions is guided by U.S.S.G. Sec. 3D1.2. ⁴ As we made clear in United States v. Toler, 901 F.2d 399, 402 (4th Cir.1990), our review of the district court's legal interpretation and application of this provision is de novo. Compare United States v. Pope, 871 F.2d 506, 509 (5th Cir.1989) (district court's case-specific and factual conclusions as to application given due deference). Further, our analysis must be informed by the competing purposes of the provision, "to ensure 'incremental...