U.S.A. v. Ross

• Decision Date: 31 October 2000
• Docket Number: No. 00-3278,00-3278
• Citation: 245 F.3d 577
• Parties: (6th Cir. 2001) United States of America, Plaintiff-Appellee, v. Daniel P. Ross, Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 577

245 F.3d 577 (6th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Daniel P. Ross, Defendant-Appellant.

No. 00-3278

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: October 31, 2000

Decided and Filed: March 29, 2001

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 96-00065, Donald C. Nugent, District Judge. [Copyrighted Material Omitted] Jack Sammon, Office of the U.S. Attorney, Cleveland, OH, Daniel S. Goodman, UNITED STATES DEPARTMENT OF JUSTICE, APPELLATE SECTION, CRIMINAL DIVISION, Washington, D.C., Jack Sammon, UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee.

Kevin R. Conners, Timothy W. Hoover, VORYS, SATER, SEYMOUR & PEASE, Columbus, Ohio, for Appellant.

Before: MERRITT and SILER, Circuit Judges; SARGUS, District Judge^*

SARGUS, J., delivered the opinion of the court, in which SILER, J., joined. MERRITT, J. (p. 586), delivered a separate dissenting opinion.

OPINION

SARGUS, District Judge.

Daniel P. Ross ("Ross"), appellant herein, was convicted by a jury of the following: making false statements to a federally insured bank, in violation of 18 U.S.C. §1010; making false statements to an agency insured by the Housing and Urban Development Department, in violation of 18 U.S.C. §1014; committing wire fraud, in violation of 18 U.S.C. §1341; making false declarations before a grand jury, in violation of 18 U.S.C. §1523; and obstructing justice, in violation of 18 U.S.C. §1503.

Prior to sentencing, Ross and the Government reached a sentencing agreement in which, inter alia, Ross agreed not to appeal or file other post-conviction motions. Ross was thereupon sentenced to a term of confinement of ten months, split between imprisonment and home confinement with electronic monitoring.

More than two years after sentencing, and after completion of the term of imprisonment, Ross filed a motion for a new trial on March 11, 1999. The district court denied the motion on the merits, while also finding that the filing of the motion violated the prior sentencing agreement. The Court thereupon resentenced Ross to a period of twenty-one months imprisonment, to be followed by three years of supervised release, with credit for time served. Ross appeals, claiming the district court erred in denying his motion for a new trial, in finding that he breached the sentencing agreement, and in resentencing him to a greater period of incarceration.

I.

Appellant Ross was formerly employed as a professional accountant and served as County Auditor for Ashtabula County, Ohio from 1975 to 1995. Acting on behalf of one Steve B. Hartman and Hartman Acoustics, Inc., Ross submitted loan application documents to Bank One, seeking a $75,000 loan. Included among the submitted documentation were Hartman's purported tax returns for the years 1989 to 1991, as well as personal financial statements. Ross told a Bank One commercial loan officer that the tax returns had been prepared by an Indiana accountant, when in fact Ross had prepared the tax returns himself. The returns were inaccurate and misrepresented Hartman's true financial status.

Ross also submitted loan application documents on behalf of Hartman Acoustics, Inc. to the Ashtabula County 503 Corporation, a nonprofit entity which lends public money to businesses in an effort to stimulate economic development. Again, the documents submitted by Ross were fraudulently described as having been prepared by another accountant, when in fact Ross prepared the same. Further, the information set forth in the financial documents was inaccurate and misrepresented the company's financial condition by inflating the value of the assets.

Ross also caused fraudulent loan applications to be submitted to the Second National Bank of Warren, Ohio on behalf of the Lake Avenue Dairy Queen. This business was owned by one William Osborn, who also served as Chief Deputy Auditor for Ashtabula County under Ross. Shortly before submitting the loan application, Ross caused the sum of $50,000 to be drawn on the account of Hartman Acoustics, Inc. and to be deposited in the account of the Lake Avenue Dairy Queen.

After Ross became aware that the FBI was investigating his activities, he induced Osborn, his deputy, to sign a false affidavit which Ross had prepared. In an effort to justify the financial statements previously submitted, Ross prepared an affidavit falsely claiming that Osborn had assisted Ross and Hartman in preparing the tax and financial documents submitted with the loan application made on behalf of Hartman Acoustics, Inc. Ross presented the false affidavit to a federal grand jury on October 30, 1994. Ross further testified before the grand jury that he had spent several days with Hartman and Osborn putting together the business plan for Hartman Acoustics, Inc. In 1994, the grand jury declined to indict Ross and returned a Not True Bill.

Subsequently, Osborn contacted the FBI and stated that the affidavit which he had signed was not true. He admitted to the FBI that he had not assisted Ross or Hartman in preparing the business plan for Hartman Acoustics, Inc. He further stated that he had agreed to sign the affidavit simply because he worked for Ross and considered him to be a friend.

Thereafter, new information was presented to a different grand jury which returned an eight count indictment against Ross. Following a six day jury trial in December 1996, Ross was convicted on all eight counts.

The presentence investigation report recommended that Ross' conviction for obstruction of justice not be grouped for sentencing purposes. This conclusion resulted in two additional offense levels pursuant to U.S.S.G. §3D1.4. The presentence report also recommended that Ross receive a two-level enhancement for use of a special skill, pursuant to U.S.S.G. §3B1.3. Ross filed written objections to the enhancement for use of a special skill and for the separate treatment of the obstruction of justice conviction.

Prior to sentencing, Ross and the Government reached a sentencing agreement. The Government agreed that it would not object to the granting of Ross' objections with regard to the grouping of counts and the enhancement for special skills. In exchange, Ross agreed to waive his right to appeal or to file for other post-conviction relief.

At sentencing, the district court engaged in a lengthy colloquy with Ross, explaining the consequences of the proposed sentencing agreement. Thereafter, the district court granted Ross' objection on the separate treatment of Count 8 and the two-level enhancement for use of a special skill. Before making the finding, the court instructed Ross as to the consequences of a waiver of appeal. The court defined the waiver to which Ross agreed in the following manner:

Now a waiver of an appeal right means as follows: that you hereby waive any right to raise or appeal or file any post conviction writs of habeas corpus concerning any parts pertaining to the prosecution, including all motion defenses, probable cause determinations, and objections to the court's entry of judgment against you, including any error or potential error that may have occurred during the course of the trial.

(J. A. Vol. II, 609).

Had the court adopted the proposed findings in the presentence report, Ross would have faced a total offense level of 16 and a criminal history category of I, yielding a guideline sentencing range of 21 to 27 months of imprisonment. By treating the obstruction of justice count as grouped with the other counts of conviction and by not enhancing Ross' sentence for use of a special skill, the district court caused a four point reduction in the offense level, yielding a guideline sentencing range of 10 to 16 months.

After Ross completed the ten month incarceration imposed by the district judge, he filed a motion for a new trial pursuant to Fed. R. Crim. P. 33. In the motion, Ross argued that he had discovered new evidence which established that the Government had failed to produce exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 87 (1963). Further, Ross asserted that newly discovered impeachment evidence concerning Hartman entitled him to a new trial.

The material which Ross presented to the district court involved the payment of $2,000.00 by the FBI for preparation of Hartman's tax returns. The payment was made after the trial and was unknown to Government prosecutors until contacted two years later by counsel for Ross. It is undisputed that the FBI made the payment to an accounting firm that had prepared Hartman's tax returns. An FBI agent had, prior to trial, urged Hartman to complete all tax returns which he was required to file. Because Hartman used an accountant to comply with this request of the FBI, the agency subsequently reimbursed Hartman's accountant.

Ross also claimed that he had discovered two new witnesses who would attack Osborn's credibility with respect to the false affidavit submitted to the grand jury. The witnesses included Judy French, who signed an affidavit indicating that Osborn had approached her to invest in Hartman Acoustics and presented her with a business plan he had prepared. The second witness, Lee Carter, asserted that Osborn was very involved in Hartman Acoustics.

Ross also claimed to have new evidence concerning Hartman. According to Ross, Hartman was involved in an embezzlement scheme in Indianapolis which was investigated by the FBI. Ross asserts that this evidence, showing Hartman in a fraudulent scheme, would have discredited his testimony. Ross contends that the newly discovered evidence rendered him less credible as a witness.

The district court first concluded that Ross had waived his right to seek a new trial. While the sentencing agreement did not expressly waive the right to file a motion for a new trial, the court concluded that the specific language of the agreement made in open court by the defendant encompassed a ...