U.S. v. Sobin

• Decision Date: 16 June 1995
• Docket Number: No. 93-3144,93-3144
• Citation: 56 F.3d 1423
• Parties: , 42 Fed. R. Evid. Serv. 586 UNITED STATES of America, Appellee, v. Dennis SOBIN, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1423

56 F.3d 1423

312 U.S.App.D.C. 353, 42 Fed. R. Evid. Serv. 586

UNITED STATES of America, Appellee, v. Dennis SOBIN, Appellant.

No. 93-3144.

United States Court of Appeals District of Columbia Circuit.

Argued April 6, 1995.

Decided June 16, 1995.

Appeal from the United States District Court for the District of Columbia (No. 92cr00182).

Allen E. Burns, Asst. Federal Public Defender, Washington, DC, argued the cause for the appellant. On brief was A.J. Kramer, Federal Public Defender, Washington, DC.

Preston Burton, Asst. U.S. Atty., Washington, DC, argued the cause for the appellee. On brief were Eric H. Holder, Jr., U.S. Atty., and John R. Fisher, Richard W. Roberts and Elizabeth Trosman, Asst. U.S. Attys., Washington, DC.

Before: BUCKLEY, HENDERSON and TATEL, Circuit Judges.

Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.

Circuit Judge TATEL concurs in the judgment.

KAREN LeCRAFT HENDERSON, Circuit Judge:

The law's made to take care o' raskills.

George Eliot

Mill on the Floss, Bk. III, ch. 4.

Appellant Dennis Sobin was convicted on six counts of bankruptcy fraud and related crimes. He was sentenced to six concurrent prison terms of sixty to sixty-five months, all to run consecutively to seven concurrent twelve-year Florida state court sentences, and was fined $360,000. Sobin appeals his convictions on the grounds that the district court erroneously denied his motion to suppress pre-Miranda admissions, improperly admitted expert testimony on the bankruptcy process and incorrectly charged the jury on the meaning of the phrase "false statement" as used in 18 U.S.C. Sec. 152(3). In addition, Sobin appeals his sentences on the grounds that the district court erred in enhancing his offense level by four levels under section 3B1.1(a) of the United States Sentencing Guidelines (Guidelines) (for leading or organizing an "extensive" criminal activity) and by two levels under section 3C1.1 of the Guidelines (for obstruction of justice), increasing his criminal history to reflect Florida state court convictions based on his bankruptcy fraud, causing his federal sentences to run consecutively to (rather than concurrently with) the Florida sentences, and imposing an excessive fine beyond his ability to pay. For the reasons set out below, we reject each of Sobin's challenges and affirm his convictions and sentences.

On appeal from a conviction, we must view the evidence in the light most favorable to the government, allowing it the benefit of all reasonable inferences that may be drawn from the evidence and permitting the jury to determine the weight and credibility of the evidence. United States v. Smith, 964 F.2d 1221, 1222 (D.C.Cir.1992); United States v. Butler, 924 F.2d 1124, 1126 (D.C.Cir.), cert. denied, 502 U.S. 871, 112 S.Ct. 205, 116 L.Ed.2d 164 (1991). So viewed the evidence reveals the following facts.

In 1985 Sobin, with the assistance of Brad Woodward, applied to C & P Telephone Company (C & P) for a "976" telephone line to be operated by INGSOC, a corporation controlled by Sobin. Revenues from the line were divided evenly between INGSOC and C & P. The following year Woodward applied for two more 976 lines at Sobin's behest, this time on behalf of the "Bruce Corporation" (Bruce). The first application listed Bruce's corporate address as a Washington, D.C. post office box rented to Sobin and was accompanied by a $1,250 application fee drawn on a Bruce bank account Sobin had opened in New York State and signed by Sobin. The second application also identified the same post office box mailing address. The first of the phone lines recited children's stories and was eventually discontinued. The second was an adult party line that proved very profitable, yielding revenues for Bruce of over $912,000 in less than two years. Sobin engaged Jackie Tessmer, one of his employees, to manage the party line's day-to-day operation.

In early 1987 Sobin set in motion a scheme to conceal Bruce's 976 revenues from the bankruptcy court. He first contacted a New York lawyer to incorporate Bruce in that state and then opened a number of new bank accounts for Bruce. He opened the first new account in March 1987 at First American Bank in Virginia with a $57,988.12 check C & P had sent Bruce at his Washington, D.C. post office box; the signatories were identified as Mary Ann Evans and Dennis P. Kasobin, both aliases used by Sobin, and the same post office box was given as the mailing address. Later that month he opened another account, at Sovran Bank, listing as Bruce's address a different post office box, also rented in his name and located in Washington, D.C., and identifying Philip Kasobin as director and authorized signatory. The signature card was later amended to add Mary Ann Evans and Esther Pohorylo, his long-time girlfriend's mother, as authorized signatories. Substantial checks from C & P were deposited into this account. On April 23, 1987 Sobin opened a third account, at Dominion Bank, identifying Philip Kasobin and Mary Ann Evans as signatories and directors and again listing his second Washington, D.C. post office box as the corporate address. On May 2, 1987 Sobin opened a fourth new account at Long Island Savings Bank in New York, identifying himself as director and using the second post office box as Bruce's address.

On May 1, 1987, the day before he opened the fourth account, Sobin filed a voluntary chapter 11 petition for personal bankruptcy with the United States Bankruptcy Court for the District of Columbia. On May 13, he filed with the bankruptcy court a sworn "Statement of Financial Affairs" (Financial Statement), dated May 4, 1987, that made no mention of his use of aliases, of the Bruce bank accounts or of any beneficial interest in Bruce, although the form specifically requested such information. See Gov't Exh. 1. ¹

Some time later C & P, having learned of Sobin's bankruptcy filing and believing him to be a principal of Bruce, stopped all 976 payments to the company. In an attempt to obtain release of payments due, Sobin took a number of steps to distance himself from Bruce and the 976 lines. First, he appointed Tessmer "president" of Bruce and instructed her to open a new corporate account at Sovran Bank, with herself and Mary Ann Evans as signatories and the second of Sobin's Washington, D.C. post office boxes as the mailing address. He also directed Paulette Barrier, who performed payroll work for Sobin out of a Maryland health spa he was renting, to open another Bruce account at Citizens Bank of Maryland using the spa's mailing address. He then arranged for Tessmer to sell the 976 lines to Anthony Parker, a lawyer, with 90% of the purchase price to be paid as a "management fee" to Goldman Telecommunications, another corporation controlled by Sobin. He also induced Tessmer to disavow any connection between him and Bruce, in affidavits, depositions and a letter to the United States Attorney, and to identify Esther Pohorylo as Bruce's owner. Finally, Sobin himself, when deposed during the bankruptcy proceeding, denied any knowledge of or connection with Bruce.

Ultimately Bruce and Sobin's bankruptcy trustee negotiated a settlement under which the trustee received $22,000 out of approximately $200,000 in 976 revenues withheld by C & P while the remainder was paid to Bruce. Barrier deposited Bruce's payments in the Citizens Bank account in Maryland from which they later disappeared, at least $100,000 making its way to a brokerage investment account controlled by Sobin.

On May 19, 1992, Sobin surrendered to FBI Special Agent John C. Cotter who, before advising him of his Miranda rights, asked Sobin for certain information to complete a standard fingerprint card. Among the questions he asked was whether Sobin used any aliases. Sobin responded that he had used three: Dennis Kasobin, Philip Sullivan and Mary Ann Evans. ²

Based on Sobin's scheme to divert Bruce profits from the bankruptcy court's jurisdiction, Sobin was indicted on six counts: conspiring to commit bankruptcy fraud, in violation of 18 U.S.C. Sec. 371 (Count 1); committing bankruptcy fraud, in violation of 18 U.S.C. Sec. 152 (Counts 2 & 3); and interstate transportation of money obtained through bankruptcy fraud, in violation of 18 U.S.C. Secs. 2314 & 2 (Counts 4-6). ³ The morning Sobin's trial was to begin his lawyer moved to suppress his alias admission to Cotter on the ground it was not preceded by Miranda warnings. The government opposed the motion both as untimely and on the merits. The district court took the motion under advisement and on the third day of trial denied it on both grounds.

On March 11, 1993, after a lengthy trial, a jury convicted Sobin of all six counts. On July 15, 1993 the district court sentenced Sobin to sixty months' imprisonment on each of counts 1 to 3 and sixty-five months on each of counts 4 to 6 (to run concurrently with each other but consecutively to his seven concurrent twelve-month Florida state sentences) and three years of supervised release, fined him $360,000, assessed $32,000 in restitution and imposed a special assessment of $300. Sobin raises several challenges to the convictions and the sentences, which we address seriatim.

The Convictions

We first address Sobin's three arguments for reversal of his convictions and reject each in turn.

First, Sobin asserts the district court erred in denying his motion to suppress the pre-Miranda admission that he had used the aliases Philip Kasobin, Philip Sullivan and Mary Ann Evans. We conclude that Sobin waived his right to seek suppression by waiting until the morning of trial to assert it. Rule 12(b)(3) of the Federal Rules of Criminal Procedure provides that motions to suppress evidence "must be raised prior to trial." Rule 12(f) further provides that "[f]ailure by a party to raise defenses ... which must be made prior to trial, at the time set by the court pursuant to subdivision (c), or prior to any extension...