U.S. v. Turner, 07-3107.

• Decision Date: 05 December 2008
• Docket Number: No. 07-3107.,07-3107.
• Parties: UNITED STATES of America, Appellee v. Peter R. TURNER, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

548 F.3d 1094

UNITED STATES of America, Appellee v. Peter R. TURNER, Appellant.

No. 07-3107.

United States Court of Appeals, District of Columbia Circuit.

Argued September 12, 2008.

Decided December 5, 2008.

Appeal from the United States District Court for the District of Columbia (No. 06cr00026-01).

Arthur Luk, appointed by the court, argued the cause for appellant. With him on the briefs was Michele J. Woods, appointed by the court.

Edward P. Sullivan, Attorney, U.S. Department of Justice, argued the cause for appellee. On the brief were Daniel A. Petalas and Ann C. Brickley, Attorneys. Roy W. McLeese III, Assistant U.S. Attorney, entered an appearance.

Before: RANDOLPH, ROGERS and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

Dissenting Opinion by Circuit Judge TATEL.

RANDOLPH, Circuit Judge:

The main issue in this appeal from a conviction, after a jury trial, is whether the sentence imposed on the defendant, Peter R. Turner, violated the Ex Post Facto Clause of the Constitution. U.S. CONST. art. I, § 9. Turner also raises the question whether the prosecution established his guilt beyond a reasonable doubt. The evidence, viewed in favor of the verdict, shows that there was sufficient evidence to support his conviction.

In 1998, while serving as a volunteer driver for the Department of Veterans Affairs Medical Center, Turner struck up a romantic relationship with Vester Mayo, a nurse at the Medical Center. Vester died in December 2000. She had taken out a life insurance policy through a federally-administered program. Her beneficiary designation form, contained in her personnel file, listed Turner and her mother, Lorenza Mayo, as co-beneficiaries. In January 2001, Turner filed a claim for his share of the life insurance benefits and later received a money market account valued at $20,562.90.

In preparing her claim, Lorenza examined her daughter's papers and concluded that Vester's beneficiary designation form contained forgeries. The dates on the form were inconsistent, Lorenza's name and address were misspelled, and Vester's social security number was incorrect. Lorenza reported this to federal authorities.

The ensuing investigation revealed that shortly after obtaining his life insurance payout, Turner wrote a $1,000 check from the proceeds to his friend, LaTanya Andrews. Andrews was a payroll technician at the Medical Center. She had worked in the human resources section, which housed employees' personnel files and was located in the same area as the payroll section. A government agent interviewed her in November 2005. At first Andrews said she never received more than $10 from Turner. When the agent showed her the $1,000 check, she claimed that Turner wrote the check to prove to a car dealership that she had a checking account. When the agent told her this made no sense, Andrews said she borrowed the money from Turner to purchase a car and repaid him sometime before March 2001. Agents found nothing in Andrews's bank records to support her claim.

The grand jury charged Turner and Andrews with conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, and bribery, in violation of 18 U.S.C. § 201(b). Evidence a reasonable jury could credit showed that Vester's signature on the beneficiary form had been forged, that Andrews had easy access to Vester's personnel file containing the beneficiary form, and that Lorenza saw Turner forge her daughter's signature on two checks. The jury convicted both defendants on both counts. On Andrews's separate appeal, we affirmed her conviction. United States v. Andrews, 532 F.3d 900 (D.C.Cir.2008). We now affirm Turner's.

A sentencing court, applying the Sentencing Guidelines, must "use the Guidelines Manual in effect on the date that the defendant is sentenced" unless the court determines that this would violate the Ex Post Facto Clause of the Constitution, U.S. CONST. art. I, § 9, in which case the court "shall use the Guidelines Manual in effect on the date that the offense of conviction was committed." U.S. SENTENCING GUIDELINES MANUAL §§ 1B1.11. The Ex Post Facto Clause bars the retroactive application of "enactments which ... increase the punishment for a crime after its commission." Garner v. Jones, 529 U.S. 244, 249, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000). When Turner received his share of the proceeds of Vester Mayo's life insurance policy in 2001, the Guidelines set the base offense level for conspiracy to defraud the United States at 10. A 2004 amendment to the Guidelines increased the base offense level for his crime to 14.¹ This was the base level in the 2006 Guidelines the district court used when sentencing Turner in September 2007 to 33 months' imprisonment. As Turner sees it, the district court violated the Ex Post Facto Clause by applying the later edition of the Guidelines and thereby increasing his Guideline range from 21-27 months to 33-41 months. Unlike his co-defendant Andrews, see Andrews, 532 F.3d at 908, Turner preserved this issue by making a proper objection at sentencing.

The government counters that the conspiracy continued through 2005 when Andrews lied to the investigators in order to conceal her role and Turner's role in the fraud. Because the base offense level for Turner's conspiracy when he committed the offense (through 2005) was the same as the Guideline base offense level when he was sentenced (2007), the government says there is no ex post facto problem.

Turner's argument and the government's answer require us to determine the duration of the conspiracy between him and Andrews. Typically, questions about when a conspiracy ended arise in cases in which the defendant raises a statute of limitations defense, as in Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957), or in which the defendant objects that a coconspirator's statement was hearsay because it was not made in furtherance of an ongoing conspiracy, as in Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949), and Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953). Even though we must determine the duration of a conspiracy in a different context — sentencing — cases such as those just cited are controlling.

The government says that the conspiracy continued through 2005 because the indictment alleged that one object of the conspiracy was "to conceal the conspiracy itself and the acts committed in furtherance thereof." The government's idea is that "the language of the indictment is controlling." Gov't Br. at 30. If this is supposed to mean that one need look only at the indictment to determine the duration of the conspiracy, the government is quite mistaken. The indictment in Lutwak, 344 U.S. at 617, 73 S.Ct. 481, charged a conspiracy to transport a woman across state lines for the purpose of prostitution, and — like the indictment in this case — alleged concealment of the crime as part of the conspiracy. Yet the Supreme Court held that the conspiracy did not continue after the transportation occurred. The indictment in Grunewald charged that "one of the terms of the illegal agreement was that continuing efforts would be made `to avoid detection and prosecution by any governmental body.'" United States v. Grunewald, 233 F.2d 556, 565 (2d Cir. 1956). Yet the Supreme Court held that the conspirators' acts of concealment after the central object of the conspiracy had been accomplished did not extend the life of the conspiracy. Grunewald, 353 U.S. at 414, 77 S.Ct. 963; see Forman v. United States, 361 U.S. 416, 423-24, 80 S.Ct. 481, 4 L.Ed.2d 412 (1960), overruled on other grounds by Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). The portion of this court's opinion in United States v. Hitt, 249 F.3d 1010, 1015-16 (D.C.Cir.2001), upon which the government relies, simply strings together citations and quotations from the cases. It does not, indeed could not, disagree with Grunewald or Lutwak.

But the government says it proved a conspiracy continuing after 2001, the year Turner reaped the results of his fraud and paid Andrews $1,000 for her help. The government's evidence consisted of Andrews's lying to investigators in 2005. Was this part of the conspiracy or had the conspiracy ended by then? The indictment did not allege, and the government did not prove, any express agreement between Turner and Andrews to conceal their offense after they had pocketed the proceeds. Yet one might reason that because a conspiracy cannot function except in secrecy, an agreement to avoid detection was implicit. The theory is plausible, but in Krulewitch and again in Lutwak and once again in Grunewald the Supreme Court rejected the theory "that in every conspiracy there is implicit an agreement as a part thereof for the conspirators to collaborate to conceal the conspiracy." Lutwak, 344 U.S. at 616, 73 S.Ct. 481. The government's position here is identical to the position it took in Grunewald: "a conspiracy to conceal is being implied from elements which will be present in virtually every conspiracy case, that is, secrecy plus overt acts of concealment." 353 U.S. at 404, 77 S.Ct. 963. If this were enough to keep the conspiracy alive after accomplishment of its central objects, the statute of limitations would never run until the conspirators' death, conviction, or confession. "Sanctioning the government's theory," the Court held in Grunewald, 353 U.S. at 402, 77 S.Ct. 963, "would for all practical purposes wipe out the statute of limitations in conspiracy cases, as well as extend indefinitely the time within which hearsay declarations will bind co-conspirators."

Nothing we have written thus far is inconsistent with Forman v. United States, 361 U.S. at 423-24, 80 S.Ct. 481. The main charge in Forman was a conspiracy to evade income taxes. The Court seemed to agree — the opinion is a bit opaque on this point — that a "subsidiary conspiracy" to...