U.S. v. Washington

• Decision Date: 24 March 1997
• Docket Number: No. 96-2586,96-2586
• Citation: 109 F.3d 459
• Parties: UNITED STATES of America, Plaintiff--Appellee, v. Wardell WASHINGTON, Defendant--Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 459

109 F.3d 459

UNITED STATES of America, Plaintiff--Appellee, v. Wardell WASHINGTON, Defendant--Appellant.

No. 96-2586.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 10, 1996.

Decided March 24, 1997.

James B. Bennett, El Dorado, AR, argued, for appellant.

Claude Shackelford Hawkins, Fort Smith, AR, argued, for appellee.

Before FAGG, FLOYD R. GIBSON, and LOKEN, Circuit Judges.

LOKEN, Circuit Judge.

Wardell Washington appeals his bank fraud conviction and sentence. He raises upward departure, suppression, and venue issues and argues that the district judge ¹ should not have conducted the sentencing after participating in earlier plea discussions. We affirm.

In June 1993, a prison acquaintance was arrested for bank fraud and left his automobile and check protector in Washington's care. For the next eight months, Washington used these items in his own bank fraud scheme. He obtained blank birth certificates and taught his drug addict accomplices, Kim LeFevers and Pam Swaffar, how to acquire Arkansas identification that could be used to open bank accounts in different names around the State. Washington drove LeFevers to various banks where she opened fictitious accounts. Using the check protector, Washington created bogus checks payable to the fictitious account holders. LeFevers deposited the checks and withdrew cash before the checks bounced. She turned half the proceeds over to Washington, who was never seen in the banks.

Washington was charged with conspiracy to defraud five banks and with four specific counts of bank fraud in violation of 18 U.S.C. §§ 371 and 1344. The jury convicted him on all five counts. Imposing an upward departure, the district court set the guidelines sentencing range at 57 to 71 months and sentenced Washington to seventy-one months in prison. On appeal, Washington raises two sentencing issues, a group of related suppression issues, and a venue challenge to one of the bank fraud counts. We will discuss those issues in the order raised, setting forth additional background facts relevant to each.

I. The Upward Departure.

Washington's presentence report recommended a base offense level of fourteen and a criminal history category of IV, producing a guidelines range of 27 to 33 months. Citing U.S.S.G. §§ 4A1.3 and 5K2.0, the district court departed upward to a base offense level of eighteen and criminal history category VI, producing a guidelines range of 57 to 71 months. The court explained:

The defendant has been involved in criminal activity since he was sixteen or seventeen years old. This activity consists of ... [a]ssault, disturbing the peace, burglary grand larceny, carrying prohibited weapons, possession of restricted drugs, possession of heroin, distributing heroin, forgery, numerous counts and now conspiracy to commit bank fraud and I haven't touched all of them.

Mr. Washington, you have exhibited no remorse or contrition for your behavior. You have exhibited no efforts to correct your lifestyle, from [age] sixteen to now. You have continued to cheat, to defraud, to steal, to burglarize and deal in drugs from your early youth to now. You have used people .... you've sued your first lawyer, you've sued the probation officer, you've been appointed another lawyer and now I understand you've got a suit against the FBI agent.... Obviously the Sentencing Commission ... could not have taken all of this into consideration when structuring these guidelines.

* * * * *

In this case you used the identity of Edith Cass[a]dy to perpetuate the fraud. Edith Cass[a]dy is an innocent victim.... [W]arrants for arrest had been issued to her. [The] Sentencing Guideline makes no provision for this type of situation.

Washington argues that the district court erred in imposing an upward departure because his criminal history and the minor emotional injury to victim Cassady do not put this case beyond the Guidelines "heartland." The district court has discretion to depart if there is an "aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. § 3553(b). We review departure decisions under a "unitary abuse-of-discretion standard," Koon v. United States, --- U.S. ----, ----, 116 S.Ct. 2035, 2048, 135 L.Ed.2d 392 (1996), deferring to the district court on most departure issues "including the critical issue[ ] of '[w]hether a given factor is present to a degree not adequately considered by the Commission.' " United States v. Kalb, 105 F.3d 426, 428 (8th Cir.1997), quoting Koon, --- U.S. at ----, 116 S.Ct. at 2047. "If the special factor is an encouraged factor, the court is authorized to depart if the applicable Guideline does not already take it into account." Koon, --- U.S. at ----, 116 S.Ct. at 2045.

In this case, the district court based its upward departure on special factors that are "encouraged" in the Guidelines. First, as to criminal history, § 4A1.3 encourages a departure if defendant's criminal history category "does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes." The district court concluded that Washington's extensive criminal history puts him outside the "heartland" of offenders falling within criminal history category IV. ² We agree. Washington was 52 years old when sentenced. He began committing serious crimes at age 16. His many serious offenses prior to 1975, which were excluded in determining criminal history category, see § 4A1.2(e), may be considered under § 4A1.3. See U.S.S.G. § 4A1.2, comment. (n.8). In addition, Washington has been incarcerated one-half of his adult life for a wide variety of serious offenses. He has resumed criminal activity promptly upon each release from prison, committing the instant offenses, and earlier offenses, while on parole. It would seem that only incarceration kept his criminal history as low as category IV. The district court did not abuse its sentencing discretion in departing upward to category VI. See United States v. Nomeland, 7 F.3d 744, 747-48 (8th Cir.1993); United States v. Saunders, 957 F.2d 1488, 1492 (8th Cir.), cert. denied, 506 U.S. 889, 113 S.Ct. 256, 121 L.Ed.2d 187 (1992).

Second, the district court departed upward four base offense levels under § 5K2.0, primarily because Washington opened a fictitious account at Superior Federal Bank in the name of Edith Cassady, an elderly Hot Springs waitress. As a result of this fraud, which resulted in a rather small loss to the bank, a warrant issued for Cassady's arrest, and police questioned her at home before concluding she was innocent of the fraud. Once again, the district court acted upon an encouraged departure factor. See § 2F1.1 comment. (n.11) (false identification documents offense may warrant upward departure "where the actual loss does not adequately reflect the seriousness of the conduct"). Here, though the monetary loss to each defrauded bank was not large, Washington preyed upon his drug addict accomplices, directed his scheme at numerous banks and other merchants, and caused anguish to the elderly Ms. Cassady. In view of his history as an "unrepentant, incorrigible recidivist," the district court did not abuse its discretion in imposing a four-level upward departure under § 5K2.0. See United States v. Lara-Banda, 972 F.2d 958, 960 (8th Cir.1992).

II. Judicial Participation in Plea Negotiations.

Washington next argues that the district court should not have sentenced him after participating in earlier plea negotiations. In September 1995, Washington pleaded guilty to one count of bank fraud. However, when the PSR recommended a guidelines range of 37 to 46 months in prison, Washington moved to withdraw the plea. At the February 1996 motion hearing, the district court concluded its remarks as follows:

Well, I think there was some mention of eighteen months and I think as we sat here with your attorney and ... looked at the charges, your participation, your acceptance of responsibility, and whether you were a major or a minor participant in the scheme, in looking a the sentencing guidelines, [counsel] and I looked at what we thought the guidelines would reveal.

I acknowledge that I participated at least to that extent and I think it would be a tragedy to the rights of human beings in this country to make you stand by that plea. I'm not going to do that. I'm going to grant your motion to withdraw your plea.

Washington was then tried and convicted on all five counts. Early in his sentencing hearing, counsel argued that Washington is entitled to an acceptance of responsibility reduction even though he sued the probation officer. The district court interjected:

THE COURT: ... I want Mr. Washington to understand what occurred at that point.... [W]e attempted, [counsel] attempted to see if they couldn't work out a plea and they talked about principal role, amount in controversy, acceptance of responsibility and all of those. It was represented to me that there might well be an avenue and opening of some 17 to 21 months and I think counsel for the government and [defense counsel], in your behalf, said would you accept--could you accept something in that range.... Then [the probation officer] took what he understood the facts to be without a trial and came up with the [PSR] and that [PSR] is just that. It's a tool to assist me in sentencing. So ... I can understand that you might have felt that something was going [on] here, but it was not.... I want the record to say that this court is not some back room where we work deals to put you in [prison]....

COUNSEL FOR WASHINGTON: I appreciate it your Honor. I think that's absolutely accurate. I think the problem is that Mr. Washington was not himself privy to those conversations.

On appeal, Washington argues that he has a...