U.S. v. Wilson

• Decision Date: 13 February 2003
• Docket Number: No. 00-20041.,No. 01-20823.,00-20041.,01-20823.
• Citation: 322 F.3d 353
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George L.J. WILSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 353

322 F.3d 353 UNITED STATES of America, Plaintiff-Appellee,
v.
George L.J. WILSON, Defendant-Appellant. No. 00-20041. No. 01-20823. United States Court of Appeals, Fifth Circuit. February 13, 2003.

Page 354

Tony Ray Roberts, McAllen, TX, James Lee Turner, Asst. U.S. Atty., Mary Jane Harmon, Houston, TX, for Plaintiff-Appellee.

Jack B. Zimmermann, Jim E. Lavine, Terri Raye Zimmermann Jacobs, Zimmermann & Lavine, Houston, TX, for Defendant-Appellant.

Appeals from the United States District Court for the Southern District of Texas.

Before WIENER and STEWART, Circuit Judges, and RESTANI, Judge.^*

RESTANI, Judge:

The primary issues before the court in this appeal of a criminal conviction are (1) whether the district court improperly applied the preponderance of the evidence standard in determining whether the statute of limitations was tolled under 18 U.S.C. § 3292; (2) whether the district court abused its discretion in admitting new evidence proffered by the Government at the hearing on remand; and (3) whether the district court's finding that the Government proved by a preponderance of the evidence that it sent a foreign discovery request, necessary to toll the statute of limitations under § 3292, was clearly erroneous. Though Wilson's remaining claims are either untimely, without merit, or both,¹ we find that the district court clearly

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erred in concluding that the Government proved by a preponderance of the evidence that the discovery request was sent to the Bahamian Government. We therefore REVERSE the decision of the district court denying George Wilson's motion for reconsideration of his motion to dismiss the indictment as time-barred, REVERSE Wilson's conviction, and VACATE his sentence.

BACKGROUND

In 1999, Defendant-Appellant George L.J. Wilson was convicted by a jury of multiple charges of conspiracy to commit money laundering, money laundering, mail fraud, and engaging in monetary transactions involving property derived from specified unlawful activity. United States v. Wilson, 249 F.3d 366, 368 (5th Cir.2001) ("Wilson I"). In Wilson I, we affirmed Wilson's convictions in all respects, subject to the district court's ruling on remand, after an evidentiary hearing, on Wilson's motion for reconsideration of his motion to dismiss based on the statute of limitations. Id. at 380. Wilson now appeals the district court's July 26, 2001 order denying his motion for reconsideration.

Wilson was indicted on October 26, 1998. On July 13, 1999, the United States District Court for the Southern District of Texas denied Wilson's motion to dismiss the indictment as time-barred because, in 1994, it had entered an order suspending the statute of limitations for offenses then under investigation, pursuant to 18 U.S.C. § 3292. The order suspended the limitations period beginning November 24, 1993, the date on which the United States Department of Justice, Office of International Affairs ("OIA") allegedly made an official request for assistance to the Commonwealth of the Bahamas pursuant to a Mutual Legal Assistance Treaty ("MLAT"). The Government required assistance in obtaining Wilson's financial records from a Nassau bank.

Wilson filed a motion for reconsideration on July 22, 1999, challenging for the first time the Government's assertion that it had sent the discovery request to the Bahamas and claiming that, because the letter was never sent, the statute of limitations was not tolled. Wilson I, 249 F.3d at 372. Wilson presented evidence to the district court in support of the motion, but the court denied it without a hearing on August 4, 1999. See id. (detailing the evidence supporting Wilson's theory that the letter submitted to the court by the United States was merely a draft that was neither sent to nor received by the Bahamian Government). At the time the court considered the motion for reconsideration, the only evidence proffered by the Government to support its claim that the letter was sent was a copy of the disputed letter itself and the Government's "representation that it was sent ...." Id. In Wilson I, this court ruled that the evidence raised a factual issue as to whether the Government actually sent the discovery request to the Bahamas, and that the district court erred in denying Wilson's motion for reconsideration without a hearing. Id. The court remanded the case to the district court with instructions to conduct an evidentiary

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hearing on whether the letter was sent. Id. at 373.

On remand, the Government called one witness and introduced one additional piece of documentary evidence to prove that it sent the letter to the Bahamas. The Government's witness, Helma Lanyi, was a paralegal specialist² who had worked for the OIA since 1991. Lanyi did not work on the Wilson case until 1996 or 1997, but she claimed familiarity with the office policies and procedures in place in 1993 when OIA allegedly sent the MLAT request. The district court expressed concerns about the Government's failure to produce a Federal Express tracking number, air bill, or monthly invoice for the November 1993 letter. Lanyi's explanation to the court was that staff secretaries do not always keep such records, though official policy was to keep them for one year. Furthermore, Lanyi testified that OIA's failure to include the Federal Express tracking number on the letter explains why OIA could not request documentation from Federal Express that would have proven the letter was sent.³ The Government then introduced, over defense objection,⁴ a computer-generated correspondence log from OIA containing a data entry for a November 24, 1993 request for bank records to the Bahamas. Lanyi testified that if an entry was made into this log, this signified that the document had been sent.⁵ Lanyi, however, neither worked in OIA's docketing unit nor was she personally responsible for drafting or typing foreign legal assistance requests, copying them for OIA's records, or sending them out.

As to the discrepancy between the correspondence log submitted earlier by Wilson in support of his motion for reconsideration that did not reflect a November 1993 MLAT request ("old log"), see Wilson I, 249 F.3d at 372, and the one submitted by the Government at the evidentiary hearing on remand that did include such an entry ("new log"), Lanyi testified that she had mistakenly sent the wrong page from the report when responding to a request for proof that the November letter had been sent.⁶ Compare Gov't Ex. I with

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Gov't Ex. 4. In the course of this explanation, however, Lanyi testified that: (1) the correspondence log listed documents in reverse chronological order, i.e., the first piece of correspondence in a case would be the last entry on the log; (2) the page allegedly sent by mistake was the "last page," and (3) the entry in the log for a December 1993 letter was the "first entry."⁷ Nevertheless, Lanyi claimed that the entry for the November letter on the new log, a product of a new software system after a 1999 upgrade at OIA that was printed just two days prior to the evidentiary hearing, was not newly created and that the system was tamper-proof.

Wilson argued that the entry in the log was only circumstantial evidence and did not prove that the letter was sent,⁸ especially in light of Lanyi's testimony that OIA's office procedures were frequently disregarded or considered as "discretionary." On cross-examination of Lanyi, Wilson's counsel pointed out discrepancies in the form of the November 24 and the December 3 letters,⁹ which Lanyi testified were not significant. Lanyi admitted that she had no personal knowledge of the correspondence procedures used by Deborah Gaynus, the OIA attorney whose signature appeared on both the November and December MLAT requests, and her secretary, Niges Forgee. In his cross-examination of Lanyi, Wilson's counsel also emphasized the other factual allegations which had led this court to remand in Wilson's first appeal, including the fact

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that the Government had no records of the Federal Express tracking number and that it made no attempt to obtain any evidence from Federal Express to prove that the letter was sent, despite the fact that the company keeps such records for seven years. Wilson's lawyer did not put on any additional evidence or call any witnesses, stating to the court that he felt that the Government had not met its burden of proving that the MLAT request was sent by a preponderance of the evidence.

The presiding judge allowed the attorneys to make closing arguments to the court. The Government argued that, based on Lanyi's testimony about OIA procedures and the correspondence log entry for the November 24 letter, the court should find the Government met its burden of proof. Responding to the court's questions, however, the Government's attorney apparently conceded that the Government had not met its burden, stating that "at best" the case was "a wash." The court stated that if it was a wash, then the Government did not prove its case by a preponderance of the evidence. The Government then tried to correct its unfortunate choice of words, admitting that it was a wash whether or not the Bahamian officials received the letter, but maintaining that it had shown by a preponderance of the evidence that the letter was sent and that it had provided explanations for all of the concerns raised by Wilson, the trial judge, and this court.

Wilson's closing argument emphasized the fact that the Government called Lanyi as its only witness — a paralegal who had no personal knowledge as to whether the disputed letter was sent in 1993 and who did not work on the Wilson case until at least four years later — but did not call as witnesses the three people with actual knowledge relevant to this disputed, and dispositive, issue: Gaynus, Forgee, or the docketing clerk who made the entry for the November letter. Lanyi testified that all three of these potential...