United States v. Roussel

• Decision Date: 16 January 2013
• Docket Number: No. 11–30908.,11–30908.
• Citation: 705 F.3d 184
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Michael ROUSSEL, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

705 F.3d 184

UNITED STATES of America, Plaintiff–Appellee

v.Michael ROUSSEL, Defendant–Appellant.

No. 11–30908.

United States Court of Appeals, Fifth Circuit.

Jan. 16, 2013.

Kevin G. Boitmann, Diane Hollenshead Copes, Harry W. McSherry, Jr., Carol Loupe Michel, Assistant U.S. Attorneys, U.S. Attorney's Office, New Orleans, LA, for Plaintiff–Appellee.

William Sothern, Law Office of William M. Sothern, John Wilson Reed, Glass & Reed, New Orleans, LA, for Defendant–Appellant.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before JOLLY, JONES, and GRAVES, Circuit Judges.

JAMES E. GRAVES, JR., Circuit Judge:

Michael Roussel (“Roussel”) appeals his conviction along with the sentence imposed. For the reasons articulated below, we AFFIRM the conviction, VACATE the sentence, and REMAND for resentencing.

FACTS AND PROCEEDINGS

I. Procedural History

Roussel, a New Orleans Police Department (“NOPD”) Captain and Traffic Division commander, and Joey Branch (“Branch”), a Texas businessman, were indicted on five counts of wire fraud and one count of conspiracy involving a scheme to defraud Entergy Services, Inc. (“Entergy”), a New Orleans-based utilities provider. Branch pleaded to conspiracy, entered into a plea agreement whereby he agreed to the statutory maximum five-year sentence, and cooperated with the government.

Roussel proceeded to trial. At trial, the district court read to the jury the Fifth Circuit Pattern Jury Instruction's “deliberate ignorance” ¹ charge, which relates to the mens rea required for conviction. The district court also read to the jury a modified version of the circuit's pattern jury instruction regarding limitations for consideration of “other acts” under Federal Rule of Evidence 404(b). The district court allowed Roussel's attorney to cross-examine Branch about his sentencing reduction in exchange for cooperating with the government, but limited detailed inquiry into the magnitude of the benefit Branch received. The jury returned a partial verdict, convicting Roussel of conspiracy and two wire fraud counts, acquitting him on one wire fraud count, and remaining undecided on the remaining two wire fraud counts.

On September 8, 2011, the district court sentenced Roussel. The court, in determining the advisory range under the United States Sentencing Guidelines (“sentencing guidelines”) § 2C1.1, found that Roussel was a public official and a high-level public official, that more than one bribe was anticipated, and that the reasonably expected benefits from the fraudulent scheme were between $1,000,000.01 and $2,500,000.00. This resulted in an offense level of 38 and a sentencing guidelines range of 235–293 months, equivalent to the base offense level for second degree murder. U.S. Sentencing Guidelines Manual § 2A1.2. The district court, however, determined that the “guidelines themselves came to an unreasonable result,”granted a downward variance, and imposed a 136–month sentence—99 months below the bottom of the advisory range. Roussel timely appealed, asserting that the district court committed numerous errors during trial and at sentencing.

II. Facts

The conspiracy to defraud Entergy centered around a bribery plan of Roussel and Branch, along with Louis Dabdoub (“Dabdoub”), the Entergy security manager who assisted the FBI in the investigation. Roussel, as the NOPD Traffic Division commander, helped coordinate traffic for hurricane evacuations. Branch owned Gladius Inc. (“Gladius”), a Texas company that provided security guards to other companies. Dabdoub, a retired NOPD Captain, was Entergy's security manager. He assisted with hiring security guards for Entergy for natural disasters, including hurricanes.

In 2008, Branch, through Gladius, provided armed security guards to Home Depot in New Orleans following Hurricane Gustav. NOPD officers complained that Gladius's guards did not have proper certifications. A friend put Branch in touch with Roussel, who assisted in solving the problem. Roussel later assisted Branch with other paid details.

On June 10, 2010, Branch visited New Orleans and asked Roussel if he knew any big companies willing to work with Gladius. Branch told Roussel that he paid “finder's fees” to assist Gladius in obtaining contracts. Roussel told Branch he knew Dabdoub, Entergy's security manager. Branch asked if Dabdoub was a decision-maker, and Roussel allegedly responded, “Yes, but he's going to want a piece of it.” Roussel later denied making this statement in testimony. Roussel then called Dabdoub himself to explain Branch's operation. During the call, he allegedly told Dabdoub, “man, have I got some money for you.” Roussel later testified that he was simply repeating to Dabdoub what Branch had told him.

Dabdoub became suspicious of the plan. In fact, as Roussel's NOPD commander in 1997, Dabdoub had accused Roussel of tipping off a drug dealer about an impending raid and then lying about his whereabouts.² Ultimately, the accusation that Roussel had obstructed justice by tipping off the drug dealer was not sustained, though the accusation that he lied about his whereabouts was sustained. He was therefore suspended without pay for three days. According to Roussel, this was the only blemish on his record.

After Roussel's call about the Gladius proposal, Dabdoub called NOPD Major James Treadaway. Treadaway passed on the information to the NOPD Superintendent,who called the FBI. Dabdoub assisted by acting as a corrupt security manager for Entergy. Dabdoub placed a recorded call to Roussel on June 14, 2010, agreeing to meet Branch. On the call, Roussel said, “[T]here is some money for us.”

Branch flew his plane to New Orleans Lakefront Airport later that day. Roussel, in his NOPD uniform and driving an NOPD vehicle reserved for dignitaries, drove Branch and his associates to Entergy. At the video recorded meeting, Branch and Dabdoub discussed the deal, while Roussel, sitting in the back, listened, texted, and occasionally commented when the conversation was directed to him. He left to use the bathroom when discussions turned to paying Dabdoub, and returned about a minute-and-a-half later. While he was out, Dabdoub and Branch decided Dabdoub's wife would become employed by Gladius. Roussel was told about this arrangement when he returned.

Again in Roussel's presence, Dabdoub and Branch arranged for Entergy to pay Gladius $89.50 per guard per hour, which was inflated about $15 over what Gladius needed to make a profit. Branch and Dabdoub discussed dividing the excess $15, agreeing, after Branch stated, “I have to have my consultant here,” that they and Roussel would split it three ways. Roussel testified at trial that he was “bored” during the meeting, that the talk was above him, and that he “didn't give it any thought” that the men could be scheming to defraud Entergy.

Afterwards, Roussel and Branch had dinner in the French Quarter and, according to Branch, talked about early retirement from all the money they would make. On June 16, 2010, Dabdoub placed a recorded call to Roussel to request “good faith” money from Branch, to ensure that Branch would not deceive them. Roussel said he would call Branch later that day, but the parties dispute whether or not he ever made the call. On June 20, 2010, Branch called Roussel and Roussel told him about Dabdoub's request for “good faith” money. This upset Branch. Roussel testified that he suggested Branch take Dabdoub out to dinner to show his “good faith.” Branch testified that he told Roussel he would pay $10,000, but after Roussel said it was too much, Branch said he would pay $1,000.

On June 22, 2010, Branch flew back to New Orleans to execute the contract. Roussel, again in his NOPD uniform and driving an NOPD vehicle, drove Branch and his associates to Entergy. During the ride, Branch gave Roussel $500. ³ Immediately before the group meeting among Branch, Roussel, Dabdoub, and several Entergy and Gladius staff, the three met privately in Dabdoub's office. In Roussel's presence, Branch gave Dabdoub an envelope containing the $1,000 in “good faith” money. Branch also gave Dabdoub the paperwork for Gladius to hire Dabdoub's wife, and the two joked about Dabdoub's wife being “the best-paid secretary” ever. When Dabdoub began to discuss the amount of money the three could make from the deal, Roussel replied, rhetorically, “I don't even want to know.” The three then returned to the group conference room and the parties signed the fraudulent contract.

Afterwards, agents arrested Branch and Roussel. When questioned, Roussel stated that the contract would never be carried out because Branch would not follow through.

DISCUSSION

Roussel asserts that the district court committed three errors during trial and four errors during sentencing. Regarding the trial errors, he argues that the district court committed error in: (1) its issuance of this circuit's “deliberate ignorance” pattern jury instruction; (2) its Federal Rule of Evidence 404(b) instruction to the jury on “other acts;” and (3) limiting Roussel's counsel's cross-examination of Branch regarding Branch's plea agreement, which denied Roussel his constitutional right to confront his accuser.

With respect to sentencing, Roussel asserts that the sentencing guidelines enhancements were improper because the district court clearly erred in: (1) finding that Roussel was a public official and a high-level public official; (2) finding that more than one bribe occurred; and (3) its calculation of the expected monetary benefit from the fraudulent contract. Additionally, Roussel contends the district court violated the Supreme Court's ruling in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in considering a 30–year statutory maximum sentence when the evidence presented to the jury was only sufficient to convict on a crime with a 20–year maximum. We address each of these claims in order.

I. Whether the district court's...