innocence blog: Repaying a debt to the innocent

Monday, February 12, 2007

Repaying a debt to the innocent

This article appeared in the Seattle Times on February 12, 2007:

Repaying a debt to the innocent

By Rachel La Corte
The Associated Press

OLYMPIA — Every day for more than five months, Jeff Schmieder walked hundreds of laps around the courtyard at the Regional Justice Center in Kent, where he was serving time for a first-degree rape he did not commit.

"Walking was the only thing I had left. It just gave me a lot of time to think to myself and get my head straight," said Schmieder, who was convicted in 1998 and faced more than 11 years in prison. "Everyone in there says they're not guilty, of course. But when you're really not, it does things to your mind that you can't even imagine."

Schmieder, 49, and another man, Mark Clark, were freed in 1999 after new evidence showed the alleged victim was in jail herself at the time she said she was attacked.

Under a measure lawmakers are considering this year, the state would compensate people such as Schmieder for the years they lost behind bars. If the bill is passed, Washington would join 21 other states, the District of Columbia and the federal government with similar laws on the books.

"When you're imprisoned you lose everything," said state Rep. Joe McDermott, D-Seattle and sponsor of the bill. "We should have procedures in place to make someone who's been wrongfully convicted whole, in some small part."

McDermott's measure — which mirrors federal levels — would require the state to award a wrongly convicted person no less than $50,000 for each year of imprisonment, including time spent awaiting trial. An additional $50,000 would be awarded for each year on death row.

Someone who was released from prison after a wrongful conviction would have to file a claim for damages against the state in Superior Court. Claimants would have to show their convictions were reversed or vacated, and that they did not commit the crime they were charged with.

Once a judge or jury determined the claims were valid, damages could be awarded.

Supporters of compensation laws say the measure is the fair thing to do.

"To the extent that the government has to compensate you if it takes your property, it seems only fair that the government also compensates you when it's taken years of your life and your liberty," said Stephen Saloom, policy director at The Innocence Project, a New York-based legal center that seeks to uncover wrongful convictions.

McDermott said he was made aware of the challenges faced by those who have been wrongly convicted when he saw a documentary called "After Innocence," which followed the lives of people adjusting after being exonerated by DNA evidence.

He showed lawmakers and staff members the movie last year at the Capitol and filed a similar bill last year, but it never received a hearing.

Rep. Pat Lantz, chairwoman of the House Judiciary Committee, said she would give the bill a hearing sometime this month.

"I'm very, very much interested in the concept," said Lantz, D-Gig Harbor. "If you stop and consider it for one moment, finding someone innocent requires more than an 'I'm sorry, here's a new pair of shoes for you, goodbye.' It's a major failure of the justice system."

Sen. Mike Carrell, a Lakewood Republican who sits on the Senate Human Services & Corrections and Judiciary committees, said he agrees with the idea of compensating those who are wrongly incarcerated but said he thinks there's a better way to do it.

"When we wrong somebody, I think that we have to do what we can to make it as right as we possibly can," he said. But he expressed concern about the $50,000 "being one-size fits all" that a judge or jury can raise but not lower.

"What is the appropriate amount?" he asked. "There is no discretion here."

Eric Ferrero, spokesman for The Innocence Project, said that to date, 194 people nationwide have been exonerated with DNA testing. Of those, about 85 have been compensated in some way, though most were through civil lawsuits, not state compensation laws.

Just last month, a decorated Vietnam veteran who spent about 20 years in prison for a rape he did not commit received a full pardon from Texas Gov. Rick Perry. Larry Fuller is one of 12 Dallas County men exonerated by DNA evidence since 2001, and one of 24 in Texas since 1989.
Also last month, a man convicted of rape in Georgia and a man who was unjustly convicted of murder in New York but helped find the real killer from his prison cell were granted their freedom after DNA tests proved their innocence.

Since the nation's first DNA exoneration in 1989, 26 defendants have been cleared in Illinois, 24 in Texas, 21 in New York, nine in California and six in Florida, Ferrero said.

Ferrero said his organization is working with lawmakers in Texas, Florida and Connecticut on compensation bills this year.

A study by professor Sam Gross at the University of Michigan published last year found 340 exonerations, not all DNA-related, in the country between 1989 and 2003. Of those, four were in Washington state, including Schmieder's case.

In talking about his case, Schmieder cried when listing what he and his family endured during his imprisonment: His parents put up their home for his bail so that he didn't have to wait in jail before he was convicted; his teen daughter dropped out of high school because of the taunts at school; his infant granddaughter died and he wasn't able to help plan the funeral.

"Nobody knows what you go through, when all of a sudden everything in your life is gone," he said.

Schmieder doesn't work as a result of an injury he suffered before he went to jail. He's a single dad raising his 10-year-old son in Enumclaw, and he said he's barely getting by.

If McDermott's bill passes, people who are wrongfully convicted would have three years to file a claim. But the measure would be retroactive, so Schmieder would have five years from the time the law took effect to apply for compensation.

He said if the bill passes, it would help him pay the rent and he could buy his son new clothes.
"It's been beyond difficult," he said, crying. "You don't know what it means to have a little bit of hope all of a sudden."

Copyright © The Seattle Times Company

38 Comments:

At 11:46 AM, Anonymous said…

It probably won't be a surprise to you, but here is yet another case of injustice FreeKenMiddleton.com

Ken's trial was a farce. His attorney called no witnesses, didn't introduce evidence which would have countered what the prosecutor told the jury, didn't object to a gun shot residue report which was obviously altered and didn't bother to tell the jury that the prosecutor's crime scene photos were really photos taken AFTER the police officers reconstructed the crime scene.

Reading the court documents at this site will leave no one with a brain the impression that Ken received a fair trail.

In a 2004 hearing, former Gov. Teasdale stated in 41 years he's never seen such an abuse of a defendant's rights. The judge in that hearing ruled that Middleton deserved a fair trial and remanded the case.

Ken still didn't get his fair trial promised by the constitutions of MO and the USA because Attorney General Jay Nixon appealed the ruling which was then over turned for procedural reasons - stating the 2004 judge had no right to reopen the 29.15 hearing. There was no address of the fact that it was found that Ken's trial was unfair - he had ineffective counsel, there was prosecutorial misconduct.

How can we Americans stand for the fact that there is someone in prison for 16 years who still has not had a fair trial?

Of course the waiting list for Project Innocence in MO is backed up with 1500 applications. Will Ken sit in prison for the rest of his life without ever getting a fair trail because the system is so backed up?
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At 2:24 AM, John said…

"Did Stephan Botes get a fair trial?"

The following is a court case through which Stephan Botes was found guilty, he is currently serving an 8 year sentence without parole. His appeal is included herewith, and was up to recently not successful.

He certainly feels that he did not get a fair trail for reasons as stated.

IN THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
NO. 06-15238-AA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
A. STEPHAN BOTES,
Defendant-Appellant.
On Appeal From The United States District Court
For The Northern District of Georgia
BRIEF FOR APPELLEE
DAVID E. NAHMIAS
UNITED STATES ATTORNEY
DANIEL A. CALDWELL
ASSISTANT UNITED STATES ATTORNEY
600 Richard B. Russell Bldg.
75 Spring Street, S.W.
Atlanta, Georgia 30303
404/581-6000
Attorneys for Appellee
IN THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
UNITED STATES OF AMERICA, :
:
Appellee, :
:
v. : APPEAL NO. 06-15238-AA
:
A. STEPHAN BOTES, :
:
Appellant. :
CERTIFICATE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT
In addition to the persons listed by Appellant, the U.S.
submits that other persons and entities known to have an interest
in the outcome of this appeal are:
Brill, Honorable Gerrilyn G., U.S. Magistrate Judge
Weintraub, Howard J., former counsel for appellant Botes
C-1 of 1
i
STATEMENT REGARDING ORAL ARGUMENT
The government respectfully submits that oral argument is not
necessary in this case. The issues and positions of the parties,
as presented in the record and briefs, are sufficient to enable the
Court to reach a just determination.
ii
TABLE OF CONTENTS AND CITATIONS
Page
CERTIFICATE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT C-1 of 1
STATEMENT REGARDING ORAL ARGUMENT i
TABLE OF CONTENTS AND CITATIONS ii
STATEMENT OF JURISDICTION xv
STATEMENT OF THE ISSUES 1
STATEMENT OF THE CASE 4
1. Course of Proceedings and Disposition Below 4
2. Statement of the Facts 6
A. Linda Schrenko Runs For Governor 6
B. Defendant Runs CCSC 7
C. Defendant Meets The Schrenko
Campaign 8
D. Defendant Funnels Money Into The
Schrenko Campaign 9
E. The Scheme To Fund The Schrenko
Campaign Advances 12
F. Defendant Pays For A Database 15
G. Additional Funds Are Routed To The
Schrenko Campaign 16
H. Schrenko Loses The Primary 18
I. Attempted Cover-Ups Of The Scheme 18
iii
1. Defendant Tells Turner to
Destroy A Spreadsheet 18
2. Backdating Contracts 18
3. Post-Hoc Attempts To
Justify The Payments 19
4. Defendant, Temple, And
Schrenko Meet at The Rock
Bottom Brewery 21
5. Defendant Coaches Turner 21
J. Trial Proceedings 22
1. AUSA Vineyard Selected
For Magistrate Judge 22
2. Jury Instructions 24
3. Jurors’ Request For
Clarification Of Aiding
And Abetting 25
K. Sentencing Of Defendant 26
1. Defendant’s Allocution 28
3. Standard of Review 30
SUMMARY OF THE ARGUMENT 33
ARGUMENT AND CITATIONS OF AUTHORITY 36
I. THE TRIAL COURT PROPERLY APPLIED THE
APPLICABLE RULES OF PROFESSIONAL CONDUCT IN
iv
DENYING DEFENDANT’S MOTION TO DISQUALIFY THE
LEAD PROSECUTOR FOR THE GOVERNMENT. 36
II. OVERWHELMING EVIDENCE SUPPORTS DEFENDANT’S
CONSPIRACY CONVICTION. 40
III. OVERWHELMING EVIDENCE SUPPORTS DEFENDANT’S
CONVICTIONS FOR AIDING AND BETTING THEFT OF
GDOE FUNDS. 46
IV. THE AIDING AND ABETTING INSTRUCTION WAS
CORRECT. 48
V. OVERWHELMING EVIDENCE SUPPORTS DEFENDANT’S
WIRE FRAUD CONVICTIONS. 51
VI. THE TRIAL COURT CORRECTLY EXCLUDED TESTIMONY
BY ATTORNEY KAUFMANN AND ADMITTED TESTIMONY BY
CO-CONSPIRATOR SCHRENKO. 52
A. The trial court did not abuse its
discretion in excluding testimony by
attorney Kaufmann regarding hearsay
statement purportedly made by
defendant to Kaufmann. 52
B. The admission of testimony by
Schrenko regarding statements made
by co-conspirator Temple was not
plain error. 53
v
VII. THE CUMULATIVE EFFECT OF CORRECT EVIDENTIARY
RULINGS BY THE TRIAL COURT DO NOT SUPPORT
REVERSAL OF HIS CONVICTION. 55
VIII.THE TRIAL COURT PROPERLY DECLINED TO GIVE
DEFENDANT’S REQUESTED JURY INSTRUCTION ON
CONSPIRACY AND PAYMENTS TO CONSULTANTS. 56
IX. THE DISTRICT COURT PROPERLY ENHANCED
DEFENDANT’S SENTENCE PURSUANT TO U.S.S.G. §
3C1.1 OF THE SENTENCING GUIDELINES BECAUSE
DEFENDANT ATTEMPTED TO COACH JOHNNY TURNER TO
PROVIDE FALSE INFORMATION TO GOVERNMENT
INVESTIGATORS. 58
X. THE DISTRICT COURT IMPOSED A REASONABLE
SENTENCE. 59
A. The trial court properly calculated
defendant’s advisory offense level
under the Guidelines. 61
B. The trial court adequately
considered the § 3553(a) factors. 63
XI. DEFENDANT’S SENTENCE WAS NOT IMPOSED IN A
MANNER THAT VIOLATED DEFENDANT’S SIXTH
AMENDMENT RIGHTS. 64
XII. DEFENDANT WAS NOT DENIED HIS RIGHT OF
ALLOCUTION. 65
vi
XIII.THE ORDER OF RESTITUTION IS SUPPORTED BY A
PREPONDERANCE OF THE EVIDENCE. 66
XIV. FORFEITURE ORDERS ENTERED AGAINST DEFENDANT
DID NOT VIOLATE DEFENDANT’S CONSTITUTIONAL
RIGHTS UNDER THE FIFTH, SIXTH, SEVENTH OR
EIGHTH AMENDMENTS. 67
A. Defendant had no Sixth Amendment
right to a jury trial for his
criminal forfeiture proceeding 67
B. Defendant had no Seventh Amendment
right to jury trial for his criminal
forfeiture proceeding. 68
C. The district court had statutory
authority to impose a monetary
judgment in defendant’s criminal
proceedings. 69
D. Forfeiture of proceeds of a wire
fraud conviction is authorized under
28 U.S.C. § 2461. 70
E. A money judgment against defendant
in the amount of $382,394 does not
constitute excessive punishment
under of the Eight Amendment. 71
vii
XV. DEFENDANT IS NOT ENTITLED TO ACCESS OF
AUDIOTAPE RECORDINGS OF CLOSING ARGUMENTS AND
HIS SENTENCING HEARING. 71
CONCLUSION 74
CERTIFICATE OF COMPLIANCE 75
CERTIFICATE OF SERVICE 76
viii
FEDERAL CASES
Board of Education v. Nyquist,
590 F.2d 1241 (2d Cir. 1979) 37
Bollenbach v. U.S., 326 U.S. 607, 66 S.Ct. 402 (1946) 50
Byrne v. Nezhat, 261 F.3d 1075 (11th Cir. 2001) 39
Gall v. U.S., U.S. , 128 S.Ct. 586 (2007) 31, 61
Hamm v. Members of Bd. of Regents of State of Fla.,
708 F.2d 647 (11th Cir. 1983) 38
Hermann v. GutterGuard, Inc.,
199 Fed. Appx. 745 (11th Cir. 2006) 30, 36
In Re Bell South Corp., 334 F.3d 941 (11th Cir. 2003) 36
Kentucky v. Stincer,
482 U.S. 730, 107 S.Ct. 2658 (1987) 40
Kimbrough v. U.S., U.S. , 128 S.Ct. 558 (2007) 60
Libretti v. U.S., 516 U.S. 29, 118 S.Ct. 356 (1995) 67, 69
Pinkerton v. U.S.,
328 U.S. 640, 66 S.Ct. 1180 (1946) passim
Rita v. U.S., U.S. , 127 S.Ct. 2456 (2007)
U.S. v. 817 N.E. 29th Drive,
175 F.3d 1304 (11th Cir. 1999) 71
U.S. v. Alvarez, 755 F.2d 830 (11th Cir. 1985) 48
U.S. v. Andrew, 666 F.2d 915 (5th Cir. 1982) 50
U.S. v. Arbane, 446 F.3d 1223 (11th Cir. 2006) 25
U.S. v. Arbolaez, 450 F.3d 1283 (11th Cir. 2006) 53, 55
ix
U.S. v. Arevalo-Juarez, 464 F.3d 1246 (11th Cir. 2006) 31
U.S. v. Aria-Izquierdo,
449 F.3d 1168 (11th Cir. 2006) 41, 42
U.S. v. Bailey, 175 F.3d 966 (11th Cir. 1991) 39
U.S. v. Baker, 432 F.3d 1189 (11th Cir. 2005) 55
U.S. v. Berger, 375 F.3d 1223 (11th Cir. 2004) 38
U.S. v. Blasco, 702 F.2d 1315 (11th Cir. 1983) 55
U.S. v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005) passim
U.S. v. Brika, 416 F.3d 514 (6th Cir. 2005) 72
U.S. v. Browne, 505 F.3d 1229 (11th Cir. 2007) 32, 41, 56
U.S. v. Butler, 792 F.2d 1528 (11th Cir. 1986) 42
U.S. v. Cabeza, 258 F.3d 1256 (11th Cir. 2001) 67
U.S. v. Calderon, 127 F.3d 1314 (11th Cir. 1997) 41
U.S. v. Caldwell, 431 F.3d 795 (11th Cir. 2005) 61
U.S. v. Campbell, 491 F.3d 1306 (11th Cir. 2007) 60
U.S. v. Chau, 426 F.3d 1318 (11th Cir. 2005) 64
U.S. v. Conner, 752 F.2d 566 (11th Cir. 1985) 69
U.S. v. Cornille, 92 F.3d 1108 (11th Cir. 1996) 50
U.S. v. Cotton, 535 U.S. 625, 122 S.Ct. 1781 (2002) 54
U.S. v. Crawford, 407 F.3d 1174 (11th Cir. 2005) 60-62
U.S. v. Croce, 209 Fed. Appx. 208 (3d Cir. 2006) 70
U.S. v. Croce, 345 F. Supp. 2d 492 (E.D. Pa. 2004) 70
U.S. v. Davis, 63 Fed. Appx. 76 (4th Cir. 2003) 68
U.S. v. Devegter, 198 F.3d 1324 (11th Cir. 1999) 45, 51
x
U.S. v. Diaz, 190 F.3d 1247 (11th Cir. 1999) 71
U.S. v. Diaz, 248 F.3d 1065 (11th Cir. 2001) 31
U.S. v. Dorman, 488 F.3d 936 (11th Cir. 2007) 65
U.S. v. Drury, 396 F.3d 1303 (11th Cir. 2005) 49, 57
U.S. v. Edelkind, 467 F.3d 791 (1st Cir. 1991) 70
U.S. v. Gallo-Chamorro, 48 F.3d 502 (11th Cir. 1995) 47
U.S. v. Griggs,
735 F.2d 1318 (11th Cir. 1984) (per curiam) 54
U.S. v. Hamaker,
455 F.3d 1316 (11th Cir. 2006) 58, 61, 62
U.S. v. Hansen, 262 F.3d 1217 (11th Cir. 2001) 47
U.S. v. Hasson, 333 F.3d 1264 (11th Cir. 2003) 32, 66
U.S. v. Hunt, 459 F.3d 1180 (11th Cir. 2006) 60
U.S. v. Iacovetti, 466 F.2d 1147 (5th Cir. 1972) 42
U.S. v. Jernigan, 341 F.3d 1273 (11th Cir. 2003) 54
U.S. v. Jones, 504 F.3d 1218 (11th Cir. 2007) 49
U.S. v. Kenney, 185 F.3d 1217 (11th Cir. 1999) 47
U.S. v. Knowles, 66 F.3d 1146 (11th Cir. 1995) 31
U.S. v. Magluta, 418 F.3d 1166 (11th Cir. 2005)
cert. denied, U.S. , 126 S.Ct. 2966 (2006) 53
U.S. v. Martin, 824 F.Supp. 208 (M.D. Ga. 1993) 37
U.S. v. Massey, 443 F.3d 814 (11th Cir. 2006) 31
U.S. v. Matthews, 431 F.3d 1296 (11th Cir. 2005)
cert. denied, U.S. , 127 S.Ct. 46 (2006) 58
xi
U.S. v. McClendon,
195 F.3d 598 (11th Cir. 1999) (per curiam) 65
U.S. v. Miles, 290 F.3d 1341 (11th Cir. 2002) 54
U.S. v. Monroe, 353 F.3d 1346 (11th Cir. 2003) 39
U.S. v. Mori, 444 F.2d 240 (5th Cir. 1971) 32, 72
U.S. v. Moriarty, 429 F.3d 1012 (11th Cir. 2005) 40
U.S. v. Navarro-Ordas, 770 F.2d 959 (11th Cir. 1985) 69
U.S. v. Olano, 507 U.S. 725, 113 S.Ct. 1770 (1993) 49
U.S. v. Paradies, 98 F.3d 1266 (11th Cir. 1996) 57
U.S. v. Parr, 716 F.2d 796 (11th Cir. 1983) 50
U.S. v. Patti, 337 F.3d 1317 (11th Cir. 2003),
cert. denied, 540 U.S. 1149, 124 S.Ct. 1146 (2004) 39
U.S. v. Perez, 922 F.2d 782 (11th Cir 1991) 46
U.S. v. Pickard, 170 Fed. Appx. 243 (3d Cir. 2006) 39
U.S. v. Quintana, 300 F.3d 1227 (11th Cir. 2002) 65
U.S. v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005),
cert. denied, 545 U.S. 1127 (2005) 64
U.S. v. Rudisill, 187 F.3d 1260 (11th Cir. 1999) 59
U.S. v. Russo, 2007 WL 505056 (S.D. Ala. Feb. 14, 2007) 70
U.S. v. Rutledge, 437 F.3d 917 (9th Cir. 2006) 70
U.S. v. Schlei, 122 F.3d 944 (11th Cir. 1997) 56
U.S. v. Schwartz, 666 F.2d 461 (11th Cir. 1982) 46
U.S. v. Scott, 426 F.3d 1324 (11th Cir. 2005) 63
U.S. v. Shabani, 513 U.S. 10, 115 S.Ct. 382 (1994) 42
xii
U.S. v. Soreide, 461 F.3d 1351 (11th Cir. 2006) 71
U.S. v. Starke, 62 F.3d 1374 (11th Cir. 1995) 49, 56
U.S. v. Starrett, 55 F.3d 1525 (11th Cir. 1995) 41
U.S. v. Stone, 9 F.3d 934 (11th Cir. 1993) 31
U.S. v. Sullivan, 763 F.2d 1215 (11th Cir. 1985) 42
U.S. v. Talley, 431 F.3d 784 (11th Cir. 2005) 60, 61, 63, 64
U.S. v. Tamayao, 80 F.3d 1514 (11th Cir. 1996) 32, 65
U.S. v. Tinoco, 304 F.3d 1088 (11th Cir. 2002) 53
U.S. v. Vampire Nation, 451 F.3d 189 (3d Cir. 2006) 69, 70
U.S. v. Ward, 486 F.3d 1212 (11th Cir. 2007) 51
U.S. v. Woodard, 459 F.3d 1078 (11th Cir. 2006) 47
U.S. v. Yates, 438 F.3d 1307 (11th Cir. 2006) 40
U.S. v. Zarabia, 217 Fed. Appx. 906 (11th Cir. 2007) 66
Waters v. Kemp, 845 F.2d 260 (11th Cir. 1988) 37
Young v. U.S. ex rel. Vuitton et Fils, S.A.,
481 U.S. 787, 107 S.Ct. 2124 (1987) 37
STATE CASES
Frazier v. State, 257 Ga. 690, 362 S.E.2d 351 (1987) 37
Reese v. Ga. Power Co.,
191 Ga. App. 125, 381 S.E.2d 110 (1989) 38
State v. Shearson Lehman Bros.,
188 Ga. App. 120, 372 S.E.2d 276 (1988) 38
Whitworth v. State,
275 Ga. App. 790 622 S.E.2d 21 (2005) 37, 38
xiii
FEDERAL STATUTES
18 U.S.C. § 2 4, 5, 46, 51
18 U.S.C. § 371 5
18 U.S.C. § 666(a)(1)(A) 4, 5
18 U.S.C. § 853(p) 71
18 U.S.C. § 1343 4, 5, 51
18 U.S.C. § 1346 4, 5, 51
18 U.S.C. § 1956(a)(1)(B)(I) 4
18 U.S.C. § 1956(h) 4
18 U.S.C. § 1957 5
18 U.S.C. § 2461 70
18 U.S.C. § 3553 30
18 U.S.C. § 3553(a) passim
18 U.S.C. § 3571 71
18 U.S.C. § 3664(e) 66
18 U.S.C. § 3664(f)(1)(A) 66
18 U.S.C. § 3742 xv
28 U.S.C. § 455(a) 39
28 U.S.C. § 1291 xv
28 U.S.C. § 2461 70
FEDERAL RULES
Fed. R. App. 32(a)(7)(B) 75
Fed. R. Crim. P. 32.2(b) 69
Fed. R. Crim. P. 32.2(b)(4) 68
xiv
Fed. R. Crim. P. 32.2(c) 69
Fed. R. Evid. 801(c) 53
Fed. R. Evid. 801(d)(2)(e) 53, 55
Fed. R. Evid. 802 53
SENTENCING GUIDELINES
U.S.S.G. § 2B1.1 27
U.S.S.G. § 2B1.1(b)(1)(H) 26
U.S.S.G. § 2C1.7 27
U.S.S.G. § 2C1.7(a) 26
U.S.S.G. § 3B1.1 27
U.S.S.G. § 3B1.1(a) 26
U.S.S.G. § 3B1.1(c) 27
U.S.S.G. § 3C1.1 passim
U.S.S.G. § 3C1.1, comment (n.4(b)) 59
xv
STATEMENT OF JURISDICTION
This Court has jurisdiction over this direct appeal from the
judgment and sentence of the district court, pursuant to 18 U.S.C.
§ 3742 and 28 U.S.C. § 1291.
1
STATEMENT OF THE ISSUES
I. WHETHER THE DENIAL OF DEFENDANT’S MISTRIAL
MOTION FOLLOWING THE LEAD PROSECUTOR’S
SELECTION TO BE A FEDERAL MAGISTRATE JUDGE
REQUIRES REVERSAL OF DEFENDANT’S CONVICTION
II. WHETHER THERE WAS SUFFICIENT EVIDENCE FOR
DEFENDANT’S CONVICTION FOR HAVING CONSPIRED TO
DEFRAUD THE STATE OF GEORGIA AND DEPRIVE THE
STATE OF THE HONEST SERVICES OF STATE SCHOOL
SUPERINTENDENT LINDA SCHRENKO
III. WHETHER THERE WAS SUFFICIENT EVIDENCE OF
DEFENDANT HAVING AIDED AND ABETTED A SCHEME TO
DEFRAUD THE STATE OF GEORGIA
IV. WHETHER THE DISTRICT COURT PROPERLY INSTRUCTED
THE JURY ON AIDING AND ABETTING
V. WHETHER THERE WAS SUFFICIENT EVIDENCE OF
DEFENDANT HAVING ENGAGED IN A SCHEME TO
DEFRAUD THE STATE OF GEORGIA THROUGH WIRE
FRAUD
VI. WHETHER EVIDENTIARY RULINGS REGARDING THE
TESTIMONY BY DEFENDANT’S BUSINESS ATTORNEY AND
CO-CONSPIRATOR LINDA SCHRENKO REQUIRE REVERSAL
OF DEFENDANT’S CONVICTION
2
VII. WHETHER THE CUMULATIVE EFFECT OF EVIDENTIARY
RULINGS REQUIRES REVERSAL OF DEFENDANTS
CONVICTION.
VIII. WHETHER THE DENIAL OF DEFENDANT’S REQUESTS FOR
SPECIFIC JURY INSTRUCTIONS DEPRIVED DEFENDANT
OF HIS RIGHT TO PRESENT A THEORY OF DEFENSE
IX. WHETHER THE DISTRICT COURT PROPERLY ENHANCED
DEFENDANT’S SENTENCE FOR OBSTRUCTION OF
JUSTICE UNDER SECTION 3C1.1 OF THE SENTENCING
GUIDELINES
X. WHETHER THE DISTRICT COURT'S SENTENCE OF
NINETY-SEVEN (97) MONTHS' IMPRISONMENT WAS
REASONABLE WHEN IT PROPERLY CALCULATED THE
GUIDELINES RANGE, CONSIDERED THE SECTION
3553(a) FACTORS AND IMPOSED A SENTENCE WITHIN
THE APPLICABLE SENTENCING GUIDELINES RANGE
XI. WHETHER THE SENTENCING COURT’S CONSIDERATION
OF FACTS THAT WERE NEITHER ADMITTED BY
DEFENDANT OR FOUND BY THE JURY AS PART OF
THEIR VERDICT VIOLATED DEFENDANT’S SIXTH
AMENDMENT RIGHTS
3
XII. WHETHER THE CASE SHOULD BE REMANDED FOR
RESENTENCING BECAUSE THE SENTENCING COURT
DENIED DEFENDANT HIS RIGHT OF ALLOCUTION
XIII. WHETHER THE FACTUAL BASIS FOR THE ORDER OF
RESTITUTION WAS CLEARLY ERRONEOUS
XIV. WHETHER THE ORDER OF FORFEITURE ENTERED
AGAINST DEFENDANT VIOLATED DEFENDANT’S
CONSTITUTIONAL RIGHTS AND WAS WITHOUT
STATUTORY AUTHORITY
XV. WHETHER DEFENDANT IS ENTITLED TO ACCESS TO
BACKUP AUDIOTAPE RECORDINGS OF CLOSING
ARGUMENTS AND SENTENCING.
1Another co-defendant, Merle Temple, Jr., entered a guilty
plea, on January 10, 2005, to Counts One, Two and Eighteen of an
earlier indictment that was returned on November 10, 2004. [Doc.
62].
4
STATEMENT OF THE CASE
1. Course of Proceedings and Disposition Below
On February 8, 2005, a superseding indictment was returned
against appellant-defendant A. Stephan Botes, co-defendant Linda C.
Schrenko, and co-defendant Peter Steyn by a federal grand jury in
the Northern District of Georgia [R1-76].1 Count One charged that
defendants Botes, Schrenko, and Steyn had conspired to: (1) steal
property from the Georgia Department of Education (“GDOE”), in
violation of 18 U.S.C. §§ 666(a)(1)(A); and (2) devise a scheme to
defraud the State of Georgia of money and the honest services of
defendant Schrenko, in her capacity as State School Superintendent,
to obtain money under false pretenses, and execute the scheme by
means of wire fraud, in violation of 18 U.S.C. §§ 1343 and 1346.
Id. Counts Two through Twelve charged the defendants with theft
from an agency receiving federal funds in violation of 18 U.S.C. §§
666(a)(1)(A) and 2. Counts Thirteen through Twenty-One charged the
defendants with substantive honest services wire fraud in violation
of 18 U.S.C. §§ 1343, 1346, and 2. Id. Counts Twenty-Two through
Forty charged defendants Botes and Schrenko with money laundering
and conspiracy to money launder in violation of 18 U.S.C. §§
1956(a)(1)(B)(I), 1956(h), and 2. Counts Forty-One through Forty2Defendant
Schrenko entered a guilty plea, on May 10, 2006, to
Counts One and Twenty-Two of the superseding indictment. [Docs.
217 and 218]. Defendant Steyn was acquitted of the charges against
him. [R28-348-2260].
3The trial court amended the preliminary order of forfeiture
to substitute defendant’s residential property, located at 2140
Northwick Pass, Alpharetta, Georgia, to partially satisfy the
monetary judgment against defendant. [R4-306]. A final order of
forfeiture of substitute property was entered by the trial court on
January 9, 2008. [Doc. 389].
5
Seven charged defendant Botes with money laundering in violation of
18 U.S.C. § 1957.
Trial of defendant, Schrenko, and Steyn commenced on May 1,
2006. [R3-201]. On May 24, 2006, defendant was convicted of: Count
One, for conspiracy, in violation of 18 U.S.C. § 371 [R3-247];
Counts Two through Twelve, theft of federal funds, in violation of
18 U.S.C. §§ 666(a)(1)(A) and 2 [R3-247]; and Counts Eighteen,
Twenty, and Twenty-One, wire fraud, in violation of 18 U.S.C. §§
1343, 1346, and 2. [R3-247].2
On September 11, 2006, defendant was sentenced to a term of
ninety-seven (97) months imprisonment and three (3) years of
supervised release. [R3-286]. The trial court further entered an
order of restitution and criminal forfeiture judgment against
defendant in the amount of $382,394. Id.3 On September 22, 2006,
defendant filed his notice of appeal. [R3-294].
By Order dated July 20, 2007, this Court granted defendant’s
motion to stay appellate briefing and remanded this case to the
trial court for a ruling on defendant’s motions to correct the
4The district court clerk’s certificate of readiness of record
on appeal, dated on June 1, 2007, only provided volume numbers for
documents filed through that date.
6
trial record. By Order entered October 2, 2007, the trial court
denied defendant’s motions to correct the record. [Doc. 378].4 On
October 10, 2007, defendant filed a motion for the trial court to
reconsider that Order denying defendant’s motion and to provide to
defendant’s counsel access to the court reporter’s audiotape
recordings of closing and defendant’s sentencing hearing. [Doc.
381]. That motion remains pending.
2. Statement of the Facts
A. Linda Schrenko Runs For Governor
Linda Schrenko, the former State School Superintendent for the
State of Georgia, had the authority to enter into contracts for
goods and services up to $50,000 on behalf of the Georgia
Department of Education (“GDOE”) without seeking the prior approval
of the State Board of Education. [R22-344-1327]. The GDOE
received approximately $650 million in funding from the U.S.
Department of Education in 2002. [R15-334-105].
Schrenko was a candidate for governor in the 2002 Republican
Party primary. [R22-344-1025]. Richard Leonard was the initial
campaign manager for the Schrenko campaign. [R19-339-1025]. Merle
Temple was Deputy State School Superintendent under Schrenko and
was actively involved in the Schrenko gubernatorial campaign while
at GDOE. [R20-340-1055; R22-344-1309; Govt. Exh. (“GE”) 153].
7
Temple resigned from GDOE in 2002 to formally become chairman of
Schrenko’s campaign. [R19-339-1310-11; GE 156]. Schrenko could
not receive contributions in excess of $5,000 from any single
donor. [R20-340-1084]. The Schrenko campaign was required to file
reports with the Georgia Secretary of State that named each donor
who contributed more than $100 to the campaign. [R20-340-1054,
1081].
Campaign checks drawn upon the campaign accounts repeatedly
were dishonored for insufficient funds. [R19-339-963-966; GE 135].
Schrenko’s campaign’s finances during the first five months of 2002
were “abysmal, just horrible.” [R22-344-1307].
B. Defendant Runs CCSC
Defendant was an owner and chief executive officer (“CEO”) of
Computer Consulting Services Corporation (“CCSC”) in Atlanta,
Georgia, which provided consulting services. [R16-336-389-90].
Defendant also owned Uniting Networks, Inc., (“UNI”), in Atlanta.
[R16-336-392]. UNI developed software including the product “Power
Researcher.” [R16-336-392]. Defendant also owned Global Executive
Management (“GEM”), a company based in Bermuda. [R16-336-393].
Peter Steyn was chief operating officer (“COO”) of CCSC.
[R16-336-388-89]. From 1999 through early 2003, Jonathan Turner
was the CCSC controller. [R16-336-388]. Defendant was described
as a micro-manager. [R26-341-2024]. During 2002, CCSC experienced
financial difficulties. [R17-336-391; R26-341-2024].
8
C. Defendant Meets The Schrenko
Campaign
During 2002, Rodney Estrada, who was active in Republican
Party activities and knew Schrenko, was a CCSC consultant. [R15-
334-140-44]. Estrada advised defendant that supporting Schrenko’s
campaign could benefit marketing CCSC products to GDOE. [R15-334-
144-45].
Defendant agreed to host a fundraiser “tea” for the Schrenko
campaign on March 24, 2002. [R16-336-401; GE 37A]. An e-mail from
defendant requested employees attending the fundraiser “to make a
donation as close to $100 as you can and let Johnny [Turner] know
so we can make it up to you.” [R16-336-405; GE 37B].
Following that fundraiser, CCSC employees met with GDOE
officials. [R15-336-210-14; R23-345-1621]. On May 27, 2002, an email
from CCSC manager Doug Beasley to defendant stated “IMPORTANT
- Schrenko wants a project.” [R23-345-1622; GE 96]. On June 3,
2002, a meeting was held at CCSC offices. Meeting participants
included Schrenko, Temple, campaign manager Leonard, Steyn and
defendant. [R16-336-420-24; R22-344-1301-02]. At that meeting,
CCSC demonstrated Power Researcher software. [R22-344- 1302-03].
After the initial meeting broke up, Temple and defendant met
separately. [R22-344-1303].
9
D. Defendant Funnels Money Into The
Schrenko Campaign
After checking the room for monitoring devices, defendant
discussed with Estrada the possibility of GDOE contracts being
granted to CCSC if $250,000 could be “pushed back” into the
Schrenko campaign. [R15-334-156]. Estrada counseled Defendant
that such conduct would be illegal. [R15-334-157]. Defendant
discussed with Turner the possibility of $500,000 to $550,000 in
GDOE contracts being received and “about half” the value of those
contracts going back to the Schrenko campaign. [R16-336-425].
Following the June 2002 meeting at CCSC, Temple wanted to
conduct a pilot program involving CCSC. [R22-344-1304]. The
Governor’s Honors Program (“GHP”) was selected for that project.
[R22-344-1304].
Procedures for execution of GDOE contracts involve sequential
preparation of: contract initiation forms; draft contracts;
contract routing forms; approved contracts; signed contacts; and
vendor checks. [R23-345-1458-67]. By e-mail dated June 24, 2002,
GDOE federal funding supervisor Miller Finley told GDOE attorney
Betsy Howerton that two contracts needed to processed. [R23-345-
1467-76; GE 18, 19].
On June 25, 2002, routing sheets for two proposed CCSC
contracts were issued: one routing sheet was for $32,493.50 for 650
Power Researcher software licenses to GHP; a second routing sheet
10
was for CCSC to be paid $50,000 to conduct a “needs assessment” for
GHP. [R23-345-1473, 1478; GE 14C, 15D].
GHP director Joseph Searle was not consulted regarding that
purchase of software or the needs assessment. [R23-345-1566,
1572]. Searle believed those funds would have been better spent
elsewhere. [R23-345-1569, 1573].
GHP contracts were not sent out for signature until July 22,
2002. [R23-345-1476; GE 14C, 15D]. Those contracts were backdated
as having been signed by defendant and Schrenko on June 10, 2002.
[GE 14A, 15A]. Checks for the two contracts were issued on June
26, 2002. [GE 14, 15]. Federal funds were the source of payment
for those checks. [R15-334-105-06].
Turner deposited those funds into CCSC’s bank account. [R16-
336-430-31, 439; GE 14, 15, 40B]. Turner wanted to use the GDOE
funds for CCSC operating expenses. [R17-337-454-55]. However,
defendant told Turner those funds were to go back into the Schrenko
campaign and that $60,000 was to be put back in the Schrenko
campaign “under the radar.” [R16-336-426-28].
Defendant and Turner agreed upon a scheme whereby 104 “focus
group” checks, each in the amount of $590, with the payee line
blank, were to be drawn on accounts for: CCSC; UNI; Curti
Consulting; and Business Mailing Services. [R16-336-429-30].
Payee names were to be inserted on those checks after the payees
agreed to return those checks. [R16-336-429]. Check proceeds then
11
were to be contributed to the campaign. [R16-336-429]. Turner
transferred funds from CCSC to cover the amounts of the focus group
checks. [R16-336-438-45; GE 45A, 46A, 47A]. Those transfers were
in CCSC bank statements available for review by Defendant. [R16-
336-451; GE 39B].
Turner told Defendant that preparation of “focus group” checks
and an additional cash withdrawal had been completed. [R16-336-
453]. Defendant then instructed Turner to contact Miller Finley.
[R16-336-453]. After defendant provided Finley’s cellphone number,
Turner met Finley and handed Finley an envelope containing 104
checks, having a total value of $61,360, and $6140 in cash. [R16-
336-456].
Checks then were distributed to payees by Schrenko, Temple,
and Leonard. [R22-344-1341-42; R20-340-1135-1156]. Check proceeds
were used to make contributions to the campaign. [R20-340-1163-66;
GE 126]. Schrenko provided cash to relatives, which she understood
had come from CCSC funds, to cover checks written to her campaign.
[R22-344-1320]. According to campaign treasurer Harry Dolyniuk,
between June 30, 2002, and July 31, 2002, “a lot of bigger
contributions showed up.” [R19-339-974-76; GE 135].
Defendant also instructed Turner to cover the cost of a
Schrenko campaign poll. [R17-337-458]. Temple’s told Leonard that
the cost of the poll “would be taken care of.” [R20-340-1222].
Turner wired $15,000 from CCSC to cover the cost of the poll.
12
[R17- 337-458-63; GE 39A, 41D, 46A]. Payment was made, by check
dated June 28, 2002, to the firm of Fabrizio, McLaughlin. [R17-
337-463; GE 43G].
Turner told defendant payment for the poll had been made.
[R17-337-463]. Turner also showed defendant a document reflecting
distributions of focus group checks, $6,140 in cash, and the cost
of the poll, totaling $82,500, after CCSC received GDOE checks
totaling $82,493.50. [R17-337-465-67; GE 49 and 50].
E. The Scheme To Fund The Schrenko
Campaign Advances
On July 4, 2002, Temple replaced Leonard as campaign chairman.
[GE 153]. On July 14, 2002, an e-mail from Liberty1Liberty@aol.com
to defendant stated:
I am glad to have you in the trenches. ... I am thrilled
that we can go forward together. You are a man I would
want with me in a good fight.
[GE 164]. Liberty1Liberty@aol.com was Temple’s personal e-mail
address. [R22-344-1310].
In July 2002, defendant met with controller Turner to discuss
how to route approximately $200,000 to the Schrenko campaign from
additional GDOE contracts. [R17-337-473-84]. Notes prepared by
Turner of meetings with defendant stated that contract payments
were to be made by GDOE to CCSC, UNI, and three additional
companies: Maverix, LLC; Majestix LLC; and Proactive Research LLC.
[R17-337-473-89; GE 48A, 48B, 48C, 48D, 48E, 48F].
13
Defendant’s business attorney provided SS-4 forms to defendant
to obtain tax identification numbers for Maverix, Majestix, and
Proactive. [GE 55]. Articles of organization were filed on July
29, 2002, for Maverix, Majestix, and Proactive. [GE 52, 53, 54].
Bank account signature cards for those companies were signed by
defendant on August 12, 2002. [GE 56A, 57A, and 58A].
To advance the scheme, Schrenko and Finley appeared at the
GDOE offices on July 24, 2002, and met with Rowe and Howerton to
obtain eleven (11) handwritten checks for purported GDOE contracts.
[R15-334-84-86; R22-344-1320-26; R23-345-1493-1504]. On July 24,
2002, Schrenko caused GDOE checks totaling $531,894 to be issued to
the following companies, in the following amounts:
1) $49,900 to CCSC for 500 PowerResearcher software licenses
to the Governor’s Honors Program (“GHP”)[GE 2, 2A];
2) $48,850 to CCSC for 320 PowerResearcher software licenses
to the Georgia School for the Deaf (“GSD”) [GE 3, 3A];
3) $48,850 to CCSC for 320 PowerResearcher software licenses
to the Atlanta Area School for the Deaf (“ASD”) [GE 4,
4A];
4) $49,900 to Majestix to provide computer technology
training to GDOE and affiliated schools [GE 5, 5A];
5) $47,500 to Maverix for GSD to be licensed to use
MyCommunityServer software [GE 6, 6A];
6) $47,500 to Maverix for ASD to be licensed to use
MyCommunityServer software [GE 7, 7A];
7) $45,000 to Proactive for 180 MaestroPro software licenses
to GSD [GE 8, 8A];
8) $45,000 to Proactive for 180 software licenses to ASD [GE
9, 9A];
14
9) $49,598 to UNI to provide software maintenance services
for ASD for 3 years [GE 10, 10A];
10) $49,898 to UNI to provide GDOE software maintenance
services [GE 11, 11A]; and
11) $49,898 to UNI to provide GSD software maintenance
services [GE 12, 12A].
[R15-335-83-92]. MaestroPro and My Community Server software could
not be delivered to customers in 2002. [R26-341-2027-28].
Contract payments were for less than $50,000 in order to be
within Schrenko’s contracting authority. [R22-344-1327]. Federal
funds were the source of funding to cover those eleven (11) checks.
[R15-334-105]. Schrenko understood that Temple would receive
“commissions” for those checks being issued and would cause
$250,000 to be moved by Temple into Schrenko’s camapign. [R22-344-
1319-21]. Schrenko knew it was necessary to obtain those checks
immediately "because the primary was on August 20th and we were
running out of time.” [R22-344-1323]. Schrenko knew “that was
wrong, that was just wrong.” [R22-344-1321].
Later on July 24, 2002, Steyn handed Turner the eleven (11)
GDOE checks. [R17-337-472]. Defendant directed Turner to move
more money into the Schrenko campaign through checks in amounts
less than $10,000 to avoid inquiries questions by any bank. [R17-
337- 530].
On July 26, 2002, Turner wired $10,000 from the UNI account to
defendant. [R17-337-531; GE 63C]. On that date, Turner gathered
$32,000 in cash through: $8,000 in cash from a check that Steyn
15
cashed; $8,000 from a check that CCSC employee Regina Mendes
cashed; $8,000 in cash from a check that Turner cashed; and $8,000
from a counter check. [R17-337-533-34; GE 41E]. Turner was
directed by defendant to leave the cash at the CCSC offices
overnight. [R17-337-535].
On Saturday, July 27, 2002, defendant, Turner, Temple, and
Temple’s driver, William Pittman, met for breakfast at the Ritz-
Carlton Hotel in Atlanta. [R18-338-642; R23-345-1438]. Turner
arrived with an envelope holding $32,000 in cash. [R17-337-535].
Defendant instructed Turner to leave the $32,000 in his car. [R17-
337-535]. After breakfast, Turner handed Temple the cash envelope
and Temple left with an envelope he did not have when he arrived.
[R17-337-538; R23-345-1441]. Turner told defendant that cash had
been delivered to Temple. [R17-337-538].
F. Defendant Pays For A Database
During late July 2002, defendant told Turner that $10,000 was
needed to pay for a Schrenko campaign database. [R17-337-543].
The Schrenko campaign had used the “Aristotle” database program to
track campaign contributions. [R20-340-1055]. Leonard was
notified access to the database would be terminated if payment was
not made. [R20-340-1104-05]. Leonard discussed that demand with
Temple. [R20-340-1123].
Defendant told Turner to wire $10,000 to defendant’s
acquaintance J.T. Potgeiter. [R17-337-543-44]. Turner received
16
information for Potgeiter’s bank account from Defendant. [R17-337-
545-46; GE 48F]. On July 31, 2002, Turner wired $10,000 into
Potgeiter’s account. [R17-337-544; GE 42B]. Potgeiter wrote a
check for $10,000, made payable to Aristotle and handed the check
to Defendant. [R20-340-1245; GE 133].
G. Additional Funds Are Routed To The
Schrenko Campaign
On August 2, 2002, three checks for $5,000 each were cashed by
Turner, Steyn and CCSC employee Carlos Mendes. [R17-337-539-42; GE
39C]. Turner and Steyn gave defendant $15,000 with the
understanding the funds were going to the campaign. [R17-337-541-
42].
On August 2, 2002, Defendant directed Turner to wire $50,000
from UNI to a GEM Bermuda account. [R17-335-552; GE 42C].
Defendant then planned to make a payment from GEM to Paradigm
Pioneers, in order for Paradigm to route funds to the campaign.
[R17-337-552-54; GE 63]. An e-mail from defendant to
liberty1liberty@aol.com dated August 6, 2002, stated:
Merle, your business having been instrumental in GEM’s
client CSC scoring the contract with DOE, you would be
entitled, as per your agreement with GEM, to $15,000, or
$375,000 commission, once CCSC is paid by DOE ...
I am sure I may be able to arrange at least a $250,000
advance in the interim.
[GE 166]. Temple’s reply e-mail, dated August 7, 2002, stated:
“Left code for Johnny ... every day is critical.” [GE 167]. Those
17
codes were required to transfer funds between accounts. [R17-337-
553]
On August 9, 2002, Botes personally directed that $40,000 be
wired by defendant from GEM Bermuda to Paradigm Pioneers. [R17-
337-556; GE 63G]. On August 12, 2002, $61,000 was wired by Turner,
at the direction of Defendant, from the UNI account to GEM-US.
[R17-337-554-55; GE 63D]. On that same date, $60,000 was wired
from GEM-US to Paradigm Pioneers (“Paradigm”). [GE 63H].
Defendant told Turner and Temple told Schrenko that Paradigm was a
company controlled by Temple through which funds would be put into
Schrenko’s campaign. [R17-337-552; R22-344-1334-35].
On August 7, 2002, Temple gave Schrenko a $16,200 bank check.
[R22-344-1331-32; GE 168A]. Schrenko deposited that money into her
account and wrote a $16,200 check to her campaign. [R22-344-1333;
GE 168C]. Schrenko understood Temple’s funds came from his
“commission money.” [R22-344-1333].
On August 15, 2002, a $30,000 check from Temple was deposited
into Schrenko’s account. [R22-344-1335-36; GE 169A and 169B].
Schrenko then wrote a personal check in the amount of $30,000 to
her campaign. [R22-344-1337; GE 169C]. Temple told Schrenko those
funds came “from the account where he kept his commissions.” [R22-
344-1338].
A “media” bank account was opened by Temple in July 2002.
[R19-339-980]. At the end of August 2002 that media account had a
18
$95,572 balance. [R19-339-981; GE 136-B]. Campaign treasurer
Dolyniuk characterized deposits totaling $151,086 that came into
the account in August 2002 and overall deposits in July and August
2002 as “ten times what normal was[.]” [R19-339-986; GE 135].
H. Schrenko Loses The Primary
The Georgia gubernatorial primary election was held on August
20, 2002; that evening, a gathering was held at Schrenko campaign
headquarters in Atlanta, for which defendant paid. [R17-337-564-
66; GE 64A]. Schrenko lost the primary election. [R22-344-1345-
46].
I. Attempted Cover-Ups Of The Scheme
1. Defendant Tells Turner to
Destroy A Spreadsheet
After the election, Defendant questioned Turner as to how GDOE
funds had been disbursed. [R17-337-596]. Turner prepared a
spreadsheet that traced all payment disbursements. [R17-337-592;
GE 64A, 64B, 64C]. After Turner provided that spreadsheet to
defendant, Turner was directed by defendant to destroy it and
delete it from his computer. [R17-337-598].
2. Backdating Contracts
In late summer 2002, Georgia auditors commenced review of the
GDOE payments authorized by Schrenko to CCSC and affiliates. [R17-
337-576]. At that time, CCSC had not produced the $50,000 “needs
assessment” or delivered any of the goods or services for which the
19
eleven (11) July 2002 checks had been issued. [R24-346-1665,
1672].
Defendant discussed with Turner the need for paperwork to be
provided to the auditors. [R17-337-576-77]. Beasley was requested
by Steyn to sign backdated contracts. [R23-345-1632].
Subsequently, in September 2002, backdated invoices were prepared
and backdated contracts were signed by Steyn, Beasley, Turner, and
other CCSC employees. [R17-337-578-90; R23-345-1631-32; GE 2A, 3A,
4A, 5A, 6A, 7A, 8A, 9A, 10A, 11A, 12A]. Defendant told Turner that
auditors had received the backdated contracts. [R17-337-592].
3. Post-Hoc Attempts To
Justify The Payments
In the fall of 2002, Steyn and Beasley met with GDOE officials
in an effort to discuss the goods and services which purportedly
were to be provided for the GDOE payments. [R23-345-1645, 1649-
50]. On October 23, 2002, after a newspaper article had been
published regarding the payments, Beasley and Steyn met with Dr.
Cynthia Ashby, who oversaw ASD and GSD. [R23-345-1580, 1589,
1645]. Ashby stated the meeting had been scheduled at Temple’s
request. [R23-345-1587].
Prior to being contacted by CCSC representatives, Ashby was
not aware contracts for software had been authorized. [R23-345-
1586]. Ashby told Steyn and Beasley that the software would only
be of use to a small percentage of the students. [R23-345-1596,
1647; GE 113]. Ashby would not have authorized over $400,000 to be
20
expended for that software. [R23-345-1592]. Beasley agreed with
Ashby’s conclusion that the software was not suitable for most
students at the institution. [R23-345-1647]. Defendant told
Beasley that no refund would be given. [R23-345-1649].
After late October 2002, Beasley commenced work on the $50,000
GHP needs assessment. [R23-345-1665]. On December 31, 2002,
Beasley e-mailed a ten (10) page needs assessment to GHP. [R23-
345-1654; GE 109]. By e-mail dated December 30, 2002, Beasley
stated that he was not pleased with the “lightweight” needs
assessment. [R23-345-1664; GE 112]. Temple described the needs
assessment to Schrenko as “worthless” and “pitiful.” [R22-344-
1354].
The only product installed on computers pursuant to the June
2002 and July 2002 contracts was the Power Researcher software
installed on some GHP computers for the $32,493.50 payment from
GDOE on June 26, 2002. [R24-346-1672]. Cathy Henson, then
chairperson of the State Board of Education, was notified in early
September 2002 of concerns with the July 2002 contracts. [R24-346-
1753-54]. After speaking with Searle and Ashby, the Board of
Education voided the July 2002 contracts and requested return of
the funds paid out in July 2002 by letters dated November 15, 2002.
[R24-346-1755-56; GE 212, 213, 214, 215, 216, 217]. No refunds
were made. [R24-346-1761].
5Attorney Robert Kaufmann had provided defendant advice on
matters related to CCSC contracts. [R25-347-1884-1901]. After
considering proffered testimony outside the presence of the jury by
attorney Kaufman and the transcript of the recorded conversation,
the trial court ruled that testimony by Kaufmann regarding
21
4. Defendant, Temple, And
Schrenko Meet at The Rock
Bottom Brewery
After being advised the GDOE payments were under criminal
investigation, Schrenko met with Temple and defendant at an Atlanta
restaurant, The Rock Bottom Brewery. [R22-344-1355-56]. After
Temple joked about patting down defendant for a recording device,
the investigation was discussed. [R22-344-1356]. Defendant and
Temple discussed using coded language for future communications.
[R22-344-1357]. At the meeting, defendant handed Temple a
document. [R22-344-1357]. Temple told Schrenko that paper was an
alleged agreement which stated Temple had performed consulting
services for CCSC. [R22-344-1358]. Temple told Schrenko he would
not sign the document and had never signed a consulting agreement.
[R22-344-1358].
5. Defendant Coaches Turner
In a consensually monitored conversation on October 8, 2004,
defendant discussed with Turner how Turner was responding to
investigators. [GE 74, GE 75]. Defendant told Turner “what we
should do is sit together and make sure we have, have all our ducks
in a row and make sure we’re properly protected and uh, and be
proactive.” [GE 74-1].5
statements made by defendant to Kaufmann regarding why defendant
wanted to schedule a meeting between Kaufmann, Turner and defendant
was inadmissible hearsay. [R25-347-1908-10].
6Temple had presented to Schrenko a proposed contract for $2.5
million between GDOE and CCSC for a “technology needs assessment.”
[R22-344-1314-15; GE 65-A]. Schrenko did not sign and lacked the
legal authority to sign such a contract. [R22-344-1314-16].
22
Defendant then claimed that Paradigm had requested a $250,000
advance as part of a commission allegedly owed on a $2.5 million
contract between GDOE and CCSC. [GE 74-2-3].6 When Turner asked
how the 104 focus group checks could be commission payments for a
consulting agreement, defendant responded “[w]ell, okay, we will
have to figure how that, how, how all that works...” [GE 74-9].
In response to Turner’s concerns, defendant further told Turner:
You were told to deal directly with, with, with, uh,
Merle. Uh, you had lots of latitude to do stuff and
Merle knew that and you took your instructions, do this,
do this, do this, you took your instructions from L..,
Merle. You weren’t the kingpin, or you weren’t the
brains behind, or you weren’t orchestrating stuff. Do
you understand?
Id. at 13.
J. Trial Proceedings
1. AUSA Vineyard Selected
For Magistrate Judge
Trial commenced on May 1, 2006. [R15-334]. Testimony was
terminated on the first day of trial in order for the trial court
to attend to a “judicial obligation.” [R15-334-161]. That
obligation was to participate in the selection of a U.S. Magistrate
Judge for the Northern District of Georgia. [R15-335-176]. The
7At sentencing, defendant told the trial court that his lead
counsel “gave it his best.” [R29-349-53].
23
candidate selected was then-Assistant U.S. Attorney (“AUSA”)
Russell Vineyard. [R15-335-166]. AUSA Vineyard was the lead
prosecutor at defendant’s trial.
On May 2, 2006, defendant’s counsel moved that a mistrial be
declared if AUSA Vineyard did not withdraw as government counsel.
[R15-335-167]. Defendant told his counsel he was concerned his
attorneys would not zealously challenge AUSA Vineyard during
trial.7 [R15-335-168-69]. After AUSA Vineyard responded that
defendant’s counsel had known of his pending application for some
time and raised no concerns, the trial court directed counsel to
report to chambers. [R15-335-173-74].
No objection was made that defendant was not present in
chambers and no testimony was presented in chambers. [R15-335-174-
201].
The trial court initially stated that, due to a concern with
any appearance of impropriety, a mistrial would be declared if AUSA
Vineyard did not withdraw from the case. [R15-335-177]. Counsel
for the parties returned to chambers later on May 2, 2006. [R15-
335-187]. Counsel for defendant confirmed he was seeking the
withdrawal of AUSA Vineyard and not the recusal of the trial court.
[R15-335-186-87]. After considering the arguments of the
24
government regarding why AUSA Vineyard was not required to
withdraw, the trial court then stated:
[C]ounsel for the defendants have perceived that my
impartiality - that neither my impartiality nor Mr.
Vineyard’s impartiality is at issue in this case.
They’re more concerned about the public perception.
Having taken all that into consideration, the Court is
going to allow Mr. Vineyard to remain in the case until
such time as he is sworn in as a U.S. Magistrate.
[R15-335-199-200].
2. Jury Instructions
At the conclusion of trial, a jury charge conference was held,
at which defendant objected to the “Pinkerton” conspiracy
instruction, as set forth in Eleventh Circuit Pattern Jury
Instruction 13.5, being given to the jury. [R26-341-2057]. The
trial court stated that it normally includes a “Pinkerton” charge
in jury instructions for criminal conspiracy cases and would do in
this case. [R26-341-2058].
The trial court then stated it would adopt the government’s
proposed instruction on aiding and abetting, over the objection of
defendants that the charge not include the word “employee.” [R26-
341-2058, 2060]. That charge tracked the Eleventh Circuit Pattern
Jury Instruction for that offense. [R3-208-Govt. Request to Charge
No. 12; R26-341-2060].
Defendant further objected to the government’s proposed
instruction on conspiracy, which adopted the language of Eleventh
Circuit Pattern Jury Instruction. [R3-208-Govt. Request to Charge
8See Eleventh Circuit Judges Association, Pattern Jury
Instructions, Criminal Cases, Instruction No. 13.1 (2003).
25
No. 14; R26-341-2069].8 Defendant requested that its proposed
instruction, which cited language on the elements of conspiracy
from the decision in U.S. v. Arbane, 446 F.3d 1223 (11th Cir.
2006), be added. [R3-224-Defendant Request To Charge No. 9; R26-
341-2071]. The trial court agreed with counsel for the government
that the pattern conspiracy charge covered the information sought
by defendant. [R26-341-2071].
Defendant also sought an instruction that it is not illegal to
pay a consultant a commission. [R3-223-Defendant Request To Charge
No. 7; R26-341-2072]. The government responded that defendant was
charged with conspiracy to commit honest services fraud, not making
illegal commission payments, and that defendant’s requested
instruction was irrelevant and potentially confusing. [R26-341-
2072-73]. The trial court declined to provide defendant’s
requested instruction because it could potentially confuse and
mislead the jury. [R26-341-2074].
3. Jurors’ Request For
Clarification Of Aiding
And Abetting
The jurors commenced deliberations on Thursday, May 18, 2006.
[R27-342-2226]. On May 23, 2006, a written question from the juror
foreperson asked:
As far as an aiding and abetting charge, if a defendant
aids in a crime but does not necessarily do it
26
intentionally, should we find him guilty? If you cannot
answer that question, could you provide further
instructions for an aiding and abetting charge?
[R28-348-2254]. The following colloquy ensued between counsel for
defendant and the trial court:
THE COURT: The response I propose is the Court cannot
answer either question, you should reread your charge on
aiding and abetting.
[DEFENDANT’S COUNSEL]: Well, if the Court will do that,
and also willfulness too. It is the –
THE COURT: Maybe you can all agree.
[R28-348-2255]. After a brief further discussion, the trial court
then stated:
THE COURT: What I plan to do, the note I plan to send
out will read as follows: “The Court cannot answer either
question; however, I do suggest that you reread the
charge on aiding and abetting.” ...
[R28-348-2255-56].
The jury returned its guilty verdicts the next day. [R28-348-
2258-64].
K. Sentencing Of Defendant
The presentence report (“PSR”) recommended that defendant’s
net offense level, under the advisory provisions of the 2003
edition of the Sentencing Guidelines, be calculated to total level
26 on the basis of: (1) a base offense level of 10 under § 2C1.7(a)
[PSR-¶63]; an increase of 14 levels, pursuant to § 2B1.1(b)(1)(H),
due to a loss amount of $614,387.50 [PSR-¶65]; and an increase of
2 levels, pursuant to § 3B1.1(a), due to defendant directing
9Pursuant to his plea agreement, co-defendant Merle Temple
previously had paid $199,500 in restitution in partial satisfaction
of the total loss of $614,387.50 incurred by the victim GDOE.
[PSR-¶60]. That reduced the unpaid GDOE loss amount from
$614,387.50 to $414,887.50
27
Turner’s activities [PSR-¶67]. Given an offense level of 26 and a
criminal history category of I, defendants’s advisory Guidelines
range was for a sentence of 63 to 78 months imprisonment. [PSR-p.
27]. It was recommended that Defendant be ordered to pay
restitution of $414,887.50. [PSR-¶60].9
Defendant objected that his base offense leave should have
been calculated as offense level 6, pursuant to the Guidelines
section governing thefts of funds under § 2B1.1. [PSR-¶63; R29-
349-14-15]. At sentencing, the trial court held that the honest
services § 2C1.7 Guideline was properly applied. [R29-349-15].
Defendant also maintained that no enhancement should have been
imposed, pursuant to § 3B1.1, for his role in the offense and,
instead, that his offense level should be reduced because he had a
minor role in the offense. [PSR-¶67; R29-349-16-20]. The
government objected to that recommendation on the ground that
defendant’s net offense level for his role in the offense should be
increased under § 3B1.1 by 4 levels due to defendant being a leader
and organizer of criminal conduct that involved five or more
participants. [PSR-¶67; R29-349-16, 20-21]. The trial court held
that defendant’s base offense level should be increased by 4
levels, pursuant to § 3B1.1(b). [R29-349-21-22].
28
The government contended that defendant’s net offense level
should be increased by 2 levels, pursuant to U.S.S.G. § 3C1.1,
because defendant sought to influence statements by Turner to
investigators and create a false document to provide a false cover
story for the payments to Paradigm Pioneers. [PSR-¶68; R29-349-
22-26]. The trial court found that the obstruction enhancement
should apply based upon defendant seeking to persuade controller
Turner to provide false information. [R29-349-27].
Finally, with regard to the calculation of the loss and
restitution amounts, defendant maintained that the loss amount
should be reduced by $82,493.50 to reflect the benefits GDOE
received from software having a value of $32,493.50 and the $50,000
needs assessment report. [PSR-¶60; R29-349-28]. The trial court
reduced the loss amount by $32,493.50 for the software that was
partially installed on GHP computers. [R29-349-28]. That reduced
defendant’s restitution obligations to $382,394. [R29-349- 28].
Defendant’s net offense level was calculated at offense level
30, with an advisory custody Guidelines range of 97 to 121 months.
[R29-349-28-9].
1. Defendant’s Allocution
The trial court then heard testimony of seven witnesses called
by defendant that testified as to his character and standing in the
community. [R29-349-31-46]. Defendant then was granted his right
29
of allocution. [R29-349-47]. Defendant commenced his allocution
with this discussion:
DEFENDANT: I’ve also been told that Your Honor does not
have much patience and I should cut my comments short and
that I –
THE COURT: It depends. Today I have a lot of patience.
Go ahead.
[R29-349-47].
Defendant recounted his disagreement with the actions of codefendants,
the trial evidence, and testimony of witnesses. [R29-
349-47-62. The trial court the stated:
THE COURT: But you’re going into all my rulings and all
the testimony. We can’t –
DEFENDANT: I understand.
THE COURT: We can’t just deal with this at this stage
DEFENDANT: All right.
THE COURT: – - and I’m not asking you to throw yourself
on the mercy of the Court, I just want you to bring some
closure to it because we’ve got to move on and -
DEFENDANT: I'll try to expedite it, Your Honor.
THE COURT: Okay.
[R29-349-57-58]. Defendant then proceeded to conclude his
allocution by stating:
DEFENDANT: Your Honor, there's a whole list of things
that I would have wanted the jury to hear that I couldn't
have brought out on the stand, I couldn't sat and talked
about it because it required evidence and it required
additional witnesses and obviously I know that's not the
forum to address here. But I just want -- I wish I had
the opportunity to tell you about all those, Your Honor,
30
because it certainly would change the picture for you and
at this point I guess I better wrap up.
[R29-349-62].
Counsel for defendant and the government then both requested
defendant be sentenced in consideration of the factors under 18
U.S.C. § 3553. [R29-349-62-68]. The trial court stated:
Let the record reflect the Court had considered
sentencing the defendant pursuant to 18 U.S.C. §3553 and
the factors outlined therein. However, the Court decided
not to since a more appropriate sentence can be imposed
pursuant to the custody guidelines range as outlined in
the U.S. Sentencing Commission. Also, the Court has
sentenced the other defendants pursuant to the guideline
range. And the Court hereby imposes the following
sentence....
Pursuant to the Sentencing Reform Act of 1984, it is the
judgment of the Court that the defendant, Stephan Botes,
is hereby committed to the custody of the Bureau of
Prisons for a term of 60 months as to Count One and 97
months on each of Counts Two through Twelve, Eighteen
Twenty, and Twenty-One, all to run concurrently, for a
total of 97 months confinement.
[R29-349-67-68]. The Court further ordered that defendant pay
restitution to the Georgia Department of Education in the amount of
$382,294. [R29-349-68].
3. Standard of Review
I. A district court’s interpretation of applicable Rules of
Professional Conduct are reviewed de novo and factual findings
reviewed for clear error. Hermann v. GutterGuard, Inc., 199 Fed.
Appx. 745, 751 (11th Cir. 2006).
II. This Court reviews the sufficiency of the evidence in the
light most favorable to the government and all reasonable
31
inferences and credibility choices are made in the government's
favor. U.S. v. Diaz, 248 F.3d 1065, 1084 (11th Cir. 2001).
III. Jury instructions are considered as a whole and are reviewed
de novo. U.S. v. Stone, 9 F.3d 934, 937 (11th Cir. 1993).
IV. A district court's decision to admit evidence is reviewed
under the abuse of discretion standard. U.S. v. Knowles, 66 F.3d
1146, 1158 (11th Cir. 1995).
V. Obstruction of justice is a finding of fact under the
Sentencing Guidelines. The district court's findings of fact are
reviewed for clear error. U.S. v. Massey, 443 F.3d 814, 818 (11th
Cir. 2006).
VI. Defendant's sentence is subject to review for abuse of
discretion in light of the factors set forth in 18 U.S.C. §
3553(a). Gall v. U.S., U.S. , 128 S.Ct. 586, 594 (2007).
The review for reasonableness is deferential and "focuses on
whether the sentence imposed fails to achieve the purposes of
sentencing enumerated in § 3553(a).” U.S. v. Arevalo-Juarez, 464
F.3d 1246, 1249 (11th Cir. 2006). The Supreme Court has held that
a Circuit Court may afford a "presumption of reasonableness" to a
within-Guidelines sentence consistent with both Booker and the
Sixth Amendment. Rita v. U.S., U.S. , 127 S.Ct. 2456,
2465-2467 (2007).
VII. If the defendant does not object to the sentencing court's
alleged failure to permit allocution, the case will be remanded
32
only if such failure results in manifest injustice. U.S. v.
Tamayao, 80 F.3d 1514, 1521 (11th Cir. 1996).
VIII. Factual findings underlying a restitution order are reviewed
for clear error. U.S. v. Hasson, 333 F.3d 1264, 1275 (11th Cir.
2003). Objections to a restitution order not raised with the
sentencing court are reviewed for plain error. Id. at 1276.
IX. The Court reviews de novo the district court's legal
conclusions regarding forfeiture and the court's findings of fact
for clear error. U.S. v. Browne, 505 F.3d 1229, 1278 (11th Cir.
2007).
X. A determination by the district court regarding the accuracy
of the record is conclusive unless it is intentionally false or
plainly unreasonable. U.S. v. Mori, 444 F.2d 240, 246 (5th Cir.
1971).
33
SUMMARY OF THE ARGUMENT
Overwhelming evidence supports the convictions of defendant
for having conspired to defraud the State of Georgia and deprive
Georgia of the honest services of former State School
Superintendent Linda Schrenko. Defendant and others schemed to
divert payments received from the Georgia Department of Education
(“GDOE”) to Schrenko’s gubernatorial campaign and then engaged in
myriad overt acts to obtain GDOE payments for sham contracts and
funnel those payments into Schrenko’s campaign. Defendant also
engaged in wire fraud, through e-mail communications with a coconspirator
to advance the fraudulent scheme, and then used the
wires to personally authorize the transfer of $40,000 from a
Bermuda company controlled by defendant to a company established by
a co-conspirator as conduit of funds into Schrenko’s campaign.
The trial court did not abuse its discretion in excluding
hearsay statements allegedly made by defendant. It was not plain
error to admit testimony by co-conspirator Schrenko regarding
statements made by another co-conspirator concerning actions to
advance the scheme to defraud as a non-hearsay co-conspirator
statement.
The decision by the trial court to decline to elaborate, in
response to a question from the jury, upon the pattern instruction
it gave on the offense of aiding and abetting was not plain error.
The trial court properly exercised its discretion in giving a
34
Pinkerton instruction; in declining to adopt defendant’s requested
instruction on conspiracy; and in declining to give defendant’s
requested instruction that it is legal to pay bona fide commission
payments.
Defendant’s advisory Sentencing Guidelines offense level was
properly calculated. At sentencing, the court’s finding that
defendant’s offense level should be enhanced under section 3C1.1
for having engaged in obstructive conduct by attempting to have the
former controller of his company provide a false cover story to
investigators was supported by a preponderance of the evidence, as
was the court’s finding of loss amount. The consideration of these
facts at sentencing which were not found by jury does not violate
defendant’s Sixth Amendment rights.
The district court did not plainly err by allegedly depriving
defendant of his right of allocution.
Defendant’s low-end sentence of 97 months was reasonable,
based upon the trial court’s proper calculation of an advisory
Guidelines range of 97 to 121 months and consideration of the 18
U.S.C. § 3553(a) factors.
The order of restitution in the amount of $382,394 was
supported by a preponderance of the evidence. The orders of
forfeiture were proper exercises of statutory authority and did not
violate defendant’s constitutional rights.
35
Finally, the determination by the trial court to deny
defendant’s motions to correct the record is plainly reasonable,
and defendant’s request for audiotape recordings to challenge that
determination is frivolous.
36
ARGUMENT AND CITATIONS OF AUTHORITY
I. THE TRIAL COURT PROPERLY APPLIED THE
APPLICABLE RULES OF PROFESSIONAL CONDUCT IN
DENYING DEFENDANT’S MOTION TO DISQUALIFY THE
LEAD PROSECUTOR FOR THE GOVERNMENT.
Defendant seeks reversal of his conviction on the ground that
the trial court erred in not disqualifying the government’s lead
prosecutor, or in the alternative not declaring a mistrial, after
AUSA Vineyard was selected by a panel, on which the trial judge
sat, to be a federal magistrate judge.
Motions to disqualify are governed by two sources of
authority: the local rules of the court in which attorneys appear;
and federal common law. Hermann v. GutterGuard, Inc., 199 Fed.
Appx. 745, 752 (11th Cir. 2006). The Georgia Rules of Professional
Conduct govern the professional conduct of bar members of the U.S.
District Court for the Northern District of Georgia. Id.; N.D. Ga.
R. 83.1(C). This Court reviews a district court’s interpretation
of applicable Rules of Professional Conduct de novo and factual
findings for clear error. Id. at 751. A movant bears the burden
of proving the grounds for disqualification. In Re Bell South
Corp., 334 F.3d 941, 961 (11th Cir. 2003). “A motion to disqualify
brought by opposing counsel ‘should be viewed with caution ...for
it can be misused as a technique of harassment.’” Guttergard, 199
Fed. Appx. at 752 (quoting Ga. Rule of Prof. Conduct, R. 1.7, cmt.
15).
37
Defendant contends that AUSA Vineyard should have been
disqualified from further participation in defendant’s prosecution
based upon an “appearance of impropriety.” “[A]n ‘appearance of
impropriety is simply too slender a reed on which to rest a
disqualification order except in the rarest cases. This is
particularly true where ... the appearance of impropriety is not
very clear.'" Waters v. Kemp, 845 F.2d 260, 265 n. 12 (11th Cir.
1988), quoting Board of Education v. Nyquist, 590 F.2d 1241, 1247
(2d Cir. 1979). See also U.S. v. Martin, 824 F.Supp. 208, 210
(M.D. Ga. 1993) (rejecting disqualification of defense counsel
based on an "appearance of impropriety").
Prosecutors are not "necessarily ... held to as stringent a
standard of disinterest as judges." See Young v. U.S. ex rel.
Vuitton et Fils, S.A., 481 U.S. 787, 807, 107 S.Ct. 2124, 2137
(1987); see also Whitworth v. State, 275 Ga. App. 790, 793, 622
S.E.2d 21 (2005). Moreover, prosecutors are different from private
attorneys, because "[t]he channeling of advocacy toward a just
result as opposed to vindication of a particular claim lessens the
temptation to circumvent the disciplinary rules." Frazier v.
State, 257 Ga. 690, 694, 362 S.E.2d 351 (1987), quoting ABA Formal
Opinion 342, reprinted in 62 A.B.A.J. 517 (1976).
An "appearance of impropriety" is not a valid ground for
recusal of government counsel under the Georgia Rules of
Professional Responsibility. See Waters v. Kemp, 845 F.2d at 265
38
n. 12. "The case law is clear that counsel may not be disqualified
on the basis of an appearance of impropriety alone." State v.
Shearson Lehman Bros., 188 Ga. App. 120, 123, 372 S.E.2d 276
(1988). This is because "disqualification has an immediate adverse
effect on the client by separating him from counsel of his choice,
and that disqualification motions are often interposed for tactical
reasons." Reese v. Ga. Power Co., 191 Ga. App. 125, 127, 381
S.E.2d 110 (1989). See also Whitworth, 275 Ga. App. at 792-93, 622
S.E.2d 21 (indicating grounds for disqualification of a prosecutor
for a conflict of interest included previous representation of a
defendant or where the prosecutor had a personal interest or stake
in the defendant's conviction).
It is not alleged that the AUSA Vineyard had a conflict of
interest in this case. Defendant's motion to disqualify failed to
meet the onerous standards that must be met for disqualification of
a prosecutor.
As a backstop argument, defendant now contends for the first
that the trial court should have withdrawn from the after
participating in AUSA Vineyard’s selection. Because defendant did
not to seek the district court’s recusal during trial, that recusal
request is reviewed for plain error. U.S. v. Berger, 375 F.3d
1223, 1227 (11th Cir. 2004); Hamm v. Members of Bd. of Regents of
State of Fla., 708 F.2d 647, 651 (11th Cir. 1983). Plain error is
39
error that is plain and that affects a defendant's substantial
rights. U.S. v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003).
In deciding whether a district judge should recuse herself
under 28 U.S.C. § 455(a), this Court determines whether “an
objective, disinterested, lay observer fully informed of the facts
underlying the grounds on which recusal was sought would entertain
a significant doubt about the judge's impartiality.” U.S. v.
Patti, 337 F.3d 1317, 1321 (11th Cir. 2003) (citation omitted),
cert. denied, 540 U.S. 1149, 124 S.Ct. 1146 (2004). That bias
“must stem from extrajudicial sources, unless the judge's acts
demonstrate such pervasive bias and prejudice that it unfairly
prejudices one of the parties.” Bailey, 175 F.3d 966, 968 (11th
Cir. 1991) (internal quotation marks omitted). “[A]dverse rulings
alone do not provide a party with a basis for holding that the
court's impartiality is in doubt.” Byrne v. Nezhat, 261 F.3d 1075,
1103 (11th Cir. 2001).
In U.S. v. Pickard, 170 Fed. Appx. 243 (3d Cir. 2006), the
Third Circuit held that a district court judge was not required to
disqualify himself where he had participated in the decision to
select counsel for defendant as a magistrate judge. The judge's
participation in the magistrate judge's selection was held not to
create an objective appearance of impartiality and no plain error
resulted from the trial court not being recused from defendant’s
trial. Id.
40
Defendant also raises for the first time on appeal a
contention he was improperly excluded from chambers conferences on
the mistrial motion. Because defendant did not raise this alleged
violation of his constitutional rights during trial, review is for
plain error. U.S. v. Moriarty, 429 F.3d 1012, 1018 (11th Cir.
2005).
Defendant cites a decision regarding a defendant’s right to
participate in a competency hearing for child witnesses in a sexual
abuse case to contest his absence from chambers. Kentucky v.
Stincer, 482 U.S. 730, 107 S.Ct. 2658 (1987). Unlike that case,
there were no witnesses to be confronted at chambers hearings on
defendant’s mistrial motion which triggered potential Sixth
Amendment Confrontation Clause issues such as those addressed in
Stincer. See, e.g., U.S. v. Yates, 438 F.3d 1307, 1312 (11th Cir.
2006) (the Confrontation Clause “guarantees the defendant a
face-to-face meeting with witnesses appearing before the trier of
fact.”). Instead, AUSA Vineyard’s selection as a magistrate judge
was undisputed and the conferences at which defendant was not
present were for the purpose of counsel presenting argument on the
consequences of that selection. No plain error resulted from
defendant’s absence from chambers.
II. OVERWHELMING EVIDENCE SUPPORTS DEFENDANT’S
CONSPIRACY CONVICTION.
Defendant contends that insufficient evidence supports his
conviction on Count One for conspiring to: (1) defraud the State of
41
Georgia; and (2) deprive the Georgia taxpayers of the honest
services of State School Superintendent Schrenko. Defendant does
not deny that a flagrant conspiracy to defraud Georgia taxpayers
and funnel money to Schrenko’s campaign was committed. Instead,
defendant contends that he was an innocent victim of the
malfeasance of others. A review of the testimonial and documentary
evidence establishes this contention to be specious.
“In reviewing conspiracy convictions, the question is whether
there is substantial evidence to support the verdicts.” U.S. v.
Starrett, 55 F.3d 1525, 1541 (11th Cir. 1995). Whether the record
contains sufficient evidence to support a guilty verdict is
reviewed by this Court de novo. U.S. v. Aria-Izquierdo, 449 F.3d
1168, 1175 fn. 2 (11th Cir. 2006). This Court views the evidence
in a light most favorable to the government and the jury’s verdict,
with all reasonable inferences and credibility choices made in the
government’s favor. Id.; U.S. v. Calderon, 127 F.3d 1314, 1324
(11th Cir. 1997). Because “the jury is free to choose between or
among the reasonable conclusions to be drawn from the evidence
presented at trial”, the sufficiency review by this Court “requires
only that a guilty verdict be reasonable, not inevitable, based on
the evidence presented at trial.” U.S. v. Browne, 505 F.3d 1229,
1253 (11th Cir. 2007).
The elements of the offense of conspiracy are: (1) an
agreement between the defendant and one or more persons, (2) the
42
object of which is to do either an unlawful act or a lawful act by
unlawful means. Aria-Izquierdo, 449 F.3d at 1182; U.S. v. Toler,
449 F.3d 1168, 1182 (11th Cir. 1998). “Because the crime of
conspiracy is ‘predominantly mental in composition,’ it is
frequently necessary to resort to circumstantial evidence to prove
its elements.” Id.; (quoting U.S. v. Shabani, 513 U.S. 10, 16, 115
S.Ct. 382 (1994)). Proof that the accused committed an act which
furthered the purpose of the conspiracy is the type of
circumstantial evidence the government may introduce to prove the
existence of an agreement. U.S. v. Sullivan, 763 F.2d 1215, 1218-
19 (11th Cir. 1985).
In contending insufficient evidence supports his conspiracy
convictions, defendant recites at length challenges to the
credibility of Turner and Estrada. It is not for this Court to
substitute its judgment for that of the jury regarding whether or
not those witnesses were credible or for contentions suited for
closing arguments to be cited as grounds to reverse a conviction.
It is well-settled that even the uncorroborated testimony of an
accomplice is sufficient to support a conviction if it is not, on
its face, incredible or otherwise insubstantial. U.S. v. Butler,
792 F.2d 1528, 1536 (11th Cir. 1986), citing U.S. v. Iacovetti, 466
F.2d 1147, 1153 (5th Cir. 1972).
A de novo review of the record that resolves all inferences in
the government’s favor establishes the evidence supporting
43
defendant’s conviction to be overwhelming. With regard to
defendant’s intent to defraud the State of Georgia, both Turner and
Estrada were told by defendant of his interest in a portion of GDOE
contract proceeds being diverted to the Schrenko campaign. In
terms of overt acts to execute that conspiracy, defendant signed
contacts, backdated to June 10, 2002, for $82,493.50 that was
disbursed by GDOE to CCSC on June 26, 2002.
After those GDOE funds were received, defendant directed
Turner to put contract proceeds into the Schrenko campaign “under
the radar.” That scheme included diverting funds to the campaign
through “focus group” checks that defendant directed Turner to
deliver to Finley and defendant directing Turner to pay the cost of
a Schrenko poll.
In July 2002, Defendant met with Turner to plan the funneling
of additional GDOE contract proceeds. On July 24, 2002, Schrenko
personally appeared at GDOE headquarters and ram-rodded issuance of
eleven (11) checks identified in counts two through twelve of the
superseding indictment. Schrenko testified she did this with the
understanding “commissions” from those contract payments would be
diverted by Temple to her struggling campaign, which Schrenko knew
to be wrong. No goods or services were ever provided in
satisfaction of those contract payments.
After those GDOE checks were delivered to Turner, Defendant
directed Turner to route additional funds to the Schrenko campaign
44
by having checks cashed. On July 26, 2002, Turner and defendant
then met with Temple, at which time defendant instructed Turner to
deliver cash to Temple.
Thereafter, on July 31, 2002, Defendant received a $10,000
check from J.T. Potgeiter, which had been satisfied by funds
Defendant directed Turner to provide to Potgeiter, that paid for a
Schrenko campaign database. Subsequently, Defendant directed
Turner to have three more checks cashed in order that an additional
$15,000 could be routed to the Schrenko campaign.
On August 6, 2002, Defendant sent an e-mail to Temple, which
is the subject of Count 20 of the superseding indictment, to
confirm a $250,000 “commission” on non-existent contracts would be
paid. On August 7, 2002, defendant received an e-mail from Temple
confirming that banking codes had been provided to Turner in order
for funds to be routed from companies controlled by defendant to
Paradigm and then into Schrenko’s campaign. Thereafter, on August
9, 2002, defendant personally wired $40,000 from GEM Bermuda to
Paradigm, which defendant told Turner was a company through which
funds could be diverted to the campaign.
After Schrenko lost the primary, defendant directed Turner to
destroy all copies of a spreadsheet that recited, chapter and
verse, the scheme to divert funds to the Schrenko campaign.
Defendant further directed Turner to have backdated contracts and
45
invoices prepared for state auditors that were reviewing the GDOE
payments Schrenko had authorized.
Only after Georgia auditors were on the trail did Defendant
direct his employees to attempt to contact GDOE officials regarding
the products and services that allegedly were to be delivered for
the $531,894 in payments had been GDOE had issued in July 2002.
While defendant contends GDOE improperly blocked delivery of those
products and services, GDOE officials Searle and Ashby believed the
products and services were of little value to their programs while
MaestroPro and MyCommunityServer software was not even being sold
by defendant’s companies in 2002.
In a further attempt to cover his tracks, Defendant met with
Temple and Schrenko in the fall of 2005 and attempted to foist a
bogus “consulting agreement” on Temple to cover the routing of
payments to Paradigm. Finally, Defendant attempted to coach Turner
on what to say to investigators.
The evidence overwhelming supports the conviction of defendant
for conspiring to steal GDOE funds and deprive the State of Georgia
of the honest services of co-conspirator Schrenko through using
GDOE funds to finance Schrenko’s campaign. See U.S. v. Devegter,
198 F.3d 1324, 328 (11th Cir. 1999). (“Illicit personal gain by a
government official deprives the public of its intangible right to
the honest services of the official.”)
46
III. OVERWHELMING EVIDENCE SUPPORTS DEFENDANT’S
CONVICTIONS FOR AIDING AND BETTING THEFT OF
GDOE FUNDS.
Defendant also challenges his convictions, under Counts Two
through Twelve of the indictment, for having aided and abetted the
theft from GDOE of $531,894 that was paid out through eleven (11)
checks issued on July 24, 2002. 18 U.S.C. § 2 states that a person
who “commits an offense against the United States or aids, abets,
counsels, commands, induces or procures its commission, is
punishable as a principal.”
In order to sustain a conviction under an aiding and abetting
theory, “the government must show that a substantive offense was
committed, that [the defendant] associated himself with the
criminal venture, and that [the defendant] committed some act which
furthered the crime.” U.S. v. Perez, 922 F.2d 782, 785 (11th Cir
1991). Moreover, “the government must show that [the defendant]
had the same unlawful intent as the actual perpetrators.” Id.;
U.S. v. Schwartz, 666 F.2d 461, 463 (11th Cir. 1982).
When, as in this case, a defendant conspires to commit a
substantive offense, the criminal intent to commit the substantive
offenses is "established by the formation of the conspiracy."
Pinkerton v. U.S., 328 U.S. 640, 647, 66 S.Ct. 1180, 1184 (1946).
Under this principle, a defendant may be found guilty for offenses
committed by a co-conspirator that are a reasonably foreseeable
47
consequence of the conspiracy. U.S. v. Woodard, 459 F.3d 1078,
1085 (11th Cir. 2006). This Court has held:
“The rule of ... [Pinkerton] does service where the
conspiracy was one to commit offenses of the character
described in the substantive counts. Aiding and abetting
has a broader application. It makes a defendant a
principal when he consciously shares in any criminal act
whether or not there is a conspiracy ... Pinkerton v.
U.S. is narrow in its scope. Aiding and abetting rests
on a broader base; it states a rule of criminal
responsibility for acts which one assists another in
performing.
U.S. v. Gallo-Chamorro, 48 F.3d 502, 507 (11th Cir. 1995).
In this case, defendant contends a Pinkerton jury instruction
should not have been given because there was insufficient evidence
to conclude that theft of GDOE funds was a reasonably foreseeable
consequence of a conspiracy to funnel contributions to Schrenko’s
campaign after GDOE funds were disbursed to companies controlled by
defendant. This Court reviews jury instructions de novo to
determine whether they misstate the law or mislead the jury to the
objecting party's prejudice. U.S. v. Hansen, 262 F.3d 1217, 1248
(11th Cir. 2001). If the instructions accurately state the law,
the trial judge has wide discretion to determine their style and
wording. U.S. v. Kenney, 185 F.3d 1217, 1222-23 (11th Cir. 1999).
Here, the Pinkerton charge was proper. On May 10, 2006, coconspirator
Schrenko pleaded guilty to Counts One and Twenty-Two of
the superseding indictment; Count One charged her with having
conspired to steal GDOE funds and deprive the taxpayers of Georgia
of her honest services. [Doc. 218]. Moreover, GDOE funds were to
48
be the source of contributions to Schrenko’s campaign, as defendant
discussed with Estrada and Turner.
Diverting the GDOE funds in July 2002 that were addressed in
Counts Two through Twelve was not merely a reasonably foreseeable
consequence of the conspiracy; it was a central component of the
conspiracy. The evidence was sufficient for the jury to conclude
theft of GDOE funds was a reasonably foreseeable consequence of the
conspiracy into which defendant entered and is a typical Pinkerton
case in which the substantive crime is also one of the purposes of
the conspiracy. See U.S. v. Alvarez, 755 F.2d 830, 859 fn. 24
(11th Cir. 1985). The trial court did not abuse its discretion in
giving the Pinkerton instruction.
Moreover, the overwhelming evidence supporting defendant’s
conspiracy conviction shows both that defendant intended to use
GDOE funds to contribute to Schrenko’s campaign and engaged in
myriad acts to facilitate those funds being stolen. Substantial
evidence supports defendant’s convictions on Counts Two through
Twelve.
IV. THE AIDING AND ABETTING INSTRUCTION WAS
CORRECT.
Although defendant did not object to the court’s response
during trial, defendant now contends the response by the trial
court to the jury’s question regarding the aiding and abetting
instruction was reversible error.
49
Trial judges are generally given wide discretion concerning
the style and specific wording used in their instructions to the
jury, so long as the instructions accurately reflect the law. See
U.S. v. Starke, 62 F.3d 1374, 1380 (11th Cir. 1995). The trial
court's instructions to the jury must be considered as a whole to
determine whether they sufficiently instructed the jury so that the
jurors understood the issues and were not misled. U.S. v. Drury,
396 F.3d 1303, 1318 (11th Cir. 2005). Jury instructions to which
no objection is made during trial are reviewed for plain error.
U.S. v. Jones, 504 F.3d 1218, 1219 (11th Cir. 2007). To satisfy
the plain error standard, there (1) must be error, (2) that is
plain, (3) that affects substantial rights, and (4) the error
seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id., citing U.S. v. Olano, 507 U.S. 725,
732, 113 S.Ct. 1770, 1776 (1993).
After instructing the jury on the offense of aiding and
abetting, the trial court received the following question from the
jury during on May 23, 2006:
As far as an aiding and abetting charge, if a defendant
aids in a crime but does not necessarily do it
intentionally, should we find him guilty? If you cannot
answer this question, could you provide further
instructions for an aiding and abetting charge?
[R28-348-2254].
In response, the trial court stated to counsel for the
parties:
50
What I plan to do, the note I plan to send out will read
as follows: "The Court cannot answer either question:
however, I do suggest you reread the charge on aiding and
abetting." And I'm going to leave it at that, okay?
[R28-348-2256].
Defendant contends that the trial court did not answer the
jury's question. In fact, the trial court did answer the question
by referring the jury back to the original instruction. The trial
court acted well within its discretion by simply referring the jury
to the instructions they already had been given. See, U.S. v.
Cornille, 92 F.3d 1108, 1110 (11th Cir. 1996).
The trial judge has a duty to respond to the jury's request
with sufficient specificity to clarify the jury's problem.
Bollenbach v. U.S., 326 U.S. 607, 612, 66 S.Ct. 402, 405 (1946).
As in this case, "[t]hat there was no further inquiry after the
judge's response cleared the jury's difficulty with concrete
accuracy." U.S. v. Andrew, 666 F.2d 915, 922 (5th Cir. 1982) (in
response to jury request for further instruction on sanity issue,
trial court directed jury to review entire jury charge).
"Furthermore, the fact that the jury reached a decision so quickly
after the response was received indicates that the jury was not
confused and that the judge's reply was responsive to its
concerns." U.S. v. Parr, 716 F.2d 796, 809 (11th Cir. 1983).
Defendant has failed to carry his burden that the trial court
erred in not elaborating upon its initial aiding and abetting
instruction.
51
V. OVERWHELMING EVIDENCE SUPPORTS DEFENDANT’S
WIRE FRAUD CONVICTIONS.
Defendant also challenges his convictions, under Counts
Eighteen, Twenty, and Twenty-One for wire fraud, in violation of 18
U.S.C. §§ 1343, 1346, and 2. The federal wire frauds statute
prohibits the use of interstate wires to carry out a fraudulent
scheme or artifice to defraud. 18 U.S.C. § 1343; Devegter, 198
F.3d at 1327. A “scheme or artifice to defraud” under the mail or
wire fraud statutes includes a scheme to deprive another of the
intangible right of honest services. 18 U.S.C. § 1346; Devegter,
198 F.3d at 1327.
Aside from the means by which a fraud is effectuated, the
elements of mail fraud and wire fraud are identical. U.S. v. Ward,
486 F.3d 1212, 1221 (11th Cir. 2007). A defendant may be convicted
of mail fraud or wire without personally committing each and every
element of mail fraud or wire fraud, so long as the defendant
knowingly and willfully joined the criminal scheme, and a
co-schemer used the mails or wires for the purpose of executing the
scheme. Id. at 1222.
As set forth above, overwhelming evidence proved beyond a
reasonable doubt that defendant joined a scheme to steal GDOE funds
and deprive the taxpayers of Georgia of the honest services of coconspirator
Schrenko. In implementation of that scheme, interstate
and international wire transmissions.
52
On August 6, 2002, defendant e-mailed Temple to confirm that
a “commission” payment of $250,000, the cover for funds being
routed to Schrenko’s campaign, could be arranged. [Count Twenty].
On August 7, 2002, Temple e-mailed defendant to confirm that Temple
had provided bank account codes to Turner and that “every day was
critical. [Count Twenty-One]. On August 9, 2002, defendant
personally instructed that $40,000 be wired from GEM-Bermuda to
Paradigm. [Count Eighteen].
Substantial evidence supported defendant’s convictions for
these of uses of the wires to execute the criminal scheme into
which he entered.
VI. THE TRIAL COURT CORRECTLY EXCLUDED TESTIMONY
BY ATTORNEY KAUFMANN AND ADMITTED TESTIMONY BY
CO-CONSPIRATOR SCHRENKO.
A. The trial court did not abuse its
discretion in excluding testimony by
attorney Kaufmann regarding hearsay
statement purportedly made by
defendant to Kaufmann.
Defendant contends that the trial court committed reversible
error by excluding testimony by attorney Kaufmann regarding what
Defendant told Kaufmann were the reasons for Turner attending a
meting in Kaufmann’s office. [R25-347-1908-10]. Defendant alleges
that Kaufmann’s testimony regarding what defendant told attorney
Kaufmann was crucial to his defense. Left unexplained is why the
testimony was not inadmissible hearsay.
53
The trial court’s evidentiary rulings are reviewed for abuse
of discretion. U.S. v. Tinoco, 304 F.3d 1088, 1109 (11th Cir.
2002). Findings of fact by the trial court will be overturned only
if clearly erroneous. U.S. v. Magluta, 418 F.3d 1166, 1177 (11th
Cir. 2005), cert. denied, U.S. , 126 S.Ct. 2966 (2006).
The Federal Rules of Evidence define hearsay as “a statement,
other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter
asserted.” Fed. R. Evid. 801(c). Such hearsay is not admissible
except as provided by the Rules. Fed. R. Evid. 802. U.S. v.
Arbolaez, 450 F.3d 1283, 1290 (11th Cir. 2006). Defendant has not
and cannot cite any catchall “evidence favorable to defendant”
hearsay exception under Fed. R. Evid. 802. Accordingly, the trial
court did not abuse it discretion in excluding testimony concerning
alleged statements by defendant to attorney Kaufmann.
B. The admission of testimony by
Schrenko regarding statements made
by co-conspirator Temple was not
plain error.
Defendant further argues that testimony by Schrenko regarding
statements made by co-conspirator Temple were inadmissible under
Fed. R. Evid. 801(d)(2)(e) because those statements were not made
in furtherance of the conspiracy. Although defendant did not
object to such testimony at trial, defendant now challenges
Schrenko’s testimony concerning: Temple telling Schrenko in
December 2002 the “needs assessment” report was “worthless” and
54
“pitiful”; Temple’s conversation with defendant at the Rock Bottom
Brewery; and Temple telling Schrenko that defendant had given
Temple a bogus consulting agreement at that meeting.
When a party raises a claim of evidentiary error for the first
time on appeal, the Court reviews it for plain error only. U.S. v.
Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003). Under the plain
error standard, before an appellate court can correct an error not
raised at trial, there (1) must be error, (2) that is plain, and
(3) that affects substantial rights, and (4) the error seriously
affects the fairness, integrity, or public reputation of judicial
proceedings. U.S. v. Cotton, 535 U.S. 625, 631-32, 122 S.Ct. 1781
(2002).
“This [Court] applies a liberal standard in determining
whether a statement is made in furtherance of a conspiracy.” U.S.
v. Miles, 290 F.3d 1341, 1351 (11th Cir. 2002). “[C]oncealment is
sometimes a necessary part of a conspiracy, so that statements made
solely to aid the concealment are in fact made during and in
furtherance of the charged conspiracy.” U.S. v. Griggs, 735 F.2d
1318, 1325 (11th Cir. 1984) (per curiam) (quotations and citation
omitted). In December 2002, defendant, Temple, and Schrenko were
desperately attempting to establish that something of value had
been provided to GDOE for payments authorized by Schrenko and were
still attempting to justify their crimes when they met at the Rock
Bottom Brewery. Temple’s statements to Schrenko at those times
55
were admissible under Fed. R. Evid. 801(d)(2)(e) and the admission
of Schrenko’s testimony regarding those statements was not plain
error.
Moreover, given the substantial evidence, unaffected by any
erroneous exclusion of Kaufmann’s testimony and admission of
Schrenko’s testimony, which established defendant’s guilt beyond a
reasonable doubt, even if in error these rulings had no substantial
influence on the outcome of this case and thus would not require
reversal. See Arbolaez, 450 F.3d at 1290.
VII. THE CUMULATIVE EFFECT OF CORRECT EVIDENTIARY
RULINGS BY THE TRIAL COURT DO NOT SUPPORT
REVERSAL OF HIS CONVICTION.
Furthermore, defendant erroneously contends that the
cumulative impact of Kaufmann’s excluded testimony and Temple’s
statements to which Schrenko testified requires reversal of his
convictions. This Court reviews the prejudicial effect of all
evidentiary errors, evaluated under both preserved and plain error
standards, in the aggregate. U.S. v. Baker, 432 F.3d 1189, 1223
(11th Cir. 2005). The conviction will therefore reverse if the
cumulative effect of the errors is prejudicial, even if the
prejudice caused by each individual error was harmless. U.S. v.
Blasco, 702 F.2d 1315, 1329 (11th Cir. 1983). Defendant’s
unsupported contention that the cumulative impact of the excluded
Kaufmann testimony and admitted Schrenko testimony, to which
defendant did not object at trial, requires reversal is baseless.
10Defendant acknowledges that a separate “theory of defense”
charge was given to the jury.
56
VIII. THE TRIAL COURT PROPERLY DECLINED TO GIVE
DEFENDANT’S REQUESTED JURY INSTRUCTION ON
CONSPIRACY AND PAYMENTS TO CONSULTANTS.
Defendant contends that the trial court committed reversible
error by not giving his requested instruction on conspiracy [R3-
224-Defendant Request To Charge No. 9; R26-341-2071] and by not
giving what defendant describes as a “theory of defense” charge
that it is not illegal to pay a fee to a consultant or lobbyist.
[R3-223-Defendant Request To Charge No. 7].10
The district court’s refusal to give a defendant’s requested
jury instruction is reviewed for abuse of discretion. U.S. v.
Schlei, 122 F.3d 944, 969 (11th Cir. 1997). To prove reversible
error, a defendant must show the omitted instruction: (1) was
correct; (2) was not substantially covered in the instructions
given to the jury; and (3) dealt with some point in the trial so
important that failure to give the instruction seriously impaired
the defendant’s ability to conduct his defense. U.S. v. Browne,
505 F.3d at 1276.
Trial judges are generally given wide discretion concerning
the style and specific wording used in their instructions to the
jury, so long as the instructions accurately reflect the law. See
U.S. v. Starke, 62 F.3d 1374, 1380 (11th Cir. 1995). The trial
court's instructions to the jury must be considered as a whole to
57
determine whether they sufficiently instructed the jury so that the
jurors understood the issues and were not misled. U.S. v. Drury,
396 F.3d at 1318. Here, the instructions given by the trial court
were not incorrect and did not mislead the jury.
Defendant’s contention that the trial court erred by not
supplementing the government’s pattern jury instruction on
conspiracy is without merit. At trial, defendant’s counsel simply
stated that giving his requested instruction on conspiracy
“certainly cannot hurt, it is an accurate statement of the law.”
[R26-341-2060]. However, other than as a presumed matter of
stylistic preference, defendant has not articulated how his
requested instruction on conspiracy was not covered in the
instruction given to the jury or seriously impaired his ability to
conduct his defense.
With regard to defendant’s requested “theory of defense”
instruction of payments of commissions not being illegal, the trial
court correctly held that defendant’s requested instruction on
payments of fees to consultants or lobbyists would only have served
to confuse the jury. A defendant is entitled to a theory of
defense instruction “for which there is an evidentiary foundation
and which, if believed by the jury, would be legally sufficient to
render the accused innocent.” U.S. v. Paradies, 98 F.3d 1266, 1287
(11th Cir. 1996). Furthermore, a statement of law in a proposed
instruction that is correct in one context may nevertheless mislead
58
the jury in the context of the charges against defendant. See U.S.
v. Hamaker, 455 F.3d 1316, 1326 (11th Cir. 2006) (requested
instruction on party being entitled to rely on authorized agent
speaking for principal held to be accurate statement of agency law
for civil contract disputes but misleading in bank fraud trial).
In this case, defendant was convicted of conspiring to steal
from the State of Georgia and deprive Georgia of the honest
services of Schrenko, not paying an illegal commission to Temple.
The charge sought by defendant would only have confused the jury
and did not articulate a theory that, if believed, would have
resulted in defendant’s acquittal. Hence, defendant has failed to
carry his burden that the trial court abused its discretion in
instructing the jury.
IX. THE DISTRICT COURT PROPERLY ENHANCED
DEFENDANT’S SENTENCE PURSUANT TO U.S.S.G. §
3C1.1 OF THE SENTENCING GUIDELINES BECAUSE
DEFENDANT ATTEMPTED TO COACH JOHNNY TURNER TO
PROVIDE FALSE INFORMATION TO GOVERNMENT
INVESTIGATORS.
Section 3C1.1 of the Sentencing Guidelines provides that a
district court must enhance a defendant's base offense level by two
levels if the defendant willfully obstructed justice during the
prosecution of the present offense. U.S.S.G. § 3C1.1. To impose
an enhancement under section 3C1.1, the district judge must find
that the record shows by a preponderance of evidence that the
defendant's conduct constitutes obstruction of justice. U.S. v.
Matthews, 431 F.3d 1296, 1310 n.12 (11th Cir. 2005), cert. denied,
59
U.S. , 127 S.Ct. 46 (2006). The commentary to § 3C1.1 sets
forth a non-exhaustive list of conduct that is deemed to constitute
obstruction of justice for purposes of this Guideline, which
includes "committing, suborning, or attempting to suborn
perjury[.]" U.S.S.G. § 3C1.1, comment (n.4(b)). Encouraging a
witness not to cooperate with an investigation may justify
application of an obstruction enhancement. See U.S. v. Rudisill,
187 F.3d 1260, 1264 (11th Cir. 1999).
The trial court found that the obstruction enhancement should
be applied due to defendant having attempted to coach Turner into
taking the position that all actions taken to divert money into the
Schrenko campaign constituted payments of commissions, even going
so far as saying “we will have to work on that” when Turner asked
how 104 checks for $590 could be explained away as commissions.
The district judge did not commit clear error in finding that
defendant obstructed justice through his attempts to walk Turner
through a false cover story during the consensually monitored
conversation and properly imposed the two-level enhancement under
§ 3C1.1.
X. THE DISTRICT COURT IMPOSED A REASONABLE
SENTENCE.
Defendant further contends that his 97 month sentence, at the
low end of the 97 - 121 month advisory Guidelines range, is both
procedurally and substantively unreasonable because the Sentencing
Guidelines “overwhelmingly drove the district court’s decision
11In Rita, the Supreme Court held that a court of appeals may
afford a "presumption of reasonableness" to a within-Guidelines
sentence consistent with both the Sixth Amendment and Booker, 543
See Rita, 127 S.Ct. at 2465, 2467. Extending a presumption of
reasonableness to defendant's within-Guidelines sentence would be
consistent with Rita.
To the extent that this Court's decisions could be read as
having already held that this Court on review of a sentence may not
accord a presumption of reasonableness to a within-Guidelines
sentence, these decisions have been regarded to be inconsistent
with Rita. See U.S. v. Campbell, 491 F.3d 1306, n.8 (11th Cir.
2007) ("We recognize that the Court's rationale in Rita calls into
question our reasons for not affording a presumption of
reasonableness. Contrast Rita, 551 U.S. ----, slip op. at 7-16,
with Hunt, 459 F.3d at 1185."). This Court's declination to extend
even a rebuttable presumption of reasonableness to a
within-Guidelines sentence was premised on the Court's view –
rejected by Rita – that to do so would be inconsistent with Booker.
See Talley, 431 F.3d at 786 ("The [U.S.] argues that a ‘sentence at
the low end of the applicable advisory Sentencing Guidelines range
is, per se, a reasonable sentence.' This argument does not comport
with the Booker decision.")
60
regarding the sentence[.]” Defendant’s argument should be rejected
because it misinterprets both the actions taken by the district
court and pertinent precedent.
Pursuant to the Supreme Court's decision in U.S. v. Booker,
the Sentencing Guidelines are no longer mandatory. 543 U.S. 220,
264, 125 S.Ct. 738, 767 (2005). A sentencing court must consult
the Sentencing Guidelines and correctly calculate the Guidelines
range. U.S. v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005). As
the Supreme Court recently has reiterated, “district courts must
treat the guidelines as the ‘starting point and initial
benchmark.’” Kimbrough v. U.S., U.S. , 128 S.Ct. 558
(2007).11 After doing so, the court must consider the sentencing
Accordingly, it is respectfully suggested this Court should
accord on appeal a presumption of reasonableness to
within-Guidelines sentences.
61
factors set forth under 18 U.S.C. § 3553(a) to determine a
reasonable sentence, which may be more or less severe than that
provided for by the Guidelines. U.S. v. Talley, 431 F.3d 784, 788
(11th Cir. 2005); Crawford, 407 F.3d at 1179. A sentencing
determination within or outside the advisory Guidelines is reviewed
for abuse of discretion. Gall, U.S. , 128 S.Ct 586, 594
(2007). The party challenging the sentence bears the burden of
establishing that the sentence is unreasonable in light of both the
record and the 18 U.S.C. § 3553(a) factors. Talley, 431 F.3d at
788.
A. The trial court properly calculated
defendant’s advisory offense level
under the Guidelines.
As stated above, defendant’s offense level properly was
enhanced for defendant’s attempts to obstruct the investigation by
coaching Turner to provide false statements to investigators.
Supra at 58-59.
With regard to calculation of the loss amount, by which
defendant’s Guidelines offense level was enhanced by 14 levels,,
the same standards of review apply as were used prior to Booker.
U.S. v. Caldwell, 431 F.3d 795, 798 (11th Cir. 2005).
“[S]entencing courts may consider both uncharged and acquitted
conduct in determining the appropriate sentence.” U.S. v. Hamaker,
12Transcript references cited by defendant as representing
software and services were provided for the July 2002 payments do
not support that representation. (Defendant’s brief at 57-58).
62
455 F.3d 1316, 1336 (11th Cir. 2006). The preponderance ofthe-
evidence standard, not the beyond-a-reasonable-doubt standard,
still applies to Guidelines calculations after Booker, including
the calculation of loss amounts. Id. This Court still reviews the
district court's factual findings regarding loss amount under the
clearly erroneous standard of review. Crawford, 407 F.3d at 1178
(11th Cir. 2005).
As reviewed above, no goods or services were provided under
the eleven (11) bogus, backdated contracts, for which defendant
conspired to obtain payments totaling $513,894.12 At sentencing,
defendant did not object to those losses being included in
calculation of the loss amount. Standing alone, those losses
support enhancement of defendant’s offense level by 14 levels under
§ 2B1.1(b)(1)(H) (offense level enhanced by 14 levels fo loss in
excess of $400,000).
With regard to the $50,000 needs assessment, the 10-page
document finally submitted on New Year’s Eve 2002 was uniformly
regarded as worthless, and was nothing more than a further attempt
to provide cover for the $50,000 payment being made to CCSC in June
2002 order to provide a means of funding Schrenko’s campaign. The
finding of the district court that defendant’s loss amount should
13Schrenko was sentenced to 96 months imprisonment. [Doc.
268]. Temple was sentenced to 97 months imprisonment. [Doc. 284].
63
include $50,000 disbursed in June 2002 for that worthless document
was amply supported by the evidence.
B. The trial court adequately
considered the § 3553(a) factors.
While defendant alleges that his sentence should be vacated
because the trial court did not mechanistically recite the §
3553(a) factors, "nothing in Booker or elsewhere requires the
district court to state on the record that it has explicitly
considered each of the § 3553(a) factors or to discuss each of the
§ 3553(a) factors." U.S. v. Scott, 426 F.3d 1324, 1329 (11th Cir.
2005). An acknowledgment by the district court that it has
considered the factors in § 3553(a) is sufficient. Talley, 431
F.3d at 786. Prior to imposing sentence, the district court
explicitly stated it considered the § 3553(a) factors:
Let the record reflect the Court had considered
sentencing the defendant pursuant to 18 U.S.C. §3553 and
the factors outlined therein. However, the Court decided
not to since a more appropriate sentence can be imposed
pursuant to the custody guidelines range as outlined in
the U.S. Sentencing Commission.
[R29-349-67]. Furthermore, the court stated that it had imposed
Guidelines range sentences of equal length upon co-conspirators
Schrenko and Temple. [R29-349-67].13
Although a sentence within the Guidelines range has not been
recognized by this Court as being reasonable per se, this Court has
64
ruled that "ordinarily we would expect a sentence within the
Guidelines range to be reasonable." Talley, 431 F.3d at 788.
There is nothing about the procedures the district court employed
to arrive at the sentence or the nature and circumstances of the
case that make the 97-month within-Guidelines sentence imposed by
the district court unreasonable.
XI. DEFENDANT’S SENTENCE WAS NOT IMPOSED IN A
MANNER THAT VIOLATED DEFENDANT’S SIXTH
AMENDMENT RIGHTS.
Defendant also raises for the first time on appeal his
contention that the calculation of his advisory Sentencing
Guidelines range based on judicial fact finding violated
defendant’s Sixth Amendment right to trial by jury. Where a
defendant does not object below on the grounds raised on appeal,
this Court's review is for plain error. U.S. v. Rodriguez, 398
F.3d 1291, 1298 (11th Cir. 2005), cert. denied, 545 U.S. 1127
(2005). Nothing in Booker prohibits the District Court from
imposing Guidelines enhancements based on a preponderance of the
evidence, U.S. v. Chau, 426 F.3d 1318, 1323-24 (11th Cir. 2005);
Rodriguez, 398 F.3d at 1301, and the district court in this case
explicitly stated it was applying the Sentencing Guidelines in an
advisory manner.
Defendant’s argument that calculation of his advisory
Guidelines range sentence on the basis of specific acts which he
65
did not admit and of which he was not tried and convicted by a jury
is, as he acknowledges, foreclosed by Circuit precedent.
XII. DEFENDANT WAS NOT DENIED HIS RIGHT OF
ALLOCUTION.
Defendant also alleges for the first time on appeal he was
denied his right of allocution prior to being sentenced.
"Allocution is the right of the defendant to make a final plea on
his own behalf to the sentence before the imposition of the
sentence." U.S. v. Dorman, 488 F.3d 936, 942 (11th Cir. 2007). In
considering a defendant's contention that the trial court failed to
permit allocution, this Court has held:
[O]ur case law makes it clear that a district court's
failure to permit a defendant to allocute at sentencing
does not rise to the level of a constitutional error in
general or a fundamental procedural defect, such that the
omission is "inconsistent with the rudimentary demands of
fair procedure." U.S. v. Tamayao, 80 F.3d 1514, 1521
(11th Cir. 1996).... If the defendant does not object to
the district court's failure to permit allocution, we
will remand only if the failure results in manifest
injustice. Id. Our case law equates manifest injustice
with the plain error standard of review. U.S. v.
McClendon, 195 F.3d 598, 603 (11th Cir. 1999)(per
curiam).
U.S. v. Quintana, 300 F.3d 1227, 1231-32 (11th Cir. 2002).
Defendant did not object at sentencing that he was denied
allocution. Indeed, defendant did in fact allocute, after which
the court sentenced him to 97 months imprisonment. [R29-349-47-62,
67-70]. When, as in this case, a defendant is sentenced to the
lowest sentence under the advisory Guidelines range and fails to
articulate what he could have said that would have resulted in a
66
lower sentence, no manifest injustice will be found to have
occurred, even if a defendant has been denied the right of
allocution. U.S. v. Zarabia, 217 Fed. Appx. 906, 914 (11th Cir.
2007).
XIII. THE ORDER OF RESTITUTION IS SUPPORTED BY A
PREPONDERANCE OF THE EVIDENCE.
Defendant also contends that he erroneously has been ordered
to pay restitution totaling $382,394. Under the Mandatory Victims
Restitution Act (“MVRA”), restitution is to be paid in the full
amount of each victim’s loss. 18 U.S.C. § 3664(f)(1)(A). Browne,
505 F.3d at 1281. Any dispute as to the type or amount of
restitution shall be resolved by the sentencing court by a
preponderance of the evidence. 18 U.S.C. § 3664(e); U.S. v.
Hasson, 333 F.3d 1264, 1276 (11th Cir. 2003). Factual findings
underlying a restitution order are reviewed for clear error.
Hasson, 333 F.3d at 1275. Objections to a restitution order not
raised with the sentencing court are reviewed for plain error. Id.
at 1276.
The trial court did not err in imposing restitution of
$382,494. As stated previously, defendant was a prime mover in
$513,894 being stolen from GDOE when eleven (11) checks in that
total amount were disbursed on July 24, 2002. Moreover, the
$50,000 payment made to CCSC in June 2002, for an alleged “needs
assessment” report to GHP, was simply a means by which defendant
67
and his co-conspirators sought to divert money funding Schrenko’s
campaign.
Defendant made no objection at sentencing that restitution
ordered for losses arising from issuance of eleven (11) checks on
July 24, 2002. Moreover, the finding of the district court that
defendant’s restitution obligations should include $50,000
disbursed in June 2002 for that worthless document, to which
defendant did object at sentencing, was amply supported by the
evidence and was not clearly erroneous.
The court properly calculated the restitution owed by
defendant to total $382,394 after payments totaling $199,500 that
had been made by co-conspirator Temple reduced the amount of those
restitution obligations.
XIV. FORFEITURE ORDERS ENTERED AGAINST DEFENDANT
DID NOT VIOLATE DEFENDANT’S CONSTITUTIONAL
RIGHTS UNDER THE FIFTH, SIXTH, SEVENTH OR
EIGHTH AMENDMENTS.
A. Defendant had no Sixth Amendment
right to a jury trial for his
criminal forfeiture proceeding
Defendant further contends that he was entitled under the
Sixth Amendment to a jury trial in his criminal forfeiture
proceeding. There exists no constitutional right to a jury trial
in a criminal forfeiture proceeding, which constitute part of the
defendant's sentence rather then a separate criminal offense.
Libretti v. U.S., 516 U.S. 29, 30-31, 118 S.Ct. 356 (1995); see
also U.S. v. Cabeza, 258 F.3d 1256 (11th Cir. 2001) (holding that
68
the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S.
466, 120 S.Ct. 2348 (2000), does not apply to forfeiture
proceedings). Instead, Fed. R. Crim. P. 32.2(b)(4) gives a
defendant or the government the limited opportunity to retain the
jury that heard the guilt phase of the criminal case to hear the
forfeiture phase as well, only upon request by either party. As
such, "unless a party expressly requests a jury determination on
the forfeiture matter, the court will make the determination."
U.S. v. Davis, 63 Fed. Appx. 76, 82 (4th Cir. 2003). As the
defendant conceded, his trial counsel affirmatively waived the
opportunity to retain the jury to hear the forfeiture issues.
[R28-348-2266]. After defendant waived his right to retain the
jury to resolve forfeiture issues, the trial court then correctly
ruled on the forfeiture issues as part of the defendant's
sentencing.
B. Defendant had no Seventh Amendment
right to jury trial for his criminal
forfeiture proceeding.
Defendant is similarly incorrect in asserting a Seventh
Amendment right to jury trial in a criminal forfeiture proceeding.
The Seventh Amendment applies only to civil proceedings, not
criminal actions. See U.S. Const. Amend. VII. While some of the
procedures in a criminal forfeiture proceeding are similar to civil
procedures, (i.e. the ability to conduct discovery, the lower
standard of proof), criminal forfeiture is an in-personam sentence
69
which is part of a criminal conviction. Libretti, 516 U.S. at
38-39; see also U.S. v. Vampire Nation, 451 F.3d 189, 202 (3d Cir.
2006) (a criminal forfeiture order is a judgment in personam
against the defendant; this distinguishes the forfeiture judgment
in a criminal case from the in rem judgment in a civil forfeiture
case). Therefore, the Seventh Amendment is not applicable to these
proceedings.
C. The district court had statutory
authority to impose a monetary
judgment in defendant’s criminal
proceedings.
Defendant also argues incorrectly that the district court was
without statutory authority to impose a money judgment as
representing proceeds of the crimes the defendant was found guilty
of, but which were dissipated prior to sentencing. The imposition
of money judgments in forfeiture proceedings is well-established in
this Circuit. See U.S. v. Conner, 752 F.2d 566 (11th Cir. 1985);
U.S. v. Navarro-Ordas, 770 F.2d 959 (11th Cir. 1985) (recognizing
that allowing a criminal to escape the sanction of forfeiture if
the Government could not actually locate the proceeds of the
criminal activity would only serve to reward criminals who were
successful in hiding or dissipating their profits). Moreover, the
concept has been codified in Fed. R. Crim. P. 32.2(b) & (c). As
such, the district court was well within its power to impose a
money judgment upon the Defendant for an amount of money
70
representing the proceeds of the offenses of which defendant was
convicted.
D. Forfeiture of proceeds of a wire
fraud conviction is authorized under
28 U.S.C. § 2461.
Defendant also errs in stating that 18 U.S.C. § 2461 does not
authorize the forfeiture of the proceeds of a wire fraud
conviction. Citing to U.S. v. Croce, 345 F. Supp. 2d 492 (E.D. Pa.
2004), the defendant argues that § 2461 only applies to mail fraud
convictions that affect a financial institution and not to mail
fraud generally. However, that portion of the Croce decision was
overruled in U.S. v. Croce, 209 Fed. Appx. 208 (3d Cir. 2006).
Additionally, every appellate court to have considered the same
argument has found it unpersuasive. See Vampire Nation, 451 F.3d
at 200; U.S. v. Rutledge, 437 F.3d 917 (9th Cir. 2006); U.S. v.
Edelkind, 467 F.3d 791 (1st Cir. 1991). See also U.S. v. Russo,
2007 WL 505056 (S.D. Ala. Feb. 14, 2007). Finally, Congress
amended § 2461, in 2006, and removed the language found offensive
by the Croce Court, demonstrating Congressional intent that the
Courts had gotten the interpretation of the statute correct. See
Edelkind, 467 F.3d at 798-800.
Defendant also incorrectly objects to the forfeiture of the
his house because it was not specifically listed in the indictment
and because it did not facilitate the offense of which Defendant
was convicted. However, the Government is only required to
71
reference the forfeiture statute in the indictment, and may provide
a list of assets subject to forfeiture after a guilty verdict. See
U.S. v. Diaz, 190 F.3d 1247, 1257-58 (11th Cir. 1999). Similarly,
the criminal forfeiture statutes provides for the forfeiture of
property not involved in the criminal offense when property
directly subject to forfeiture has been dissipated or is otherwise
no longer available. See U.S. v. Soreide, 461 F.3d 1351, 1352 fn.1
(11th Cir. 2006); 18 U.S.C. § 853(p).
E. A money judgment against defendant
in the amount of $382,394 does not
constitute excessive punishment
under of the Eight Amendment.
Defendant errs by claiming that the imposition of a money
judgment, in the amount of $382,394, violated the Eighth
Amendment’s prohibition of excessive punishment. As the amount of
the money judgment is less then the maximum statutory fine for the
offenses of conviction, the money judgment is presumed to be within
the confines of the Eighth Amendment. See U.S. v. 817 N.E. 29th
Drive, 175 F.3d 1304, 1309-10 (11th Cir. 1999); 18 U.S.C. § 3571.
XV. DEFENDANT IS NOT ENTITLED TO ACCESS OF
AUDIOTAPE RECORDINGS OF CLOSING ARGUMENTS AND
HIS SENTENCING HEARING.
Finally, defendant requests that he be provided access to
backup audiotape recordings of closing arguments and sentencing in
order to challenge the trial court’s denial of his motion to
correct the transcripts of closing arguments and sentencing
proceedings. Defendant’s ongoing challenge to the accuracy of
72
trial transcripts and request for access to backup audiotape
recordings of proceedings, which remains pending before the trial
court, is frivolous.
In its consideration of a motion to correct the record after
an appeal has been taken, there is no necessity for a district
court to conduct a complete evidentiary hearing. U.S. v. Mori, 444
F.2d 240, 246 (5th Cir. 1971). Furthermore, when a district court
settles a dispute regarding the record, that determination is
conclusive unless it is intentionally false or plainly
unreasonable. U.S. v. Brika, 416 F.3d 514, 530 (6th Cir. 2005);
Mori, 444 F.2d at 246.
The determination by the trial court that transcripts of
closing argument were accurate, under circumstances in which the
court presided at trial and personally listened to the pertinent
audiotape recording, certainly was not an abuse of discretion or
plainly unreasonable. See Brika, 416 F.3d at 430.
With regard to defendant’s contention a hand gesture made by
the trial court at sentencing should be included in the transcript,
the district court correctly held that under the provisions of the
Court Reporters’ Manual nonverbal gestures are not to be referenced
in the transcript absent a verbal reference to such a gesture.
[Doc. 378 - 3]. Finally, with regard to defendant’s statement at
sentencing that he had spent 110 days in confinement, the district
court correctly held that such transcript omission was immaterial.
73
Id. There has been no miscalculation of defendant’s pre-sentencing
incarcerations that would require such correction.
Defendant has failed to indicate how access to back-up
audiotape recordings would compel reversal of the trial court’s
denial of his motion to correct trial transcripts. The trial court
has listened to the audiotape recording of closing arguments and
found the transcript to be accurate and has deemed the omitted
reference. Further, the trial court has deemed the omitted
reference to defendant’s 110 day pre-sentencing confinement to be
immaterial.
There is no meritorious reason to question further the
accuracy of the transcripts for closing arguments or sentencing.
With regard to defendant’s request for access to backup audiotape
recordings of proceedings, which remains pending before the trial
court, the government has established that request to be frivolous
in its brief to the trial court. [Doc. 382]. Defendant’s
continuing litigation of those issues is baseless.
74
CONCLUSION
For the above and foregoing reasons, the government
respectfully requests that this Court affirm the defendant's
conviction and sentence.
Respectfully submitted,
DAVID E. NAHMIAS
UNITED STATES ATTORNEY
DANIEL A. CALDWELL
ASSISTANT UNITED STATES ATTORNEY
75
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume
limitation set forth in FRAP 32(a)(7)(B). This brief contains
15,812 words.
___________________________
DANIEL A. CALDWELL
ASSISTANT UNITED STATES ATTORNEY
76
CERTIFICATE OF SERVICE
This is to certify that I have this day served upon the person
listed below a copy of the foregoing document by depositing in the
U.S. Mail a copy of same in an envelope with correct postage for
delivery. This is also to certify that the foregoing document was
this day uploaded to the Court's website.
Lynn Fant, Esq.
Law Office of Lynn Fant, P.C.
Post Office Box 244
Waco GA 30182
This 15th day of January, 2008.
DANIEL A. CALDWELL
ASSISTANT UNITED STATES ATTORNEY

___________________________________

Appeal 2007

IN THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________
NO. 06-15238-A
________________
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
A. STEPHAN BOTES
Defendant-Appellant.
__________________________________________________
A DIRECT APPEAL OF A CRIMINAL CASE
FROM THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF GEORGIA, ATLANTA DIVISION
___________________________________________________
BRIEF OF APPELLANT
LYNN FANT
Georgia State Bar Number: 254963
Law Office of Lynn Fant, PC
Post Office Box 244
Waco, GA 30182
(404) 550-2375
Attorney for A. Stephan Botes
C1-1
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
UNITED STATES OF AMERICA
Plaintiff-Appellee,
v. APPEAL NO. 06-15238-A
A. STEPHAN BOTES
Defendant-Appellant.
______________________________/
CERTIFICATE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT
Counsel hereby certifies the following may have an interest in the outcome
of this appeal:
Botes, A. Stephan - Defendant/Appellant;
Caldwell, Daniel - Counsel for Plaintiff/Appellee;
Cooper, Clarence - US District Court Judge;
Fant, Lynn - Counsel for Defendant-Appellant;
Goss, Dahil - Counsel for Plaintiff/Appellee;
Griffin, Daniel -Co Counsel for Defendant/Appellant below;
Nahmias, David - US Attorney, Counsel for Plaintiff-Appellee;
Steel, Brian - Counsel for Defendant/Appellant below;
Vinyard, Russell- Counsel for Plaintiff-Appellee.
i
STATEMENT REGARDING ORAL ARGUMENT
Botes requests oral argument pursuant to F.R.A.P. 34. The Botes trial was
lengthy and complex. This brief details fourteen categories of legal errors produced
Botes’ erroneous convictions and his 97 month sentence-- which is patently
unreasonable. Oral argument would assist the court by animating the issues raised
by this cold record.
Botes contends his trial was fundamentally flawed from the outset when the
trial court denied his motion for a mistrial based on the announcement the lead
prosecutor in the case had been appointed to the magistrate bench in the same district,
with the active participation and support of the trial judge. Further, Botes establishes
in this brief the jury was inaccurately and insufficiently instructed regarding the
critical issue of his intent and his theory of defense. Consequently, the jury lacked
critical tools for analyzing the evidence which led to Botes’ erroneous conviction on
fifteen counts, despite acquittal on the remaining thirty-three counts. Botes also
establishes below he was not allowed to present critical evidence, and the court
improperly allowed inadmissible hearsay evidence to infect the jury. Finally, Botes’
sentence, including the restitution and forfeiture, violated several provisions of the
constitution, and was unreasonable, both on procedural and substantive grounds.
Because these issues are wide ranging, oral argument would assist the Court in justly
ii
deciding the case in the aftermath of this lengthy and factually complex trial, which
was marked by pervasive error.
iii
STATEMENT OF TYPE SIZE AND STYLE
Pursuant to 11th Cir. R. 28-2(d), counsel for Appellant hereby certifies the size
and style of type used in this brief is Times New Roman 14 PT.
CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(a)(7), I certify the number of words in this brief
as counted by my word-processing system is _____ words. This is less than the
16,800 words permitted by the Court’s order.
iv
TABLE OF CONTENTS
Page
CERTIFICATE OF INTERESTED PERSONS . . . . . . . . . . . . . . . . . . . . . . . . C1-1
STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . i
STATEMENT OF TYPE SIZE AND STYLE . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xvi
STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(i) Course of Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(ii) Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(iii) Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARGUMENT AND AUTHORITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
v
I. THE DENIAL OF A MISTRIAL DUE THE LEAD
PROSECUTOR’S SELECTION AS A MAGISTRATE WITH
THE ACTIVE PARTICIPATION AND SUPPORT OF JUDGE
WAS REVERSIBLE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
II. THERE WAS INSUFFICIENT EVIDENCE OF CONSPIRACY
CONVICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
III. THERE WAS INSUFFICIENT EVIDENCE OF AIDING AND
ABETTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
IV. THE INCORRECT JURY INSTRUCTIONS REGARDING
AIDING AND ABETTING WERE REVERSIBLE . . . . . . . . . . . . 29
V. THERE WAS INSUFFICIENT EVIDENCE BOTES SCHEMED
TO DEFRAUD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
VI. THE EVIDENTIARY RULINGS CONSTITUTED
REVERSIBLE ERROR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
VII. THE CUMULATIVE EFFECT OF THE TRIAL ERRORS
WARRANT REVERSAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
VIII. THE COURT ABUSED ITS DISCRETION BY FAILING TO
GIVE THE THEORY OF DEFENSE CHARGE . . . . . . . . . . . . . . . 42
IX. THE OBSTRUCTION ENHANCEMENT WAS
ERRONEOUSLY IMPOSED . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
X. BOTES’ 97-MONTH SENTENCE WAS PROCEDURALLY
AND SUBSTANTIVELY UNREASONABLE . . . . . . . . . . . . . . . . 48
XI. BOTES’ SIXTH AMENDMENT RIGHT TO JURY TRIAL WAS
VIOLATED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
XII. THE COURT COMMITTED REVERSIBLE ERROR BY
DENYING BOTES HIS RIGHT TO ALLUCUTION . . . . . . . . . . . 60
vi
XIII. THE RESTITUTION IMPOSED WAS ILLEGAL . . . . . . . . . . . . . 65
XIV. THE FORFEITURE VIOLATED BOTES’ SIXTH AND
SEVENTH AMENDMENT RIGHTS TO A JURY, WAS
IMPOSED WITHOUT AUTHORITY, UNDER PROCEDURES
WHICH VIOLATE THE DUE PROCESS CLAUSE OF THE
FIFTH AMENDMENT’S DUE PROCESS CLAUSE AND THE
EIGHTH AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
XV. BOTES IS ENTITLED TO ACCESS AUDIOTAPES
REVIEWED BY THE COURT IN RESOLVING THE MOTION
TO CORRECT THE RECORD . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
APPENDIX A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Un-Numbered
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
vii
TABLE OF AUTHORITIES
Page
Supreme Court Cases:
Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801 (1993) . . . . . . . . . . . . . . 75
Alexander v. United States, 509 U.S. 546, 113 S.Ct. 2766 (1993) . . . . . . . . . . . . 75
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) . . . . . . . . 60, 69, 70
Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004) . . . . . . . . . 60, 69, 71
Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402 (1946) . . . . . . . . . . 31, 32
Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038 (1973) . . . . . . . . . . . . . . 40
Chapman v. California, 386 U.S. 18, 87 S.Ct. 824 (1967) . . . . . . . . . . . . . . . . . . 11
Gay v. United States, 411 U.S. 974, 93 S.Ct. 2152 (1973) . . . . . . . . . . . . . . . . . 16
Green v. United States, 365 U.S. 301, 81 S.Ct. 653 (1961) . . . . . . . . . . . . . . 62, 63
Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466 (1991) . . . . . . . . . . . . . . . . 30
Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 93 (1957) . . . . . . . . . . . . . . 41
Hill v. United States, 368 U.S. 424, 82 S.Ct. 468 (1962) . . . . . . . . . . . . . . . . . . . 62
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979) . . . . . . . . . . . . . . . . . . . 11
Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215 (1999) . . . . . . . . . . . . 69, 70
Kentucky v. Stincer, 482 U.S. 730, 107 S.Ct. 2658 (1987) . . . . . . . . . . . . . . . . . . 15
Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716 (1949) . . . . . . . . . . . . . 41
Libretti v. United States, 516 U.S. 29, 116 S.Ct. 356 (1995) . . . . . . . . . . . . . . . . 69
viii
Liljeberg v. Health Svcs. Acquisition Corp., 486 U.S. 847 108 S.Ct. 2194 (1988)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Lutwak v. United States, 344 U.S. 391, 73 S.Ct. 481 (1953) . . . . . . . . . . . . . . . . 41
Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180 (1946) . . . . . . . . . . . . . 27
Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002) . . . . . . . . . . . . . . . . . . . . . 69
Rita v. United States, 127 S.Ct. 2456 (2007) . . . . . . . . . . . . . . . . . . . . . . 51, 53, 54
Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704 (1987) . . . . . . . . . . . . . . . . . . . . 39
United States v. Behrens, 375 U.S. 162, 84 S.Ct. 295 (1963) . . . . . . . . . . . . . . . 63
United4 9S-t5a2te, s5 v8., B60o,o 6ke9r, ,7 504U3n Uite.Sd. S2t2a0te, s1 2v.5 B So.u Crjta. 7il3y,8 4 (8230 0U5.)S. 171, 107 S.Ct. 2775
(1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
United States v. Valenzuela Bernal, 458 U.S. 858, 102 S.Ct. 3440 (1982) . . . . . 40
Van Hook v. United States, 365 U.S. 609, 81 S.Ct. 823 (1961) . . . . . . . . . . . . . . 62
Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920 (1967) . . . . . . . . . . . . . . . . . . 40
Circuit Court Cases:
Central Alabama Fair Housing Center, Inc. v. Lowder Realty Co., 236 F.3d 629,
643 (11th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Parker v. Connors Steel Co., 855 F.2d 1510 (11th Cir. 1988) . . . . . . . . . . . . . . . 17
Parker v. Secretary for Dep't of Corrections, 331 F.3d 764 (11th Cir. 2003) . . . 33
Perez v. United States, 297 F.2d 12 (5th Cir. 1961) . . . . . . . . . . . . . . . . . . . . . . . 45
ix
United States v. Adams, 74 F.3d 1093 (11th Cir. 1996) . . . . . . . . . . . . . . . . . . 42, 64
United States v. Alverez, 755 F.2d 830 (11th Cir. 1985) . . . . . . . . . . . . . . . . . . . . 27
United States v. American Grain & Related Indus., 763 F.2d 312 (8th Cir. 1985)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
United States v. Arbane, 477 F3d 1223 (11th Cir. 2006) . . . . . . . . . . . . . . . . . . . 43
United States v. Arbolaez, 450 F. 3d 1283 (11th Cir. 2006) . . . . . . . . . . . . . . . . . 39
United States v. Bach 172 F.3d 520 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . 70
United States v. Bailey, 123 F.3d 1381 (11th Cir. 1997) . . . . . . . . . . . . . . . . . . . . 41
United States v. Banks, 347 F.3d 1266 (11th Cir. 2003) . . . . . . . . . . . . . . . . . . . . 46
United States v. Bonilla, 463 F.3d 1176 (11th Cir. 2006) . . . . . . . . . . . . . . . . . . . 53
United States v. Bradford, 277 F.3d 1311 (11th Cir. 2002) . . . . . . . . . . . . . . . . . . 12
United States v. Cabez, 258 F.3d 1256 (11th Cir. 2001) . . . . . . . . . . . . . . . . . . . . 70
United States v. Campbell, 491 F.3d 1306 (11th Cir. 2007) . . . . . . . . . . . . . . 12, 58
United States v. Carter, 355 F.3d 920 (6th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . 63
United States v. Cataldo, 171 F.3d 1316 (11th Cir. 1999) . . . . . . . . . . . . . . . . . . 48
United States v. Chau, 426 F.3d 1318 (11th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . 60
United States v. Cobbs, 967 F2d 1555 (11th Cir. 1992) . . . . . . . . . . . . . . . . 12, 66
United States v. Conner, 752 F.2d 566 (11th Cir.) . . . . . . . . . . . . . . . . . . . . . . . . 72
United States v. Crawford, 407 F.3d 1174 (11th Cir. 2005) . . . . . . . . . . . . . . . . . 55
United States v. Cunningham, 429 F.3d. 673 (7th Cir. 2005) . . . . . . . . . . . . . 52, 55
x
United States v. Day, 416 F.Supp.2nd79 (D.C. Cir. 2006) . . . . . . . . . . . . . . . . . . 71
United States v. Diaz, 190 F.3d 1247 (11th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . 74
United States v. Eason, 920 F.2d 731 (11th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . 42
United States v. Edwards, 166 F.3d 1362 (11th Cir. 1999) . . . . . . . . . . . . . . . . . . 46
United States v. El-Sayegh and Washington Post, 131 F.3d 158 (11th Cir. 1997)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
United States v. Frick, 588 F.2d 531 (5th Cir. 1979) . . . . . . . . . . . . . . . . . . . . . . . 43
United States v. Garrett, 727 F.2d 1003 (11th Cir. 1984) . . . . . . . . . . . . . . . . . . . 69
United States v. Gaskell, 985 F.2d 1056 (11th Cir. 1993) . . . . . . . . . . . . . . . . . . . 39
United States v. Gibson, 424 F.3d 1234 (11th Cir. 2005) . . . . . . . . . . . . . . . . 49, 58
United States v. Ginsburg, 773 F2d 798 (7th Cir. 1985) . . . . . . . . . . . . . . . . . . . . 72
United States v. Hansen, 262 F.3d 1217 (11th Cir. 2001) . . . . . . . . . . . . . . . . . . . 11
United States v. Hedges, 912 F.2d 1397 (11th Cir. 1990) . . . . . . . . . . . . . . . . . . . 45
United States v. Hewitt, 663 F.2d 1381 (11th Cir. 1981) . . . . . . . . . . . . . . . . . . . . 26
United States v. Hilliard, 31 F.3d 1509 (10th Cir. 1994) . . . . . . . . . . . . . . . . . . . 33
United States v. Hunt, 459 F.3d 1180 (11th Cir. 2006) . . . . . . . . . . . . . . . . . . 49, 58
United States v. Hurn, 368 F.3d 1359 (11th Cir. 2004) . . . . . . . . . . . . . . . . . . 12, 39
United States v. Iacovetti, 466 F.2d 1147 (5th Cir. 1972) . . . . . . . . . . . . . . . . . . . 21
United States v. Kelly, 888 F.2d 732 (11th Cir. 1989) . . . . . . . . . . . . . . . . . . . 11, 26
xi
United States v. Kelly-Davis, 2007 WL 1880991 (C.A. 11 2007)(unpublished)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
United States v. King, 414 F.3d 1329 (11th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . 70
United States v. Kramer, 73 F.3d 1067 (11th Cir. 1996) . . . . . . . . . . . . . . . . . . . . 74
United States v. Lawrence, 47 F.3d 1559 (11th Cir. 1995) . . . . . . . . . . . . . . . . . . 48
United States v. Leahy, 438 F.3d. 328 (3rd Cir. 2006) . . . . . . . . . . . . . . . . . . . . . 69
United States v. LeQuire, 943 F.2d 1554 (11th Cir. 1991) . . . . . . . . . . . . . . . . . . 20
United States v. Li, 115 F.3d 125 (2nd Cir. 1997) . . . . . . . . . . . . . . . . . . . 12, 63, 64
United States v. Liss, 265 F.3d 1220 (11th Cir. 2001) . . . . . . . . . . . . . . . . . . . 12, 66
United States v. Long, 656 F.2d 1162 (5th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . 63
United States v. Mack, 200 F.3d 653 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . 63
United States v. Magluta, 44 F.3d 1530 (11th Cir. 1995) . . . . . . . . . . . . . . . . . . . 36
United States v. McManigal, 708 F.2d 276 (7th Cir.) . . . . . . . . . . . . . . . . . . . 71, 72
United States v. Morris, 20 F.3d 1111 (11th Cir. 1994) . . . . . . . . . . . . . . . . . . . . 45
United States v. Obasohan, 73 F.3d 309 (11th Cir. 1996) . . . . . . . . . . . . . . . . . . . 66
United States v. Olis, 429 F.3d 540 (5th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . 58
United States v. One Single Family Residence, 13 F.3d 1493 (11th Cir. 1994).
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
United States v. Opdahl, 930F.2d 1530 (11th Cir. 1991) . . . . . . . . . . . . . 12, 44, 45
United States v. Parekh, 926 F.2d 402 (11th Cir. 1991) . . . . . . . . . . . . . . . . . 28, 29
xii
United States v. Parr, 716 F.2d 796 (11th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . 30
United States v. Patti, 337 F.3d 1317 (11th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . 17
United States v. Preciado-Cordobas, 981 F.2d 1206 (11th Cir. 1993) . . . . . . . . . 42
United States v. Prouty, 303 F.3d 1249 (11th Cir. 2002) . . . . . . . . . . . . . . . . 62-64
United States v. Rogers, 94 F.3d 1519 (11th Cir. 1996) . . . . . . . . . . . . . . . . . . . . 33
United States v. Ross, 131 F.3d 970 (11th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . 35
United States v. Ruiz, 59 F3d 1151 (11th Cir. 1995) . . . . . . . . . . . . . . . . . . . . 44, 45
United States v. Sanchez-Juarez, 446 F.3d 1109 (10th Cir. 2006) . . . . . . . . . . . . 54
United States v. Sarno, 73 F.3d 1470 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . 64
United States v. Scott, 426 F.3d 1324 (11th Cir. 2005) . . . . . . . . . . . . . . . . . . 52, 55
United States v. Sheffield, 992 F.2d 1164 (11th Cir. 1993) . . . . . . . . . . . . . . . . . . 39
United States v. Shriver, 967 F.2d 572 (11th Cir. 1992) . . . . . . . . . . . . . . . . . . . . 48
United States v.Silverman, 861 F.2d 571 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . . 37
United States v. Sparrow, 673 F.2d 862 (5th Cir. 1982) . . . . . . . . . . . . . . . . . . . . 63
United States v. Stephens, 365 F.3d 967 (11th Cir. 2004) . . . . . . . . . . . . . . . . . . . 39
United States v. To, 144 F.3d 737 (11th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . 11
United States v. Todd, 108 F.3d 1329 (11th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . 39
United States v. Tokars, 95 F.3d 1520 (11th Cir. 1996) . . . . . . . . . . . . . . . . . . . . 12
United States v. Twomey, 806 F.2d 1136 (1st Cir. 1986) . . . . . . . . . . . . . . . . . . . 63
United States v. Vaghela, 169 F.3d 729 (11th Cir. 1999) . . . . . . . . . . . . . . . . . . . 66
xiii
United States v. Veteto, 920 F.2d 823 (11th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . 52
United States v. Vonner, 452 F.3d 560 (6th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . 54
United States v. Walser, 3 F.3d 380 (11th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . 28
United States v. Williams, 435 F3d 1350 (11th Cir. 2006) . . . . . . . . . . . . . . . . . 45
United States v. Wilson, 993 F.2d 214 (11th Cir. 1993) . . . . . . . . . . . . . . . . . . . . 48
United States v. Winigear, 422 F.3d 1241(11th Cir. 2005) . . . . . . . . . . . . . . . . . . 12
United States v. Word, 129 F.3d 1209 (11th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . 39
United States v. Zimmerman, 943 F.2d 1204 (10th Cir. 1991) . . . . . . . . . . . . . . . 32
District Court Cases:
United States v. Croce, 334 F.Supp.2nd 781 (E.D. Pa. 2004) . . . . . . . . . . . . 71, 73
United States v. Meyers, 432 F.Supp. 456, 461 (W.D. Pa. 1977) . . . . . . . . . . . . . 71
United States v. Veliotis, 586 F.Supp. 1512, 1518 n.3 (S.D.N.Y. 1984) . . . . . . . 72
Federal Constitutional and Statutory Provisions:
18 U.S.C. §2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 34, 68
18 U.S.C. §371 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
18 U.S.C. §§666(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 19, 68
18 U.S.C. §981(a)(1)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
18 U.S.C. §1343 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 19, 67, 68
18 U.S.C. §1346 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6, 19, 34, 68
18 U.S.C. §1957 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
xiv
18 U.S.C. §2461 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
18 U.S.C. §3553 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49-55
18 U.S.C. §3553(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49, 51, 53-55, 57, 58
18 U.S.C. §3553(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
18 U.S.C. §3663 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
18 U.S.C. §3664(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
21 U.S.C. §853 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
21 U.S.C. §853(p) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
28 U.S.C. §455(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
28 U.S.C. §1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xviii
28 U.S.C. §2461 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67, 73, 74
28 U.S.C. §2461(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67, 73
Fifth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 67-70, 74
Sixth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 11, 14, 38, 39, 50, 60, 67-70, 74
Seventh Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67, 68, 70, 71, 72, 74
Eighth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67, 68, 74
Federal Rules of Criminal Procedure:
Rule 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xvii
Rule 31(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Rule 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
xv
Rule 32(c)(3)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64, 65
Georgia Authority:
E.H. Crump v. Millar, 194 Ga. App. 687 (2), 391 S.E.2d 775 (1990) . . . . . . . . . 43
Rule 8.2(b) Georgia Rules of Professional Conduct . . . . . . . . . . . . . . . . . . . . . . 16
Seals v. Hygrade Distribution and Delivery Systems, Inc., 249 Ga. App. 574,
577(1), 549 SE2d 412 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
United States Sentencing Guidelines:
§3C1.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Other Authorities:
28 U.S.C. App. Canon 2 A-B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ABA Model Code of Professional Responsibility Cannon 9-6 . . . . . . . . . . . . . . 16
Mainland, Grant R., A Civil Jury in Criminal Sentencing: Blakely, Financial
Penalties, and the Public Rights Exception to the Seventh Amendment, Columbia
Law Review, Vol. 106:1330. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Professor Susan R. Klein, The Return of Federal Judicial Discretion in Criminal
Sentencing, 39 Val. U.L. Rev. 693 n. 138 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . 69
Saltsburg, Martin, and Capra, Federal Rules of Evidence Manual, 801.01[6][g]
801-61, Eight Edition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Smith, David, Prosecution and Defense of Forfeiture Cases, Vol. 2, 13.02. . . . 71
W.LaFave & A.Scott, Criminal Law, §6.8(c), at 592 . . . . . . . . . . . . . . . . . . . . . . 29
xvi
STATEMENT OF JURISDICTION
This Court has jurisdiction to consider this case pursuant to 28 U.S.C. §1291
and Rule 4, F.R.Cr.P. This is a direct appeal of a criminal conviction and sentence
imposed in the United States District Court for the Northern District of Georgia,
Atlanta Division.
1
STATEMENT OF THE ISSUES
I. The denial of a mistrial due to the lead prosecutor’s selection as a magistrate,
with the active participation and support of the court was reversible.
II. There was insufficient evidence of conspiracy.
III. There was insufficient evidence of aiding and abetting.
IV. The court’s jury instruction regarding aiding and abetting was incorrect.
V. There was sufficient evidence on the scheme to defraud counts.
VI. Evidentiary errors individually or cumulatively warrant reversal.
VII. Failing to give the theory of the defense charge is reversible error.
VIII. The obstruction enhancement was erroneously imposed.
IX. Botes’ 97-month sentence was procedurally and substantively unreasonable.
X. Botes’ Sixth Amendment right to jury trial was violated.
XI. The denial of the right to allocution is reversible.
XII. The restitution is illegal.
XIII. The forfeiture violates Botes’ Sixth and Seventh Amendment rights to a jury,
was imposed without authority, and violated procedural due process under the
Fifth Amendment, and is excessive under the Eighth Amendment.
XIV. Botes is entitled to access audiotapes reviewed by the court in resolving the
motion to correct the record.
2
STATEMENT OF THE CASE
(i) Course of Proceedings:
Botes appeals from the jury verdict and 97-month sentence. Botes was
convicted of: count one, conspiracy to embezzle federal funds and deprive Georgia
of Schrenko’s honest services [18 U.S.C. §371]; counts two-twelve, aiding and
abetting embezzlement of federal funds [18 U.S.C. §§666(a)(1)(A), 2]; wire fraud
(counts eighteen, twenty, and twenty-one)[18 U.S.C. §§1343, 1346, 2]. He was
acquitted on the remaining thirty-three counts of wire fraud, money laundering, and
structuring.
In addition to 97-months imprisonment Botes received three years supervised
release, $1500 special assessment, and $382,394.00 restitution. Forfeiture was
ordered. Botes is serving his sentence at CI Dalby, Texas.
(ii) Statement of Facts:
In 2002, the Linda Schrenko Campaign for Governor and Botes’ business,
Computer Consulting Services Corporation (CCSC) had one thing in common; they
were hijacked by subordinates with their own agendas. The controller for his
company, Johnny Turner, and Schrenko’s campaign manager and lover, Merle
Temple, concocted a scheme to award CCSC contracts from the Department of
Education (DOE) and steer money into Schrenko’s Campaign. Turner and Temple,
1 Estrada was Turner’s friend from college who was working with CCSC as
an educational software sales representative. Estrada was a friend of Leonard,
who was Schrenko’s campaign manager before Temple resigned from the DOE to
manage the Campaign. Finley worked for Schrenko at the DOE.
2 CCSC and its affiliated companies are referred to as CCSC unless the
distinction is relevant. CCSC was a computer consulting business employing 135-
170 people. Clients included Norfolk Southern, PriceWaterhouse, and Lockheed.
Payroll was $900,000 per month. (R16-389-90;R18-698,712).
3
along with their co-conspirators, Estrada, Leonard, and Finley1, hoped to reap the
benefits of having Schrenko elected Governor, and if caught, to blame Schrenko
and Botes.
At trial, there was no dispute there were contracts between the DOE and
CCSC2 or its affiliated companies for software and other services, nor is there a
dispute some of the money from those contracts illegally went to the Campaign. The
dispute is over what Botes knew about Turner’s and Temple’s actions, especially in
light of the assistance the two received from Estrada, Leonard, and Finley. These
five were the knowing participants, and while Botes may have taken actions which
furthered the scheme, he did so unwittingly.
The Government’s Theory.
3 CCSC was not in crisis. (Company valued at approximately $40-60
million in 2000)(R24-1852, 1886; R20-1247). In response to financial struggles in
place since at least 1997, the company cut back on its major expense, payroll;
however, the company was profitable, making $3.3 million in 2002, the year of the
events giving rise to the indictment. (R24-1845; Defendant Exhibit 18). CCSC
ran a $6,000,000 line of credit with Wells Fargo. (R17-498).
4 The Government developed this theory at trial, not in the indictment.
4
According to the Government, financial difficulties in the Campaign and
CCSC3 motivated the defendants to create cash flow for the Campaign and CCSC
through DOE contracts with CCSC for software and services for schools, and
laundering money to the Campaign. (R15-9). Central its theory regarding intent was
the argument the software ordered by Schrenko was worthless4, and some of the
software wasn’t appropriate, or there were too many orders given the size of the
program, and DOE contract procedures weren’t followed.
Schrenko’s Testimony
By trial, there had been four years of unrelenting press directed at Schrenko,
the first woman in Georgia elected to statewide office. Stories focused on plastic
surgery Schrenko paid for with ill-gotten gains. After repeatedly insisting she was
innocent, Schrenko pled guilty mid-trial pursuant to a binding plea. Prior to her plea,
5 Schrenko was not alone in admiring PowerResearcher. Phil Hulst, deputy
superintendent of the DOE , and over Dr. Searle at the Governor’s Honor’s
Program recommended the software and told Estrada after a presentation, “[y]our
software is amazing and could be quite useful in several settings within our
organization. The one I specifically mentioned (and Bill Gambill and I talked with
you about) is the Governor’s Honors Program, under the direction of Dr. Joe
5
the Government expected to call Temple, Schrenko’s lover, second in command at
the DOE, and her campaign manager, as the chief witness against the defendants.
(R22-1393). Temple, as the intermediary, was to establish agreement between
Schrenko and Botes.. When Schrenko plead guilty, she produced recent tapes of
Temple attempting to manipulate her testimony.
Schrenko’s testimony produced no smoking gun against Botes. She testified
she didn’t have an agreement or conversation with Botes regarding kickbacks to the
Campaign. (R22-1369). Schrenko testified she didn’t have an agreement with Botes
regarding software contracts in exchange for campaign contributions, and had no
discussions regarding the “$590 focus group checks,” the device used to fund the
Campaign. (R22-1370). Schrenko testified she thought the software was useful and
expected the contracts to be performed. (R22-1302,1303,
1328,1351,1372,1374,1412,1415,1419;R20-1110,1205,1206;R23-1445).5 Schenko
Searle.” Hulst provided Dr. Searle’s contact information. (R16-211-212,238;R23-
1575). 94% of students using PowerResearcher rated it favorably. (R23-1570).
Estrada also reviewed it positively, and it was mentioned in publications
favorably. (R15-138;R16-238,241;R24-1710).
6 All five had an interest in Schrenko’s success–Turner, Leonard and
Estrada had political ambitions, and Leonard believed he would have a job in the
Schrenko administration. (R19-1004,1007,R20-1190).
7 The primary election was in August 2002. (R22-1379).
6
confirmed the only evidence of Botes’ awareness of any scheme came from Temple.
(R22-1397,98). Schrenko testified by July, Temple was working for Botes as a
consultant, marketing educational software, and earning commissions. (R22-
1395,1403).
Schrenko testified by July she considered dropping out due to her health,
financial concerns, and her poor showing in the polls; however, Temple encouraged
her to stay in the race because he wanted to be the power behind her “throne.”6 (R16-
296;R22-1346-47,1396,1398,1418). Temple told her it was only a few more weeks
and money would pick up.7 Temple said he would donate his earnings to the
Campaign and take care of business while she made speeches and cared about issues.
(R22-1397).
Schrenko testified Temple convinced her, and others, including a state
7
representative, that disguising sources of money coming into the campaign wasn’t
illegal, but merely an “ethics violation”. (R22-1386). Schrenko testified Temple
referred to himself as “the puppet master,” and didn’t allow the “right hand to know
what the left hand [was] doing.” (R22-1390). On July 4, 2002, Temple resigned from
the DOE, to manage the Campaign.
The shocker at trial was Schrenko and Temple’s “intimate relationship” that
continued, despite his guilty plea and “cooperation.” (R22-1394). Temple suggested
strategy for Schrenko’s trial testimony. (R22-1359,1360). Schrenko provided the
Government recent recordings of Temple, and he was jailed. (R22-1360,1362, 1392).
The Government didn’t call him as a witness, given the abundant impeachment
evidence. (R22-1391-92). Because the Government had already stated Temple’s
expected testimony during opening, it wasn’t damaged by the abrupt cancellation of
its star witness.
Other Trial Evidence
The Government presented abundant testimony regarding irregularities under
DOE contracts procedure. The school programs neither asked for, or needed the
software, and there were too many orders for the program’s size. This was totally
irrelevant regarding Botes’ guilt, as the Government produced absolutely no
evidence Botes was aware of any irregularities. Schrenko confirmed this and
established it was Temple and Finley who determined the details of the contracts.
8
(R22-1327,1413-14).
Temple being absent, the star witness was CCSC’s controller, Turner, who
handled each financial transaction resulting in money to the Campaign. The
Government called Estrada, Turner’s friend from college, who became CCSC’s
educational software representative. Estrada initiated contact between CCSC and
Schrenko, whom he knew from prior political contact.
Botes’ friend, Potgieter, testified at Botes’ request, he paid $10,000 for
Aristotle, a database for the Campaign, and was reimbursed by Botes. The
Government contended this was incriminating because Potgieter testified Botes told
him he couldn’t give any more money to the Campaign, when the Campaign
disclosure reports didn’t show Botes had given any money. (R20-1241).
The Government introduced a post-investigation recording made by Turner of
a call with Botes. The Government contended Botes attempted to construct a cover
for the financial transactions. Botes was prevented from introducing testimony
instead of trying a cover, he was trying to get Turner to his attorney. The evidence
established Botes wanted Turner to discuss with his attorney checks Turner wrote,
which Botes now suspected funded the Campaign. The recording established Botes’
unfamiliarity with the checks. (R25-1901). Attorney Kaufman was prevented from
telling the jury in the fall of 2004, Botes contacted him regarding suspicions Turner
wrote unauthorized checks, somehow related to proceeds from the “multiple state
8 These contracts, all for less than $50,000.00, comprise counts 2-12 and
will be referred to as the “multiple contracts.”
9
contracts,”8 to fund the Campaign and Botes wanted Kaufman to interview Turner in
Kaufman’s office to investigate. (R25-1903).
Botes established Turner directed corporate counsel to create the companies
affiliated with CCSC, and involved in the “multiple contracts” with DOE. He also
called Scherer and Roe, the controllers who worked for CCSC both before and after
Turner. They testified Botes never examined any of the financials, and wasn’t very
involved in accounting. (R24-1824,1843). Roe reported to Turner and succeeded him
as controller. Roe testified he thought Botes relied on Turner’s work. (R24-1825).
The former controllers testified if either of them had misappropriated funds, it was
possible Botes would be unaware. (R24-1838,1844).
Although CCSC’s corporate counsel Kaufman, was prevented from testifying
about Botes’ concern about Turner writing unauthorized “focus group” checks, he
was permitted to testify Botes contacted him about the trouble he was having with
the “multiple contracts,” and Botes’ contention the DOE should honor its $2.5
million contract. Kaufman counseled Botes to wait on suing for the $2.5 million
contract until resolving the “multiple contracts” issues.
Regina Mendes, who worked for Turner in accounting contradicted Turner’s
assertion on direct Botes talked to her about cashing a check for $8,000, intended
10
for the Campaign. She testified instead, Turner asked her to cash the check, which she
assumed for company expenses. (R22-1397).
In rebuttal, the Government offered Reynolds, who had been “acquired” by
CCSC when it took over the technology of Reynolds’ company, which dissolved
owing CCSC substantial sums. (R16-392). Reynolds testified he became director of
product development in January 2002, and was asked by co-defendant Steyn, to
evaluate CCSC software. (R26-2012). Reynolds testified he evaluated
PowerResearcher and MaestroPro, and was the School Server project manager.
(R26-2022). Reynolds testified PowerResearcher became a “full-fledged” product.
(R26-2023). Reynolds claimed MaestroPro wasn’t marketable, and didn’t function.
(R26-2026). He recommended the company abandon MaestroPro, and appeared
upset the company decided otherwise. (R26-2027). Interestingly, Dr. Ashby admitted
on cross MaestroPro, MyCommunityServer, and PowerResearcher were demonstrated
by CCSC in October of 2002, and functioned. (R23-1595,1604). Estrada testified
CCSC’s software were “indeed real.” (R16-282).
In surrebuttal, Botes called Ferrari, a software expert formerly employed at
CCSC, who was asked by Reynolds during July 2002, to resolve installation problems
with MaestroPro. (R27-2091). He testified he was able to install the program, which
was still functional with Windows, and was “ready to be sold.” (R27-2094,2096).
Botes moved for Rule 29 acquittal at the conclusion of the Government’s case,
11
and renewed it at his cases’ conclusion. Both motions were denied.
Verdict and Sentencing.
The jury asked several questions and deliberated for several days. The jury
convicted on only fifteen of the forty-eight charges, and acquitted CCSC’s COO,
Steyn. (R3-247).
Botes was sentenced to 97-months imprisonment. Botes’ home was forfeited,
and CCSC dissolved. Temple was sentenced to 97-months and Schrenko 96-months.
Turner, Finley, and Leonard received probation, and Estrada wasn’t charged.
(iii) Standard of Review:
I. Questions of recusal are reviewed for abuse of discretion. US v. Kelly, 888 F.2d
732 (11th Cir. 1989).
II.,III.,V. Whether there is sufficient evidence is a question of law reviewed de novo
US v. To, 144 F.3d 737 (11th Cir. 1998). Evidence is viewed in the light most
favorable to the government, and the reviewing court must affirm unless, under no
reasonable construction of the evidence could the jury convict. Jackson v. Virginia,
443 U.S. 307 (1979).
IV. Jury instructions are reviewed de novo. US v. Hansen, 262 F.3d 1217 (11th Cir.
2001).
VI. If Botes’ Fifth and Sixth Amendments rights were violated, then review is
whether this error was “harmless beyond a reasonable doubt.” Chapman v.
12
California, 386 U.S. 18 (1967); US v. Hurn, 368 F.3d 1359 (11th Cir. 2004).
VII. The refusal to an instruction is reversible if: 1 ) i t ’ s c o r r e c t ; 2 ) i s n ’ t
substantially covered by the charge; 3) it’s related to so vital a point, the failure to
give it seriously impaired the defense. US v. Opdahl, 930F.2d 1530 (11th Cir. 1991).
VIII. This Court reviews a court’s factual findings for clear error and the application
of the guidelines to the facts de novo. US v. Bradford, 277 F.3d 1311 (11th Cir. 2002).
IX. This Court reviews sentences for reasonableness. US v. Winigear, 422 F.3d 1241
(11th Cir. 2005).
X. The constitutional question here is reviewed de novo. US v. Campbell, 491 F.3d
1306 (11th Cir. 2007).
XI. Whether Botes was denied allocution is properly preserved by Botes letting the
court know he wasn’t finished. US v. Li, 115 F.3d 125, 132 (2nd Cir. 1997).
Resentencing is appropriate if the court hasn’t complied with allocution requirement.
Li, at 133.
XII. Objected to portions of restitution is reviewed for abuse of discretion. US v.
Liss, 265 F.3d 1220 (11th Cir. 2001). Un-objected to portions of restitution are subject
to the plain error standard. US v. Cobbs, 967 F.2d 1555 (11th Cir. 1992).
XIII. The jury trial and the court’s authority to enter a personal money judgement
have been resolved adversely in this Circuit. The other forfeiture issues are questions
of law and reviewed de novo. US v. Tokars, 95 F.3d 1520 (11th Cir. 1996).
13
XIV. Whether Botes is entitled to access the audiotape of disputed portions of the
transcript is a question of law reviewed de novo. US v. El-Sayegh and Washington
Post, 131 F.3d 158 (11th Cir. 1997).
SUMMARY OF THE ARGUMENT
Botes has maintained his innocence since being accused and passed two
polygraphs. Botes merely conducted legitimate business with the DOE. The culprits
at CCSC were his trusted controller Turner and Turner’s long-time friend Estrada.
They conspired with Schrenko’s lover, Temple, who had pivotal positions at the DOE
and the Campaign, to benefit the Campaign. Turner and Estrada kept some cash and
funneled funds to Temple. Temple used DOE employee, Finley, along with Leonard
to benefit the Campaign. Temple personally benefitted by $100,000. These men, who
all hoped to benefit by Schrenko winning, took advantage of Botes’ absence and
inattention to the complicated financial maneuvering by Turner. Botes’ actions were
proper, and the contracts between CCSC and the DOE weren’t shams. Schrenko’s
testimony this, and if not for the errors committed, Botes would have been acquitted.
Botes was wrongfully convicted –his trial tainted by the lead prosecutor’s
appointment as a magistrate with the active participation and support of the judge.
The jury was inaccurately charged about intent, and incompletely charged regarding
the defense. The jury was left without critical tools to evaluate the charges and
testimony. The Government elicited inadmissible hearsay evidence, and Botes was
14
prevented from presenting evidence critical to his defense. These errors lead the jury
to erroneously convict Botes on fifteen of the forty-eight counts.
Botes’ sentence was unreasonable, imposed in a manner which was
procedurally flawed and violated the Sixth Amendment. Some of his forfeiture
arguments have been resolved by this Circuit, but the haven’t been resolved, and
merit this Court’s attention.
Botes is entitled to access audiotapes of disputed portions of the transcript
when the court, without holding a hearing, denied the motion to correct the record,
noting it reviewed the court reporter’s tape of the contested portions. However, Botes
was denied access to the tape. If this Court agrees, and the recording reveals matters
germane to this appeal, Botes requests permission to file a supplement.
ARGUMENT AND AUTHORITY
I. THE DENIAL OF A MISTRIAL DUE THE LEAD PROSECUTOR’S
SELECTION AS A MAGISTRATE WITH THE ACTIVE PARTICIPATION
AND SUPPORT OF JUDGE WAS REVERSIBLE.
After the first day of trial, the defense learned lead prosecutor, Russell
Vineyard ("Vineyard"), was selected for Magistrate Judge. (Doc335-167). Botes
moved for mistrial and objected to Vineyard's prosecution of the case, which created
an appearance of impropriety. (Doc335-167). Not only would Vineyard soon be
working for the judge before which the case was tried, but, the judge also informed
15
the parties he supported and participated in the decision to select Vineyard. (Doc335-
176-77).
Vineyard’s prosecution of here was improper and had the appearance of
impropriety. The court's rulings – whether intended to help a future colleague or not
– appeared improper. Knowing their trial adversary soon would be ruling on their
future pretrial motions, defense counsel expressed concern they could not vigorously
defend. Nonetheless, the court denied the motion. (Doc #335-200).
The matter was decided in chambers, without Botes’ presence, and without
notice, or waiver of his right to be present. (Doc 335-187). Due Process offers a
defendant the right to be present "whenever his presence has a relation, reasonably
substantial, to the fulness of his opportunity to defend against the charge." Kentucky
v. Stincer, 482 U.S. 730, 745 (1987). Although the Court emphasized this privilege
isn’t guaranteed "when presence would be useless, or the benefit but a shadow," due
process clearly requires a defendant be allowed to be present "to the extent that a fair
and just hearing would be thwarted by his absence." Id. A defendant is guaranteed
the right to be present at any stage of the criminal proceeding critical to its outcome
if his presence would contribute to the fairness of the procedure. The resolution of
this critical issue behind closed doors, without Botes’ presence requires reversal.
In addition to the unseemly resolution of the issue behind closed doors, the
court should have granted the motion, or required the case to go forward with co16
counsel, who was readily available. The prosecutor and the court are charged with
avoiding even the appearance of impropriety. As adopted by the Supreme Court and
codified in federal law, ethical Canons prohibit even the appearance of impropriety
because the “basic concept of due process of law that a person should not serve as
both prosecutor and judge.” Gay v. US, 411 U.S. 974, 975 (1973) (Douglas, J.,
dissenting from denial of certiorari); accord ABA Standards for Crim. Just. 3-1.3 (3rd
Ed. 1993); 28 U.S.C. App. Canon 2 A-B (“A judge should avoid the appearance of
impropriety in all activities,” “nor convey or permit others to convey the impression
that they are in a special position to influence”). The prosecutor, as a lawyer, and one
seeking judicial office was also charged with the duty to avoid even the appearance
of impropriety. Rule 8.2(b) Georgia Rules of Professional Conduct (“A lawyer who
is a candidate for judicial office shall comply with the applicable provisions of the
Code of Judicial Conduc;t”ABA Model Code of Professional Responsibility Cannon
9-6 ("every lawyer owes a solemn duty to . . . inspire the confidence, respect, and
trust of the public; and to strive to avoid not only professional impropriety, but also
the appearance of impropriety"); id. at Cannon 7-35 (“All litigants and lawyers should
have access to tribunals on an equal basis . . . . [I]n adversary proceedings a lawyer
should not communicate with a judge . . . in circumstances which might have the
affect or give the appearance of granting undue advantage.”).
Vineyard's recusal was required to avoid the appearance of impropriety. 28
17
U.S.C. §455(a). Aappearance of impropriety is determined by a reasonableness
standard-- whether "an objective, disinterested, lay observer fully informed of the
facts underlying the grounds on which recusal was sought would entertain a
significant doubt about the judge's impartiality, and any doubts must be resolved in
favor of recusal." US v. Patti, 337 F.3d 1317, 1321 (11th Cir. 2003) (citations
omitted). A reasonable lay person, upon learning the trial judge had recently selected
the prosecutor to a position on the same court, and working for the court, would
question whether the court could act without bias and whether the appointment would
incur bias and unfairness in the judicial system trying Botes.
The error wasn’t harmless. Liljeberg v. Health Svcs. Acquisition Corp., 486
U.S. 847, 862 (1988) (violations of 28USC433 subject to harmless error analysis).
In assessing the error's harm, this Court looks to "(1) the risk of injustice to the parties
in the particular case; (2) the risk the denial of relief will produce injustice in other
cases; and (3) the risk of undermining the public's confidence in the judicial process."
Parker v. Connors Steel Co., 855 F.2d 1510, 1526 (11th Cir. 1988).
During trial, the court divulged to Vineyard one aspect of Botes’ strategy
regarding Botes’ passport. Defense counsel characterized the court as having “spilled
the beans.” (R18-699). A lay observer might well conclude the court had intentionally
disclosed defense strategy to aid the prosecution.
During Estrada’s testimony the court inquired and repeated twice, “I just want
9 This was particularly troubling as Estrada testified on cross he never heard
about kickbacks from Botes (R16-318,252).
18
to ask you one question, make sure. Was Mr. Johnny Turner present at any time Mr.
Botes talked about illegal kickbacks?”9 (R16-382). Counsel objected, noting the court
made it seem like the conversations occurred, while Botes’ denied the charge.(R16-
383). Lay observers could conclude the court had intentionally announced it
believed Botes guilty before the jury to aid the prosecution.
This was a close case. Lay observers could conclude the court, however
unintentionally, ruled in the Government's favor at a crucial time – a ruling tipping
the scales of justice. Similarly, defense counsel may not have argued quite as
forcefully against Judge Vineyard's position as they might have against prosecutor
Vineyard's position. Lay observers could conclude this reluctance tipped the scales
of justice. Indeed, a legal observer could easily conclude the same in the context of
the court's erroneous jury instruction in answer to the jury's final question. See,
Section IV. This is reversible error.
II. THERE WAS INSUFFICIENT EVIDENCE OF CONSPIRACY
CONVICTION.
Count one of the superseding indictment charged Botes, Schrenko, Steyn,
Temple, and others conspired to: (A) embezzle, steal, obtain by fraud, convert, and
misapply property valued at over $5,000, and under the control of a State
10 Additionally, Kauman testified he had reviewed an attorney general
opinion which concluded this practice was within Schrenko’s authority. (R25-
1890).
19
governmental agency, violating18 U.S.C. §666(a)(1)(A); and secondly, (B) wire
fraud depriving citizens of money and property and the honest services of Schrenko
as State School Superintendent, violating of 18 U.S.C. §1343 and §1346. There was
insufficient evidence for either object.
1. Object A.
The evidence of theft of federal funds dealt with the execution and payment on
the “multiple contracts” between DOE and CCSC, all for under $50,000. The
evidence established neither Schrenko nor Botes intended DOE to lose anything as
a result of the contracts, and therefore, there was no theft of federal funds. Schrenko
believed the multiple contracts were valid. Schrenko repeatedly testified she thought
the software was useful and expected the contracts to be performed. Botes was told
Schrenko had the authority to issue multiple contracts under $50,000.00, and repeated
this as fact to his staff.10 None of the irregularities surrounding the DOE’s contract
procedure can be imputed to Botes to establish guilt, as there was no evidence Botes
was aware of the DOE protocol, and Schrenko testified Finley and Temple were
responsible for the contract details.
The evidence established Botes directed his staff to implement the contracts,
20
and his company performed the contracts to the extent it was permitted to do so by
DOE. The remainder of the performance was blocked by DOE, not Botes. (R23-
1590,1593;1604,1605;R24-1680;1683;1688,1690,1695;R17-577;R22-1423;R25-
1888-89;24-1664,1665,1701,1702,1704;R23-1566-67). DOE’s hindrance of
performance, given politics at the DOE, where Schrenko was being investigated,
can’t establish criminal liability. There was insufficient evidence to support a finding
Schrenko and Botes conspired to steal federal funds.
2. Object B.
The second object alleged was a scheme to defraud the state and the honest
services of Schrenko. The evidence established Schrenko and Botes believed the
contracts were lawful and would be executed. DOE’s hindrance of performance
doesn’t supply the requisite intent. However, the Government presented testimony
of Turner and Estrada, who said told them separately of a plan to get money to the
Campaign from the payments on DOE contracts. Although the general rule is
credibility decisions are left with the jury, and this Court won’t disturb them on
appeal, for a variety of reasons the Turner and Estrada’s testimony is insufficient to
support the conspiracy conviction.
This Court should reject the Turner and Estrada testimony that Botes knew and
directed the plan to get money into the Campaign, because the testimony was
incredible on its face, and insubstantial. US v. LeQuire, 943 F.2d 1554 (11th Cir.
21
1991)(uncorroborated testimony of an accomplice is sufficient to support a conviction
in the Federal Courts if it is not on its face incredible or otherwise insubstantial.”)
citing US v. Iacovetti, 466 F.2d 1147, 1153 (5th Cir. 1972).
Turner’s is unbelievable because he testified to events which were flatly
contradicted by other witnesses and revealed on cross he was attempting to obfuscate
the truth with his testimony as much as possible, while flatly denying his obvious
motivation to lie. Turner even denied having a political agenda, despite clear
evidence to the contrary.
Turner, who involved his father and his close friend in the scheme by lying,
testified he had conversations with Botes about contracts between DOE and CCSC,
and sending a portion of the funds from the contracts to the Campaign. (R16-425).
Turner claimed he talked of $550,000 in contracts, with half going to the Campaign.
(R16-425). Turner was often contradicted by other Government witnesses. He
testified Republicans for Change (used to pay for Campaign poll) was a “committee
that Rodney [Estrada] and I...a name we came up with and presented to [Botes] to
sponsor this [fundraiser].” (R16-417). Turner also testified Republicans for Change
was a name created for a fundraiser. (R18-672). Estrada testified Republicans for
Change was “a nom de plume” for Leonard contacting and working with the pollster.
(R16-294). Leonard testified he had nothing to do with Republicans for Change.
(R20-1217).
11 Curti was created by Turner and Estrada in 2002 as a political consulting
service.
22
Another example of Turner’s perfidy is his testimony regarding the $590
“focus group” checks used to get cash into the hands of friends of the Campaign,
thereafter donated to the Campaign, disguising the true source of the funds. Turner
testified when he received the payment from DOE for the Governor’s Honor Program
(GHP) contract and its companion “needs assessment” contract, ($82,493.50 on June
27, 2002), he was thought he’d use the funds for company operating expenses. (R17-
455). Instead, he was told the money was going to the Campaign. (R16-432;R17-
455). Turner’s father’s testimony reveals Turner’s testimony that on June 27th he
believed he was going to be able to use the funds for operating expenses is a lie,
because over a week before, he asked his father to make some checks out from his
business to assist his plan to get money to the Campaign. (R24-1818).
Turner testified he thought Estrada, (who testified otherwise) knew about the
$590 checks Turner wrote out of their company, Curti11, because Turner had
previously asked Estrada if he could use Estrada’s consulting company in the scheme,
and Estarada had declined. (R18-687,688). Estrada’s negative reaction couldn’t
possibly lead Turner to believe Estrada consented to Curti’s use in the scheme.
Turner’s testimony is preposterous on its face.
In Turner’s eagerness to provide testimony against Botes, he denied he and
23
Estrada were behind the June fundraiser at the Country Club of the South, and it said
it was Botes’ affair. (R18-652,692). This was false, as evidenced by Curti’s (Turner
and Estrada’s company) payment of the bills, and Estrada’s admission. (R18-
693,694;R16-307). Turner denied being a Schrenko supporter, causing the court to
laugh aloud, and Turner to finally admit his support. (R18-713,716,717). One minute,
Turner testified Botes introduced him to Leonard, and the next, Estrada did . (R18-
718). Turner denied he and Curti (described as Schrenko’s sole political consulting
firm) would benefit if Schrenko won the primary. (R18-725). Turner denied knowing
that Estrada thought it would be beneficial if Schrenko won. (R18-727).
Turner’s testimony regarding giving Temple an envelope of cash, differed
significantly from the testimony from Pittman, a witness with no demonstrable
interest in the case. Turner testified the breakfast meeting at a hotel was 30-45
minutes. (R17-537). Turner testified after Botes left, Turner, Temple and Temple’s
driver, Pittman drove in Turner’s car to Temple’s parked car. In Pittman’s presence,
Turner gave the cash to Temple. (R17-538).
Pittman on the other hand testified the meeting was long---a good hour to an
hour and a half. Pittman said he’d eaten breakfast, read the paper, and was “twiddling
my thumbs, waiting to go.” After the meeting Pittman said everyone went their
separate ways and Temple left the hotel with an envelope he didn’t have on arrival.
(R23-1441,1451).
12 Additionally, Estrada was upset at Botes because Botes insulted Estrada
when Botes reported he heard Estrada and Leonard were skimming money from
the Campaign. (R16-363). Estrada also contended he had not been paid
commission by CCSC for the GHP contract. (R16-218).
24
Turner was even contradicted by Potgieter regarding Potgieter’s payment for
the Campaign’s software. Whereas Turner testified Botes came into Turner’s office
to request Turner to wire money to Potgieter, Potgieter testified Botes called someone
from the bank, requesting the wire transfer. (R17-434; R20-1245).
It was so clear Turner had no credibility, that in closing, the first thing the
prosecution mentioned regarding Turner was there were other witnesses for the jury
to rely upon. (R27-2180).
Estrada’s testimony is inherently unbelievable because he testified to things
which were not possible. For instance, Estrada, who was never charged, claimed to
have had a conversation with Botes on March 20, 2002, at CCSC. (R15-155;R16-
242,245,349,379,380).12 Estrada claimed prior to the meeting Botes used a “wand”
to check for listening devices. Upon discovering a “bug,” Botes relocated the
meeting (without repeating the process) and proposed committing a crime (to
someone he met recently) to get DOE contracts. (R15-156,244). During this meeting
Estrada claimed Botes discussed a meeting with Schrenko’s campaign manager,
25
Leonard, to receive contracts in return for pushing $250,000 into the Campaign.
(R15-156). Estrada said Botes said Leonard would shepherd the contracts and the
money. (R15-245). Notably, Leonard testified he never discussed anything illegal
with Botes. (R20-1214). Later in his testimony Estrada contradicted himself and said
he had never heard from Botes that he’d agreed to kick money back into the
campaign. (R16-318). The conversation described by Estrada couldn’t have taken
place because Botes didn’t even meet Leonard until four days after the alleged
conversation with Estrada.
There is no evidence Botes met Temple until the June 3, 2002, meeting at
CCSC regarding the GHP software. (R22-1301). The evidence established Botes was
informed Schrenko was interested in “fund[ing] a project” via an email from CCSC
employee Beasley, on May 27, 2002, “Stephan, great news. Rodney [Estrada] called
me on Sunday to say he had a call from Rich Leonard, Linda wants to fund a project.
Please call Rodney for details. You’ll then be calling Linda to get things started...”
(R23-1623). Thus, Estrada’s testimony is incredible on its face, and more so when
considered in conjunction with all the testimony in the case.
There was a tight connection between Estrada and Turner, who were so close
that, in the summer of 2002, they formed Curti, hoping to have Schrenko as a client,
and paying Campaign expenses. If Schrenko won the election, Temple, Turner, and
Estrada would benefit. Estrada was the connection with Schrenko and Leonard.
26
According to Schrenko, Temple told her the $590 focus group checks came from
Estrada, who did not want his name listed as a contributor. (R22-1385). Leonard,
who pled guilty, testified Estrada was a personal friend and a key resource regarding
his behavior in the Campaign. (R20-1117). Turner and Estrada were in contact
between learning of the investigation and speaking to the authorities. (R15-316).
Although the Government presented many emails between Botes and others in CCSC,
DOE and Temple, there were none between Turner and Estrada, or with Leonard and
Temple. This is troubling considering the email culture that existed, as evidenced by
the many emails introduced into evidence.
The jury is entitled to believe the government witnesses even if they are an
“array of scoundrels, liars and brigands,” US v. Hewitt, 663 F.2d 1381 (11th Cir.
1981), but if the record reveals a lack of substantial evidence from which a fact finder
could find guilt beyond a reasonable doubt, the Court must reverse. US v. Kelly, 888
F.2d 732 (11th Cir. 1989). Here there is little upon which to rest a guilty verdict, and
the only direct evidence of a conspiracy comes from witnesses who lacked credibility.
With insufficient evidence the conviction must be reversed.
III. THERE WAS INSUFFICIENT EVIDENCE OF AIDING AND ABETTING.
Counts two through twelve charged Schrenko, aided and abetted by Botes,
Steyn, and others, embezzled, stole or obtain by fraud property valued at more than
$5,000 owned by and under the care, custody, and control of...” DOE. Each of the
27
“multiple contracts” between DOE and CCSC comprised a separate count. The court
charged the jury it could convict on these counts, either under a Pinkerton theory, or
under an aiding or abetting theory.
Pinkerton Liability.
Over objection, the court charged the jury Botes could be convicted under a
Pinkerton theory even though he did not personally participate in the offense if: (1)
it first found Botes guilty of the conspiracy offenses, (2) the offenses were committed
by a conspirator during the existence and while he was part of the conspiracy, in
furtherance of its objects, and (3) the co-conspirator’s conduct was a reasonably
foreseeable consequence of the conspiracy. (R27-2206;R27-2057,2068).
A Pinkerton charge shouldn’t be given unless the evidence was sufficient for
a reasonable jury to conclude beyond a reasonable doubt the offenses alleged in
counts two through twelve were reasonably foreseeable consequences of the
conspiracy. US v. Alverez, 755 F.2d 830 (11th Cir. 1985). Even with this limited
review, viewing the evidence in the light most favorable to the government, there
was insufficient evidence.
A member of a conspiracy may be vicariously liable for substantive offenses
committed by co-conspirators during the course of and in furtherance of the
conspiracy. Pinkerton v. US, 328 U.S. 640 (1946). The test is whether a substantive
offense was committed by someone, whether there was an act by the defendant which
28
contributed to and furthered the offense, and whether the defendant intended to aid
its commission. US v. Walser, 3 F.3d 380 (11th Cir. 1993).
Here, the first requirement is lacking because there is no evidence either
Schrenko or Botes intended to steal money from the DOE. Instead, the evidence
established Schrenko and Botes believed the contracts were valid and intended
performance. (See Issue II.A. pages 22-23 incorporated here by reference.). Thus,
there was insufficient evidence Schrenko committed the offense, or the offense was
reasonably foreseeable to Botes. As Schrenko had no intent to steal, defraud, or
embezzle money from DOE, but only to receive money for the Campaign, the
offenses were not reasonably foreseeable to Botes.
2. Aiding and Abetting.
The test for determining guilt by aiding and abetting is determining whether
a substantive offense was committed by someone, whether an act by the defendant
contributed to and furthered the offense, and whether the defendant intended to aid
its commission. US v. Walser, 3 F.3d 380 (11th Cir. 1993).
Examining the evidence in the light most favorable to the Government, it fell
short. Assuming evidence established Botes knew funds his company made from the
contracts ended up in the Campaign, none of the Government’s evidence spoke to
Botes’ knowledge and intent regarding bilking DOE.
US v. Parekh, 926 F.2d 402 (11th Cir. 1991), involved aiding and abetting. The
29
Parek Court noted the accomplice must “‘share[] in the criminal intent of the
principal,’” and “...the government is not relieved of its obligation to provide
sufficient evidence of the principal’s guilt” Parekh, , at 407,408; W.LaFave &
A.Scott, Criminal Law, §6.8(c), at 592 (“the guilt of the principal must be established
at the trial of the accomplice as a part of the proof on the charge against the
accomplice”).
The Government had to prove Schrenko’s guilt, and it didn’t. Schrenko pled
to count one, and count twenty-two (money laundering). Her testimony indicated she
was not guilty of unlawful conduct regarding the multiple contracts, and the
Government didn’t present evidence from which a reasonable jury could have
concluded Botes had illegal intent regarding the contracts. The subsequent hindering
performance by DOE is insufficient to conclude Botes was guilty of these counts.
IV. THE INCORRECT JURY INSTRUCTIONS REGARDING AIDING AND
ABETTING WERE REVERSIBLE
Counts two through twelve charged aiding and abetting the embezzlement of
federal funds. Botes’ defense was he had not acted knowingly. The jury clearly had
difficulties with these charges, because after three days of deliberation, it requested
additional instruction:
As far as an aiding and abetting charge, if a defendant aids
in a crime but does not necessarily do it intentionally,
should we find him guilty? If you cannot answer this
30
question, could you provide further instructions for an
aiding and abetting charge?
(R28-2254). Over Botes' objection, the court didn’t answer the question. It went
one step further, and affirmatively misstated the law. The court said,
The Court cannot answer either question; however, I do
suggest that you reread the charge on aiding and abetting.
(R28-2256).
The court's answer – that it couldn’t answer the question, rather than it
wouldn’t answer the question – was an incorrect statement of law. The court plainly
could have answered the question – the answer, as suggested by defense counsel, was
a defendant must intentionally aid in a crime to be guilty of aiding and abetting. By
stating it could not answer the question, the court left the jury to guess whether intent
was a necessary element of aiding and abetting. But jurors "are not generally
equipped to determine whether a particular theory of conviction submitted to them
is contrary to law . . . . When, therefore, jurors have been left the option of relying
upon a legally inadequate theory, there is no reason to think their own intelligence
and expertise will save them from that error." Griffin v. US, 502 U.S. 46 (1991).
The extent and character of additional jury instructions once the jury has retired
is within the sound discretion of the court. US v. Parr, 716 F.2d 796, 809 (11th Cir.
1983). Nonetheless, it is well-settled when "a jury makes explicit its difficulties a
31
trial judge should clear them away with concrete accuracy." Bollenbach v. US, 326
U.S. 607, 612-13 (1946). In this case, the court not only declined to answer one of
the jury's questions, it also affirmatively misled the jury on the state of the law. This
misstatement of the law constitutes reversible error. Central Alabama Fair Housing
Center, Inc. v. Lowder Realty Co., 236 F.3d 629, 643 (11th Cir. 2000) (reversible error
for court to instruct jury incorrectly regarding the law).
The Bollenbach decision controls. There, the jury returned after seven hours
reporting it was "hopelessly deadlocked." 326 U.S. at 609. Thereafter, the jury sent
a note, and the court responded incorrectly regarding the law. Id. The Court
emphasized "precisely because it was a 'last minute-instruction' the duty of special
care was indicated in replying to a written request." There, as here, the error was not
cured by the original instructions. The "judge's last word is apt to be the decisive
word. If a specific ruling on a vital issue is misleading, the error is not cured by a
prior unexceptional and unilluminating abstract charge." Id.
The Court noted the trial court should have realized the jury was obviously in
doubt and tired after the long struggle. Id. Here, the jury had been deliberating three
times as long, and was more obviously in doubt. The jury sent out at least eight
questions during deliberations, and, according to the foreperson, was taking one step
back for every two steps forward. ( R28-2251). Under these circumstances, the court
32
should have cleared the jury's difficulties carefully and accurately, rather than
"cursorily" and incorrectly. Bollenbach, 326 U.S. at 612-13. The court's "manifest
misdirection" was reversible error. Id. at 614.
US v. Zimmerman, 943 F.2d 1204 (10th Cir. 1991), involved a similar, though
less egregious, case. The jury sent a note after three days of deliberation, asking for
additional instruction. The court merely referred the jury back to the original
instructions over defense objection, but did not misdirect the jury. Id. The Tenth
Circuit found the explicit questions – after three days of deliberation – clearly
"demonstrated that the jury needed help applying the instructions to the evidence."
Id. Because there was a possibility, based on the jury's questions, it may have
convicted on an incorrect legal basis, the court reversed the convictions. Id. at 1214.
Here, similarly, exists the possibility the jury convicted Botes on an incorrect legal
basis. At first the jury asked the court to refresh their “understanding of the difference
between reasonable doubt and all possible doubt,” and “if we found a defendant not
guilty of Count One, for which counts could the defendant possibly be found guilty?”
In light of the jury's last question – whether a defendant had to know he was aiding
a crime – and Botes' defense – he lacked precisely that knowledge – it is entirely
possible the jury convicted Botes without finding he knew he was aiding and abetting
a crime.
33
It’s particularly troubling here, because the jury was also instructed, as to
Steyn, it could consider deliberate ignorance. (R27-2221). As US v. Hilliard explains,
deliberate ignorance instructions raise the greatest concerns in cases involving
complicated business transactions governed by detailed and technical civil
regulations. 31 F.3d 1509 (10th Cir. 1994). When the court failed to give guidance to
the jury, it’s conceivable they turned to the deliberate ignorance instruction for
guidance. The court's incorrect statement of law increased the possibility it
convicted on an incorrect legal theory.
The court's "manifest misdirection" of the jury wasn’t harmless error. US v.
Rogers, 94 F.3d 1519 (11th Cir. 1996). When the court instructed the jury it couldn’t
answer the question, it effectively allowed conviction on either of two grounds,
willful participation in the alleged crimes, or unintentional participation in the alleged
crimes, only one of which was legally sufficient. As this Court previously held:
“[A] general verdict must be set aside if the jury was instructed that it
could rely on any of two or more independent grounds, and one of those
grounds is insufficient, because the verdict may have rested exclusively
on the insufficient ground. In such circumstances, it is impossible to
determine on which basis the jury reached its verdict, so deficiency in
only one basis requires the entire verdict to be set aside.
Parker v. Secretary for Dep't of Corrections, 331 F.3d 764, 777 (11th Cir.
2003)(citations omitted).
34
The jury struggled with Botes' case. It asked numerous questions and
deliberated for days. Their final note went to the heart of Botes' defense – that even
if his actions had helped other defendants crimes, he had not knowingly and willfully
aided. Only after the court incorrectly told the jury there wasn’t an answer to its
question was it able to convict on these counts. Because it’s impossible to determine
the basis of the verdict – intentional or unintentional participation – Botes'
convictions for aiding and abetting must be reversed.
V. THERE WAS INSUFFICIENT EVIDENCE BOTES SCHEMED TO
DEFRAUD.
There was insufficient evidence on counts eighteen, twenty, and twenty-one.
18 USC §§1343, 1346, 2. The indictment alleged a scheme to defraud Georgians of
money, property, and Schrenko’s honest services, and to obtain money and property
by means of materially false and fraudulent pretenses, representations, and promises.
There were three groups of wire fraud counts–one group involved moving money,
one involved three emails, one involved a fax.
Count 18 was a fax “communication” on August 9, 2002, to transfer $40,000
from Botes’ company GEM-Bermuda to Temple’s company, Paradigm Pioneers.
Counts twenty and twenty one involved an email from Botes to Temple on
August 6, 2002, and an email from Temple to Botes on August 6, 2007. In counts
13 The jury acquitted on count forty-five-- this same transaction-- but
charged under the money laundering statute, 18 U.S.C. §1957.
35
thirteen through eighteen, the jury only convicted on count eighteen, comprising
conduct the Government told the jury was personally committed by Botes.13
The wire fraud counts required the Government to prove Botes intentionally
participated in a scheme to defraud Georgia of Schrenko’s honest services and wire
communications furthered that scheme. US v. Ross, 131 F.3d 970 (11th Cir. 1997).
In section II and III Botes established he and Schrenko believed the GHP and the
“multiple contracts” were valid and were going to be performed. Botes established
in Section II B the only evidence arguably demonstrating Botes participated in a
scheme to put funds into the Campaign in exchange for contracts came from Turner
and Estrada. Therefore, Botes incorporates those arguments at pages 28-37 by
reference establishing this Court shouldn’t rely on this testimony.
Count Twenty-One.
The Government intended to call Temple as a witness and then didn’t. Count
twenty-one involved an email from Temple to Botes informing Botes he had given
Turner the code [to wire money from CCSC to Temple]. Temple noted Campaign
media costs, and time was critical. Temple asked if Turner and Botes were available
for lunch, as he needed to ask for some advice. (R24-1727). This email was entered
36
by the case agent, as Temple didn’t testify. Although Botes did not object to the
admission of the August 7th email, he objected to the July 14th, email obtained under
identical circumstances, but was overruled. Botes objected on hearsay grounds
because Temple, the declarant, wasn’t testifying. (R24-1728). The Government
countered it obtained the document from Temple and it was admissible as a coconspirator
statement. The court overruled the objection. (R24-1728). This, along
with the introduction of the August 7th email was erroneous.
The Government must prove a conspiracy by a preponderance of evidence, the
defendant and the declarant were members of that conspiracy, and the statements
were made during the course of, and in furtherance of the conspiracy. F.R.E.
801(d)(2)(E); US v. Magluta, 44 F.3d 1530 (11th Cir. 1995).
In US v. Bourjaily, 483 U.S. 171 (1987), the Court declared co-conspirator
hearsay statements were presumptively unreliable, but the presumption could be
overcome by corroborative independent evidence. Here, that presumption of
unreliability is not rebutted. Under the rule, the statement alone is not sufficient to
establish the connection between the defendant and the declarant. Subsequent to
Bourjaily, independent evidence must be at least “fairly incriminating” on its own
before it, together with the hearsay, satisfies the Bourjaily preponderance
requirement.
37
In US v.Silverman, 861 F.2d 571, 578 (9th Cir. 1988), the Ninth Circuit noted:
Evidence of wholly innocuous conduct or statements by the
defendant will rarely be sufficiently corroborative of the coconspirator’s
statement to constitute proof, by a preponderance of the
evidence, that the defendant knew of and participated in the conspiracy.
Evidence of innocent conduct does little, if anything, to enhance the
reliability of the co-conspirator’s statement.
Here, other evidence presented by the Government failed to establish a
conspiracy. Schrenko’s testimony didn’t establish a conspiratorial connection
between Temple and Botes. Turner and Estrada totally lacked credibility, and didn’t
establish Temple and Botes conspired. The danger of admitting co-conspirator
hearsay is the “unacceptable risk” the defendant will be convicted solely from the
mouths of self-appointed coconspirators who are not produced for trial.” Saltsburg,
Martin, and Capra, Federal Rules of Evidence Manual, 801.01[6][g] 801-61, Eight
Edition. That’s what happened here. Because the evidence didn’t establish Botes’
membership in a conspiracy, the conviction must be reversed. US v. American Grain
& Related Indus., 763 F.2d 312 (8th Cir. 1985).
VI. THE EVIDENTIARY RULINGS CONSTITUTED REVERSIBLE ERROR.
The court made several evidentiary rulings which individually or cumulatively
mandate the reversal on all counts.
38
1. Testimony of Attorney Kaufman.
Turner recorded three telephone conversations with Botes and Steyn: (1)
September 30, 2004, between Turner and Botes; (2) October 8, 2004, between Turner
and Styen; and, (3) October 8, 2004, between Turner and Botes. Only the October
8th call between Turner and Botes was admitted.
The recording memorialized a call in which Turner acted concerned about
possible federal investigation. Botes said, “[w]hat we should do is sit together and
make sure we have all our ducks in a row and make sure we’re properly protected and
be proactive.” (R17-618). Turner testified thought this meant they needed to get their
stories straight. (R17-621).
The Government argued the call demonstrated consciousness of guilt, and an
attempt to concoct a cover story. Kaufman was prevented from testifying, in the fall
2004, Botes contacted Kaufman regarding his belief Turner had written unauthorized
checks, and the checks somehow related to proceeds from the “multiple state
contracts.” Botes wanted Turner interviewed by Kaufman in his office. The defense
contended this information was critical to the jury’s understanding the recording was
not inculpatory, but Botes’ attempt to investigate by having Turner talk to Kaufman.
(R25-1906,1908). Implicit in the Sixth Amendment’s subpoena power and the notion
of due process, defendants must be allowed to present favorable evidence. US v.
39
Hurn, 368 F.3d 1359 (11th Cir. 2004); Rock v. Arkansas, 483 U.S. 44 (1987); US v.
Arbolaez, 450 F.3d 1283 (11th Cir. 2006).
The Kaufman testimony was crucial to Botes’ defense. Unless explained, the
recording was potentially the most damaging evidence. Critically, the defense was
required to establish a counter inference. The right to present a defense is such a
“weighty interest of the accused,” that Botes’ due process rights and Sixth
Amendment rights were violated.
Hurn, at 1363, outlines four categories of non-excludable evidence:
1) evidence pertaining to elements of the offense, or affirmative
defense;
2) evidence through reasonable inferences make the existence of the
elements of the offense, or affirmative defense, more or less
certain;
3) evidence having a substantial impact on the credibility of an
important government witness;
4) evidence tending to place the prosecution’s theory differently.
The Kaufman testimony meets all of the categories outlined by Hurn. The
exclusion of the evidence mandates reversal. US v. Stephens, 365 F.3d 967 (11th Cir.
2004); US v. Todd, 108 F.3d 1329 (11th Cir. 1997); US v. Word, 129 F.3d 1209 (11th
Cir. 1997); US v. Sheffield, 992 F.2d 1164 (11th Cir. 1993); US v. Gaskell, 985 F.2d
1056 (11th Cir. 1993).
40
The exclusion of evidence both material and favorable to his defense requires
reversal. US v. Valenzuela Bernal, 458 U.S. 858 (1982), Chambers v. Mississippi,
410 U.S. 284 (1973); Washington v. Texas, 388 U.S. 14 (1967).
2. Inadmissible Hearsay.
Because the Government didn’t want to call Temple, who had obstructed and
been exposed as a liar, the Government called Schrenko instead. Schrenko testified
that Temple said they had received the “needs assessment” and it was “worthless”
and “pitiful.” Schrenko did n’t date the statement while testifying, but it had to come
after December, 2002, when the report was delivered. (R23-1655)
Schrenko testified a couple of weeks after she learned of the investigation she
was contacted by Temple, who thought they should meet with Botes in Atlanta. They
met at the Rock Bottom Brewery. When they arrived, Temple “made a joke” about
checking Botes for a wire.(R22-1355). According to Schrenko, “...Temple devised
a method by which they would know if they had contact with any of the investigators.
(R22-1356). Scherenko didn’t testify Botes approved, or used the code, or even
commented on it.
Schrenko testified, at the end of the meeting, Botes handed Temple a piece of
paper which Temple put in his pocket. (R22-1357). According to Schrenko, Temple
made no inquiry about the paper. Later, Temple told Schrenko it was a consulting
41
agreement, but he wasn’t going to sign it. When Schrenko asked him why, Temple
replied no contract was ever signed. (R22-1358).
Schrenko’s testimony about Temple’s statements regarding the “needs
assessment,” comments made by Temple at the Rock Bottom Cafe, and afterwards
were inadmissible hearsay because the objectives of the conspiracy were completed.
The conspiracy charged two objects, the theft of federal funds and the deprivation of
honest services. The overt acts pertaining to the objects of the conspiracy were
completed no later than the end of 2002. The conversation was in the fall of 2004.
There was no continuous purpose to the conspiracy, and no evidence of contacts
between Botes, Temple and Schrenko after August 2002.
Statements of a coconspirator are admissible under F.R.E. 801(d)(2)(E) only
if the statement was made during, and in the furtherance of the conspiracy. Statements
made after the primary purposes of the conspiracy are completed only serving to
conceal the conspiracy are not protected. Grunewald v. US, 353 U.S. 391 (1957);
Lutwak v. US, 344 U.S. 391 (1953); Krulewitch v. US, 336 U.S. 440 (1949).
Relief is available to rectify plain error that is so obvious failure to correct it
jeopardizes the fairness and integrity of the trial. US v. Bailey, 123 F.3d 1381, 1400
(11th Cir. 1997). Here, the admission of Temple’s hearsay statements was particularly
42
egregious, because the Government feared calling him. The conviction must be
reversed.
VII. THE CUMULATIVE EFFECT OF THE TRIAL ERRORS WARRANT
REVERSAL.
Even if the aforementioned trial errors are not individually sufficient to result
in reversal, the cumulative effect of the errors should result in reversal. The
cumulative effect of several errors harmless by themselves can be so prejudicial to
the right to a fair trial a new trial is necessary. US v. Preciado-Cordobas, 981 F.2d
1206 (11th Cir. 1993); US v. Adams, 74 F.3d 1093 (11th Cir. 1996). The cumulative
errors here tainted all counts of conviction as a result of the spillover effect of the
evidence. US v. Eason, 920 F.2d 731 (11th Cir. 1990). Consequently, the convictions
on all counts must be reversed.
VIII. THE COURT ABUSED ITS DISCRETION BY FAILING TO GIVE THE
THEORY OF DEFENSE CHARGE.
Botes’ defense was he was unaware of the embezzlement, or funneling money
into the Campaign, Turner, Estrada, and Temple were un worthy of belief, and the
payment to Temple was a commission on contracts, while on a leave of absence from
the DOE. The evidence of this was the August 6, 2002, email responding to Temple’s
request for an advance on his commision. Botes’ requests to charge No. 7, stated:
43
There is nothing illegal in making payments to a person for
acting as a business agent or consultant or lobbyist. Nor is
it illegal to pay that agent or consultant or lobbyist a fee or
commission calculated on anticipated results. Citing
OCGA 10-6-31; Seals v. Hygrade Distribution and
Delivery Systems, Inc., 249 Ga. App. 574, 577(1), 549
SE2d 412 (2002); E.H. Crump v. Millar, 194 Ga. App. 687
(2), 391 S.E.2d 775 (1990). (R3-223).
Botes also submitted Request No. 9:
The government has...the burden of showing that [the
defendant and at least one other person have agreed to the
basic object of the conspiracy.” “[T]he very definition of an
‘agreement’ is a meeting of the minds, and there can be no
meeting of the minds if only one mind contains knowledge
of the object of the agreement.”“‘ The government must
show that [the defendant] participated in the conspiracy
with knowledge of its illegal purpose and not merely that
the defendant associated with a bad person.’” US v.
Arbane, 477 F3d 1223 (11th Cir. 2006), quoting US v.
Frick, 588 F.2d 531 (5th Cir. 1979)
The court refused to give this request, deciding it was covered by the general
conspiracy charge. (R26-2071-72). The court refused to give Request No. 7, deciding
it did not want the jury to be confused or misled by the charge. (R26-2074).
The court did give the other requested theory of defense charge, but this charge
did not cover the concepts of the commission being paid instead of a kickback, or the
Government was required to show Botes agreed to join Temple’s conspiracy to steal
from the DOE. (R26-2070).
44
Although the court has broad discretion in its jury instructions, a defendant has
the right to instruct the jury on his theory of the defense, separate and apart from
instructions given on the elements of the charged offenses. US v. Ruiz, 59 F3d 1151
(11th Cir. 1995).
The refusal to give a requested instruction is reversible error if the instruction
is:
1) correct;
2) not substantially covered by the rest of the charge;
3) deals with so vital a point in the trial the failure to give the instruction
seriously impaired the defense.
Opdahl, 930 F.2d at 1534-36.
The prejudice is obviously here because the one defense charge the court
agreed on didn’t cover the complete defense. The Government’s allegations were
multifaceted and complicated. Botes wasn’t able to address the aspect of the
Government’s case dealing with the payment to Temple, which the Government
alleged was made directly by Botes. Botes wasn’t able to address the Government
was required to prove Botes agreed to join Temple’s conspiracy to steal from the
DOE. Botes was unable to tie in the defense in two ways which the court’s charge
did n’t cover.
45
The trial court isn’t free to determine the existence of a defense as a matter of
law, and the defendant is entitled to have presented instructions relating to a theory
of defense for which there is any foundation in the evidence. Ruiz, citing Perez v. US,
297 F.2d 12, 1516 (5th Cir. 1961). Allowing counsel to argue a point isn’t adequate
substitution for the court’s duty to include an instruction on the relevant point of law.
Ruiz . Defendants are entitled to a charge which precisely and specifically, rather
than generally or abstractly, points to his theory of defense. US v. Morris, 20 F.3d
1111 (11th Cir. 1994).
The court clearly erred in failing to give the requested charges. There was a
sufficient basis to justify the requests. The defense is entitled to have its theory of
defense instruction even if the evidence is weak, insufficient, inconsistent or of
doubtful credibility, and even when there is more than enough evidence to convict the
defendant. US v. Opdahl, US v. Morris, 20 F.3d 1111 (11th Cir. 1994). The evidence
is examined in the light most favorable to the defendant when reviewing whether the
defendant met his burden of proof for the instruction. US v. Williams, 728 F.2d 1402
(11th Cir. 1984).
Here the failure must result in reversal in Botes’ case. US v. Hedges, 912 F.2d
1397 (11th Cir. 1990)(reversing for failure to give theory of defense charge); US v.
14 The court made no finding on this argument.
46
Edwards, 968 F.2d 1148 (11th Cir. 1992)(same); US v. Banks, 942 F.2d 1576 (11th Cir.
1991)(same).
IX. THE OBSTRUCTION ENHANCEMENT WAS ERRONEOUSLY IMPOSED.
At sentencing the court sustained the Government’s objection to the probation
officer’s failure to assess two levels for obstruction, based on the Turner recording.
The PO concluded the conduct didn’t merit the application of obstruction. (PSRp68).
The Government contended the Turner recording was Botes’ attempt to
influence Turner’s testimony, and showed involvement in creating a false contract
to explain payments to Temple. Botes argued the recording didn’t constitute
obstruction. Botes pointed out there was no evidence the contract wasn’t created in
summer 2002, and not during “the course of the investigation” as required under
§3C1.1. (R29-24).14 Relying on “two Eleventh Circuit cases that stand for the
propositions that encouraging another person to provide false testimony during an
investigation is a basis for application of the obstruction enchantment,” the court
imposed obstruction. (R29-27).
The court’s finding is clearly erroneous and unsupported. In context, the
statements are ambiguous, and don’t clearly suggest Botes was counseling Turner to
lie. First Botes said he had spoken with his attorney and Turner and Botes should
47
meet with the attorney “have all our ducks in a row” and make sure we’re properly
protected and uh, and be proactive.” The Government’s sentencing memorandum
stated “Botes urged Turner to adopt a false cover story about the payments made to
the campaign through Merle Temple...” Then the Government quoted a section of the
conversation where Botes is explained his own position regarding the payment.
Rather than “urging” Turner to adopt his position, Botes was responding to Turner’s
question, and couldn’t possibly be urging Turner to do anything. Turner asked Botes
“I mean what is your take on this whole thing?” (R3-279-EXB-3). Botes responded.
None of the passages cited by the Government establish Botes was attempting to
suborn perjury, because they are responses by Botes to questions by Turner.
When Turner questioned Botes, he said “...okay that’s fine, that’s fine Johnny,
I’m not arguing with you.” (R3-279-EXB-6). This establishes Botes wasn’t asking
Turner to say anything. Botes mentioned the need for an attorney several times during
the conversation, and told Turner to decide what he was going to do, and let Botes
know. Attorney Kaufman’s testimony confirmed Botes contacted him in the fall
regarding his suspicion about the checks. The recording was merely Botes’ attempt
to get Turner into Kaufman’s office.
48
The Government failed in it’s burden to justify imposition of the enhancement,
with “reliable and specific evidence.” US v. Shriver, 967 F.2d 572, 575 (11th Cir.
1992); US v. Lawrence, 47 F.3d 1559, 1566 (11th Cir. 1995).
In US v. Cataldo, 171 F.3d 1316 (11th Cir. 1999), this Circuit considered a case
where the court inferred the defendant had lied about an issue. In reversing, the
Court noted “[a]lthough the court’s inference may be reasonable, courts ‘must not
speculate concerning the existence of a fact which would permit a more severe
sentence under the guidelines.’” Cataldo, 171 F.3d at 1321 (quoting US v. Wilson,
993 F.2d 214, 218 (11th Cir. 1993)). It’s pure speculation to conclude Botes’
reference to getting ducks in a row was an invitation to Turner to commit perjury.
The alleged obstructive conduct here pales in comparison to Temple’s attempt
to influence Schrenko’s testimony. Turner received probation after testifying falsely
regarding a number of important points, and admittedly lying to the FBI. Finley
received probation, after admittedly lying to investigators about material matters. The
application of the obstruction enhancement here was clear error.
X. BOTES’ 97-MONTH SENTENCE WAS PROCEDURALLY AND
SUBSTANTIVELY UNREASONABLE.
The judge began the sentencing explicitly stating he imposing sentence within
the guideline range. At the conclusion of the hearing the judge explicitly noted he had
49
not sentenced Botes based on the §3553 factors. Both statements are problematic,
reveal the judge was operating under a presumption a guideline sentence should be
imposed, and its task was either to impose a sentence under §3553 or the sentencing
guidelines. The judge’s application of this presumption, coupled with his inattention
to the mandatory §3553 factors, resulted in the court’s imposition of an unreasonably
harsh, 97-month sentence, defying the “parsimony provision” of §3553. Because the
record is clear the judge did n’t consider the factors within the meaning of the
remedial portion of US v. Booker, 543 U.S.220 (2005), the sentence is reversible on
this ground. US v. Gibson, 424 F.3d 1234, 1254 (11th Cir. 2005)(stressing , after
Booker, sentencing “must...reflect due consideration of the factors and policies that
animate §3553(a). In this Circuit either “procedural or substantive unreasonableness”
is reversable. US v. Hunt, 459 F.3d 1180, 1182 n. 3 (11th Cir. 2006). Both infected
Botes’ sentence.
1. Procedural Violation.
After the judge stated the sentencing options he said:
Before the court imposes a sentence within the applicable
custody guideline range, the Court wishes to resolve the
pending guideline issues. (R29-4)(emphasis added).
50
After making guidelines determinations, the judge reiterated he was going to
impose a sentence with the guideline range, stating:
...the Court is now ready to sentence the defendant, ...
within the applicable custody range, which is now 97-121
months. (R29-29).
Before hearing any evidence, argument, or allocution, the judge demonstrated
he was only considering a guideline sentence instead considering the 3553 factors.
Botes asked the judge for a non-guidelines sentence under the §3553. The
judge, consistent with its earlier pronouncements regarding the guideline range,
imposed a sentence of 97-months, stating:
Let the record reflect the Court had considered
sentencing the defendant pursuant to 18 U.S.C. §3553 and
the factors outlined therein. However, the Court decided
not to since a more appropriate sentence can be imposed
pursuant to the custody guideline range as outlined in the
U.S. Sentencing Commission. Also, the Court has
sentenced the other defendants pursuant to the guideline
range. (R29-67).
A. Presumption Regarding a Guidelines Sentence.
In order to avoid violating the Sixth Amendment, the Supreme Court held in
Booker, the sentencing court must not apply the guidelines in a mandatory manner
and the sentencing guidelines advisory. Booker ruling now requires the court
consider the factors set forth in 18 U.S.C. §3553 in fashioning a sentence which is
51
“sufficient, but not greater than necessary, to comply with the purposes” set forth in
§3553(a)(2). Here, instead of following Booker, the judge stated it did not impose
sentence with reference to the factors, but rather imposed a guideline sentence, noting
it imposed a guideline sentence upon the co-defendants. The judge misconstrued the
task of the sentencing court, and left the remedial portion of Booker unfulfilled.
In Rita v. US, 127 S.Ct. 2456 (2007), the Supreme Court, made clear it is error
for the court to accord a presumption a sentence within the guideline range should
be imposed. The Court said: “[w]e repeat that the presumption before us is an
appellate court presumption.” Rita, at 2465 (emphasis in original).The Court also
stated:
In determining the merits of these arguments, [regarding
the application or not of the guidelines] the sentencing
court does not enjoy the benefit of a legal presumption that
the Guidelines sentence should apply. Rita, at 2465, citing
Booker, 543 U.S., at 259-260.
As the court accorded a presumption favoring a guidelines sentence, Botes’
sentence must be reversed.
B. Insufficient Explanation.
After stating he was not imposing a sentence pursuant to §3553(a), the judge
explained a guidelines sentence was “more appropriate,” [than 3553] and the codefendants
received the guidelines. A court’s statement it has considered the factors
52
is sufficient, post -Booker, to indicate it considered them. US v. Scott, 426 F.3d 1324
(11th Cir. 2005). Here, the judge didn’t make a statement and the record is not
sufficient.
The explanation by the judge didn’t provide analysis of the factors, or why the
guidelines were more appropriate than any other sentence. In US v. Veteto, 920 F.2d
823 (11th Cir. 1991), this Court held a similar statement by a court was an
insufficient. The defense requested, the court explain the imposition of a sentence at
a particular point within the guideline range and the court merely said it imposed a
200 month sentence because, “it seems right.” The Veteto Court noted sentences
should seem “right” to the sentencing judge, and thus, the view the sentence was
appropriate, without more detail is a truism and not an explanation. Id., at 826.
Likewise, it’s axiomatic courts take actions deemed appropriate, but without detail,
“appropriate” isn’t an explanation.
The court didn’t acknowledge any defense arguments for a non-guidelines
sentence.Although a court isn’t required under Booker to state it has considered each
§3553 factor, Judge Posner noted in US v. Cunningham, 429 F.3d. 673 (7th Cir. 2005),
a reviewing court shouldn’t be left in serious doubt whether the judge connected the
facts relating to the statutory factors to the sentence he imposed. On the record here,
this Court must have serious doubt the court meaningfully examined the factors
53
determining sentence. The judge’s erroneous belief he was to chose between the
factors on one hand, or the imposition of a guidelines sentence, establish the sentence
was improperly imposed.
The comments were also insufficient for reasonableness review. Rita, at, 2468.
In Rita, the court’s statement of reasons was legally sufficient. However, the
“appropriateness of brevity or length, conciseness or detail, when to write, what to
say, depends upon circumstances.” Id. The Court said the “sentencing judge should
set forth enough to satisfy the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his own legal decision making
authority.” Id. The judge must respond when “a party contests the Guidelines
sentence generally under §3553(a)–that is argues that the Guidelines reflect an
unsound judgement, or for example, that they do not generally treat certain defendant
characteristics in a proper way–or argues for departure[.]” Id., at 1078, citing Rita, at
2468;US v. Bonilla, 463 F.3d 1176 , 1181 (11th Cir. Sept. 5, 2006)(stressing
“sentencing court should–when stating its reasons for imposing a particular
sentence...tailor its comments to show the sentence imposed is appropriate, given the
factors to be considered as set forth in §3553")(quotation marks omitted).
Here the judge didn’t acknowledge the defense arguments, and the record
doesn’t otherwise demonstrate the court considered the evidence or argument. There
54
was no statement by the court it considered the guidelines advisory. US v. Kelly-
Davis, 2007 WL 1880991 (C.A. 11 (Fla.))(July 2, 2007)(unpublished)(“There is
nothing in the sentencing record to indicate the district judge was applying the
Guidelines as advisory, or he considered the 18 U.S.C. §3553(a) factors in
sentencing Davis. We have examined the sentencing transcript and are unable to find
any discussion of the reasons for which the district court chose the sentence it settled
upon. Therefore we must vacate the sentence and remand for re-sentencing”).
Rita advances the rule if a matter is conceptually simple and the record makes
clear the court considered the evidence and arguments, a brief explanation is
sufficient. However neither situation is present in here.
Other circuits have reversed within-guideline sentences based on the court’s
failure to acknowledge and respond to defense arguments for a lower sentence based
on §3553. US v. Vonner, 452 F.3d 560, 567 (6th Cir. 2006)(“Where a defendant raises
a particular argument in seeking a lower sentence, the record must reflect both that
the district judge considered the defendant’s argument and that the judge explained
the basis for rejecting it. This assures not only the defendant can understand the basis
for the particular sentence but also the reviewing court can intelligently determine
whether the specific sentence is indeed reasonable.”); US v. Sanchez-Juarez, 446 F.3d
1109, 1116-18 (10th Cir. 2006)(reversing a sentence when a defendant “raised a non55
frivolous argument that the §3553(a) factors warrant a below Guidelines sentence and
has expressly requested such a sentence”); US v. Cunningham, 429 F.3d 673, 679 (7th
Cir. 2005)(“We cannot have much confidence in the judge’s considered attention to
the factors in this case, when he passed over in silence the principal argument made
by the defendant...”).
Here the judge failed to give any rationale for the sentence imposed, didn’t
address the central mandate of §3553, didn’t state it had considered the factors, and
didn’t respond to the defense arguments for a non-guidelines sentence. He merely
stated, the guidelines were more appropriate.The sentence should be remanded in
light of this procedural shortcoming.
C. Improper Guidelines Calculations.
This Circuit has determined if there is an error in calculating the guidelines, it
will reverse unless the court would likely sentence the defendant in the same way had
the error not occurred. US v. Scott, 441 F.3d 1322, 1329 (11th Cir. 2006); US v.
Crawford, 407 F.3d 1174, 1176 (11th Cir. 2005). Botes established in Issue VIII the
guidelines were improperly calculated because of the enhancement for obstruction.
The guideline regarding the amount of loss was calculated incorrectly, resulteding in
a 14 level increase in the offense level pursuant. As noted above, the Government did
not establish Botes intended for the DOE to suffer a loss, nor did the evidence
15 The Government dwelt almost exclusively on the fact the needs
assessment was only 10 pages. The Government ignored the fact the needs
assessment also reflected the development and implementation of a survey as well.
The survey was written by two CCSC employees and distributed to hundreds of
students. The survey was then analyzed and a report repaired. (R23-1650,1651)
Therefore, although the report was fairly short, that should not have ended the
inquiry. No evidence was presented by the Government which suggested the
report was substandard compared with other such documents.
56
establish it had suffered a loss. The record establishes both Schrenko and Botes
intended for the contracts to be implemented. Moreover, the software for the GHP
contract was provided. The court even subtracted that amount from the restitution
amount it imposed. However, the court failed to subtract from its loss calculation, or
the restitution, the $50,000, for the “needs assessment” CCSC provided to the DOE.
The indictment didn’t charge the “needs assessment” as theft.15 The problems with
the “needs assessment” had to do with the DOE’s failures rather than CCSC. Beasley
testified in order to complete the “needs assessment”, he needed to speak with the
educators involved in the program, and none were made available to him. As for the
multiple contracts, CCSC delivered the software, and also delivered the software for
t h e $ 1 . 5 c o n t r a c t a s w e l l . ( R 2 2 - 1 3 5 4 ; R 2 3 -
57
1566,1567,1638,1604,1605,1605,1606,1640,1646,1649;R24-1664,1680;R22-
1423,1426).
The DOE hasn’t filed a civil suit against Botes as it did with Schrenko and
Temple, despite the Government’s claim the state was just waiting for the criminal
case to be completed. (R24-1768-9).
The guidelines were wrongly increased by 14 levels for the amount of loss, and
by 2 levels for obstruction. The burden to establish the error was harmless rests with
the party defending the sentence. As the court did not state it would have sentenced
Botes the same way regardless, the Government can’t meet its burden. Scott, at 1330.
D. Failure to Consider the Factors.
The judge exclusively focused on the guidelines. Typically, it may not be
unreasonable to focus on the guidelines, here, it was wrong. This case involved the
multi-week trial of a high profile political figure, coupled with acquittal on the
majority of the counts. Botes’ extraordinary personal background, lack of a criminal
record, ruin of his business, loss of his home, probable deportation, and low risk of
recidivism all support the conclusion there were many other §3553(a) factors which
should have been central to the sentencing analysis. The judge’s excessive reliance
on the guidelines relative to the many other considerations set forth in §3553(a) was
procedurally unreasonable. The sentence should be reversed because the court failed
58
to “reflect due consideration of the factors and policies that animate §3553(a), thereby
rendering the sentencing procedurally unreasonable”. Gibson, 424 F.3d at 1254.
2. The Sentence Was Substantively Unreasonable.
The imposition of 97-months imprisonment, $382,394 restitution, $1500 in
special assessments, and forfeiture is substantively unreasonable. The substantive
review of a sentence is governed by “the numerous [3553(a)] factors that guide
sentencing.” Booker, 543 U.S. at 262. Reviewing the factors plainly establish
imposition of 97-months imprisonment is substantively unreasonable.
The sentence was within the range, but this Court says there are “many
instances” where the guidelines won’t yield a reasonable sentence. Hunt, 459 F.3d at
1184. There is no presumption a guidelines sentence is valid. US v. Campbell, 491
F.3d 1306, 1313 (11th Cir. 2007), and a presumption of validity here is inappropriate
because the imprisonment range is unreasonably harsh.
Since Booker, several courts have found a mechanical application of the
Guidelines’ loss tables may overstate a defendant’s culpability leading to
unreasonable sentences. US v. Olis, 429 F.3d 540 (5th Cir. 2005); US v. Ranum, 353
F.Supp.2d 984, 990 (E.D. Wis. 2005)(“One of the primary limitation of the guidelines
particularly in white-collar cases is their mechanical correlation between loss and
offense level”). This is true here.
59
The 97-months imposed upon Botes significantly exceeds average sentences
for defendants sentenced for bribery, embezzlement, and fraud. U.S. Sentencing
Commission , 2006 Source book of Federal Sentencing Statistics, at tables 13 and 14,
available at http://www.ussc.gov (Average Sentence Lengths: Embezzlement: mean
months, 9, median months 6; Bribery: mean months 13.9, median months 8; Fraud:
mean months 18.6, median months 10).
Botes received the same sentence as Schrenko (96-months) and Temple.
Schrenko’s official position makes her more culpable. Temple’s position as a State
employee, and his long term, systematic obstruction require longer sentences for
Temple and Schrenko relative to Botes. Turner’s probation, considering he
conducted all the financial transaction can’t be justified merely because Botes was the
owner of the company. Turner’s plea and cooperation is insufficient to justify the
huge disparity in probation versus 97-months. It underscores the unreasonableness
of Botes’ sentence.
The court ignored Botes’ good works as described by the witnesses at the
sentencing, and no consideration for the collateral consequences of conviction. Botes
lost everything-- his business, his home, and his future financial security. His ailing
mother in South Africa will probably never see him again, and she suffers
60
dramatically economically. These factors underscore the unreasonableness of the
sentence.
XI. BOTES’ SIXTH AMENDMENT RIGHT TO JURY TRIAL WAS
VIOLATED.
Botes’ guidelines were enhanced for aggravating role and obstruction. Neither
was contained in the indictment, found by the jury, or admitted by Botes. The relevant
conduct findings included loss amounts attributable acquitted conduct, or not
indicted. Botes demonstrated above the court failed to apply Booker remedially;
therefore, his Sixth Amendment right to a jury trial was violated when the sentence
was increased beyond that which was authorized by the indictment and jury verdict.
Apprendi v. NJ, 530 U.S. 466 (2000); Blakely v. Washington, 124 S.Ct. 2531 (2004),
and US v. Booker, were violated. To the extent that this argument is foreclosed by
circuit precedent, or would require the Supreme Court to decide an issue, Botes wishes
to preserve the matter for review. US v. Chau, 426 F3d 1318, 1323-24 (11th Cir. 2005)
XII. THE COURT COMMITTED REVERSIBLE ERROR BY DENYING BOTES
HIS RIGHT TO ALLOCUTION.
At sentencing, as required by FRCrP 32(c)(3)(C), the judge gave Botes the
opportunity to address him. However, by word and deed, the judge clearly conveyed
that he wasn’t interested in Botes statement, thereby depriving him of his right to
61
meaningful allocution. Botes requests remand to offer the court a complete and
meaningful allocution.
After Botes commenced his allocution the court told him:
The Court: Mr. Botes, I do understand how you feel but I can not hear--
Botes: the whole thing, the whole story?
The Court: You had a chance to testify and you chose not to testify, if you will
recall.
Botes: Yes.
The Court: And I went over this with you. You now want to tell your side of
what happened which you claim is completely at odds with the
testimony that the jury heard. But when you had a chance to do
this you didn’t do it, and I just don’t want to spend an inordinate
amount of time going through all the testimony you disagreed with
and also the testimony you wish you could have introduced. That’s
not how the system works.
Botes: Okay.
The Court: So I just hate to wrap it up but I need to wrap it up because what
you’re going into now you had an opportunity to do during the
trial but didn’t do it.
The Court: You pled not guilty, you felt you were not guilty and I understand
that. The jury, based on the evidence found you guilty. So we need
to bring closure to this because you’re going into things not
presented to the jury.
Botes: Right, your honor. Obviously we are going to appeal the issue. I
want to talk about the sentencing–the two and a half million dollar
contract. At the time, your honor also ruled on the polygraph.
What I could have done to prove my innocence more than what
I’ve one, I don’t know. I took polygraphs.
The Court: I had that decision before me before the trial of the case and I
agreed with the ruling that had been made by the magistrate judge
regarding polygraph evidence and I ruled that out.
Botes: I understand that.
The Court: But you’re going into all my rulings and all the testimony at trial.
We can’t--
62
Botes: I understand.
The Court: We just can’t deal with this at this stage.
Botes: All right.
The Court: –and I’m not asking you to throw yourself to the mercy of the
Court, I just want you to bring some closure to it because we’ve
got to move on and--
Botes: I’ll try to expedite it, Your Honor.
The Court: Okay. (R29-56-58).
When Botes attempted to explain the contract the Government contended was
obstruction, the judge said:
The Court: You did have a chance to defend against it. Mr. Botes, you were
given an opportunity to take the stand during the trial of the case.
Botes: But at that time it wasn’t an issue, Your Honor. They didn’t allege
it in the indictment and the contract was in–not in
existence....(R29-58)
Botes noted he’d “skip everything else” and told the judge the effect the
prosecution had on him, his business, and his mother. (R29-62). Obviously frustrated
at his efforts to make his statement to the court Botes ended his remarks with, “I wish
I had the opportunity to tell you about all those, Your Honor, because it certainly
would change the picture for you and at this point I guess I better wrap up.” (R29-62).
In the early 1960s the Supreme Court announced three cases characterizing the
right of allocution as an important safeguard that should be strictly enforced according
to its terms. Green v. US, 365 U.S. 301 (1961); Hill v. US, 368 U.S. 424 (1962); Van
Hook v. US, 365 U.S. 609 (1961). In US v. Prouty, this Circuit explained the right of
63
allocution is the “right of the defendant to make a final pea on his own behalf to the
sentencer before the imposition of sentence. It is a right of ancient origin, and as early
as 1689, it was recognized that the court’s failure to ask the defendant if he had
anything to say before sentence was imposed required reversal. Prouty, at 1251, citing
US v. Behrens, 375 U.S. 162, 165 (1963) and Green v. US.
It is reversible for the court to refuse to listen to the defendant’s statement. The
defendant, although not entitled to reargue, continuing to deny guilt, may address the
amount or quality of trial evidence to explain their role in an offense or the severity
of their conduct. US v. Carter, 355 F.3d 920 (6th Cir. 2004), citing, US v. Li, 115 F.3d
125, 132 (2nd Cir. 1997). The court may not “reduce the hearing on sentence to a
meaningless formality.” US v. Sparrow, 673 F.2d 862 (5th Cir. 1982), quoting, US v.
Long, 656 F.2d 1162 (5th Cir. 1981). US v. Twomey, 806 F.2d 1136, 1142 (1st Cir.
1986), recognized “the right to allocution is an important one and judges should
receive such testimony attentively and with due cognizance of the weighty
responsibility of sentencing.” “In exercising the right to allocution, a defendant has
the right to fully present all available accurate information bearing on mitigation of
punishment, and the court has the duty to listen and give careful and serious
consideration to such information.” US v. Mack, 200 F.3d 653, 658 (9th Cir. 2000).
16 In US v. Prouty, this Circuit found the failure to comply with Rule
32(c)(3)(C) was reversible when Prouty didn’t receive the lowest sentence
available within the range, citing US v. Adams. Adams states prejudice is
presumed whenever the opportunity exists for the violation to have played a role
in the sentencing decision. An opportunity exists for a violation of the right of
64
US v. Li, considered deprivation of allocution where the court didn’t allow the
defendant to speak regarding the trial and terminated her statement prior to imposing
sentence. Reversing, the Court found Rule 32 demands each defendant be allowed a
meaningful right to express relevant mitigating information before an attentive and
receptive judge. Li, at 133. The Li Court found particularly troubling the court’s
interruptions and expressions of his desire to terminate the statement. Id. Here, the
court repeatedly sought to terminate the statement, specifically refused to hear what
Botes had to say because Botes already had a chance to testify, and finally made it
clear to Botes that he needed to stop, while Botes still had things to offer to the court
in mitigation of his sentence.
In US v. Sarno, 73 F.3d 1470 (9th Cir. 1995), the Ninth Circuit reversed,
holding the court’s silencing of the defendant early in the hearing instilled timidity
in the defendant and “significantly hindered his later efforts at allocution.”
The error here is reversible, despite a sentence at the bottom of the range.16 It
allocution to have played a role in the decision-even when a defendant is
sentenced at the bottom of the range-- whenever any disputed facts or arguments
raised in connection with sentencing-- if resolved favorably would reduce the
range or sentence. Here, Botes offered guidelines objections if resolved favorably
would have resulted in a lesser sentence. He requested a non-guidelines sentence,
too.
65
is properly preserved because Botes made it known he wasn’t finished. Li, at 132,
(“[w]e find Li’s comments were themselves sufficient to preserve her Rule
32(c)(3)(C) rights for appeal.”). Resentencing is appropriate if the judge hasn’t
complied with allocution requirement. Li, at 133.
XIII. THE RESTITUTION IMPOSED WAS ILLEGAL.
The court imposed restitution of $383,394.00. This figure was calculated: the
multiple contracts payments by DOE $513,894, plus the GHP contract checks:
software $32,493.50 and needs assessment $50,000, minus Temple’s re- payment to
the DOE of $199,500, which equals $414,887.50. (PSRp60). The court subtracted
$32,493.50, representing the software CCSC delivered in June 2002, resulting in the
final order of $383,394.00. The “needs assessment” was delivered under the terms
of the contract. ( See, IX., 1.C.) At minimum the court erred in not subtracting the
$50,000 from the restitution order, and erred by including the entire amount of the
66
payment for the multiple contracts, ($513,894), when the evidence established CCSC
delivered the license keys, and was thereafter hindered in performance by the DOE
and the State Board of Education.
The Government has the burden of proof . 18 U.S.C. §3664(e). Restitution
beyond that authorized by 18 U.S.C. §3663 constitutes an illegal sentence, and must
be reversed as plain error. US v. Cobbs, 967 F.2d 1555 (11th Cir. 1992); US v.
Obasohan, 73 F.3d 309 (11th Cir. 1996). Restitution here is illegal because the
testimony established there was no loss as a result of the offenses of conviction. In
US v. Vaghela, 169 F.3d 729 (11th Cir. 1999), a medicare kickback case where
services were delivered, the loss for restitution purposes was the kickback, not the
amount of the services. US v. Liss, 265 F.3d 1220 (11th Cir. 2001), also a medicare
kickback case, involved services which were medically necessary, and kickbacks
didn’t Medicare to issue any payments. There wasn’t a loss to Medicare, and the
award of restitution was illegal.
The forfeiture order here was based on amounts of loss not resulting from
offenses of conviction, rendering it illegal.
17The count additionally sought forfeiture if Botes was conviction on other
counts of the indictment under various code sections, but Botes’ acquittal on the
majority of counts mooted application.
67
XIV. THE ORFEITURE VIOLATED BOTES’ SIXTH AND SEVENTH
AMENDMENT RIGHTS TO A JURY, WAS IMPOSED WITHOUT
AUTHORITY, UNDER PROCEDURES WHICH VIOLATE FIFTH
AMENDMENT’S DUE PROCESS CLAUSE AND THE EIGHTH
AMENDMENT.
The superseding indictment contained a forfeiture count under 18 U.S.C.
§2461 seeking Botes’ assets constituting proceeds or derivations traceable to wire
fraud upon a conviction for 18 U.S.C. §1343 17 and under 28 U.S.C. §2461(mode of
recovery statute). The indictment stated if the property described by it met the
requirements of 21 U.S.C. §853(p) as incorporated by 28 U.S.C. §2461(c), the
Government sought forfeiture of “any other property of the defendants up to the value
of the forfeitable property.” (R1-76-24-25). As trial began, the Government filed a
Bill of Particulars (R2-194), identifying Botes’ residence, as subject to the
indictment’s substitute property forfeiture provision.
68
Botes was convicted of conspiracy to embezzle federal funds and wire fraud,
along with substantive violations involving 18USC§§666(a)(1)(A) and 1343, 1346,
and 2. The Government obtained a personal money judgment against Botes,
thereafter moving to substitute his home, because he couldn’t pay the judgment. The
the court entered a Preliminary Order of Forfeiture for $382,394, which, according
to the order, represented the amount equal to proceeds Botes obtained from the
offenses of conviction. The Government filed a motion to substitute Botes’
residence for the money judgement. Over objection, the court granted it.
Both the process by which the Government claimed authority to forfeit his
home, and the substantive aspects the Fifth Amendment’s due process clause and the
Sixth Amendment right to a jury trial on all facts subjecting him to increased
punishment, and/or the Seventh Amendment’s guarantee of a jury trial for civil suits.
It was error to impose joint and several liability here by ordering him to pay the
entire amount when the evidence didn’t establish Botes profited from the offense.
The imposition of forfeiture in the form of a money judgment for $382,394 was
excessive and violates the Eighth Amendment.
1. The Court Imposed Money Judgment is Unconstitutional.
The jury did not return a verdict regarding the forfeiture counts, and defense
counsel purported waived it on Botes’ behalf. Botes right to a jury trial on the
18 In Libretti v. US, 516 U.S. 29 (1995), the Supreme Court held when
property is forfeited as part of a stipulation in a plea agreement in a criminal case
there is no requirement the agreement specifically reference the Rule 31(e) right to
a jury determination. In the course of its discussion the Court stated the Rule 31(e)
right to a jury verdict does not have a Sixth Amendment foundation. Arguably
this portion of the opinion is mere dictum, and not controlling. The Libretti
decision was completely undercut by the Supreme Court’s decisions in Jones,
Apprendi, Blakely, and Booker. US v. Leahy, 438 F.3d. 328 (3rd Cir. 2006);
Professor Susan R. Klein, The Return of Federal Judicial Discretion in Criminal
Sentencing, 39 Val. U.L. Rev. 693 n. 138 (2005)(“criminal forfeiture and
restitution should also be subject to the Apprendi /Booker rule...This is especially
true where forfeiture is mandatory...”)[criminal forfeiture is always mandatory].
69
forfeiture issues under the Sixth Amendment, the Fifth Amendment’s due process
clause, and under FRCrP 32.2(b)(4), were violated by the entry of forfeiture without
a jury. The purported waiver of the right by counsel without Botes’ intelligent
consent insufficiently waives a jury, as it was personal to him and can’t be waived by
counsel. US v. Garrett, 727 F.2d 1003, 012-1013 (11th Cir. 1984), aff’d on other
grounds, 471 U.S. 773 (1985). He relies on Jones v. US, 526 U.S. 227 (1999); 18
Apprendi v. NJ, Ring v. Arizona, 536 U.S. 584 (2002); Blakely v. Washington, and
70
United States v. Booker, as his authority for the proposition: Criminal forfeiture
without a jury’s verdict exposes the defendant to greater punishment than the term
of imprisonment and fine authorized by the jury’s guilty verdict on the criminal
counts; therefore, is unconstitutional. This Circuit specifically rejected this argument
in US v. Cabez, 258 F.3d 1256 (11th Cir. 2001)(per curium) and the post-Booker case
of US v. King, 414 F.3d 1329, 1330-31 (11th Cir. 2005). The Supreme Court has not
settled the matter, and Botes preserves it.
The defense recognizes FRCrP 32.2(e)(3) provides no right to a jury regarding
substitute property. Pursuant to Jones/Apprendi/Booker, the legislature can’t
circumvent the Fifth and Sixth Amendments via statutory fiat, and the money
judgment entered against him is unconstitutional.
2. Seventh Amendment Violation.
The Seventh Amendment constitution says “[i]n Suits at common law where
the value in controversy shall exceed twenty dollars, the right of trial by jury shall be
preserved...” Botes notes many courts have held the Sixth Amendment is not
implicated by forfeiture, because the forfeiture process is more akin to a civil matter
than criminal. US v. Bach 172 F.3d 520, 523 (7th Cir. 1999)(Posner, J.). Botes
invokes the protections of the Seventh Amendment in the event that the court finds
the Sixth Amendment is not applicable. Mainland, Grant R., A Civil Jury in Criminal
71
Sentencing: Blakely, Financial Penalties, and the Public Rights Exception to the
Seventh Amendment, Columbia Law Review, Vol. 106:1330.
3. There is No Authority For the Money Judgment.
The money judgment against Botes was issued without statutory authority.
Smith, David, Prosecution and Defense of Forfeiture Cases, Vol. 2, 13.02. According
to Smith, the imposition of a money judgment ignores the nature of forfeiture,
whether civil or criminal in nature. As Smith points out in his treatise, “There simply
cannot be a forfeiture without something to forfeit.” Id., citing “US v. Croce, 334
F.Supp.2nd 781 (E.D. Pa. 2004), adhered to on reconsideration, 345 F.Supp. 2nd 492
(E.D. Pa. 2004)[Croce I] (“in comprehensive, lucid discussion of this issue, Judge
Dalzell finds prior case law allowing the practice [of imposition of a personal money
judgment] unpersuasive; ‘Common sense suggests that one cannot ‘forfeit’ something
unless he first owns or possesses it.’ No evidence the Congress authorized ‘money
judgement whose magnitude bears no relation to the assets that a convict possesses
at any particular time’”); US v. Day, 416 F.Supp.2nd79 (D.C. Cir. 2006); US v.
Meyers, 432 F.Supp. 456, 461 (W.D. Pa. 1977); US v. McManigal, 708 F.2d 276, 287,
290 (7th Cir.), aff’d in relevant part, 723 F.2d 580 (7th Cir.), vacated, 464 U.S. 979
(1983) (government may only recover whatever accounts receivable were still in
existence at the time of defendant’s conviction, not their money equivalent).
72
McManigal was overruled by the Seventh Circuit sitting en banc in US v. Ginsburg,
773 F2d 798 (7th Cir. 1985), Cf. US v. Veliotis, 586 F.Supp. 1512, 1518 n.3 (S.D.N.Y.
1984)(any construction of RICO statute allowing forfeiture of interests wholly
untainted by any misconduct would raise grave constitutional problems). Advisory
Committee Note raising the caution, “A number of cases have approved use of money
judgment forfeitures. The Committee takes no position on the correctness of those
rulings.” FRCrP 32.2 Advisory Committee Notes (2000 Rule Adoption). As the
statutes involved in forfeiture are quite comprehensive in their treatment of forfeiture
of specified property or traceable proceeds, there is no reason why additional
forfeiture remedies should be recognized.
Botes recognizes that this Circuit held in US v. Conner, 752 F.2d 566 (11th Cir.
1985) money judgments are permissible, but the Supreme Court has not addressed
this issue, and Botes preserves it.
4. Due Process.
The indictment sought forfeiture under the civil forfeiture provisions (18
U.S.C. §981(a)(1)(C)) arguably triggered by the wire fraud conviction; however, the
wire fraud conviction can’t stand. §981 doesn’t authorize forfeiture because in
19 None of the requirements for a parallel civil claim were followed in this
case; therefore the claim is dependent upon the applicability of 28 U.S.C. §2461.
73
criminally, it can only be effectuated through 28 U.S.C. §2461, which isn’t available
here.19
The superseding indictment also cited 28 U.S.C. §2461 as justification for the
criminal forfeiture. 28 U.S.C. §2461(c), doesn’t authorize the forfeiture order entered
in this case, either.
The applicable version of 28 U.S.C. §2461 allows forfeiture only if there is “no
specific statutory provision is made for criminal forfeiture upon conviction. 2000
Amendments. Subsec. (c). Pub.L. 106-185, §16, and the Government reasons
forfeiture is authorized by §981 because there is no other provision for forfeiture,
although wire fraud is a federal crime. This argument was rejected by the court in US
v. Croce, 345 F.Supp.2d 492 (E.D.Penn. 2004)(Croce II), when the court concluded
that Congress only intended to authorize forfeiture for mail fraud affecting a financial
institution. 345 F.Supp.2d 492 (E.D.Penn. 2004)(Croce II); Smith David,
Prosecution and Defense of Forfeiture Cases, 13.01-8, citing US v. Grass and Croce.
Therefore the forfeiture wasn’t authorized under §2461. If §2461 denied Botes
his right to a jury because of the substitutes assets provisions cross referenced by
§2461(c) to 21 U.S.C. §853, the statute unconstitutionally deprived him a jury
74
regarding facts which increase his punishment beyond that authorized by the jury,
violating the Sixth Amendment right to a jury trial and the Fifth Amendment’s Due
Process Clause, or, the Seventh Amendment’s right to a civil jury trial.
The language of §2461 requires Federal Rules of Criminal Procedure be
followed. FRCrP 7(c)(2) requires no forfeiture may be entered criminally unless the
indictment provides notice the defendant has an interest in property subject to
forfeiture in accordance with statute. Here, the indictment did n’t specify Botes’
residence was subject to forfeiture, and is objectionable on Due Process notice
grounds. Cf. US v. Diaz, 190 F.3d 1247 (11th Cir. 1999).
Botes’ residence, which was purchased in 1994 and not alleged to have
facilitated the offense in any way, isn’t subject to forfeiture here. US v. Kramer, 73
F.3d 1067 (11th Cir. 1996)(property obtained prior to acts cannot be said to be derived
from the criminal activity).
5. Eighth Amendment.
The money judgment for $32,394.00, when there where insufficient findings
by a court or jury Botes received any of the funds involved in the this offense
constitutes excessive punishment under the Eighth Amendment. The Government
did n’t establish embezzlement was reasonably foreseeable to Botes. The forfeiture
is disproportionate to the offense of conviction, and the conduct arguably established
20 Counsel incorporates by reference the Motion for the Stay to Remain in
Effect, Etc. filed October 15, 2007, pages 2-8, attached as Appendix A.
75
at trial. Austin v. US, 509 U.S. 602 (1993); Alexander v. US, 509 U.S. 546 (1993); US
v. One Single Family Residence, 13 F.3d 1493 (11th Cir. 1994).
XV. BOTES IS ENTITLED TO ACCESS AUDIOTAPES REVIEWED BY THE
COURT IN RESOLVING THE MOTION TO CORRECT THE RECORD
This Court stayed and remanded on Botes’ motion to correct the record
regarding errors contained in the transcript of closing, and in the sentencing
transcript. The lower court, without holding a hearing, denied the motion to correct
the record, noting it reviewed the court reporter’s tape of the contested portions of the
transcript. However, Botes was denied the opportunity to hear the tape. Counsel filed
a motion for reconsideration and provided the court case authority for the proposition
that Botes is entitled to review of the tape. However, this motion has not yet been
resolved by the court. Botes is entitled to access the tape, and if it reveals matters
germane to this appeal, requests permission to file a supplement.20
76
CONCLUSION
For these reasons, Botes’ conviction on all counts must be reversed and his
sentence vacated.
Dated: This 23st day of November, 2007.
Respectfully submitted,
________________________
LYNN FANT
GEORGIA STATE BAR NUMBER: 254963
ATTORNEY FOR: A. Stephan Botes
Law Office of Lynn Fant, PC
Post Office Box 244
Waco, GA 30182
land line/fax 770 830-1666
cellular (404) 550-2375
77
CERTIFICATE OF SERVICE
This is to certify that I have this day served a copy of the foregoing Opening
Brief upon:
Daniel Caldwell
Assistant US Attorney
600 Richard B. Russell Building
75 Spring Street, S.W.
Atlanta, Georgia 30303
by depositing a copy of the same in the US mail with proper postage affixed
thereto to ensure delivery of the same.
Dated: This 1st day of November 2007.
______________________________
Lynn Fant

___________________________________

Appeal 2008

IN THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________
NO. 06-15238-A
________________
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
A. STEPHAN BOTES
Defendant-Appellant.
__________________________________________________
A DIRECT APPEAL OF A CRIMINAL CASE
FROM THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF GEORGIA, ATLANTA DIVISION
___________________________________________________
REPLY BRIEF OF APPELLANT
LYNN FANT
Georgia State Bar Number: 254963
Law Office of Lynn Fant, PC
Post Office Box 244
Waco, GA 30182
(404) 550-2375
Attorney for A. Stephan Botes
i
STATEMENT OF TYPE SIZE AND STYLE
Pursuant to 11th Cir. R. 28-2(d), counsel for Appellant hereby certifies that the
size and style of type used in this brief is Times New Roman 14 PT.
CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(a)(7), I certify the number of words in this brief
as counted by my word-processing system is 8,337 words. This is less than the 8,400
words permitted by the Court’s order.
ii
TABLE OF CONTENTS
Page
STATEMENT OF TYPE SIZE AND STYLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
I. THE DISTRICT COURT COMMITTED REVERSIBLE ERROR
IN DENYING THE MOTION FOR MISTRIAL DUE TO THE
ANNOUNCEMENT THAT THE LEAD PROSECUTOR IN THE
CASE HAD BEEN APPOINTED TO THE MAGISTRATE
BENCH IN THE SAME DISTRICT, ALL WITH THE ACTIVE
PARTICIPATION AND SUPPORT OF THE TRIAL JUDGE . . . . . 9
II. THERE WAS INSUFFICIENT EVIDENCE TO SUSTAIN THE
CONVICTION ON THE CONSPIRACY COUNT . . . . . . . . . . . . . 13
III. THERE WAS INSUFFICIENT EVIDENCE TO SUSTAIN THE
CONVICTION ON THE AIDING AND ABETTING THE
THEFT OF FEDERAL FUNDS COUNTS OF THE
INDICTMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
IV. THE DISTRICT COURT COMMITTED REVERSIBLE ERROR
WHEN IT INCORRECTLY INSTRUCTED THE JURY
REGARDING AIDING AND ABETTING . . . . . . . . . . . . . . . . . . . 17
V. THE CONVICTIONS ON COUNTS EIGHTEEN, TWENTY,
AND TWENTY-ONE MUST BE REVERSED BECAUSE
THERE WAS INSUFFICIENT EVIDENCE BOTES SCHEMED
TO DEFRAUD. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
iii
VI. THE DISTRICT COURT ERRED IN ITS EVIDENTIARY
RULINGS AND THE ERRORS INDIVIDUALLY OR
CUMULATIVELY WARRANT REVERSAL . . . . . . . . . . . . . . . . 20
VII. THE DISTRICT COURT ABUSED ITS DISCRETION AND
COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO
GIVE THE THEORY OF DEFENSE REQUESTS TO CHARGE
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
VIII. THE DISTRICT COURT COMMITTED REVERSIBLE ERROR
IN APPLYING THE OBSTRUCTION OF JUSTICE
ENHANCEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
IX. BOTES’ 97 MONTH SENTENCE OF IMPRISONMENT WAS
IMPOSED IN A PROCEDURALLY UNREASONABLE
MANNER AND WAS SUBSTANTIVELY UNREASONABLE
AS WELL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
X. GIVEN THAT THE DISTRICT COURT DID NOT PROPERLY
APPLY THE REMEDIAL PORTION OF BOOKER, BOTES’
SIXTH AMENDMENT RIGHT TO JURY TRIAL WAS
VIOLATED BY THE IMPOSITION OF A SENTENCE IN
EXCESS OF THAT AUTHORIZED BY THE JURY VERDICT
BASED ON JUDICIAL FINDINGS REGARDING ACQUITTED
CONDUCT, CONDUCT NOT ALLEGED IN THE
INDICTMENT, FOUND BY A JURY, OR ADMITTED BY
BOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
XI. THE DISTRICT COURT COMMITTED REVERSIBLE ERROR
BY DENYING BOTES HIS RIGHT TO MEANINGFUL
ALLOCUTION AS PRESCRIBED BY F.R.CR.P. 32 . . . . . . . . . . 34
XII. THE ORDER OF RESTITUTION IMPOSED BY THE
DISTRICT COURT WAS ILLEGAL AND CONSTITUTES
REVERSIBLE ERROR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
iv
XIV. BOTES WAS ENTITLED TO ACCESS TO THE AUDIOTAPES
OF DISPUTED PORTIONS OF THE CLOSING ARGUMENT
AND THE SENTENCING TRANSCRIPT . . . . . . . . . . . . . . . . . . . 37
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
v
TABLE OF CITATIONS
Page
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) . . . . . . . . . . . . . . 22
Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038 (1973) . . . . . . . . . . . . . . 22
Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250 (1912) . . . . . . . . . . . . . . . . . . 10
Gagnon v. United States, 470 US 442, 105 S.Ct. 1484 (1985) . . . . . . . . . . . 10, 11
Gall v. United States, – US – , 128 S.Ct. 586 (2007) . . . . . . . . . . . . . . . 27- 29, 33
Hopt v. People, 110 U.S. 574, 4 S.Ct. 202 (1884) . . . . . . . . . . . . . . . . . . . . . 10, 12
Kimbrough v United States, – US– , 128 S.Ct. 558 (2007) . . . . . . . . . . . . . . . . . 28
Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136 (1892) . . . . . . . . . . . . . . . . . 10
Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489 (1964) . . . . . . . . . . . . . . . . . . . . . . . 10
Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180 (1946) . . . . . . . . . . . . . 16
Rita v. United States, — U.S. —, 127 S.Ct. 2456 (2007) . . . . . . . . . . . . . . . . . . . 29
Schwab v. Bergren, 143 U.S. 442, 12 S.Ct. 525 (1892) . . . . . . . . . . . . . . . . . . . . 10
Snyder v. Massachusetts, 291 U.S.97, 54 S.Ct. 330 (1934) . . . . . . . . . . . . . . 10, 11
United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005) . . . . . . 28, 30, 32, 33
United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440 (1982) . . 29, 33
Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920 (1967) . . . . . . . . . . . . . . . . . . 22
vi
Circuit Court Cases:
Talley v. Bravo Pitino Restaurant, Ltd. 61 F.3d 1241 (6th Cir. 1995) . . . . . . . . . 22
Taylor v. Singletary, 122 F.3d 1390 (11th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . 10
United States v. Adams, 252 F.3d 276 (3rd Cir. 2001) . . . . . . . . . . . . . . . . . . 10, 11
United States v. Campbell, 491 F.3d 1306 (11th Cir. 2007) . . . . . . . . . . . 28, 29, 33
United States v. Cataldo, 171 F.3d 1316 (11th Cir. 1999) . . . . . . . . . . . . . . . 10, 12
United States v. Devegter, 198 F.3d 1324 (11th Cir. 1999) . . . . . . . . . . . . . . . . . . 28
United States v. Gallo-Chamorro, 48 F.3d 502 (11th Cir. 1995) . . . . . . . . . . . . . 10
United States v. Gibson, 675 F.2d 825 (6th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . 21
United States v. Griffin, 493 F.3d 856 (7th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . 10
United States v. Griggs, 735 F.2d 1318 (11th Cir. 1984) . . . . . . . . . . . . . . . . . . . 16
United States v. Hamake, 455 F.3d 1316 (11th Cir. 2006) . . . . . . . . . . . . . . . . . . 33
United States v. Hands, 184 F.3d 1322 (11th Cir. 1999) . . . . . . . . . . . . . . . . . . . . 29
United States v. Jackson, 621 F.2d 216 (5th Cir. 1980) . . . . . . . . . . . . . . . . . . . . 10
United States v. Kohan, 806 F.2d 18 (2nd Cir. 1996) . . . . . . . . . . . . . . . . . . . 10, 11
United States v. Legarda, 17 F.3d 496 (1st Cir. 1994) . . . . . . . . . . . . 28, 30, 32, 33
United States v. Li, 115 F.3d 125 (2nd Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . 22
United States v. Magluta, 418 F.3d 1166 (11th Cir. 2005) . . . . . . . . . . . . . . . 22, 23
United States v. Neely, 232 F.3d 825 (11th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . 33
vii
United States v. Prouty, 303 F.3d 1249 (11th Cir. 2002) . . . . . . . . . . . . . . . . 34, 35
United States v. Roberts, 676 F.2d 1185 (8th Cir. 1982) . . . . . . . . . . . . . . . . . . . . 21
United States v. Talley, 431 F.3d 784 (11th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . 31
United States v. Yefsky, 994 F.2d 885 (1st Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . 20
United States v. Zarabia, 217 Fed. Appx. 906 (11th Cir. 2007) . . . . . . . . . . . . . . 35
United States v. Zimmerman, 943 F.2d 1204 (1oth Cir. 1991) . . . . . . . . . . . . . . . 18
Federal Constitutional and Statutory Provisions:
18 U.S.C. §3553 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28, 30-32
28 U.S.C. §455 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Sixth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 23, 24, 29, 32
Federal Rules of Criminal Procedure:
Rule 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Rule 43 (a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
28-2(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Eleventh Circuit Rules:
Rule 801(d)(2)(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
1Citations to Botes’ opening brief will be “Brief-page number” and the
prosecution’s responsive brief will be called “Response-page number.”
1
Introduction:1
In his brief, Botes detailed fourteen categories of legal errors and set forth the
facts supported by extensive citations to the record. Botes maintains he was
erroneously convicted, and innocent of the offenses for which he was sentenced.
Botes doesn’t abandon any arguments he raised initially, even if he doesn’t, for
reasons of economy of words, specifically re-address each issue, or point out every
instance the prosecution concedes factual points or legal argument.
Botes first addresses some of the factual allegations made by the prosecution
in its Response. Botes disagrees the prosecution’s position regarding standards of
review, and will address the specifics under the Argument section.
Facts:
The prosecution noted Botes was described as a “micro-manager.” (Response
-7). Although Reynolds, a programer testified Botes was a micro-manager, two other
employees, Scherer and Roe, who were CCSC’s controllers, both before and after
Turner, testified Botes never looked at any of the financials, and wasn’t involved in
the accounting department. (R24-1824;1843). Roe, who reported directly to Turner
in 2002, testified it appeared to him Botes relied on Turner’s work in 2002. (R24-
2
1825).
The prosecution said Botes met “the Schrenko Campaign” through CCSC’s
consultant Estrada, who knew Schrenko and advised defendant that supporting
Schrenko’s campaign could benefit marketing CCSC products to the DOE.
(Response-8). The prosecution fails to mention a critical point, namely, that Estrada
was introduced as a potential consultant to Botes by Turner, who was Estrada’s “dear
friend” from college. (R15-136,142-145). It was Estrada who first mentioned Botes
as a possible source of help for the Schrenko campaign. (R20-1213). Turner and
Estrada were already friends with Leonard. (R20-1117).
Although the tea-party fundraiser was held at Botes’ house, it was organized
by Estrada. (R20-1213). Meetings between CCSC employees and DOE took place
about five weeks after the tea-party set up by Estrada. (R15-210-214;R23-1621). The
June 3 meeting was organized by Estrada. (R20-1107).
The prosecution attributed the plan for a pilot program with CCSC to Temple
(Response-9). However, Leonard testified it was Schrenko, during the June 3rd
meeting, and in Botes’ presence, who directed Temple to see if CCSC software would
work for GHP; and if so, then “Linda was considering purchasing it...” (R20-1111).
The prosecution says GHP director Searle wasn’t consulted regarding the
software, or the needs assessment, but fails to mention it was Searle’s supervisor, Phil
3
Hulst, who was the DOE employee who recommended the software. (Response-
10;R16-221-212,238,R23-1575). Hulst sent the complimentary email, which was
followed by the email indicating Schrenko wanted a project (R23-1621).
The prosecution says GHP contracts were sent out for signature on July 22nd,
and were back-dated as having been signed by the defendant and Schrenko on June
10, 2002, but fails to mention the email directing CCSC not to date the contract, “as
that will be inserted by the DOE after both parties have signed,” was sent by Ms.
Howerton, the DOE contract attorney. (R23-1476). Although the prosecution
attempted to make much of the back-dating of the contract, it never presented any
evidence the practice was unusual.
The prosecution contends Turner “wanted” to use GHP contract funds for
operating expenses. (Response-10). Botes established this was a lie, because when
the funds came in, (June 27th) Turner had already arranged to use his father as an
unknowing participant in the plan to get money to the campaign. (Brief-22). The
prosecution offers no dispute on this point. (Response-10,42)
Turner testified the focus groups, which were used to funnel money to the
Campaign, were supposed to actually take place, and this was corroborated by
Leonard. (R16-428,429; R17-469). Other than Turner’s testimony, there was no
evidence Botes was aware of the plan, despite the transfers appearing in CCSC bank
4
statements. Turner didn’t testify Botes reviewed the bank statements. The tape
recorded call between Turner and Botes, established Botes was unaware of the focus
group checks. Schrenko understood the checks came from Estrada. (R22-1341).
Although the prosecution contends Botes instructed Turner to cover the cost of the
campaign poll, the evidence reveals it was Turner who wired the $15,000 for the poll
from CCSC to Turner and Estrada’s company, Curti. (R17-458). Each prosecution
contention regarding Botes directing any financial transaction comes from Turner,
except of the transaction involving Potgeiter. Potigeiter’s account is at odds with
Turner’s account, and Turner testified to sending money to Potgeiter in the past,
establishing Turner previously had the account number. (Compare R17-434 with
R20-1245; R17-543).
The prosecution notes on August 2, 2002, three checks were cashed for the
campaign, but the evidence was from Turner alone, and no evidence established the
money went to the campaign. (Response-16).
Despite the fact Temple was supposed to be deep into an illegal scheme with
Botes since March, the July 14, 2002, email from Temple to Botes, showed Temple
didn’t even have Botes’ cell number. (GE 16(4)).
The prosecution says that Schrenko and Finley appeared at DOE offices and
obtained eleven handwritten checks, which was irregular. (Response-13). But there
5
was no evidence Botes was aware of any irregularities.
The prosecution maintains MaestroPro and My Community Server software
couldn’t be delivered to customers in 2002. (Response-14). The citation is to
Reynolds’ who had been “acquired” when CCSC took over the technology at the
company where he worked, which went out of business owing CCSC money.
Reynolds, who had urged CCSC to abandon one project, appeared upset by his advice
was rejected. Regardless, Dr. Ashby agreed that MaestroPro, MyCommunityServer,
and PowerResearcher were demonstrated to her in October of 2002, and all worked.
(R23-1595,1604). Estrada testified CCSC’s software products were ‘real.” (R16-282).
Nelson Ferrari, a software expert, testified he was able to install the program, which
was functional with windows to the day he was testifying and was “ready to be sold.”
(R27-2091,2094,2096).
The prosecution established federal funds were used to fund the eleven checks,
and Schrenko knew Temple was receiving commissions for the contracts, and would
then put $250,000 into the campaign. However, there wasn’t evidence Botes was
aware of this other than he was paying Temple a commission on the contracts.
On page 16 of its response, the prosecution inaccurately quotes the email from
Botes to Temple dated August 6, 2002. The prosecution states Botes told Temple in
the email that because Temple had been instrumental in CCSC “scoring the contract
6
with DOE” Temple was entitled to “$15,000, or $350,000 commission,” once CCSC
was paid. The correct language is “15%, or $375,000, commission” on the $2.5
million dollar contract with DOE. Schrenko testified she knew Temple was acting as
a consultant, and asked for an advance on commission. (R22-1308,1319). Other than
Temple telling Schrenko, there was no evidence Botes was aware of Temple’s
improper funneling of money to Schrenko .
The prosecution maintains on August 9, 2002, Botes personally directed
$40,000 be wired from GEM Bermuda to Paradigm Pioneers, Temple’s company.
(Response-17). Other than Turner’s testimony, there was no corroboration, and no
evidence who prepared the fax, or it was ever sent, or received. Regardless of who
directed payment, no evidence established this was anything other than a commission
as stated in the email of August 6, 2002. Temple never refuted this at trial, and
Schrenko testified Temple was earning commissions from Botes. (R22-
1319,1323,1333). Schrenko testified it was her signature on the contract between the
DOE and CCSC for $2.5 million. (R22-1314-1318). CCSC even presented the
contract to Wells Fargo as collateral on a loan.
The only evidence “defendant directed Turner to move more money into the
[campaign]”came from Turner. (Response-14). According to the prosecution, Botes
discussed with Turner the documents to be provided to the auditors. (Responsive-19).
7
At trial, a document from DOE directing Turner to provide the documentation needed
for auditors was introduced. (R17-571;GE 68). The prosecution’s evidence
established Botes was out of town when this was sent. (R23-1635,1643). Also at
odds with Turner’s testimony, was Schrenko’s testimony when she walked the
paperwork through on July 24, 2002, she had documents she was told were contracts,
prepared by DOE employee Finley. (R22-1324;R23-1548).
On one hand the prosecution complained CCSC didn’t attempt to implement
the contracts until late 2002, and cites this as evidence Botes didn’t intend to
implement contracts, and, yet the prosecution established CCSC didn’t have the
completed contracts until September 2002. (Response-19). The prosecution states the
only product installed on computers pursuant to the June 2002 and July 2002
contracts was the power Researcher software installed on some GHP computers for
the $32,493.50. (Response-20). This ignores testimony from the project manager he
was instructed by Botes to implement the contracts, and licenses were delivered.
(R22-1354;R23-1566,1567,1638,1604,1605,1606,1640,1646,1649,R24-
1664,1680;1683,1692,1695,1699, R23-164). Schrenko signed a receipt for delivery
of licenses on July 24, 2002. (R22-1318). Thus, even if the schools didn’t use licenses
delivered to DOE, CCSC had performed. The prosecution, in contending the State
Board of Education had “voided” the contracts was evidence of Botes’ guilt, ignores
8
the fact that Botes didn’t agree, and instructed his attorney to sue. (R25-1900). As the
Board was not a party to the contracts, and Botes (and Schrenko) considered the
contracts binding, this is an open, legal question.
Throughout the case, the prosecution has been critical of the needs assessment
provided by CCSC. (Responsive-20). The short-comings of the assessment (if there
were any)can be laid at the door of the GHP, which failed to cooperate with CCSC’s
efforts to obtain data for the assessment. (R23-1658). Other than inadmissible hearsay
from Temple, the prosecution presented no evidence that the report was inadequate
or failed to comport with the terms of the contract.
The prosecution notes Botes paid for the primary night gathering for the
Campaign, but fails to acknowledge the affair was staffed by Turner’s brother’s
company, and paid for by Curti, Turner and Estrada’s company, albeit, with funds
from CCSC.
The prosecution contends at the Rock Bottom Cafe, “Defendant and Temple
discussed using coded language for future communications.” (Response-21). The
transcript reveals the prosecutor asked, “did Mr. Temple and Mr. Botes in your
presence discuss any coded language for future communications.” (R22-1356).
Although Schrenko replied, “[y]es, they did,” her testimony was Temple devised a
method by which they would know if they had contact with any of the investigators.”
9
She didn’t specifically recount anything Botes said indicating he approved of, or used
code. (R22-1356). The prosecution states, “Temple told Schrenko that paper was an
alleged agreement which stated Temple had performed consulting services for
CCSC.” (Response-21). Schrenko actually testified, “I asked him what the piece of
paper was that had been handed across the table. And he took it out of his pocket and
said, ‘[I]t’s a consulting agreement for me to sign saying that I, you know, I was
consulting with Mr. Botes and CCSC.’” (R22-1358). Schrenko’s testimony
throughout was she was aware Temple took a leave of absence to work for CCSC,
receiving commissions. The email in August 2002, provides contemporaneous
evidence of that fact.
ARGUMENT
I. THE DISTRICT COURT COMMITTED REVERSIBLE ERROR IN
DENYING THE MOTION FOR MISTRIAL DUE TO THE
ANNOUNCEMENT THAT THE LEAD PROSECUTOR IN THE CASE HAD
BEEN APPOINTED TO THE MAGISTRATE BENCH IN THE SAME
DISTRICT, ALL WITH THE ACTIVE PARTICIPATION AND SUPPORT
OF THE TRIAL JUDGE.
Botes contends it was reversible error for Vineyard to continue in the case over
the defenses objection, after Vineyard’s new position as a magistrate-judge was
10
publically announced. Counsel announced Botes wanted to be present for the
argument. Counsel noted Botes objected because, “he’s in fear this honorable Court
may favor Mr. Vineyard simply because Mr. Vineyard now will be an employee who
works for the Court.” (335-166, 170). 28 U.S.C. §455 requires a judge to disqualify
himself when his partiality might reasonably be questioned. Botes specifically
objected to the court’s participation, and therefore, the prosecution’s argument that
the issue is governed by plain error fails. See, United States v. Candelario, 240 F.3d
1300 (11th Cir. 2001).
The prosecution argues Botes should have objected to the chambers
conference, but there is no evidence he was aware of the chambers meeting. (R15-
173-74). In Gagnon v. US, 470 US 442 (1985), the Court found the trial court
needn’t obtain a defense waiver, when the defendant was aware of an impending incamera
conference with a juror. Here, there’s no indication Botes was aware the
matter was disposed of in chambers, and counsel indicated Botes wanted to be
present.
F.R.Cr.P. 43 (a)(2) requires the defendant’s presence at “every trial stage.”
A long line of precedent holds it is a fundamental right of the accused, and the
essence of due process to be present throughout his trial. Schwab v. Bergren, 143 U.S.
442, 12 S.Ct. 525 (1892); Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202 (1884); Lewis v.
11
United States, 146 U.S. 370, 13 S.Ct. 136 (1892); Diaz v. United States, 223 U.S.
442, 32 S.Ct. 250 (1912). The accused’s presence at trial is designed, in part, to
safeguard confrontation rights. Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S.Ct.
330, 332 (1934), reversed on other grounds, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct.
1489 (1964). However, it isn’t the only concern. Justice Roberts noted:
it has been urged that the prisoner’s privilege of presence is for no other
purpose than to safeguard his opportunity to cross-examine the adverse
witnesses. But the privilege goes deeper than the mere opportunity to
cross-examine, and secures his right to be present at every stage of trial.
The cases cited in the margin, while by no means exhausting the
authorities, sufficiently illustrate and amply sustain the proposition that
the right is fundamental and assures him who stands in jeopardy that he
may in person, see, hear, and know all that is placed before the tribunal
having power by its finding to deprive him of liberty or life. It would be
tedious and unnecessary to quote the language used in vindication of the
privilege. The books are full of discussions of the subject. Synder v.
Massachusetts, (Roberts, J, writing in dissent, with Brandeis,
Sutherland, and Butler concurring in dissent), 291 U.S. 97, 132, 54 S.Ct.
330, 332 fn 16 and 23 collecting cases, citations omitted.
See, US v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 1484 (1985)(“The
constitutional right to presence is rooted to a large extent in the Confrontation Clause
of the Sixth Amendment...but we have recognized that this right is protected by the
Due Process Clause in some situations where the defendant is not actually
confronting witnesses or evidence.”). Dissenting in Synder, Justice Roberts noted
there is no question the accused has the of presence during his own witnesses’
12
testimony, despite the fact he had no right (at that time) to cross-examine.
Here, the very nature of the discussion regarding appearances of impropriety
made Botes’ presence essential to fairness. Just as Botes’ right of confrontation isn’t
secured by his presence in court during his counsel’s closing, it can’t be seriously
contended he doesn’t have that right, despite the fact no witnesses are being
confronted, as it is “‘a leading principle that pervades the entire law of criminal
procedure is that, after indictment found, nothing shall be done in the absence of the
prisoner.’” Id, citing Hopt v. Utah, 110 U.S. 279, 4 S.Ct. 202, 204. Thus, the fact no
evidence was taken doesn’t dispose of this issue because Botes was not present at his
entire trial, and particularly, during the important decision regarding mistrial.
From the outset, Judge Cooper recognized the appearance of impropriety. His
participation in Vineyard’s selection wasn’t passive, as he personally supported and
participated in the decision, and Vineyard would soon be working directly with him.
Botes presented specific instances where the judge divulged to Vineyard an aspect
of Botes’ strategy regarding his passport, which counsel characterized as “spill[ing]
the beans” (Brief-17). Botes also established the judge made a comment which could
be construed by the jury as indicating Botes talked about illegal kickbacks. (Id).
During trial, when counsel objected to questions regarding attorney’s fees paid by
Botes, the judge said the answer “must be explosive.” As the jury deliberated several
13
days before returning a verdict acquitting Botes on the majority of the counts, a lay
observer could readily conclude that the judge, who had demonstrated a partiality for
the prosecution, by making him a judge, may have ruled in the prosecution’s favor at
a crucial time, which resulted in the favorable verdict. The prosecution ignores these
facts and argument; apparently, having no response. (Response-36-40). As Botes has
demonstrated specific instances where the judge’s partiality to the prosecution was
demonstrated, and a contemporaneous objection, the conviction must be reversed.
II. THERE WAS INSUFFICIENT EVIDENCE TO SUSTAIN THE
CONVICTION ON THE CONSPIRACY COUNT.
The prosecution faults Botes’ argument there was insufficient evidence on
either object of the conspiracy as being “specious,” but never articulates the fallacy
in the points made by Botes. (Response-41).
1. Object A–Theft of Federal Funds.
Botes established, with record citations that the evidence at trial established
that neither Botes, nor Schrenko intended the DOE to be deprived of anything, and
therefore, there was no theft of federal funds. (Brief-19). Despite Schrenko’s guilty
plea, she made no admissions she intended to steal federal funds, and none were
admitted at trial. Instead, Schrenko testified she thought the software was useful and
expected the contracts to be performed. Botes, shortly after receiving the contracts,
2 The case against Steyn rested upon the same evidence presented against
Botes, however, the court did not err in the variety of ways in Steyn’s case as it did
in Botes’ case.
14
instructed his staff to implement them, and his company performed the contracts to
the extent it was permitted. The remainder of the performance was blocked by DOE,
but that isn’t evidence of Botes’ guilt, especially given the political climate at DOE.
This evidence is simply ignored by the prosecution, as it cites, “mantra” like, that
there was overwhelming evidence, ignoring the not guilty verdict in Steyn’s case2, the
three days of deliberation, and the fact Botes was acquitted on the majority of
charges–based on the same evidence it now relies upon.
The prosecution cites US v. Devegter, 198 F.3d 1324, 1328 (11th Cir. 1999) for
the proposition that “illicit personal gain by a government official deprives the public
of its intangible right to the honest services of the official.” (Response-45). Devegter
isn’t on point because the evidence there established from the beginning defendants
were “rigging” the bid process. In contrast, Schrenko and Botes believed the contracts
were valid, and software was delivered. The evidence falls far short of evidence
presented in Devegter, and instead established the contracts were real. None of the
evidence establishing software wasn’t suitable for the programs can be imputed to
Botes because of the lack of any evidence at all establishing his knowledge. The
evidence established high ranking DOE officials contended the software would be
15
good for the schools, and that the demonstrations resulted in emails describing the
software as “amazing,” and the poll indicated a 94% positive rating. The complaints
from Dr. Ashby came much later in the process, after the licenses had been delivered,
and payment received. Thus, the prosecutions averments regarding this point don’t
advance its argument there was “overwhelming”evidence as to the Theft of Federal
Funds object.
2. Object B–Wire Fraud Involving Deprivation of Honest Services .
The prosecution’s evidence regarding this charge is from Turner and Estrada,
who frequently contradicted themselves and the other witnesses. The prosecution
agrees there must be “substantial” evidence supporting its conviction, and the
conviction can’t stand if, the testimony, on its face is “incredible or otherwise
insubstantial.” (Response, 41-42). Botes cited to specific examples of both Turner
and Estrada’s testimony being impossible on its face, complete with citations to the
record. (Opening-21-26). Moreover, he established that both Turner and Estrada were
contradicted by other prosecution witnesses such as Pittman and Leonard, and
Potgeiter. (Id.) The prosecution never disputed the factual basis for Botes’ argument
that essential parts of their testimony are impossible facially. (Compare Brief-21-26
with Response-42). Although this Court isn’t to substitute its judgement regarding
credibility, if testimony is impossible, or preposterous on its face [which the
3 The prosecution cites US v. Gallo-Chamorro, 48 F.3d 502, 507 (11th Cir.
1995) for the proposition that aiding and abetting “states a rule of criminal
responsibility for acts which one assists another in performing.” This statement
does not negate the intent requirement. Botes doesn’t dispute his actions aided the
criminal activity of Schrenko, Turner, Estrada, Temple, and Leonard–but he has
established that he did not act with the intent to further their criminal design. The
distinction is critical and lies at the heart of the prosecution’s problems with proof.
16
prosecution never refuted], then a conviction can’t stand. In its Response, the
prosecution even ignored its concession in closing argument which acknowledged
Turner’s perfidy, and that the judge laughed out loud during one point in Turner’s
testimony. (Brief-23). Because Botes established Turner and Estrada are unworthy
of belief, not based on mere credibility issues, but because their testimony was
facially impossible and inconsistent with the other evidence presented at trial, Botes’
conviction must fail.
III. THERE WAS INSUFFICIENT EVIDENCE TO SUSTAIN THE
CONVICTION ON THE AIDING AND ABETTING THE THEFT OF
FEDERAL FUNDS COUNTS OF THE INDICTMENT.
The prosecution disputes this, but agrees it’s required to show Botes had the
same unlawful intent as the actual perpetrators. (Response-46).3
Pinkerton Liability.
Despite Schrenko’s guilty plea to conspiracy, her testimony was she believed
the contracts would be implemented and the software was useful. The only evidence
17
Botes was aware of Turner’s actions getting money to the campaign came from
Turner and Estrada. As outlined previously this testimony was incredible on its face
and contradicted by other prosecution witnesses. Thus, Pinkerton does not apply
because Schrenko’s testimony didn’t establish a conspiracy with Botes, and
affirmatively contradicted the prosecution theory.
Aiding and Abetting.
The evidence established Schrenko didn’t intend to steal from DOE.
Therefore, the evidence is necessarily insufficient to sustain Botes’ conviction. This
is particularly true when the evidence established Botes, like Schrenko, expected the
contracts would be performed. The prosecution ignored these arguments and citations
to the record in its response to Botes’ contentions regarding aiding and abetting.
Botes must prevail on this issue. (Response-46-48).
IV. THE DISTRICT COURT COMMITTED REVERSIBLE ERROR WHEN IT
INCORRECTLY INSTRUCTED THE JURY REGARDING AIDING AND
ABETTING.
Botes assigned as reversible the judges’s instruction to the jury when it asked
about convicting the defendant if the defendant “aids in a crime but does not
necessarily do it intentionally.” The prosecution contends Botes didn’t object below.
(Response-48). Counsel objected to the judges’s response, saying, “the correct answer
18
is no, but I understand the Court’s ruling.”). Counsel for Steyn argued the court
should answer the jury “no,” it couldn’t find the defendant guilty because the “aiding
and abetting had to be willful, that is purposefully and with an intent to do something
the law forbids and not simply negligence.” In context, Mr. Griffin stated he objected
to the court’s answer that it could not answer the question–and instead contended that
the court should inform the jury that, “no” it could not convict without finding the
intent to aid and abet. Therefore, this Court shouldn’t resolving the issue under plain
error.
The prosecution argues the court did answer the question by referring the jury
back to the original instruction. This ignores the judge’s statement: “The Court
cannot answer either question” followed by the suggestion to re-read the charge on
aiding and abetting. (R28-2256). The prosecution ignores the facts indicating the jury
was in doubt and struggling. It deliberated for three days, asked eight questions, and
in the words of the foreperson, it was “taking one step back for every two steps
forward.” Rather than reaching a verdict shortly after the judge’s misleading
supplemental instructions, the verdict was not reached until well into the next day.
(R22-2258, Compared with Response-50).
The prosecution ignores the pertinent case of US v. Zimmerman, cited by Botes,
because the facts and holding are on point. In Zimmerman, just as here, the failure to
19
answer the question, coupled with the court’s erroneous misleading statement there
was no answer to its question regarding intent, resulted in the realistic possibility the
jury convicted without a finding of guilty intent. This is reversible.
V. THE CONVICTIONS ON COUNTS EIGHTEEN, TWENTY, AND
TWENTY-ONE MUST BE REVERSED BECAUSE THERE WAS
INSUFFICIENT EVIDENCE BOTES SCHEMED TO DEFRAUD.
Despite the fact deliberations lasted for days and resulted in the complete
acquittal of Steyn, and Botes’ acquittal on the majority of the charges, the prosecution
contends the evidence was overwhelming.
Here Botes relied on points in section II and III of his brief establishing Botes
and Schrenko believed the contracts were going to be performed, and the points in
section II B establishing the only evidence arguably demonstrating Botes
participation in a scheme to put funds into the campaign in exchange for contracts
came exclusively from Turner and Estrada, and incorporated the arguments and facts
by reference. Similarly, in this reply, Botes also incorporates the arguments set forth
in sections II, III, and IIB.
The prosecution completely ignored ,and failed to respond to the arguments set
forth on pages 36-37 of his brief establishing insufficient evidence of a conspiracy
to admit the Aug 7th email comprising count twenty one, which was hearsay.
20
(Compare Brief-36-37 with Response-51-52). These arguments, which are conceded
by the prosecution, establish Botes’ conviction on count twenty one must be reversed.
VI. THE DISTRICT COURT ERRED IN ITS EVIDENTIARY RULINGS AND
THE ERRORS INDIVIDUALLY OR CUMULATIVELY WARRANT
REVERSAL.
Botes contends the exclusion of Kaufman’s testimony prevented Botes from
defending against the prosecution’s charge the tape-recording of the call between
Botes and Turner on October 8, demonstrated an attempt by Botes to concoct a cover
story. The prosecution complains that “[l]eft unexplained is why the testimony was
not inadmissible hearsay.” (Response-52).
The evidence wasn’t hearsay because it wasn’t offered for the truth of the
matter. As Botes explained in court, it was offered to explain the conduct of Botes
in having the discussion with Turner. (R25-1901).
Courts have long allowed testimony of this type as non-hearsay. In US v.
Legarda, 17 F.3d 496 (1st Cir. 1994), the court erred (ultimately harmless) by
excluding defendant’s testimony recounting innocuous reasons offered by various
declarants that would prompt him to perform the acts leading to his arrest. In US v.
Yefsky, 994 F.2d 885 (1st Cir. 1993), it was error to exclude non-hearsay testimony
because it would have demonstrated the defendant’s reliance on the statement and her
21
lack of intent to assist the co-defendant evade taxes. In US v. Kohan, 806 F.2d 18 (2nd
Cir. 1996), it was reversible error to exclude testimony about statements which should
have been admitted as non-hearsay to show the understanding of the defendant and
the background against which he acted. In US v. Jackson, 621 F.2d 216 (5th Cir.
1980), the Fifth Circuit reversed a conviction for making false bank entries because
the defendant’s testimony about a conversation he claimed would have established
he didn’t know the entry was false was prevented. The evidence shouldn’t have been
excluded because it was not offered for its truth, but only to show what the defendant
was told and relied upon.
In US v. Roberts, 676 F.2d 1185 (8th Cir. 1982), it was error to exclude
statements made by a government witness not offered for the truth, but to show why
the defendant went to a certain location following a conversation with the witness.
See also, Talley v. Bravo Pitino Restaurant, Ltd. 61 F.3d 1241 (6th Cir. 1995), in
reversing in a Title VII race discrimination case, racially disparaging racists
comments made by persons controlling the defendant were improperly excluded from
consideration on hearsay grounds. The statements weren’t hearsay because they
weren’t offered to prove their truth but to demonstrate the speakers’ racial attitudes.
In US v. Gibson, 675 F.2d 825 (6th Cir. 1982), it was error to exclude, on hearsay
grounds, a statement made by one union official was offered to explain the
4 On page 54 of its brief the prosecution asserts that part of the disputed
testimony was “Temple telling Schrenko that defendant had given Temple a bogus
consulting agreement” at the Rock Bottom Brewery meeting. This is inaccurate, as
Schrenko testified Temple told her no contract had ever been signed, not that there
was never an agreement, or even that the agreement was fake. (R22-1358).
Schrenko indicated that Temple actually worked for Botes. (R22-1358).
22
defendant’s subsequent conduct.
Thus, Botes establishes the testimony by Kaufman wasn’t offered for the truth
of the matter, but rather to explain Botes’ conduct in having the conversation with
Turner. The exclusion of this testimony was critical, material and favorable to the
defense and erroneously excluded. See, US v. Valenzuela Bernal, 458 U.S. 858
(1982), Chambers v. Mississippi, 410 U.S. 284 (1973); Washington v. Texas, 388
U.S. 14 (1967); Taylor v. Singletary, 122 F.3d 1390 (11th Cir. 1997).
2. Inadmissible Hearsay.
In his brief, Botes challenged, as plain error, the admission of statements by
Temple when he wasn’t produced for cross-examination. Botes pointed out the
hearsay testimony concerned statements made long after the object of the conspiracy
had been completed.4 The long line of authority excluding statements made by a
coconspirator which are made after the primary purposes of the conspiracy, and were
not made in furtherance of the conspiracy, are not changed by applying a “liberal
standard” in determining whether a statement is coconspirator hearsay. (Response23
54).
Rather than being controlled by US v. Griggs, 735 F.2d 1318, 1325 (11th Cir.
1984), as the prosecution asserts, the situation in Botes’ case is controlled by US v.
Magluta, 418 F.3d 1166 (11th Cir. 2005). In Magluta, the defendant was tried in a
drug conspiracy case, where he managed to bribe a juror. In his subsequent
obstruction trial, the government introduced evidence the juror told an undercover
agent he wouldn’t tell anyone about the bribe, under Rule 801(d)(2)(e). The Eleventh
Circuit held this was error because the statement wasn’t made in furtherance of the
conspiracy, which was completed when Magluta was acquitted in his first trial. The
Magluta court rejected the argument the cover-up was still ongoing and admissible.
Likewise, the prosecution’s argument here, should be rejected because there isn’t
evidence that the conspiracy extended beyond August 2002, when the Campaign was
over, and Botes paid, while the events at the Rock Bottom took place years later.
The prosecution fails to address Botes’ contention it was particularly troubling
to allow Temple’s hearsay at trial because the prosecution most assuredly didn’t want
to call Temple as a witness, despite the obvious lack of evidence regarding Botes’
intent, because Temple had provided an enormous amount of impeachment material
to the defense by his obstructive conduct; and therefore, the prosecution was happy
to rely on Schrenko’s testimony in violation of Botes Sixth Amendment confrontation
24
rights.
C. Cumulative Effect.
In his opening brief Botes contended the cumulative effect of the errors in the
case require reversal. This proposition should be uncontroversial, as it is well
established, but the prosecution contends it is “baseless.” To the contrary, when
examined in the aggregate, the prejudicial effect of the errors, which are both
preserved and un-preserved, require reversal. This is because critical, non-hearsay
evidence was excluded in violation of due process, and because the prosecution was
allowed to rely on hearsay from Temple, in violation of the Sixth Amendment. Given
the magnitude of the errors cumulatively, which include all the errors raised his brief,
reversal is required. See, United States v. Hands, 184 F.3d 1322 (11th Cir. 1999).
Botes has demonstrated, complete with citations to the record that the evidence was
not overwhelming. The prejudice he suffered as a result of the many errors at trial
require reversal.
VII. THE DISTRICT COURT ABUSED ITS DISCRETION AND COMMITTED
REVERSIBLE ERROR WHEN IT FAILED TO GIVE THE THEORY OF
DEFENSE REQUESTS TO CHARGE.
Botes contends the failure by the judge to charge the jury regarding its theory
of defense was reversible. In response, the prosecution complains the defendant
25
hasn’t articulated how his requested instruction wasn’t covered, or seriously impaired
his ability to conduct his defense. To the contrary, Botes pointed out the charge didn’t
cover the concept the if payments to Temple (who was on leave from the DOE) was
commission, and not kick-backs, then Botes wasn’t guilty. The judge’s charge also
didn’t cover that the prosecution was required to show Botes agreed to join Temple’s
conspiracy to steal money from the DOE. Unlike the case of US v. Hamake, 455 F.3d
1316 (11th Cir. 2006), cited by the prosecution, the court did not refuse to give the
charge because it was misleading, rather, the court said it was confusing. It is hardly
“confusing” to explain to a jury that if they found the money paid to Temple
constituted commissions instead of kick-backs, it was a defense to the charges.
Instead, it was reversible error because the charge was correct, it wasn’t substantially
covered by the court’s instruction, and it dealt with a vital point.
The prosecution attempts to minimize the force of Botes’ argument by
describing the issue as pertaining to “theory of defense” and that a “separate theory
of defense” charge was given, as if the request charge was somehow not a genuine
“theory of defense” charge. (Response-56). Below, Botes clearly identified the
charge as a theory of defense. (R26-2070). Botes was entitled to a theory of defense
instruction as it related to the entire government case, which alleged many things. The
money paid to Temple formed the basis for the indictment as to several counts.
26
Consequently, Botes was entitled as a matter of law for a statement as to his theory
of defense as to these counts, in addition to his theory of defense regarding the rest
of the indictment. The prosecution ignored Botes’ recitation of prejudice. Botes
simply was not able to deal with the aspect of the prosecution dealing with the
payment made to Temple, which was the only payment the prosecution alleged was
made directly by Botes. Thus, the defense was unable to meet the prosecution’s
contentions in two ways, which the judge’s charge failed to cover. It was reversible
error to fail to give the requested charges.
VIII. THE DISTRICT COURT COMMITTED REVERSIBLE ERROR IN
APPLYING THE OBSTRUCTION OF JUSTICE ENHANCEMENT.
Attempting to justify the obstruction enhancement, the prosecution contends
it established by a preponderance Botes “attempted to coach Turner...” (Response-
59). This ignores the context argument advanced by Botes, and the ambiguous nature
of the statements. (Compare Opening-46-48 with Response-59). It ignores that Botes
explained his own position regarding payment, and never suggested that Turner do
or say anything, other than he should obtain counsel. It ignores Botes’ point that in
response to Turner’s contention the payments couldn’t be commissions because there
were too many checks, Botes quickly stated he wasn’t arguing, and ultimately
concluded the conversation by telling Turner to decide what he was going to do, and
27
let Botes know. This, coupled with the facts adduced from Kaufman that Botes
contacted him that fall regarding Botes’ contention Turner had issued unauthorized
checks, and stolen from his company, compels the conclusion that the judge clearly
erred in imposing the enhancement.
The prosecution fails to distinguish Botes’ case from those cited in his brief for
the proposition it was improper to impose the enhancement on speculation Botes was
attempting to get Turner to twist his story. See, US v. Cataldo, 171 F.3d 1316 (11th
Cir. 1999). The prosecution also fails to defeat Botes’ argument his conduct falls
short of the conduct used to justify the enhancement in the cases cited by the
prosecution, and doesn’t even attempt to justify the enhancement on Botes, compared
with the conduct of the other defendants in the case. Temple’s behavior was an
extreme pattern of obstructive conduct with Schrenko, from the beginning. Turner
received a probationary sentence after testimony replete with lies, and conduct
ostensibly as extensive as the prosecution’s version of Botes’ involvement. Finley
received probation after admittedly lying to investigators about material matters. The
prosecution utterly failed to justify these inconsistencies, and Botes’ sentence must
be reversed.
28
IX. BOTES’ 97 MONTH SENTENCE OF IMPRISONMENT WAS IMPOSED IN
A PROCEDURALLY UNREASONABLE MANNER AND WAS
SUBSTANTIVELY UNREASONABLE AS WELL.
The court began the sentencing hearing explicitly stating it was going to
impose a sentence within the applicable guideline range. At the conclusion of the
hearing the court explicitly noted that it had not sentenced Botes based on the §3553
factors. Both statements reveal the district court was operating under a presumption
a guideline sentence should be imposed, and that its task was either to impose a
sentence under §3553, or the sentencing guidelines. The district court’s application
of this presumption, coupled with its misunderstanding regarding the mandatory
§3553 factors, resulted in the court’s imposition of an unreasonably harsh, 97 month
sentence on Botes, which defies the “parsimony provision” of §3553.
The prosecution contends Botes’ argument misinterprets the actions taken by
the district court and pertinent precedent. (Response-60). Botes disagrees and notes
he cited to the record to support all of his factual allegations. The prosecution fails
to point to a single mistaken factual recitation in his entire brief, and utterly fails to
respond to the plain language of the judge cited by Botes as evidence the judge
presumed a guideline sentence should be imposed.
This Court should reject the prosecution’s invitation to accord a presumption
29
of reasonableness that the sentence imposed in this case. (Response-60Fn11). If, as
here, the sentence is within the Guideline range, the appellate court may, but is not
required to apply a presumption of reasonableness to the sentence. Id., at 597. In the
Eleventh Circuit, no presumption of reasonableness applies. U S v. Campbell, 491
F.3d 1306, 1313 (11th Cir. 2007).
The Supreme Court’s recently released twin decisions in Gall v. US, and
Kimbrough v. US, providing guidance to appellate courts reviewing sentences post-
Booker, are supportive of Botes’ position that the presumption applied by the district
court must invalidate his sentence.
The majority opinion in Gall held that appellate courts must review all
sentences–whether inside, just outside, or significantly outside the Guidelines
range–under a deferential abuse-of-discretion standard. The Court reiterated that
sentencing courts may not presume that the Guidelines range is reasonable. Id., citing
Rita.
In Gall, the Court specifically mandated the appellate court, “must first ensure
that the district court committed no significant procedural error,” such as “treating the
Guidelines as mandatory...” Id. It is only after the appellate court ensures the
procedural requirements of the Sixth Amendment are met, that the appellate court
may, but is not required, to apply a presumption of reasonableness to a within
30
guidelines sentence.
Because under Gall, the abuse of discretion standard of review only applies
after the appellate court ensures the district court committed no procedural error in
the sentencing, the presumption is inapplicable because the judge assuredly
committed procedural error. Gall, 128 S.Ct. 586, at 598.
This is evidenced by the judge plainly stating its intention at the beginning of
the hearing to impose a sentence within the guideline range. After calculating the
guidelines the judge again stated he intended to impose sentence within the guideline
range. Consistent with its earlier pronouncements the district court then stated
explicitly it “had considered sentencing the defendant pursuant to 18 U.S.C. §3553
and the factors outlined therein.” The judge then stated that it did not [sentence the
defendant pursuant to 18 USC §3353 and the factors] “since a more appropriate
sentence can be imposed pursuant to the custody guideline range” (R29-67). The
court also specifically noted it had sentenced the co-defendants pursuant to the
guidelines as well. (Id.). The Seventh Circuit reversed a sentence because the district
court presumed a guidelines sentence to be reasonable. US v. Griffin, 493 F.3d 856
(7th Cir. 2007).
Because the judge presumed a guideline sentence should be imposed in the
case, Booker’s mandate was not followed. There were other problems as well, such
31
as improper guidelines calculation. The prosecution contends guidelines were
properly calculated regarding loss. (Response-61). In a footnote, it charges references
cited by Botes as representing software and services were provided for the July 2002
payments do not support that representation. (Response-62, Fn12). Tellingly, the
prosecution doesn’t explain this bare allegation. The project manager, who was the
government’s own witness testified the licenses were delivered. (R23-1649). The
prosecution asserts the needs assessment “was uniformly regarded as worthless,”
without citation to the record. Although Beasley was not pleased by the document,
it was because GHP didn’t cooperate with CCSC, causing the problems. Thus, the
amount of loss was improperly calculated, and the sentence must be reversed. US v.
Talley, 431 F.3d 784, 786 (11th Cir. 2005).
The prosecution claims the court adequately considered the §3553 factors and
cites the portion of the transcript where the court explicitly decided to not sentence
the defendant pursuant §3553. Rather than stating it considered the factors, or
acknowledging the factors, the court indicated that it was not using the statute, but
rather was only using the guidelines. The entire sentencing supports the judges
comments, as the judge began the hearing with the announcement that he was
imposing a guidelines sentence and continued along the same vein throughout.
The prosecution also failed to respond to Botes’ contention and citation of
32
authority supporting its argument the court inadequately explained its sentencing
rationale. (Compare Brief-51-53 with Response-59-64). The fact the court imposed
equally severe sentences for Temple and Schrenko doesn’t justify the sentence,
particularly where Temple’s sentence reflected the pattern of obstructive conduct
engaged in throughout the prosecution of the case, compared with Botes’ conduct of
abiding by all of his bond conditions. Schrenko, as the public official was clearly
more culpable than the other defendants in the case. Turner’s sentence of probation
underscores the unfairness of the sentences, to which the prosecution fails to respond.
The prosecution also utterly fails to respond to Botes’ charge his sentence violated
the prime directive of §3553, because it was substantially greater than necessary to
achieve the purposes of the sentencing.
X. GIVEN THAT THE DISTRICT COURT DID NOT PROPERLY APPLY THE
REMEDIAL PORTION OF BOOKER, BOTES’ SIXTH AMENDMENT
RIGHT TO JURY TRIAL WAS VIOLATED BY THE IMPOSITION OF A
SENTENCE IN EXCESS OF THAT AUTHORIZED BY THE JURY
VERDICT BASED ON JUDICIAL FINDINGS REGARDING ACQUITTED
CONDUCT, CONDUCT NOT ALLEGED IN THE INDICTMENT, FOUND
BY A JURY, OR ADMITTED BY BOTES.
The prosecution maintains this issue is governed by the plain error standard,
33
as it wasn’t raised below. The prosecution ignores a significant portion of Botes’
statement during sentencing objecting to the use of the consulting agreement as a
basis for the obstruction, because it was not charged in the indictment. Botes said, “so
the prosecution knew that this [the consulting agreement] was in existence, they could
have indictment for it and I could have defended against it. Now I stand accused of
it and found guilty for it and I never had a chance to defendant against it because I
was never charged with it.” (R29-58). Botes continued he didn’t defend against the
claim at trial, “but at that time it wasn’t an issue, your honor. They didn’t allege in the
indictment that the contract was in–not in existence.” (R29-58). Thus, under the
principles outlined in US v. Candelario, where the Court recognized a defendant may
preserve a constitutional challenge under Apprendi if he contends that “the issue of
drug quantity should go to the jury,” the issue is preserved. US v. Candelario, 240
F.3d 1300, 1304 (11th Cir. 2001), citing US v. Neely, 232 F.3d 825, 829 (11th Cir.
2000). Botes, made it clear he contended it wasn’t fair to sentence him for obstruction
because that allegation was not contained in the indictment, and he had therefore not
defended against the allegation at trial.
Even if the Court were to find this was insufficient to preserve that issue, Botes
contends, Booker itself, as well as the recent authority in Gall v. United States,
mandates review of all sentences appealed, regardless of objection below. There does
34
not appear to be requirement that the defendant object to the sentence on specific
procedural grounds, after its imposition. As noted above, the Gall Court that an abuse
of discretion standard of review only applies after the appellate court first ensures no
procedural error. Gall, –S.Ct.–, at 597.
Given the clear direction of the high court in Gall, this Court should consider
Botes contention that his sentence is unconstitutional on the merits.
XI. THE DISTRICT COURT COMMITTED REVERSIBLE ERROR BY
DENYING BOTES HIS RIGHT TO MEANINGFUL ALLOCUTION AS
PRESCRIBED BY F.R.CR.P. 32.
The prosecution complains this issue is raised for the first time on appeal, and
Botes isn’t entitled to relief because he was sentenced to the lowest sentence under
the advisory range. (Response-65). Botes disagrees and points to several instances
during the sentencing when the district court made it clear to Botes it was not
interested in his comments, and cut him off. (Brief-61-62). Botes specifically told the
court he wanted to speak further, but stopped in light of the conduct of the court.
(R29-62). In his Brief, Botes anticipated the prosecution response, and cited to US v.
Li for the proposition that Li’s comments themselves preserved her challenge to her
shortened attempts at allocution. (Brief-12,65). The prosecution ignored this and
failed to address Botes’ contentions that his repeated attempts to speak, which were
35
curtailed by the judge preserved the issue. (Response-65).
Moreover, Botes addressed the prosecution’s contention he was not entitled
to relief because he received the lowest sentence within the range by bringing the
Court’s attention to US v. Adams, 252 F.3d 276 (3rd Cir. 2001) which US v. Prouty,
303 F.3d 1249, 1253 (11th Cir. 2002) cited approvingly. The Adams court explained
that an opportunity exists for a violation of the right of allocution, even when the
defendant is sentenced at the bottom of the range when there were disputed facts at
sentencing, or any arguments raised in connection with sentencing that if resolved in
the defendant’s favor would have reduced the guideline range or the ultimate
sentence. Botes further pointed out that he offered objections to the guidelines which
would have resulted in less time, and requested a non-guidelines sentence as well.
The prosecution does not distinguish this case, nor can it or offer any explanation as
to why the logic of Prouty would control under an advisory guidelines system where
the court is free to impose a non-guidelines sentence, as opposed to Adams. The
prosecutions’s citation to US v. Zarabia, 217 Fed. Appx. 906, 914 (11th Cir. 2007) is
unavailing for several reasons. First, the portion of the opinion relied upon by the
prosecution is mere dicta–the real issue was whether there was an objection and
whether Zarabia was denied the opportunity to speak before the imposition of
sentence. In contrast, Botes repeatedly attempted to speak, but was stopped by the
36
district court who contended he should have testified. Mr. Botes identified several
areas of attempted allocution which could have made a difference in the case. His
attempts to speak were curtailed by the court–therefore, his sentence should be
remanded.
XII. THE ORDER OF RESTITUTION IMPOSED BY THE DISTRICT COURT
WAS ILLEGAL AND CONSTITUTES REVERSIBLE ERROR.
The court imposed restitution, including amounts which were not losses to the
DOE. The “needs assessment” was delivered under the terms of the contract.
(Opening-IX., 1.C.) The judge erred in not subtracting the $50,000 from the
restitution order, and also erred by including the entire amount of the payment for the
multiple contracts, ($513,894), when the evidence at trial established that CCSC
delivered the license keys, and was thereafter prevented from further compliance with
the contracts by the politically motivated acts of the State Board of Education and the
DOE. Throughout his Brief Botes provided citations to the record establishing he did
perform to the extent he was allowed under the contracts. The licenses were delivered
under the GHP contracts, Power Researcher was installed and staff trained. The
license purchase did not include installation and staff training, that was part of the
needs assessment. The website and survey was completed, but GHP did not
cooperate. Kaufman testified he believed Botes had performed under the contract, and
37
although Ashby testified the software wasn’t delivered to her school, Beasley testified
the licenses were provided to the DOE. (R23-1649). The DOE sued Schrenko,
Temple and Finley, not Botes.. The $1.5 million in licenses was delivered as well.
Thus, the order of restitution illegally included amounts which were not losses to the
victim, and the order must be reversed.
XIV. BOTES WAS ENTITLED TO ACCESS TO THE AUDIOTAPES OF
DISPUTED PORTIONS OF THE CLOSING ARGUMENT AND THE
SENTENCING TRANSCRIPT.
Botes contends he has been improperly denied access to audiotapes of disputed
portions of the closing argument and sentencing transcripts. In his Brief he
incorporated by reference arguments he advanced in his motion to the district court
to reconsider its ruling. (Opening-75). Here, Botes set forth in detail, and with citation
to pertinent authorities several reasons his appellate counsel, who was not present at
trial should be given access to the recording. The prosecution ignores these
contentions and provides no retort. Botes is entitled to the relief he requested.
38
CONCLUSION
Botes requests his conviction and sentence be vacated.
Dated: This 3rd day of March, 2008.
Respectfully submitted,
________________________
LYNN FANT
GEORGIA STATE BAR NUMBER: 254963
Law Office of Lynn Fant, PC
Post Office Box 244
Waco, GA 30182
(404) 550-2375
39
CERTIFICATE OF SERVICE
This is to certify that I have this day served a copy of the foregoing Reply
Brief upon:
Daniel Caldwell
Assistant US Attorney
600 Richard B. Russell Building
75 Spring Street, S.W.
Atlanta, Georgia 30303
by depositing a copy of the same in the US mail with proper postage affixed
thereto to ensure delivery of the same.
Dated: This 3rd day of March, 2008.
______________________________
Lynn Fant
At 10:46 PM, linda34 said…

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Monday, February 12, 2007

Repaying a debt to the innocent

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