Criminal Appeals, Habeas Corpus and Sentencing

Is Booker About to Bite the Dust?

In response to an argument I made in an appeal to the D. C. Circuit Court of Appeals, that the Booker remedy provision is itself unconstitutional, rising judicial star Brett Kavanaugh, authored the following special concurrence (to an opinion granting a second resentencing on Booker grounds):

United States v. Henry, 2007 WL 79011, *7-11 (D.C. Cir. 2007)

KAVANAUGH, Circuit Judge, concurring. I join the Court's opinion and add this concurrence to note a few broader points about the path of post- Booker jurisprudence in the federal courts. To review: In Booker, a five-Justice majority of the Supreme Court held that the United States Sentencing Guidelines were unconstitutional under the Fifth and Sixth Amendments to the extent that facts used to increase a criminal sentence (beyond what the defendant otherwise could have received) were not proved to a jury beyond a reasonable doubt. United States v. Booker, 543 U.S. 220, 226-27 (2005) (Stevens, J., joined by Scalia, Souter, Thomas, and Ginsburg, JJ.). The logical upshot of this part of Booker (what is known as the Booker constitutional opinion) is that the Constitution is satisfied by a sentence in which sentencing facts are proved to a jury beyond a reasonable doubt. In some tension with the Booker constitutional opinion, however, a different five-Justice majority of the Booker Court also held (in what is known as the Booker remedial opinion) that the constitutional problem with the Guidelines is more readily solved not by requiring sentencing facts to be proved to a jury beyond a reasonable doubt, but instead by making the Guidelines one factor in the district court's sentencing decision, along with other factors specified in 18 U.S.C. § 3553(a). Id. at 245-46, 260-61 (Breyer, J., joined by Rehnquist, C.J., and O'Connor, Kennedy, and Ginsburg, JJ.); cf. id. at 302 (Stevens, J., dissenting in part, joined by Scalia and Souter, JJ.) ("[B]y repealing the right to a determinate sentence that Congress established in the SRA, the Court has effectively eliminated the very constitutional right Apprendi sought to vindicate."). The Booker remedial opinion emphasized, however, that the sentencing court still "must consult" the Guidelines and "take them into account when sentencing." Id. at 264. The Booker remedial opinion also directed appellate courts to review district court sentences for "reasonableness"-a term not defined, but which the Court stated would help "to avoid excessive sentencing disparities while maintaining flexibility sufficient to individualize sentences where necessary." Id. at 264. *8 In light of the Booker remedial opinion and § 3553(a)'s requirement that district courts "shall consider" the Guidelines, as well as § 3553(a)'s express goal of avoiding unwarranted sentencing disparities, this Court and other federal courts after Booker have held that the Guidelines remain central to sentencing. In part because the "reasonableness" of a sentence is not self-defining and because the Booker remedial opinion said that appellate review would help maintain uniformity, appellate courts have relied on the Guidelines as the predominant substantive standard against which to measure a sentence's reasonableness. Indeed, many courts of appeals, including this one, have accorded a "presumption of reasonableness" to within-Guidelines sentences. See United States v. Dorcely, 454 F.3d 366, 376 (D.C.Cir.2006); see generally United States v. Buchanan, 449 F.3d 731, 735-41 (6th Cir.2006) (Sutton, J., concurring). And appeals courts have found many below-Guidelines sentences to be "unreasonable." The post- Booker appellate jurisprudence in turn has exerted further hydraulic pressure on district courts to rely heavily on the Guidelines in sentencing criminal defendants. It thus may be something of a misnomer to call the Guidelines "advisory" with respect to current sentencing practices given that appeals courts often assess the propriety of a district court sentence in part by reference to the Guidelines. As we review what has happened since Booker, there is no denying that the post- Booker system in substance closely resembles the pre- Booker Guidelines system in constitutionally relevant respects. See Michael W. McConnell, The Booker Mess, 83 DENV. U.L. REV. 665, 678 (2006) ("All the things that troubled Sixth Amendment purists about the pre- Booker Guidelines system are unchanged."); see also Douglas A. Berman & Stephanos Bibas, Making Sentencing Sensible, 4 OHIO STATE J. CRIM. L. 37, 53 (2006); Douglas A. Berman, Tweaking Booker: Advisory Guidelines in the Federal System, 43 HOUS. L. REV. 341, 347-55 (2006). Four of the five Justices who joined the Booker remedial opinion, including its author Justice Breyer, did not find any constitutional problem with the Guidelines to begin with. So it is understandable that the current system as applied is not a major departure from the pre- Booker Guidelines system. Cf. Booker, 543 U.S. at 312-13 (Scalia, J., dissenting in part) (stating that Booker remedial opinion may convey message that "little has changed" from mandatory Guidelines system and posing question: "Will appellate review for ‘‘unreasonableness' preserve de facto mandatory Guidelines by discouraging district courts from sentencing outside Guidelines ranges?"). To be sure, district and appeals courts now take some additional and important procedural steps (as exemplified again by today's per curiam opinion). But the bottom line, at least as a descriptive matter, is that the Guidelines determine the final sentence in most cases. And notwithstanding the Booker constitutional opinion, many key facts used to calculate the sentence are still being determined by a judge under a preponderance of the evidence standard, not by a jury beyond a reasonable doubt. The oddity of all this is perhaps best highlighted by the fact that courts are still using acquitted conduct to increase sentences beyond what the defendant otherwise could have received-notwithstanding that five Justices in the Booker constitutional opinion stated that the Constitution requires that facts used to increase a sentence beyond what the defendant otherwise could have received be proved to a jury beyond a reasonable doubt. *9 In short, we appear to be back almost where we were pre- Booker. And if that is so-and if the lower courts' effort to harmonize the competing goals of the Booker opinions has become the jurisprudential equivalent of a dog chasing its tail-it makes sense to examine how current sentencing practices square not just with Booker but with underlying constitutional principles. The disagreement in Booker (and in earlier cases such as Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004)) represents the collision of two starkly different conceptions of how the Fifth and Sixth Amendments apply to criminal sentencing. The first conception of the Fifth and Sixth Amendments, which might be called the "deference-to-legislatures" model, generally defers to legislatures in defining crimes and enacting sentencing schemes. Under this interpretation, the Fifth and Sixth Amendments generally require that a jury find the elements of the crime (as defined by the legislature) beyond a reasonable doubt. As to sentencing, this approach gives legislatures wide discretion in crafting a mandatory or structured sentencing system; or adopting an unstructured system in which each sentencing judge possesses broad authority to assess a sentence based on the individual background, facts, and circumstances of the offense and offender; or choosing some approach in between. See generally Williams v. New York, 337 U.S. 241 (1949); McMillan v. Pennsylvania, 477 U.S. 79 (1986) (Rehnquist, J.) (opinion of the Court); Booker, 543 U.S. at 326-34 (Breyer, J., dissenting in part); Blakely, 542 U.S. at 314-26 (O'Connor, J., dissenting); id. at 326-28 (Kennedy, J., dissenting). Proponents of this approach argue that it has prevailed throughout most of our history, as courts have generally respected and adhered to legislative choices with respect to sentencing schemes. See Booker, 543 U.S. at 327-28 (Breyer, J., dissenting in part). The second conception of the Fifth and Sixth Amendments, which might be termed the "real-elements-of-the-offense" model, rests on the constitutionally central role of the jury in the criminal process. This approach begins with the idea that no logical distinction exists between the elements of a crime and so-called sentencing facts that are used to increase a sentence. Because the Constitution requires that the Government prove the elements of a crime to a jury beyond a reasonable doubt, the Constitution also requires that the Government prove substantively similar sentencing facts (such as carrying a weapon during commission of a drug crime) to a jury beyond a reasonable doubt. To do otherwise, this view contends, would be to elevate form over substance and allow legislatures to evade the constitutional requirement that the prosecutor prove the elements of the crime to a jury beyond a reasonable doubt simply by re-labeling elements of the crime as sentencing factors. Under this jurisprudential approach, therefore, courts do not defer to a legislative choice to label a fact as a sentencing factor rather than an element of the crime. See Booker, 543 U.S. at 226-44 (Stevens, J., joined by Scalia, Souter, Thomas, and Ginsburg, JJ.); Harris v. United States, 536 U.S. 545, 572-83 (2002) (Thomas, J., dissenting); Apprendi, 530 U.S. at 498-99 (Scalia, J., concurring). *10 There is an important qualification to this second approach, however, which may explain some of the conceptual and practical difficulty in this area. Despite requiring the jury to find beyond a reasonable doubt the facts used to increase a sentence, the adherents to the real-elements-of-the-offense approach allow purely discretionary sentencing schemes whereby judges "exercise broad discretion in imposing a sentence within a statutory range." Booker, 543 U.S. at 233; see also Apprendi, 530 U.S. at 481. This concession creates an apparent anomaly: After all, discretionary sentencing systems appear to pose an even greater concern that key facts used to increase a sentence are found by judges-on the record or often silently-by a preponderance of the evidence rather than by juries beyond a reasonable doubt. See Apprendi, 530 U.S. at 548-49 (O'Connor, J., dissenting) ("[O]ur approval of discretionary-sentencing schemes, in which a defendant is not entitled to have a jury make factual findings relevant to sentencing despite the effect those findings have on the severity of the defendant's sentence, demonstrates that the defendant should have no right to demand that a jury make the equivalent factual determinations under a determinate-sentencing scheme."); Kevin R. Reitz, The New Sentencing Conundrum, 105 COLUM. L. REV. 1082, 1119 (2005). Because the Court has long upheld discretionary sentencing schemes, Chief Justice Rehnquist stated for the Court in 1986 (before the Apprendi-Blakely-Booker cases): "We have some difficulty fathoming why the due process calculus would change simply because the legislature has seen fit to provide sentencing courts with additional guidance." McMillan, 477 U.S. at 92. Notwithstanding weighty arguments of the kind made by Chief Justice Rehnquist, the adherents to the real-elements-of-the-offense conception have maintained their approach-and continued to accept discretionary sentencing schemes as a constitutionally acceptable alternative. See Booker, 543 U.S. at 233. As a result, the real-elements-of-the-offense approach to the Constitution seems to mean the following: Legislatures may enact: (i) a discretionary sentencing scheme where the sentencing judge has complete discretion to impose a sentence within the legal range that applies to the crime found by the jury, and the judge may determine the sentence based on the judge's own subsidiary factual determinations, other considerations, or no stated rationale at all; or (ii) a mandatory sentencing scheme where the sentencing judge has no discretion to make factual determinations to increase a sentence. But legislatures, under this real-elements-of-the-offense approach, may not enact an intermediate sentencing scheme where the sentencing judge has structured discretion-in other words, where the sentencing judge must make factual determinations (such as "Did the defendant carry a gun during the drug transaction?") in order to increase a sentence. *11 How do post- Booker sentencing practices square with the various constitutional approaches described above? If the deference-to-legislatures conception is correct, then current federal sentencing practices, which largely mirror pre- Booker practices, are obviously constitutionally permissible. Indeed, if this conception is correct, then the Booker constitutional opinion is incorrect and the Sentencing Guidelines should apply as promulgated and made mandatory by Congress. If the real-elements-of-the-offense approach is correct, however, then current federal sentencing practices may be in tension with the Constitution. That is because the current system-in practice-works a lot like the pre- Booker system: District judges are obliged to apply the Guidelines, and certain facts used to increase a sentence (beyond what the defendant would have received based on the offense of conviction) are found by the judge, not by the jury beyond a reasonable doubt.

United States v. Henry,

2007 WL 79011, *7-11 (D.C. Cir. 2007)

Confusion Over Self Defense Instruction

Mario Reyes Ortiz appeals a judgment for aggravated battery with a firearm resulting in great bodily harm, asserting that the trial court committed fundamental error in providing a circular jury instruction on the justifiable use of force. We reverse based upon the controlling precedent of Smith v. State, 933 So.2d 1275 (Fla. 2d DCA 2006); see also Velazquez v. State, 884 So.2d 377, 377-78 (Fla. 2d DCA 2004) (citing Zuniga v. State, 869 So.2d 1239 (Fla. 2d DCA 2004)); Baker v. State, 877 So.2d 856 (Fla. 2d DCA 2004). We write to expressly reject the State's argument that the error was not fundamental because, as a matter of law, Mr. Ortiz was not entitled to an instruction on self-defense. See, e.g., Sutton v. State, 929 So.2d 1105 (Fla. 4th DCA 2006); Thomas v. State, 918 So.2d 327 (Fla. 1st DCA 2005).

The charges against Mr. Ortiz arose as a result of a familial dispute between Mr. Ortiz and Mr. Gologram, the adult son of Mr. Ortiz's girlfriend. On February 6, 2001, Mr. Ortiz and his girlfriend went to Mr. Gologram's home to deliver gifts to Mr. Gologram's child. Mr. Gologram did not like Mr. Ortiz and had in fact told his mother not to bring Mr. Ortiz to his home. When Mr. Ortiz and his girlfriend arrived at Mr. Gologram's home, the two men argued. They both pulled knives while Mr. Ortiz's girlfriend stood between them attempting to break up the fight. At some point, Mr. Ortiz reached into his car, retrieved a gun, and fired it at Mr. Gologram, hitting him in the leg. Mr. Ortiz testified that he did so because he thought Mr. Gologram was getting ready to throw his knife at Mr. Ortiz.

Mr. Ortiz clearly testified that he believed he was at risk of imminent great bodily harm when he drew the gun and shot Mr. Gologram. Although the facts necessary to determine whether that belief was reasonable were disputed, there were sufficient facts that could have supported a jury verdict concluding either that Mr. Ortiz acted in justifiable self-defense or that he did not.

The trial court gave the jury an instruction on the justifiable use of force. Unfortunately, it was the standard instruction, which is a “circular” instruction that incorrectly informs the jury that the use of *1015
force cannot be justified if it occurs while the defendant is committing the charged offense. We have repeatedly criticized this instruction and held it to be fundamental error.^FN1 See Smith, 933 So.2d 1275; Velazquez, 884 So.2d 377; Baker, 877 So.2d 856; Zuniga, 869 So.2d 1239.

FN1. In fairness to the trial court, it should be observed that this case was tried in 2002 before this case law was well established. This appeal is the result of a successful petition alleging ineffective assistance of appellate counsel. See Ortiz v. State, 905 So.2d 1016 (Fla. 2d DCA 2005).

[1] Despite this body of precedent, the State argues that we should affirm the judgment based upon the reasoning in Sutton, 929 So.2d 1105, and Thomas, 918 So.2d 327. In these cases, the First and Fourth District Courts of Appeal concluded that no fundamental error occurred in the giving of the circular instruction on self-defense because, as a matter of law, the defendant had not presented evidence entitling him to a proper instruction on self-defense. This appears to rest on a conclusion that an error in an instruction on a defense is harmless so long as the defendant was not legally entitled to have the jury consider the defense.

[2] Without deciding whether we agree with the analysis applied in Sutton and Thomas, we cannot agree that Mr. Ortiz was not, as a matter of law, entitled to a jury instruction on self-defense. A criminal defendant is entitled to have the jury instructed on his or her theory of defense if there is any evidence to support this theory. Upshaw v. State, 871 So.2d 1015, 1017 (Fla. 2d DCA 2004). Even though Mr. Ortiz's theory of self-defense and the evidence supporting it were debatable, given the testimony that Mr. Gologram was the aggressor, Mr. Ortiz was entitled to receive a legally adequate instruction on self-defense. We therefore reverse the judgment and sentence and remand for a new trial.

Reversed and remanded.


Ortiz v. State  942 So.2d 1013, *1014 -1015 (Fla.App. 2 Dist.,2006)

Evidence Insufficient for Kidnapping

STRINGER, Judge.
Armistar Cole appeals his convictions and sentences for armed robbery and armed kidnapping. Because Cole raised no issues on appeal as to the armed robbery conviction, we affirm that conviction without comment. However, we agree that the evidence presented at trial was legally insufficient to sustain the conviction for armed kidnapping. Therefore, we reverse that conviction and remand with instructions to enter a judgment for false imprisonment with a firearm.

At trial, the evidence showed that the victim and her husband owned a Dollar Store, which Cole had patronized on several occasions. On July 8, 2003, the victim was working in the store when Cole came in to buy some candy. Cole approached the cash register and put money on the counter. When the victim opened the cash register to make change, Cole jumped over the counter and grabbed her by the neck. After a brief struggle, Cole pulled out a handgun. While holding the gun, he took money from the cash register, the victim's purse, which had been behind the counter, and a DVD player. He also forced the victim to open a file cabinet that was behind the counter, apparently thinking it might contain additional cash. After finding no money in the file cabinet, Cole pointed the gun at the victim and told her to “get in the bathroom and to stay there.”

The victim walked approximately ten feet to the bathroom and closed the door. Cole did not lock the victim in the bathroom and did not block the door. Two to three minutes later, the victim heard a chime that indicated the front door had been opened. At that point, she opened the bathroom door and found that Cole was gone. She then immediately called the police.

[1] At the close of the State's case, Cole moved for a judgment of acquittal on the kidnapping count, arguing the State had failed to prove a prima facie case of kidnapping because the distance from the cash register to the counter was short and the victim was not locked in the bathroom. The trial court denied the motion. After the jury convicted Cole on the kidnapping charge, Cole filed a motion for new trial arguing that the evidence on that charge was legally insufficient because “the victim was ordered into the bathroom only a few feet away, and was not confined by [Cole].” The trial court denied that motion as well. Cole now raises the same issue in this appeal.

Section 787.01(1)(a), Florida Statutes (2003), defines the term “kidnapping” as:

forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to:

*1012
* * * *

(2) Commit or facilitate commission of any felony.

While this statutory definition appears straightforward, the supreme court has recognized that “a literal interpretation of subsection 787.01(1)(a)2 would result in a kidnapping conviction for ‘any criminal transaction which inherently involves the unlawful confinement of another person, such as robbery or sexual battery.’ ” Berry v. State, 668 So.2d 967, 969 (Fla.1996) (quoting Mobley v. State, 409 So.2d 1031, 1034 (Fla.1982)). Thus, to limit the reach of the kidnapping statute, the supreme court adopted a three-part test in Faison v. State, 426 So.2d 963 (Fla.1983). Under the Faison test,

[I]f a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:

(a) Must not be slight, inconsequential and merely incidental to the other crime;

(b) Must not be of the kind inherent in the nature of the other crime; and

(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.

Faison, 426 So.2d at 965 (quoting State v. Buggs, 219 Kan. 203, 547 P.2d 720, 731 (1976)).

In applying the elements of the Faison test, Florida courts have repeatedly held that simply moving a robbery victim at gunpoint from one room to another, even if a door is closed and the victim is ordered not to come out, is insufficient as a matter of law to sustain a conviction for kidnapping. See, e.g., Berry, 668 So.2d at 969; Goff v. State, 616 So.2d 551, 552 (Fla. 2d DCA 1993); Frederick v. State, 931 So.2d 967, 969-70 (Fla. 3d DCA 2006); Elozar v. State, 825 So.2d 490, 491 (Fla. 5th DCA 2002). In reaching this conclusion, the courts have determined that such movement is likely to be involved in any robbery, and there can be no kidnapping when “the only confinement involved is the sort that, though not necessary to the underlying felony, is likely to naturally accompany it.” Berry, 668 So.2d at 969.

Thus, for example, in Friend v. State, 385 So.2d 696, 697 (Fla. 1st DCA 1980), the defendant, while carrying a firearm during the robbery of an office building, ordered three employees into a bathroom and commanded them to “stay there.” Although the bathroom door was shut during the robbery, the employees opened the door within five minutes and discovered that the defendant had departed. The court reversed the kidnapping convictions, holding that this evidence was legally insufficient to support a kidnapping conviction because the confinement was of minimal duration and was inherent in the nature of the robbery. Id.

Similarly, in Frederick, one robber ordered the restaurant manager to open the safe while another robber ordered two employees at gunpoint to walk into a freezer. 931 So.2d at 969. The two employees did so and were told to stay there. The robber then closed the door to the freezer. After the robbers left, the manager told the employees they could come out, and they did so. In reversing the kidnapping convictions arising from the “confinement” of the two employees, the court stated:

In essence, the state's evidence in support of the kidnapping charges in this case consisted of the fact that the perpetrator ordered two restaurant employees to go into the freezer, closed the door behind them, and told them to remain in there. This evidence is insufficient, as a matter of law, to sustain the kidnapping convictions.

Id.

The evidence in this case, like the evidence in Frederick and Friend, is insufficient*1013
as a matter of law to support the kidnapping conviction against Cole. The movement of the victim in this case was of minimal duration and occurred at the very end of the robbery. It was the type of movement that was likely to naturally accompany a robbery, and the “confinement” ceased naturally with the robbery. Thus, the State's evidence was legally insufficient to support the kidnapping charge.

[2] [3] That said, however, the evidence presented was sufficient to support a conviction for false imprisonment. Section 787.02(1)(a) defines false imprisonment as “forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will.” The Faison test does not apply to the offense of false imprisonment. State v. Smith, 840 So.2d 987, 990 (Fla.2003).

Here, the evidence did establish that Cole restrained the victim against her will by forcing her at gunpoint into the bathroom. This evidence is sufficient to support a conviction for false imprisonment with a firearm. See, e.g., Sanders v. State, 905 So.2d 271 (Fla. 2d DCA 2005) (reversing kidnapping conviction and remanding for entry of judgment for lesser offense of false imprisonment when evidence showed that victim was confined inside her apartment for three hours during sexual battery); Gray v. State, 939 So.2d 1095 (Fla. 1st DCA 2006) (reversing kidnapping conviction and remanding for trial court to enter judgment for false imprisonment based on evidence that the robber dragged store clerk throughout the store during robbery but never bound her or otherwise confined her); Davis v. State, 816 So.2d 840 (Fla. 1st DCA 2002) (affirming conviction for false imprisonment based on evidence that victim was restrained on sofa by defendant holding a gun on her and telling her to “shut up”). Accordingly, we reverse Cole's conviction for armed kidnapping and remand with directions to the trial court to enter a judgment for false imprisonment with a firearm, see § 924.34, Fla. Stat. (2003), and to resentence Cole accordingly.

Affirmed in part; reversed in part; and remanded with directions

Cole v. State  942 So.2d 1010, *1011 -1013 (Fla.App. 2 Dist.,2006)

Order Imposing Costs of Investigation Reversed for Lack of Record Evidence

Betty Sue Phillips appeals an order imposing upon her more than fifteen thousand dollars in costs of investigation, payable to the Florida Department of Law Enforcement and the United States Postal Service. The order was entered after she pleaded guilty to one count of criminal use of personal identification information, i.e., identity theft, in violation of section 817.568(2)(a), Florida Statute (2003), a third-degree felony. We reverse the order imposing costs of investigation because there is insufficient evidence to support the amount ordered.

The facts supporting the charge against Ms. Phillips illustrate a growing problem in our increasingly high-tech society. Sometime in February 2004, two individuals burglarized the Haines City Post Office. Numerous checks belonging to post office customers were stolen and later fenced to a third person who, in turn, distributed the checks to Ms. Phillips and others. Additionally, the three helped Ms. Phillips to create a false identification card bearing her picture but containing the name of a victim of the check theft. Ms. Phillips then went to several stores where, using the false identity, she wrote checks on the victim's account totaling $2016.16.

Ms. Phillips admitted her involvement in the falsified check passing scheme to investigators, and in August 2005, the court accepted her plea to the charge.

In total, the identity theft ring consisted of only six people. Regarding Ms. Phillips, the prosecutor acknowledged that she was a minor player who did not participate in the post office burglary. Additionally, the prosecution advised the court that Ms. Phillips aided the State's case against the ring's three major players. As part of her sentence, the prosecutor sought the total cost of the investigation, including the postal service's investigation into the burglary and the State's investigations of the fence and the two other check passers.

The court sentenced Ms. Phillips to four years' incarceration and imposed court costs, cost of prosecution, and $2016.16 in restitution. At this sentencing hearing, however, the court expressed concern that the investigative costs sought-over thirty-three thousand dollars-were disproportionate to Ms. Phillips' level of involvement *1044
in the scheme or the minimal investigative efforts directed toward her by the FDLE and the postal inspector. The prosecutor offered to refigure the amount to allay the court's concerns, and in response the court postponed a final decision on this one point, stating that it would retain jurisdiction for sixty days to determine the amount of investigative costs.

At the hearing, in January 2006, the trial court, unfortunately, was not provided evidence of the investigative costs. To support the claim for over fifteen thousand dollars in investigative costs, the prosecutor obtained affidavits from unspecified individuals. The court told defense counsel that it would hear any evidence the defense had to dispute any amount contained in the affidavits and would hold an evidentiary hearing on any cost in dispute. Defense counsel had no evidence or testimony to discredit the affidavits but argued that the affidavits were insufficient to support an order for investigative costs and requested that the amount be set at zero. The trial court was not persuaded and entered the order on appeal. In so ordering, the court erred.

[1] [2] This court's record of the trial court's proceedings does not contain the affidavits supporting the amount ordered. This severely hampers appellate review and is probably due to the fact that the affidavits were never entered into evidence.^FN1 Before a court can impose an order on costs, it must have competent evidence of those costs. See Tory v. State, 686 So.2d 689, 694 (Fla. 4th DCA 1996) (“Where appellant has objected to the proper amount of costs to be ordered, section 939.01(6), Florida Statutes, requires the matter to be resolved by the court by a preponderance of the evidence.”).^FN2 “The burden of demonstrating the amount of costs incurred is on the state attorney.” § 938.27(4), Fla. Stat. (2003). Although the affidavits were mentioned at the January 2006 hearing, the transcript reveals that the prosecutor never offered them nor were they admitted into evidence. We do not put form over substance in requiring that this evidence be entered in the record. Until such evidence is offered for the court's consideration, defense counsel has nothing to object to.

FN1. We leave for another time whether affidavits are properly admissible in this type of hearing and whether such affidavits could provide competent, substantial evidence of the reasonable costs of investigation, given the defendant's inability to cross-examine an affidavit.

FN2. Section 939.01 since been renumbered section 938.27. Ch. 97-271, § 21, at 4993, Laws of Fla.

Because the trial court was without evidence of any amount of investigative costs, it erred by entering an order imposing an award of those costs upon Ms. Phillips. See Howard v. State, 920 So.2d 764, 765 (Fla. 2d DCA 2006) (reversing imposition of cost of prosecution because State failed to document its request for costs); Hill v. State, 845 So.2d 310, 310 (Fla. 2d DCA 2003) (reversing award of investigative costs where State concedes error because of failure to document its request for costs.)

We reverse the order on appeal and remand with instructions to hold a new hearing.




Phillips v. State  942 So.2d 1042, *1043 -1044 (Fla.App. 2 Dist.,2006)

Withdrawal of Plea - Misunderstanding of Terms of Substantial Assistance Plea Agreement

Jose Antonio Molina appeals the denial of his motion to withdraw his guilty plea. Molina contends that his plea was not voluntary because he misunderstood the conditions of his substantial assistance agreement. Because the record does not conclusively refute Molina's allegations, we reverse the denial of his motion to withdraw his plea and remand for an evidentiary hearing.

Molina pleaded guilty in open court to charges of trafficking in cocaine and conspiracy to engage in trafficking in cocaine. During the plea hearing, the court properly inquired as to matters such as Molina's mental state, his understanding that he was giving up certain rights, and his understanding that he could be deported as a result of his plea. At one point, Molina's attorney mentioned that he wanted “to put on the record in case anything comes up, it's a cooperation case.” The court subsequently accepted Molina's plea as freely and voluntarily entered, but the court did not inquire as to the terms of the cooperation agreement nor as to Molina's understanding of the terms. Indeed, the only record reference to a cooperation agreement or a substantial assistance agreement ^FN1 during the entire plea colloquy was Molina's attorney's comment that “it's a cooperation case.”

FN1. In their briefing to this court, both Molina and the State acknowledge that there was a cooperation agreement between Molina and the State, that the cooperation agreement is the same thing as a substantial assistance agreement, and that there is no written version of the agreement in the record.

Before sentencing, Molina filed a motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(f), asserting that he did not understand the expectations of his substantial assistance agreement and that he was afraid he would not be able to provide assistance as law enforcement expected. During a hearing on Molina's motion, his attorney argued that Molina did not realize he would be expected to assist law enforcement from inside jail. The court denied Molina's motion after hearing only Molina's attorney's argument.

[1] [2] [3] “A guilty plea ‘must be voluntarily made by one competent to know the consequences of that plea····’ ” Lopez v. State, 536 So.2d 226, 228 (Fla.1988) (quoting Mikenas v. State, 460 So.2d 359, 361 (Fla.1984)). Further, the trial court must “carefully inquire” into the defendant's understanding of the plea, “so that the record contains an affirmative showing that the plea was intelligent and voluntary.” Koenig v. State, 597 So.2d 256, 258 (Fla.1992) (citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)). Once a plea is accepted, a defendant must establish good cause to withdraw the plea prior to sentencing. Onnestad v. State, 404 So.2d 403, 405 (Fla. 5th DCA 1981).

[4] [5] [6] Molina contends that his plea was not voluntary because he did not understand the terms of his substantial assistance agreement. In general, if a misunderstanding of the nature and scope of a substantial assistance agreement is found, withdrawal of a defendant's guilty plea is warranted. See Elias v. State, 531 So.2d 418, 420 (Fla. 4th DCA 1988). In reviewing*1038
a motion to withdraw a plea, the trial court must: (1) accept the defendant's allegations “as true, except to the extent that they are conclusively rebutted by the record” or (2) hold an evidentiary hearing to determine the truth of the allegations. Snodgrass v. State, 837 So.2d 507, 508 (Fla. 4th DCA 2003) (quoting Simeton v. State, 734 So.2d 446, 447 (Fla. 4th DCA 1999)); see also Daniel v. State, 865 So.2d 661, 661 (Fla. 2d DCA 2004) (reversing denial of motion to withdraw a guilty plea and remanding for an evidentiary hearing because the record failed to show that Daniel was not entitled to relief).

The record before us does not reveal Molina's understanding, or lack of understanding, of the terms of the substantial assistance agreement at the time of his plea. Although the court carefully inquired as to Molina's understanding of other relevant matters, after Molina's attorney mentioned that this was a cooperation case, the court did not make any inquiry as to the form or contents of the substantial assistance agreement.^FN2 Consequently, the record does not conclusively establish that Molina understood the terms of the substantial assistance agreement, and therefore, accepting Molina's allegations as true, the record does not conclusively refute Molina's allegations. Because the record does not conclusively refute Molina's allegations, Molina was entitled to an evidentiary hearing. Although the court held a hearing on Molina's motion, it was not an “evidentiary” hearing as required under the circumstances of this case.

FN2. We recognize the inherent danger of putting the terms of a substantial assistance agreement on the record, both in potentially hindering the performance of the agreement and in potentially jeopardizing the defendant's personal safety. For this reason, such agreements are often made off the record or in a cryptic fashion on the record. However, as this case shows, as challenging as it may be, the better practice is to ensure that the defendant's complete understanding of the terms of the agreement is clearly placed on the record.

In denying Molina's motion, the court relied on its societal concerns-not Molina's understanding-to justify why Molina should not be permitted to withdraw his plea. The court stated:

When does anyone know what the expectations of law enforcement are going to be? Typically, drug traffickers enter pleas with the hopes that they will be able to offer substantial assistance and with the hopes that law enforcement will come in and give a favorable report to the Court. Those are all hopes. Sometimes those hopes come to fruition; sometimes they don't. Sometimes defendants will say, I can ··· give substantial assistance when, in fact, they can't, and they're hoping to prolong the inevitable.

If I set aside the plea, then I may be setting a precedent that we no longer allow substantial assistance to law enforcement. And I think that we all know that that would not be a good thing for our society.

The court heard only Molina's attorney's argument and did not take any evidence to determine whether Molina understood or misunderstood the terms of the substantial assistance agreement. The court's decision to deny Molina's motion was apparently based upon its societal concerns and not upon the record or upon any evidence produced at an evidentiary hearing. The court's societal concerns, however noble, cannot override the court's duty to either accept Molina's unrefuted allegations as true or hold an evidentiary hearing to determine the truth of his allegations. Because the record does not conclusively refute Molina's allegations, the trial court erred in denying Molina's motion without holding an evidentiary hearing.

*1039
Reversed and remanded for an evidentiary hearing.



Molina v. State  942 So.2d 1036, *1037 -1039 (Fla.App. 2 Dist.,2006)

State's Right to Appeal Motion in Limine

In this case, the State filed a motion in limine seeking to admit a statement made by the victim to a police officer as an excited utterance. The State admitted that it did not intend to call the victim as a witness. The defense, on the other hand, argued the admission of the statement would violate the defendant's confrontation rights as explained in Crawford. The county court entered an order denying the State's motion and entered an amended order denying the motion and certifying a question as one of great public importance. Because this nonfinal order of the county court was an order suppressing evidence in limine,^FN3 the order was appealable to the circuit court under rule 9.140(c)(2). Thus, contrary to the district court's assertion, the order in question is appealable to the district court of appeal under rule 9.030(b)(4)(B) because it is an order from the county court certifying a question as one of great public importance and it is “otherwise appealable to the circuit court under rule 9.140(c).”

*4
[5] In determining that it did not have jurisdiction to review the type of nonfinal order entered by the county court, the district court relied on the fact that the type of order being appealed, the denial of a motion in limine, was not an authorized motion that the State could directly appeal to a district court of appeal. The court further opined that section 924.07 could not be used to expand the list of appealable orders delineated in rule 9.140(c)(1). We need not reach this issue, however, because it is clear that section 924.07 is constitutional as applied to appeals from the county court to the circuit court because the Legislature has the authority to determine the appeals that may be taken to the circuit court. See art. V, § 5(b), Fla. Const.


CONCLUSION
For the reasons stated above, we hold that the district courts of appeal have jurisdiction to hear appeals from the type of county court order entered in this case, which certified a question of great public importance, because the underlying order was otherwise appealable to the circuit court under rule 9.140(c)(2). We therefore reverse the decision of the district court of appeal and remand to the district court for further proceedings consistent with this opinion.



State v. Ratner  L 63641, *3 -4  (Fla.,2007)

Important White Collar Case

II. DISCUSSION

A. Wire Fraud
[1] The wire-fraud statute, 18 U.S.C. § 1343, states:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both.

(emphasis added). The statute tracks language of the mail-fraud statute, id. § 1341, substituting the italicized language above for the language italicized below in the mail-fraud statute, which states in pertinent part:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises ··· for the purpose of executing such scheme or artifice or attempting to do so, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service ··· shall be fined under this title or imprisoned not more than 20 years, or both.^FN2

(emphasis added). Interpretations of § 1341 are authoritative in interpreting parallel language in § 1343. See Pasquantino v. United States, 544 U.S. 349, 355 n. 2, 125 S.Ct. 1766, 161 L.Ed.2d 619 (2005).

[2] The elements of the offense of wire fraud in this case are (1) a scheme to defraud, (2) an interstate wire communication, and (3) a purpose to use the wire communication to execute the scheme. See United States v. Janusz, 135 F.3d 1319, 1323 (10th Cir.1998). The third element is the central dispute on this appeal. In other words, were the wire communications “transmitted ··· for the purpose of executing [the] scheme”? 18 U.S.C. § 1343.

*7
The wire communications that allegedly violated § 1343 were seven filings of reports with the SEC: 10-K Annual Reports for 1998 to 2001 and annual 14A Proxy Statements for 2000 to 2002. The defendants contend that the third element was not established at trial because these reports were required by law and the government failed to prove that they contained anything false. We agree.

Corporations are required by law to file both the 10-K report, see 17 C.F.R. § 249.310(a) (Form 10-K shall be used for annual reports required by 15 U.S.C. §§ 78m or 78o(d)); and the Schedule 14A, see 17 C.F.R. § 240.14a-3 (information specified in Schedule 14A must be provided to persons whose proxies are solicited); see also 15 U.S.C. § 78n(a) (issuers wishing to solicit proxies must follow rules prescribed by SEC). As we shall explain, the government failed to show that there was anything false or fraudulent about any of the reports upon which the seven wire-fraud counts rested. As far as the trial evidence showed, even in the absence of a fraudulent scheme the seven reports would have been filed and the contents would have been the same. In this circumstance, one cannot say that the wire transmissions were “for the purpose of executing [the] scheme.” The reports were filed because they had to be, not because of any unlawful scheme. Of course, a filing required by law could be used to further a scheme if it was itself false or fraudulent; but the government did not show that there was anything misleading in the reports. Consequently, we cannot see how their filing advanced the alleged fraudulent scheme or how one could say that the defendants' purpose in filing them was to advance the scheme.

This is an easier case than Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1960), in which the Supreme Court found no violation of the mail-fraud statute. The scheme in that case was the misappropriation of school-district funds for the personal benefit of the defendants. The mailings, including “letters, tax statements, checks and receipts,” were all “legally compelled mailings” related to the assessment and collection of taxes by the school district. Id. at 389. The taxes collected, of course, were the source of the funds that were then misappropriated. There could be no doubt that the collection of tax money was necessary to accomplish the defendants' scheme; after all, if no taxes were collected, there would be no money to misappropriate. Nevertheless, in setting aside the convictions the Court wrote:

[W]e think it cannot be said that mailings made or caused to be made under the imperative command of duty imposed by state law are criminal under the federal mail fraud statute, even though some of those who are so required to do the mailing for the District plan to steal, when or after received, some indefinite part of its moneys.

Nor, in the light of the facts in this record, can it be said that the mailings ··· constituted false pretenses and misrepresentations to obtain money.

*8
Id. at 391-92. As summarized in Schmuck v. United States, 489 U.S. 705, 713 n. 7, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989):

[ Parr ] held ··· that in the absence of any evidence that the tax levy was increased as part of the fraud, the mailing element of the offense could not be supplied by mailings “made or caused to be made under the imperative command of duty imposed by state law,” 363 U.S. at 391···· [T]he mailings of the tax documents in Parr were the direct product of the school district's state constitutional duty to levy taxes ··· and would have been made regardless of the defendants' fraudulent scheme····

[3] Most other circuits to address the issue have interpreted Parr to hold that “mailings of documents which are required by law to be mailed, and which are not themselves false and fraudulent, cannot be regarded as mailed for the purpose of executing a fraudulent scheme.” United States v. Curry, 681 F.2d 406, 412 (5th Cir.1982); see United States v. Cross, 128 F.3d 145, 149-52 (3d Cir.1997); United States v. Gray, 790 F.2d 1290, 1298 (6th Cir.1986), rev'd on other grounds sub nom. McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987); United States v. Boyd, 606 F.2d 792, 794 (8th Cir.1979) (alternative holding). A divided panel of the Seventh Circuit did not read Parr so broadly, see United States v. Green, 786 F.2d 247, 249-51 (7th Cir.1986), but we think that the dissent in that case had the better of the argument. Not only did the Green majority opinion adopt an unconvincingly crabbed interpretation of Parr, but it failed to explain how a nonmisleading mailing compelled by law can be for the purpose of furthering a fraudulent scheme. As the dissent pointed out, “So far as appears, [the defendant] mailed [the notices that were the predicate for the mail-fraud charges] only because it was his official duty···· If he hadn't mailed the letters he would have been fired.” Id. at 255. In any event, even under Green, “the government [must] prove that legally-required mailings were important to the successful execution of the fraud,” id. at 250, and there was, as we shall see, no such proof in this case.

We now explain why the seven filed reports were not false or fraudulent, at least as far as the trial evidence shows. We note that the district court incorrectly instructed the jury that the truth of the reports was irrelevant, see Aplt.App. Vol. III at A00730 (Instruction No. 24); but we are not reversing the wire-fraud convictions because of a faulty instruction. We are reversing because of a lack of sufficient evidence; even if the jury had been correctly instructed, it could not properly have found that the reports were false or fraudulent.

Whether the reports were false depends on what is required to be reported. An SEC regulation mandates that companies follow Form 10-K when filing the annual reports required by § 13 of the Securities Exchange Act of 1934, 15 U.S.C. § 78m. See 17 C.F.R. § 249.310 (2002). A second regulation requires companies wishing to solicit proxies to provide the solicited persons with a publicly filed statement containing the information specified in Schedule 14A. See id. § 240.14a-3 (2002). For both Form 10-K and Schedule 14A, information regarding executive compensation must be furnished in accordance with Regulation S-K, Item 402, id. § 229.402 (2002). See SEC Form 10-K, Item 11, available at http://www .sec.gov/about/forms/form10-k.pdf (last visited Dec. 1, 2006); 17 C.F .R. § 240.14a-101, Item 8 (2002).

*9
Because of the central importance of the executive-compensation disclosure requirements to our analysis, we discuss at length Item 402 of Regulation S-K. Item 402(a)(2) states that the Item

requires clear, concise and understandable disclosure of all plan and non-plan compensation awarded to, earned by, or paid to the [covered] executive officers ··· and directors ··· by any person for all services rendered in all capacities to the registrant and its subsidiaries, unless otherwise specified in this item.

Id. § 229.402(a)(1) (2002). Disclosure is made in a Summary Compensation Table which contains columns in which to report the various components of compensation. Columns (a) and (b) provide the name and position of the officer and the fiscal year reported on. See id. § 229.402(b)(2)(I), (ii). Annual compensation is reported in columns (c), (d), and (e) according to the following directions in Item 402:

The Table shall include:

···

(iii) Annual compensation (columns (c), (d), and (e)), including:

(A) The dollar value of base salary (cash and non-cash) earned by the named executive officer during the fiscal year covered (column (c));

(B) The dollar value of bonus (cash and non-cash) earned by the named executive officer during the fiscal year covered (column (d)); and

(C) The dollar value of other annual compensation not properly categorized as salary or bonus, as follows (column (e)):

(1) Perquisites and other personal benefits, securities or property, unless the aggregate amount of such compensation is [less than] the lesser of either $50,000 or 10% of the total of annual salary and bonus reported for the named executive officer in columns (c) and (d);

(2) Above-market or preferential earnings on restricted stock, options, SARs [stock appreciation rights] or deferred compensation paid during the fiscal year or payable during that period but deferred at the election of the named executive officer;

(3) Earnings on long-term incentive plan compensation paid during the fiscal year or payable during that period but deferred at the election of the named executive officer;

(4) Amounts reimbursed during the fiscal year for the payment of taxes; and

(5) The dollar value of the difference between the price paid by a named executive officer for any security of the registrant or its subsidiaries purchased from the registrant or its subsidiaries (through deferral of salary or bonus, or otherwise), and the fair market value of such security at the date of purchase, unless that discount is available generally, either to all security holders or to all salaried employees of the registrant.

Id. § 229.402(b)(2) (2002). In addition to annual compensation, the table must disclose (in columns (f), (g), and (h)) any long-term compensation, such as awards of restricted stock and payouts under a long-term incentive plan, see id. § 229.402(b)(2)(iv), and (in column (I)) all other compensation, such as change-in-control payments, annual contributions to defined contribution plans, and insurance premiums paid by the company, see id. § 229.402(b)(2)(v).

*10
The government's sole challenge to the reports of defendants' compensation is that the reports failed to disclose the defendants' personal use of corporate aircraft. But the government did not show at trial that disclosure was required. Use of corporate aircraft is a “perquisite” governed by Regulation S-K Item 402(b)(2)(iii)(C)(1). See John W. White, Dir., Div. of Corp. Fin ., U.S. Sec. & Exch. Comm'n, Remarks Before the Practising Law Institute Executive Compensation Program: Principles Matter (Sept. 6, 2006), in Practising Law Institute Corporate Law and Practice Course Handbook Series, PLI Order No. 9151 at 396 (Nov.2006), also available at http:/ / www.sec.gov/news/speech/2006/spch090606jww.htm (last visited Nov. 22, 2006) (Director White Remarks); David Yermack, Flights of Fancy, Sternbusiness, Fall/Winter 2004, available at http://www.stern.nyu.edu/Ste rnbusiness/fall-winter-2004/flights.html (last visited Nov. 22, 2006) (Yermack, Flights of Fancy ); see also 71 Fed.Reg. 6542-01, 6553 (Feb. 8, 2006) (proposed regulation) (perquisites include “personal travel using vehicles owned or leased by the company”). Disclosure of perquisites is required only if their aggregate value for the year exceeds a threshold equal to the lesser of $50,000 and 10% of the executive's annual salary and bonuses. See 17 C.F.R. § 229.402(b)(2)(iii)(C)(1) (2002). For most years at issue, $50,000 was the threshold for each defendant (because their salaries plus bonuses exceeded $500,000 in those years), although Mr. Wittig's threshold was apparently $40,868 in 1999, and Mr. Lake's was apparently $12,341 in 1998 and $26,685 in 1999. There was no evidence that the value of personal travel ever exceeded the reporting threshold. (The government has not pointed to any perquisite other than personal travel as contributing toward the reporting threshold.)

To be sure, the government contended that the value of personal flights far exceeded $50,000 a year for each defendant. It computed the value of a flight by determining what a charter flight for the same trip would cost (including the costs of chartering a plane to fly from the corporate plane's base to the departure point for the trip and from the trip's destination point back to the base). This is not an unreasonable method of measuring the value of the trips to Mr. Wittig and Mr. Lake. But it is not the method required by the SEC. Regulation S-K states: “Perquisites and other personal benefits shall be valued on the basis of the aggregate incremental cost to the registrant and its subsidiaries.” Id. § 229.402, Instructions to Item 402(b)(2)(iii)(C) (2002). The natural interpretation of this language is that the value of a trip is to be computed solely on the basis of the actual additional cost incurred by the corporation in providing the transportation. Thus, for example, if the corporate airplane is flying to New York on business and a member of the Wittig family goes along for pleasure, the value is only the extra cost of adding a passenger. The extra cost may be as little as the cost of additional fuel to fly with the weight of one more passenger plus luggage. Even when the trip is solely for pleasure, the cost to the corporation may be modest. If the pilot is on a salary and is not working overtime, the extra cost might be limited to fuel and maintenance. Although no regulation explains how to determine “aggregate incremental cost,” the interpretation above is the interpretation adopted by every treatment of the subject we have found, including a statement by an SEC official. See James E. Cooling & Joanne M. Barbera, Personal Use of the Company Aircraft: IRS v. FAA v. SEC, Cooling & Herbers, P.C., at 3 (2005) available at http://www.coolinglaw.com/arts.htm (last visited Dec. 11, 2006); Director White Remarks at 396; Richard L. Handley & Stewart H. Lapayowker, Compliance Feature: Corporate Aircraft: Four Common Compliance Issues, ACCA Docket, Nov.-Dec.2003, at 29. Suffice it to say that the government did not introduce (or even offer) any evidence concerning the cost to Westar of the alleged personal trips benefitting the defendants.

*11
The government suggests that even if the reports to the SEC were not false (because they contained all required information), they were fraudulent. It contends that the reports were misleading because, regardless of SEC requirements, investors and the public would have expected disclosures of personal travel in those reports. It asserts: “Westar had a well-known practice of disclosing ALL compensation (both cash and non-cash) of the top six executives of the company, including defendants. Westar's practice was to include amounts of less than $1,000.” Aplee. Br. at 97 (footnotes omitted). To support this assertion, the government at trial pointed to Westar's disclosure of various items of compensation on the Summary Compensation Table in its 14A proxy statement for 1997. The Table disclosed (1) dividend equivalents of less than $10,000; (2) $4,750 paid on behalf of Mr. Wittig under the company's defined contribution plan; (3) premiums of $652 paid for term life insurance; (4) $825,000 paid to Mr. Wittig under the company's relocation plan; (5) a lump-sum payment of $17,000 to Mr. Wittig in lieu of a base-salary increase; and (6) car-allowance payments of $11,997 to various individuals.

The government's argument is essentially that because the company voluntarily disclosed so many other items of compensation, the report lulled people into believing that it would also have reported personal use of corporate aircraft if there had been any. But this argument has merit only if the items pointed to on the 1997 statement were not required to be reported. The defendants responded, through testimony of Rick Terrill, former Westar general counsel, that many items must be disclosed regardless of amount. The government failed to show that any reported item was not required to be disclosed. And it appears that an effort to do so would have been vain. Regulation S-K requires a company to report, regardless of amount, all payments of preferential dividend equivalents, see 17 C.F.R. § 224.402(b)(2)(iii)(c) Instruction 4; all payments under a defined-contribution plan (hence the reporting of the $4,750 payments), see id. § 229.402(b)(2)(v)(D) (2002); and all payments for term life insurance (hence the reporting of the $652 term-life premiums), see id. § 229.402(b)(2)(v)(E). It must also disclose “all plan and non-plan compensation,” id. § 229.402(a)(2). Regulation S-K defines plan to include:

[a]ny plan, contract, authorization or arrangement, whether or not set forth in any formal documents, pursuant to which the following may be received: cash, stock, restricted stock or restricted stock units, phantom stock, stock options, SARs, stock options in tandem with SARs, warrants, convertible securities, performance units and performance shares, and similar instruments. A plan may be applicable to one person. Registrants may omit information regarding group life, health, hospitalization, medical reimbursement or relocation plans that do not discriminate in scope, terms, or operation, in favor of executive officers or directors of the registrant and that are available generally to all salaried employees.

*12
Id. § 229.402(a)(7)(ii) (emphasis added). The relocation plan discriminated in favor of executives, so the payment to Mr. Wittig had to be disclosed. And the payments in lieu of a salary increase and the car allowance were both contractual payments of cash and therefore had to be disclosed. The government cannot contend that Westar reported compensation beyond what was required by law without establishing what the law required.

In short, the government failed to present evidence from which the jury could infer beyond a reasonable doubt that any of the reports wired to the SEC was false, fraudulent, or even misleading. Under Parr, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277, as we understand it, the wire-fraud charges were not proved. And even if we were to adopt a less-restrictive view of Parr, we fail to see how one could infer from the evidence at trial that a purpose of submitting the reports was in any fashion to further the alleged fraudulent scheme. The reports (which, for all we can tell, were correct) were filed because they had to be.

Because there was insufficient evidence to sustain the wire-fraud charges, we must reverse the convictions. Under the Double Jeopardy Clause, the government is not entitled to another chance to prove its case, so we do not remand for a new trial on these charges. See Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Anderson v. Mullin, 327 F.3d 1148, 1155 (10th Cir.2003).


B. Money Laundering
[4] [5] The money-laundering statute, 18 U.S.C. § 1957, forbids a person from “knowingly engag[ing] or attempt[ing] to engage in a monetary transaction in criminally derived property of a value greater than $10,000 and is derived from specified unlawful activity.” Id. § 1957(a). The government must prove five elements: that the defendant “(1) engaged or attempted to engage, (2) in a monetary transaction, (3) in criminally derived property, (4) knowing that the property is derived from unlawful activity, and (5) the property is, in fact, derived from specified unlawful activity.” United States v. Dazey, 403 F.3d 1147, 1163 (10th Cir.2005). “Criminally derived property” is “any property constituting, or derived from, proceeds obtained from a criminal offense.” 18 U.S.C. § 1957(f)(2). “Specified unlawful activity” is any of a number of offenses listed in