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 18 U.S.C. § 1956(c)(7), see id. § 1957(f)(3); it includes wire fraud, see id. §§ 1956(c)(7)(A), 1961(1)(B).

The indictment in this case stated that the specified unlawful activity was wire fraud. Accordingly, the laundering counts required proof of wire fraud. But, as we explained in the preceding section, wire fraud was not proved. The government conceded at oral argument that reversal of the wire-fraud counts would require reversal of the money-laundering convictions. We reverse those convictions. As was true of the wire-fraud charges, these charges cannot be retried.


C. Circumvention of Internal Controls
[6] We also must set aside the circumvention convictions, although the government is not foreclosed from retrying them. In pertinent part the circumvention statute, 15 U.S.C. § 78m(b)(5), states: “No person shall knowingly circumvent or knowingly fail to implement a system of internal accounting controls or knowingly falsify any book, record, or account described in paragraph (2).” Paragraph (2) states:

*13
Every issuer which has a class of securities registered pursuant to section 78l of this title and every issuer which is required to file reports pursuant to section 78o(d) of this title shall-

(A) make and keep books, records, and accounts, which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the issuer;

(B) devise and maintain a system of internal accounting controls sufficient to provide reasonable assurances that-

(I) transactions are executed in accordance with management's general or specific authorization;

(ii) transactions are recorded as necessary (I) to permit preparation of financial statements in conformity with generally accepted accounting principles or any other criteria applicable to such statements, and (II) to maintain accountability for assets;

(iii) access to assets is permitted only in accordance with management's general or specific authorization; and

(iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; ···

15 U.S.C. § 78m(b)(2).

All but one of the circumvention counts charged the defendants with circumvention by failing to report personal use of corporate aircraft on annual D & O questionnaires for Westar, Westar Industries, and Protection One (a home-security firm acquired by Westar). There is no question that Wittig and Lake failed to report such personal use on the questionnaires. The issue for trial was whether their failure was with the requisite intent.

Mr. Lake testified that he did not record personal use of company planes on the D & O forms because “I didn't think my personal use was material···· [T]he vast majority of my flights involved me traveling all over the place on business. And flights that I thought were purely personal were a small fraction of that.” Aplt.App. Vol. XXXIX at 11533. Mr. Wittig did not testify. In support of their position that their failure to disclose was neither knowing nor willful, they presented evidence that on only two occasions between 1995 and 2002 did any officer or director report personal travel on a D & O form, and, in particular, the corporation's general counsel neither reported his own personal flights nor took action when others failed to report. The essence of the government's contrary argument was that the value of the personal flights was so great that their disclosure was obviously material, the defendants wished to conceal their personal flights from shareholders and the public, and any self-proclaimed ignorance of disclosure requirements was an intentional ignorance. The government obtained from the court an instruction informing the jury that “knowledge can be inferred if the defendant deliberately blinded himself to the existence of a fact.” Id. Vol. III at 00718 (Instruction No. 14).

To assess the defendants' intent in not reporting this travel, the jury needed to know the purpose of the D & O forms. The cover of each form was in the following format:

*14
[Name]

[Year]

ANNUAL QUESTIONNAIRE

[Corporation]

Information Furnished by Each Director,

Nominee for Director, and Officer

For Use in [Year] Proxy Statement

and in Various Reports to the Securities

and Exchange Commission and State

Regulatory Commissions

Id. Vol. LIV at 15595, 15616, 15636, 15656, 15677, 15699, 15719, 15741, 15760, 15779 (emphasis added). The parties did not address what, if any, information on these forms was required by state agencies; so the only relevant purpose of the forms was to prepare SEC filings.

As we previously discussed in setting aside the wire-fraud convictions, Regulation S-K required disclosure of an executive's personal use of corporate aircraft only if the additional cost incurred by the corporation exceeded a threshold equal to the lesser of $50,000 or 10% of the executive's salary plus bonuses during the year, and the government offered no substantial proof that this threshold was ever exceeded by either defendant. Thus, there was no evidence that the defendants' failure to disclose information in the D & O forms ever caused a material omission in SEC reports. To be sure, this fact is not dispositive of defendants' intent. They may have thought that there was a risk that their travel would be publicly reported, and fear of such reporting may have caused them to refuse to report their personal travel on the D & O forms. Nevertheless, in assessing the state of mind of each defendant, the jury would likely be influenced by knowing that the omission on the D & O forms apparently did not cause any errors in the reports to the SEC.

The jury, however, was not fairly informed of what the SEC required. The defendants had to rely on a witness, Rick Terrill, Westar's general counsel during the alleged conspiracy. He testified that the SEC measured the value of personal aircraft use on an increased-cost basis and that reporting was required only if the value exceeded $50,000. Counsel for each defendant referred to this testimony in final argument. But Mr. Terrill's bona fides was easily challenged by the government; the prosecutor in closing argument asserted that Mr. Terrill had actively worked to prevent various disclosures, “running interference for Mr. Wittig.” Id. Vol. XLVIII at 13923.

And the government, which had devoted substantial time in its case to establishing the charter value of the alleged personal flights, argued to the court and the jury that it was this charter value that mattered. For example, in closing argument the prosecutor added figures for Mr. Lake's admittedly personal flights and concluded, “For a total of $208,000 in chartered valued flights. Material.” Id. Vol. XLVIII at 13946. Particularly ironic is the government's obtaining from the district court an instruction that informed the jury that a defendant could be charged with knowledge of something that he deliberately blinded himself to. One purpose of the instruction was to allow the jury to find that the defendants knew what was required to be reported on their D & O forms. Yet, at least as far as the trial evidence showed, there was no necessity to report their travel on corporate aircraft because it would not need to be reported to the SEC in any event. What the defendants allegedly blinded themselves to may well have been that there was no good reason to report their personal travel.

*15
[7] To respond to the government's arguments, the defendants requested the district court to instruct the jury on what disclosure was required by the SEC. The court denied the request. In the context of this case, we hold that this refusal was reversible error. When a defendant's defense is so dependent on an understanding of an applicable law, the court has a duty to instruct the jury on that law, rather than requiring the jury to decide whether to believe a witness on the subject or one of the attorneys presenting closing argument. Indeed, it is ordinarily improper to have a witness testify regarding what the applicable law is; it is the trial judge's duty to inform the jury on the matter. See Specht v. Jensen, 853 F.2d 805, 807-08 (10th Cir.1988) (en banc); United States v. Vreeken, 803 F.2d 1085, 1091 (10th Cir.1986). It was error for the district court to abdicate its responsibility in this regard and let opposing counsel argue their competing theories, especially when the defendants' view of the law was the correct one. Accordingly, the convictions for failure to complete properly the D & O forms must be set aside.

We further hold that the remaining circumvention conviction must also be reversed. That conviction rested on Mr. Wittig's directive to an auditor not to audit the corporation's flight logs and his refusal to provide the logs to her. We of course are in no position to assess Mr. Wittig's intent, and we readily acknowledge that he may have intended to circumvent Westar's internal controls by forbidding the audit. But we doubt that the jury could fairly appraise Mr. Wittig's mens rea without being properly informed of the governing law. We have concluded that the district court's failure to instruct the jury on the SEC's regulations constituted error. The government bears the burden of showing that this error was harmless with regard to the remaining circumvention count. Yet it has not even argued harmless error to this court.


D. Conspiracy

1. Need for New Trial
[8] [9] The defendants were also convicted of a conspiracy to commit wire fraud, money laundering, and circumvention. The verdict forms show that the jury found all three objects of the conspiracy. One can be guilty of a conspiracy to commit an offense without committing the substantive offense itself. See United States v. Horn, 946 F.2d 738, 745 (10th Cir.1991). For example, the defendants may have conspired to commit wire fraud without succeeding in committing wire fraud itself because the filings with the SEC fortuitously turned out to be accurate. Nevertheless, our reasons for reversing the substantive convictions convince us that we also must reverse the conspiracy convictions of both Mr. Wittig and Mr. Lake. The jury could not accurately evaluate the conspiracy allegations without being informed regarding what was required to be in the SEC filings. Those requirements are a critical consideration not only with respect to conspiracy to commit wire fraud (because no crime would be committed unless the SEC filings were false or fraudulent), but also conspiracy to commit money laundering (which requires wire fraud as a predicate offense) and conspiracy to circumvent (because the conspirators must have agreed to commit an offense that requires knowing and willful circumvention of internal controls instituted to satisfy SEC requirements). Accordingly, we set aside the conspiracy convictions.


2. Conspiracy to Circumvent
*16
[10] The defendants have not argued that there was insufficient evidence to support the conspiracy verdict, so we need not consider whether a new trial is barred by the Double Jeopardy Clause. They do, however, contend that portions of the conspiracy charges are legally unsound. If that contention were correct, we would need not only to set aside the convictions on those charges but also to prohibit retrial. We therefore address that contention.

The defendants assert that (1) conspiracy to circumvent is not a crime and (2) a conviction for circumvention cannot be predicated on coconspirator liability. (Each was convicted on some counts of circumvention based on the other's failure to report personal travel on a D & O form.) They rely on the language of 15 U.S.C. § 78m(b), whose pertinent provisions are:

(2) Every issuer which has a class of securities registered pursuant to section 78l of this title and every issuer which is required to file reports pursuant to section 78o(d) of this title shall-

(A) make and keep books, records, and accounts, which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the issuer;

(B) devise and maintain a system of internal accounting controls sufficient to provide reasonable assurances that-

(I) transactions are executed in accordance with management's general or specific authorization;

(ii) transactions are recorded as necessary (I) to permit preparation of financial statements in conformity with generally accepted accounting principles or any other criteria applicable to such statements, and (II) to maintain accountability for assets;

(iii) access to assets is permitted only in accordance with management's general or specific authorization; and

(iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and

(C) notwithstanding any other provision of law, pay the allocable share of such issuer of a reasonable annual accounting support fee or fees, determined in accordance with section 7219 of this title.

····

(4) No criminal liability shall be imposed for failing to comply with the requirements of paragraph (2) of this subsection except as provided in paragraph (5) of this subsection.

(5) No person shall knowingly circumvent or knowingly fail to implement a system of internal accounting controls or knowingly falsify any book, record, or account described in paragraph (2).

They argue that conspiracy to circumvent is not a crime because paragraph (4) limits criminal liability to that specified in paragraph (5), and paragraph (5) does not include liability for coconspirators.

[11] We disagree. The criminal-penalty provision for the Securities Exchange Act of 1934 is 15 U.S.C. § 78ff, which states:

(a) Willful violations; false and misleading statements

Any person who willfully violates any provision of this chapter ··· or any rule or regulation thereunder the violation of which is made unlawful or the observance of which is required under the terms of this chapter, or any person who willfully and knowingly makes, or causes to be made, any statement in any application, report or document required to be filed under this chapter or any rule or regulation thereunder ··· which statement was false or misleading with respect to any material fact, shall upon conviction be fined not more than $5,000,000, or imprisoned not more than 20 years, or both ··· but no person shall be subject to imprisonment under this section for the violation of any rule or regulation if he proves that he had no knowledge of such rule or regulation.

*17
Under 18 U.S.C. § 371, “[i]f two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.” Moreover, a “conspiracy participant is legally liable for all reasonably foreseeable acts of his or her coconspirators in furtherance of the conspiracy.” United States v. Brewer, 983 F.2d 181, 185 (10th Cir.1993) (citing Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946) and United States v. Kissel, 218 U.S. 601, 608, 31 S.Ct. 124, 54 L.Ed. 1168 (1910)).

Criminal liability for coconspirators is entrenched in federal law. The defendants, however, would have us carve out an exception to this traditional rule for circumvention violations. To be sure, on rare occasions it is apparent that a coconspirator should not be criminally liable because of the statutory description of the substantive offense. For example, in Gebardi v. United States, 287 U.S. 112, 53 S.Ct. 35, 77 L.Ed. 206 (1932), the Supreme Court considered whether a woman who consented to be transported across state lines for immoral purposes in violation of the Mann Act could be found guilty of conspiring to violate the Act, which imposed a criminal penalty on one who transported a woman in interstate commerce for immoral purposes. See id. at 118-23. In holding that she could not, the Court determined that “the failure of the Mann Act to condemn the woman's participation in those transportations which are effected with her mere consent” showed an “affirmative legislative policy to leave her acquiescence unpunished.” Id. at 123. Similarly, in United States v. Castle, 925 F.2d 831 (5th Cir.1991) (per curiam), the court found that foreign officials could not be charged with conspiracy to pay bribes under the Foreign Corrupt Practices Act because Congress had “excluded from prosecution for the substantive offense” such officials, who are “the very individuals whose participation was required in every case.” Id. at 835. The defendants in Gebardi and Castle had clearly conspired to commit a substantive offense; the woman in Gebardi had agreed to be transported between states for immoral purposes, and the foreign official in Castle had agreed to be paid a bribe. But in both cases the role of the defendant coconspirator was so central to the commission of the substantive offense that the failure of the statute defining the substantive offense to prohibit that role explicitly was a compelling indication of legislative intent not to punish such a coconspirator. The defendants here, however, have not argued, and could not argue, that their alleged roles in criminal violations of 15 U.S.C. § 78m(b)(2) are of that nature. The involvement of one defendant as a coconspirator was hardly essential for the other defendant to commit the substantive circumvention offense.

*18
Instead, the defendants rely on the language of paragraphs (4) and (5) of § 78m(b), which states that criminal liability for violations of paragraph (2) can be imposed only if a person “knowingly circumvent[s] or knowingly fail[s] to implement a system of internal accounting controls or knowingly falsif[ies] any book, record, or account described in paragraph (2).” Paragraph (5) certainly limits criminal liability in two respects. First, only certain types of violations of paragraph (2) can be the basis of criminal prosecution-namely, circumvention of or failure to implement a system of internal accounting and falsifying a book, record, or account. Second, paragraph (5) imposes an additional scienter requirement for criminal liability. In addition to the willfulness required by § 78ff, the violation must be knowing. We recognize that § 78ff provides that a defendant cannot be imprisoned if “he proves that he had no knowledge of [the violated] rule or regulation.” But this provision does not perform the same work as the “knowingly” requirement of paragraph (5): Paragraph (5), unlike the lack-of-knowledge provision in § 78ff, applies to lack of knowledge of a statutory provision; paragraph (5) shifts the burden of persuasion regarding knowledge from the defendant to the government; paragraph (5) makes lack of knowledge a complete defense, not just a barrier to imprisonment; and the “knowingly” requirement of paragraph (5) may not be congruent with a requirement of “knowledge of the rule.” Although it may be unclear what a “knowing” requirement adds to the willfulness required by § 78ff, there is little doubt that Congress has thought it adds something. See United States v. Dixon, 536 F.2d 1388, 1395 (2d Cir.1976) (Friendly, J.) (commenting on use of “willfully” in one provision of § 78ff and use of “willfully and knowingly” in another).

What the defendants contend is that § 78m(b)(4) and (5) also impose a third limit on criminal liability-namely, limiting liability to only the actual perpetrator of the deed, excusing any coconspirator (or aider or abettor, for that matter). They read the statutory language as implicitly overriding 18 U.S.C. § 371 and the hoary doctrine that holds coconspirators liable for commission of a reasonably foreseeable substantive offense. We disagree. Traditionally there is no need for the statute setting forth the substantive offense to make any reference to liability for conspiracy. That job is performed by 18 U.S.C. § 371. To say, as § 78m(b)(4) does, that criminal liability shall be imposed only in certain circumstances would ordinarily be understood as only a restriction on the scope of the substantive offense, not as an implied repeal of traditional liability for partners in crime. Perhaps one could be tempted to construe § 78m(b)(4) as having the purpose of limiting such liability if there were no other apparent purpose for the provision. But there is such an apparent purpose-limiting the criminal liability of all persons (principals as well as aiders, abettors, and coconspirators) who violate a highly technical statutory requirement by adding a scienter requirement and confining criminal liability to only a subset of statutory violations.

*19
Supporting our view is the absence of any apparent reason why Congress would want to single out § 78m(b)(2) by excluding coconspirator liability. The limitations on criminal liability in § 78m(b)(4) and (5) protect the coconspirator as well as the principal. The coconspirator must act willfully and knowingly and is criminally liable only for a subset of violations of paragraph (2). It escapes us why a coconspirator would then need greater protection than would the principal perpetrator.

In sum, the liability of coconspirators is a well-entrenched feature of federal criminal law. If Congress wishes to limit it in certain circumstances, we would expect it to be explicit about what it is doing. See Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 88, 102 S.Ct. 851, 70 L.Ed.2d 833 (1982) ( “repeals by implication are disfavored” (internal quotation marks omitted)); United States v. Hahn, 359 F.3d 1315, 1321-22 (10th Cir.2004) (en banc) (same). Moreover, we see no reason why Congress would wish to eliminate the liability of coconspirators with respect to violations of § 78m(b)(2). Accordingly, we reject the defendants' contention that they can be convicted only as principals. Cf. United States v. O'Hara, 960 F.2d 11, 13 (2d Cir.1992) (upholding guilty plea to aiding and abetting violation of § 78m(b)(2), but no argument made concerning effect of § 78m(b)(4), (5).)


D. Recusal of Judge on Retrial
[12] Finally, the defendants contend that the trial judge displayed such bias in the first two trials that she should not be permitted to preside at any trial on remand. We are not persuaded. Certainly the defendants disagreed with a number of her rulings, and we have held that several of the defendants' contentions were correct. But those rulings did not display a disqualifying bias. See Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (“judicial rulings alone almost never constitute a valid basis for a bias or partiality motion”).


III. CONCLUSION
We REVERSE the defendants' convictions for wire fraud and money laundering, and these counts cannot be retried. We also REVERSE their convictions for conspiracy and circumvention, though without prejudice to retrial. The forfeiture count is also REVERSED and REMANDED for retrial.

FN1. The 2002 versions of the cited regulations were in effect at all times pertinent to this case.

FN2. The entire text of § 1341 is:

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, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, 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, or deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined under this title or imprisoned not more than 20 years, or both. If the violation affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.

C.A.10 (Kan.),2007.
U.S. v. Lake
--- F.3d ----, 2007 WL 30038 (C.A.10 (Kan.))



U.S. v. Lake  L 30038, *6 -19 (C.A.10  (C.A.10 (Kan.),2007)

Excluding Defense Expert Witness Reversible Error

III. The Excluded Expert Witness Testimony.
“We review the district court's decision to exclude expert witness testimony for abuse of discretion.” ^FN32

[6] Sandoval-Mendoza wanted to present expert testimony concerning his mental condition and susceptibility to suggestion. He offered two expert witnesses: Dr. Michael Shore, a neuropsychologist, and Dr. J. Richard Mendius, a neurologist. The prosecutors also proposed expert witnesses: Dr. Ronald H. Roberts, a neuropsychologist, and Dr. Richard Cuneo, a neurologist. The district court held a Daubert^FN33 hearing on whether any of these expert witnesses would be permitted to testify.

Defense witness Michael Shore, Ph.D., is a psychologist with extensive clinical and teaching experience in neuropsychology, focusing on the rehabilitation of patients suffering from brain damage caused by strokes, tumors, and other causes. He testified that Sandoval-Mendoza suffered from an unusually large pituitary tumor measuring 2 x 2 x 3 centimeters, about the size of an apricot, when diagnosed. The tumor compressed Sandoval-Mendoza's frontal lobe, temporal lobe, and thalamus, probably causing damage. Medication eventually shrank Sandoval-Mendoza's tumor to some degree, but could not reverse any brain damage.

The relationship between brain damage and cognitive impairment is well-documented. Tumors like Sandoval-Mendoza's may affect mental condition in two ways. First, damage to the pituitary gland may affect thyroid production, causing mood disorders, including depression. Second, direct damage to the frontal lobe, temporal lobe, and thalamus may affect memory, decision-making, judgment, mental flexibility, and overall intellectual capacity. In particular, damage to the frontal lobe often affects concentration, focus, learning, memory, decision-making, reasoning, judgment, and problem-solving, according to Dr. Shore.

*6
A battery of routine and widely-accepted tests showed Eduardo suffered from brain damage affecting his cognitive condition. Although an performance IQ test showed borderline mental retardation and a mental age of eleven, Dr. Shore concluded Sandoval-Mendoza's school and work history were not consistent with retardation, and attributed the test results to his tumor. A classic nineteenth-century study showed frontal lobe damage causes a person to have “the passions of a man but the mind of a child,” increasing suggestibility. In Sandoval-Mendoza's case, the brain damage apparently affected the “passions of a man” as well, because the tumor made him impotent.

Defense witness Dr. J. Richard Mendius, M.D., is a board-certified neurologist with additional expertise in clinical neurophysiology. He testified that a magnetic resonance imaging test showed Sandoval-Mendoza suffers from an unusually large pituitary tumor. When the tumor shrank after treatment, the frontal lobe herniated into the empty space. The tumor also caused atrophy of the inside of the left temporal lobe and penetrated a bone separating the pituitary gland from the brain stem. Brain damage of this kind tends to affect judgment, memory, and emotions connected to memory. A performance IQ test suggested a very low level of intellectual function. Both Shore and Mendius testified that they knew of no studies specifically linking brain damage of this kind with susceptibility to inducement to commit crimes. But they noted that it commonly causes disinhibition.

Prosecution witness Ronald H. Roberts, Ph.D., is a neuropsychologist who mainly testifies as an expert witness. Roberts agreed Sandoval-Mendoza suffered from an unusually large tumor. However, he believed Sandoval-Mendoza was deliberately under-performing on memory texts. He also believed the tumor did not significantly affect Sandoval-Mendoza's performance IQ test result. Though he did not contradict the determinations from the MRI films that Sandoval-Mendoza had an extremely large tumor, he gave the opinion that on the memory tests, Sandoval-Mendoza was faking a worse memory than he really had.

Prosecution witness Dr. Richard Cuneo, M.D., is a neurologist. Cuneo agreed Sandoval-Mendoza suffered from an unusually large pituitary tumor near areas of the brain controlling behavior and cognition. But medical understanding of behavior and cognition is preliminary and inconclusive. Dr. Cuneo thought the studies presented were inadequate to show that Sandoval-Mendoza's tumor and brain damage affected his behavior and cognition because the studies were retrospective and involve small samples. A patient of Dr. Cuneo's had a similar tumor that neither caused brain damage nor affected behavior and cognition. Sandoval-Mendoza's magnetic resonance imaging test did not show any brain damage, in Dr. Cuneo's opinion. While some brain tumors may cause disinhibition or greater susceptibility to influence, pituitary tumors do not, unless they are even larger than Sandoval-Mendoza's. Dr. Cuneo conceded that Sandoval-Mendoza's performance IQ test was borderline “retarded” and mentally retarded people are “known to be susceptible to the influence of others.”

*7
After the Daubert hearing, the district court excluded the expert testimony as “not relevant to the entrapment defense” because it “does not tend to show either inducement or a lack of predisposition attributable to the tumor.” The court based its ruling on the expert testimony's “lack of scientific validity” and “absence of ability to make a causal connection” between the tumor and inducement or predisposition. Alternatively, it concluded that the “probative value” of the expert testimony was “outweighed by the dangers of confusing the issues, misleading the jury, and creating undue delay,” and “would be extremely confusing to both the court and the jury” especially “given the fact that the defense witnesses will then be rebutted by government witnesses.”

As a consequence, only Sandoval-Mendoza himself, his ex-wife, and his sister could testify that his brain tumor made him forgetful and suggestible. The defense had another witness prepared to testify that Sandoval-Mendoza once drank his own urine sample, having forgotten what it was, but the witness disappeared after the prosecutor advised her that as an illegal alien she could be putting herself at risk of deportation. But jurors might well disregard the lay evidence that came in as biased and lacking scientific foundation, since they were deprived of medical evidence.

Although the abuse of discretion standard of review is liberal, the district court's decision to exclude the expert testimony creates a “definite and firm conviction that the district court committed a clear error of judgment.” ^FN34 Daubert makes the district court a gatekeeper, not a fact finder. When credible, qualified experts disagree, a criminal defendant is entitled to have the jury, not the judge, decide whether the government has proved its case.^FN35

Federal Rule of Evidence 702 governs the admission of expert opinion testimony.^FN36 Under Daubert^FN37 and Kumho Tire,^FN38 only relevant and reliable expert opinion testimony is admissible. Expert opinion testimony is relevant if the knowledge underlying it has a “valid ··· connection to the pertinent inquiry.” ^FN39 And it is reliable if the knowledge underlying it “has a reliable basis in the knowledge and experience of [the relevant] discipline.” ^FN40

Trial courts must exercise reasonable discretion in evaluating and in determining how to evaluate the relevance and reliability of expert opinion testimony.^FN41 Daubert and Kumho Tire suggest factors trial courts may consider when evaluating the relevance and reliability of expert opinion testimony. For example, in evaluating the reliability of scientific expert opinion testimony, trial courts may consider: “(1) whether the scientific theory or technique can be (and has been) tested, (2) whether the theory or technique has been subjected to peer review and publication, (3) whether there is a known or potential error rate, and (4) whether the theory or technique is generally accepted in the relevant scientific community.” ^FN42 Of course, “there are many different kinds of experts, and many different kinds of expertise,” so these factors “may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony.” ^FN43

*8
[7] When evaluating specialized or technical expert opinion testimony, “the relevant reliability concerns may focus upon personal knowledge or experience.” ^FN44 Because medical expert opinion testimony “is based on specialized as distinguished from scientific knowledge, the Daubert factors are not intended to be exhaustive or unduly restrictive.” ^FN45 Under our decision in Sullivan v. United States Dep't of the Navy, the district court “applied an inappropriately rigid Daubert standard to medical expert testimony” by not accepting what “a good [physician] would in determining what is reliable knowledge in the [medical] profession.” ^FN46 A trial court should admit medical expert testimony if physicians would accept it as useful and reliable. Utility to the jury of medical expert testimony should be determined by what physicians would accept as useful.

The district court concluded that the proposed medical expert opinion testimony was unreliable because it did not conclusively prove Sandoval-Mendoza's brain tumor caused susceptibility to inducement or a lack of predisposition. But medical knowledge is often uncertain. The human body is complex, etiology is often uncertain, and ethical concerns often prevent double-blind studies calculated to establish statistical proof. This does not preclude the introduction of medical expert opinion testimony when medical knowledge “permits the assertion of a reasonable opinion.” ^FN47

Predisposition or its absence is the focus of an entrapment defense.^FN48 Therefore, medical expert opinion testimony showing that a medical condition renders a person unusually vulnerable to inducement is highly relevant to an entrapment defense. If it is adequately supported by medical expert opinion, it is admissible. Sandoval-Mendoza's experts were well qualified and had sufficient expertise in the neurology of brain tumors and his particular case to be useful to the jury. The district court's exclusion of medical expert opinion testimony prevented Sandoval-Mendoza from showing lack of predisposition, “and thereby deprived him of a fair opportunity to defend himself.” ^FN49 In this case, the foundation was sufficient. After hearing Drs. Mendius and Shore, the jury could have decided to disbelieve them. But Sandoval-Mendoza was entitled to have the jury decide upon their credibility, rather than the judge. As it was, the jury was left with nothing but unpersuasive lay evidence on a medical matter beyond what laymen could usefully testify about.

The district court excluded the medical expert opinion testimony alternatively in order to avoid “unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” ^FN50 But there could be no “confusion of the issues” because predisposition was the issue. Sandoval-Mendoza's only defense was entrapment, and entrapment came down to predisposition. And there was no risk of “misleading the jury.” The experts agreed Sandoval-Mendoza has an unusually large brain tumor. Their only disagreement was whether it caused susceptibility to inducement. The jury was capable of weighing the conflicting medical expert opinion testimony against the rest of the evidence presented and determining whether or not predisposition existed. As for “undue delay,” testimony would likely consume no more time than the Daubert hearing, and probably much less.

*9
Without the medical expert opinion testimony, the real issue in dispute was hidden from the jury. It could not determine whether the government's informants induced a vulnerable and suggestible man to break the law. The informants did not testify, so the jury could not evaluate the pressure they put on Sandoval-Mendoza. It could not evaluate the merits of Sandoval-Mendoza's suggestibility, because the medical expert opinion testimony concerning the possibility his tumor or limited mental capacity made him susceptible to inducement was excluded. All the jury had was proof that Sandoval-Mendoza sold drugs, wiretap recordings in which he sounded like an experienced drug dealer, and a couple of lay witnesses testifying that he was addled by a brain tumor. Sandoval-Mendoza is entitled to present his case to the jury. For that, he deserves a new trial.

Because this error requires reversal, we need not reach Sandoval-Mendoza's other claims.

REVERSED.

U.S. v. Sandoval-Mendoza  L 3783435, *5 -9 (C.A.9  (C.A.9 (Cal.),2006)

Error to Prohibit Consultation with Defendant On Witness Stand During Overnight Recess

II. The order limiting attorney-client discussion.
[4] Sandoval-Mendoza testified over the course of three days. The government's cross examination spanned a morning recess, a lunch recess, an overnight recess, and another morning recess the following day. The district court instructed Sandoval-Mendoza and his lawyer not to discuss his testimony during any of the recesses, but permitted them to discuss anything else. Sandoval-Mendoza's lawyer objected and was overruled. When the cross examination ended, the district court permitted Sandoval-Mendoza and his lawyer to discuss his testimony before redirect.

Sandoval-Mendoza argues that the district court's order prohibiting him from discussing his testimony with his lawyer during the recesses amounted to a structural error under Geders v. United States^FN14 and Perry v. Leeke.^FN15 Perry and Geders reach opposite conclusions based on different facts. In Geders, the trial court prohibited all communication between the defendant and his lawyer during an overnight recess between direct and cross examination. The Supreme Court held that this prohibition required reversal because it deprived the defendant of his Sixth Amendment right to counsel.^FN16 In Perry, the trial court prohibited all communication between the defendant and his lawyer during a fifteen minute recess between direct and cross examination. The Supreme Court held that this prohibition did not violate the Sixth Amendment.^FN17 Perry distinguished Geders, on the ground that “the normal consultation between attorney and client that occurs during an overnight recess would encompass matters that go beyond the content of the defendant's own testimony-matters that the defendant does have a constitutional right to discuss with his lawyer, such as the availability of other witnesses, trial tactics, or even the possibility of negotiating a plea bargain.” ^FN18

*4
The facts of this case fall in the middle. The district court instructed Sandoval-Mendoza's lawyer, “You can communicate. Just not concerning cross, his testimony, now that he's on cross-examination, unless that's concluded. That doesn't mean you can't talk with your client at all, just not concerning his testimony.” On the one hand, the district court prohibited communication between Sandoval-Mendoza and his lawyer during an overnight recess, suggesting Geders controls. On the other hand, the district court only prohibited Sandoval-Mendoza and his lawyer from discussing his testimony, rather than anything at all, suggesting Perry controls.

The core issue is whether prohibiting a defendant and his lawyer from discussing his testimony during an overnight recess violates the Sixth Amendment. Two other circuits have addressed this question. In Mudd v. United States, the District of Columbia Circuit held a similar prohibition unconstitutional under Geders.^FN19 And in United States v. Santos, the Seventh Circuit held a similar prohibition unconstitutional under Perry. ^FN20

This is a difficult question. Cross examination best exposes the truth when a witness must answer questions unaided. Coaching may vitiate its value. But it is hard to see how a defendant and his lawyer can communicate without implicit coaching. The Seventh Circuit suggests that “the judge may instruct the lawyer not to coach his client” but may not prohibit discussion of the client's testimony.^FN21 But that is not a workable rule, because coaching is implicit in any discussion of a defendant's testimony, even if the defendant's lawyer tries his best to avoid coaching.^FN22

We conclude that any overnight ban on communication falls on the Geders side of the line and violates the Sixth Amendment. That seems the fairer reading of Perry, which only permitted prohibitions on communication between a defendant and his lawyer during a “brief recess.” ^FN23 Perry recognized a defendant has a “constitutional right” to discuss matters other than his own testimony with his lawyer, “such as the availability of other witnesses, trial tactics, or even the possibility of negotiating a plea bargain,” during an overnight recess.^FN24 And it conceded that “such discussions will inevitably include some consideration of defendant's ongoing testimony.” ^FN25 Indeed, it is hard to see how a defendant's lawyer could ask him for the name of a witness who could corroborate his testimony or advise him to change his plea after disastrous testimony, subjects Perry expressly says a defendant has a right to discuss with his lawyer during an overnight recess, without discussing the testimony itself.

[5] Thus, we conclude that trial courts may prohibit all communication between a defendant and his lawyer during a brief recess before or during cross-examination, but may not restrict communications during an overnight recess.^FN26 This simple rule is consistent with the reasoning of Geders and Perry. And it has several other advantages. First, it is easy to understand and apply. Second, it dispenses with pretense. Jurors can believe that a defendant did not communicate with his lawyer during a bathroom break. But only a lawyer more wedded to words than common sense can believe that a defendant communicated with his lawyer during an overnight recess without at least implicitly discussing his testimony.

*5
Third, as Geders explains, prosecutors and judges can address the coaching problem without prohibiting communication during an overnight recess. The trial court may “exercise reasonable control” over the order and timing of direct and cross examination in order to “make the interrogation and presentation effective for the ascertainment of the truth.” ^FN27 For instance, it “may direct that the examination of the witness continue without interruption until completed” or “arrange the sequence of testimony so that direct- and cross-examination of a witness will be completed without interruption.” ^FN28 If a defense lawyer strings out direct examination until the usual time for the evening recess, the court can delay the recess and give the prosecutor a few minutes to get in some cross examination.

Thus, we conclude that the district court erred in prohibiting Sandoval-Mendoza and his lawyer from discussing his testimony during an overnight recess. But does the error require reversal? While Geders implies it does, ^FN29 Geders, a 1976 decision, preceded many recent Supreme Court decisions requiring prejudice as well as constitutional error for reversal. ^FN30 Still, under the recent Supreme Court decision in United States v. Gonzales-Lopez,^FN31 if an error is structural, prejudice is irrelevant. We need not decide whether or not an overnight prohibition of communications regarding the defendant's testimony is structural error, because another error, described below, independently requires reversal.



U.S. v. Sandoval-Mendoza  L 3783435, *3 -5 (C.A.9  (C.A.9 (Cal.),2006)

Effort to Prove Racial Discrimination in Federal Prosecution Reversed But Gives Ideas for How to Do It

A federal grand jury in the Eastern District of Michigan indicted James Thorpe for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Thorpe, an African-American, moved to dismiss the indictment on the ground that he was being selectively prosecuted because of his race. After conducting a preliminary investigation in support of his claim, Thorpe formally moved the district court for discovery of all of the government's files regarding the Project Safe Neighborhoods (PSN) program under which Thorpe was being prosecuted.

The court granted Thorpe's motion, reasoning that Thorpe could not support his selective-prosecution claim without the requested materials and that the harm to the government, which had already disclosed some of the requested materials to another judge in a different case, would be minimal. When the government refused to fully comply with the district court's discovery order, the court dismissed with prejudice the indictment against Thorpe. For the reasons set forth below, we REVERSE the judgment of the district court granting Thorpe's discovery motion, REINSTATE the government's indictment against Thorpe, and REMAND the case to the district court for further proceedings consistent with this opinion.


I. BACKGROUND

A. Factual background
At approximately 2:00 a.m. on March 31, 2003, officers from the Detroit Police Department responded to a dispatch reporting that there was an individual with a gun in a red Ford Taurus parked next to a gas pump at an Amoco station in Detroit. Shortly after their arrival at the station, the officers observed an African-American male lying asleep in the driver's seat of a red Ford Taurus that was parked next to a gas pump. Beside him was a .380 automatic handgun, which the officers saw on the car's front passenger seat inches from his hand. The individual was James Thorpe, whom the officers promptly arrested and placed in the back seat of the police car. Shortly thereafter, according to one of the officers, Thorpe voluntarily exclaimed, among other things, “I knew the gun was in there, but I just didn't take it out.”


B. Procedural background
Following Thorpe's arrest by the Detroit police, he was prosecuted by the United States Attorney's Office in accordance with the PSN program. PSN is a Department of Justice initiative that encourages state and federal law enforcement, as well as other segments of the community, to collaborate in the reduction of “gun crime in America.” Prosecutions under the PSN program, which occur at the federal level, typically arise by way of referrals from state law enforcement. According to the PSN web site, the U.S. Attorney in each participating federal district must have a strategic plan to attack gun crime, must constantly evaluate the plan's effectiveness, and must report semi-annually to the Department of Justice on several aspects of the district's PSN implementation efforts.

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Thorpe filed a motion to dismiss the indictment in September of 2004. He alleged that the implementation of PSN in the Southern Division of the Eastern District of Michigan had resulted in selective prosecution on the basis of race, in violation of the Equal Protection Clause of the Fourteenth Amendment. On October 4, 2004, the district court authorized Thorpe, who is indigent, to expend one thousand dollars of government funds to investigate his claim. Following a hearing on Thorpe's motion to dismiss, but before the district court had reached a decision, Thorpe filed a separate motion for discovery regarding his claim of selective prosecution. Thorpe submitted the following statistical reports in support of his motion: (1) two 2002 reports from the U.S. Sentencing Commission's web site documenting the rates of prosecution of firearm offenses and the rates of imprisonment for those individuals convicted of firearm offenses in every district and circuit in the country, (2) an unattributed report documenting the racial composition of all of the counties in Michigan, and (3) two reports from local Federal Defender's Offices, one in Detroit and the other in Flint, documenting the race of the defendants in each office's “pending firearm cases with state origin.”

The U.S. Sentencing Commission reports demonstrated that, at least in 2002, the number of defendants sentenced for federal firearms offenses in the Eastern District of Michigan as a percentage of all federal sentencings was approximately 60% greater than the national average (12.9% versus 8.1%). Moreover, whereas 89% of those individuals convicted of firearm offenses nationally were in prison in 2002, 97% of those individuals convicted of firearm offenses in the Eastern District of Michigan were in prison that year. No mention of PSN, however, appears in the U.S. Sentencing Commission reports. The unattributed report is devoid of crime statistics altogether. Instead, it appears to be a demographic report showing that the five counties in the Eastern District of Michigan with the highest percentage of African-Americans in their populations are Wayne (42.2%), Genessee (20.4%), Washtenaw (12.3%), Oakland (10.1 %), and Jackson (7.9%). Finally, and most pertinent, the reports from the Federal Defender's Offices in Detroit and Flint revealed that of the 68 “pending firearm cases with state origin” in both offices combined, 60, or approximately 88%, involved African-American defendants. Thorpe also provided numerous printouts from both the local and national web sites for PSN, setting forth the information summarized in relevant part above.

Conceding that this information was not sufficient to establish his selective-prosecution claim, Thorpe then requested that the district court order the government to disclose its “entire records on Project Safe Neighborhood” for an in camera review. The district court granted Thorpe's discovery motion in March of 2005, while at the same time denying his motion to dismiss the indictment against him. Specifically, the court required the government to produce for an in camera review the following documents relating to PSN:

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1) The criteria for cooperation and for prosecution or rejection of state cases;

2) The strategic plan regarding the Project;

3) A list of what documents and information the U.S. Attorney retains for cases prosecuted or rejected as part of Project Safe Neighborhoods;

4) Writings regarding or comprising the Memoranda of Understanding between the Federal Government and the Prosecutors' Offices in the Eastern District of Michigan;

5) Statistics distinguishing between cases resolved by plea in State Court and those referred for prosecution in Federal court; and

6) Any statistics on the cases the U.S. Attorney prosecutes or rejects, by race.

The district court stated that its decision was based on the fact that “[i]n United States v. Nixon, 316 [315] F.Supp.2d 876 (2004)[sic], the Honorable John Feikens ordered the Government to produce certain documents for in camera review relating to the Project Neighborhoods initiative.”

The government initially refused to comply with the district court's order, citing “well established legal standards for discovery on a claim of selective prosecution” and “important institutional considerations.” After the district court ordered the government to show cause why it should not be held in contempt for its failure to comply with the discovery order, however, the government relented, at least in part. In June of 2005, “[i]n view of the history” of Judge Feikens and the Nixon case, the government submitted “those same documents” that it had previously submitted in Nixon for in camera review by the district court. But the district court noted in its order dismissing the indictment that the government had failed to submit “an affidavit indicating which [of the other documents ordered for discovery] do not exist.”

Because of the government's failure to fully comply with the discovery order, the district court, invoking its “supervisory powers” under McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 87 L.Ed. 819 (1943), dismissed with prejudice the government's indictment against Thorpe in July of 2005. The government timely appealed.


II. ANALYSIS

A. Jurisdiction
As an initial matter, we have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3731. See United States v. Bass, 266 F.3d 532, 535-36 (6th Cir.2001) (finding that jurisdiction was proper because the district court's dismissal of the death penalty notice, like the dismissal of an indictment, constituted a “final, appealable order” for the purpose of 18 U.S.C. § 3731), rev'd on other grounds, 536 U.S. 862, 122 S.Ct. 2389, 153 L.Ed.2d 769 (2002).


B. Standard of review
[1] Notwithstanding the government's original argument for a de novo standard of review, we review a district court's decision to grant or to deny a motion for discovery regarding a selective-prosecution claim under the abuse-of-discretion standard. See United States v. Jones, 159 F.3d 969, 977-78 (6th Cir.1998), and cases cited therein; cf. United States v. Armstrong, 517 U.S. 456, 482, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (Stevens, J., dissenting) (“Even if respondents failed to carry their burden of showing that there were individuals who were not black but who could have been prosecuted in federal court for the same offenses, it does not follow that the District Court abused its discretion in ordering discovery.”) (emphasis added).

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The government has since acknowledged the incorrectness of its argument, but we still pause to note that the de novo standard of review adopted by the Fourth and Tenth Circuits in United States v. Olvis, 97 F.3d 739 (4th Cir.1996), and United States v. James, 257 F.3d 1173 (10th Cir.2001), respectively, remains-by a considerable margin-the minority standard of review. See United States v. Sanders, 211 F.3d 711 (2d Cir.2000) (applying the abuse-of-discretion standard); United States v. Hedaithy, 392 F.3d 580 (3d Cir.2004) (same); United States v. Arenas-Ortiz, 339 F.3d 1066 (9th Cir.2003) (same); United States v. Quinn, 123 F.3d 1415 (11th Cir.1997) (same); see also, e.g., United States v. Penagaricano-Soler, 911 F.2d 833 (1st Cir.1990) (applying the abuse-of-discretion standard before Armstrong); United States v. Cooks, 52 F.3d 101 (5th Cir.1995) (same); United States v. Mitchell, 778 F.2d 1271 (7th Cir.1985) (same); United States v. Hintzman, 806 F.2d 840 (8th Cir.1986) (same).

[2] [3] Both parties agree that Armstrong governs a district court's disposition of discovery requests related to selective-prosecution claims. As this court noted in Jones, the Armstrong Court held that “[b]ecause a selective prosecution claim is not a defense to the merits of a criminal charge but, instead, an independent assertion of misconduct, discovery is not available pursuant to Fed.R.Crim.P. 16.” Jones, 159 F.3d at 975 n. 3 (citing Armstrong, 517 U.S. at 463, 116 S.Ct. 1480). A defendant hoping to obtain discovery must therefore make a showing of “ some evidence tending to show the existence of the essential elements of the defense, discriminatory effect and discriminatory intent.” Armstrong, 517 U.S. at 468, 116 S.Ct. 1480 (quotation marks omitted) (emphasis added). Although the “some evidence” standard is “rigorous,” id., it is still relatively light, because “[o]bviously, a defendant need not prove his case in order to justify discovery on an issue.” Jones, 159 F.3d at 978.


C. PSN's alleged discriminatory effect
[4] For the purpose of satisfying the discriminatory-effect prong, “some evidence” means “a credible showing” that “similarly situated individuals of a different race were not prosecuted.” Armstrong, 517 U.S. at 465, 470, 116 S.Ct. 1480. Evidence “identify[ing] individuals who were not black and could have been prosecuted for the offenses for which respondents were charged, but were not so prosecuted,” therefore suffices. Id. at 470, 116 S.Ct. 1480. Thorpe, however, has failed to meet this standard. This court's holding in Jones is instructive.

In Jones, the court reversed the district court's order denying discovery to Jones, an African-American man, on his selective-prosecution claim. The court reasoned that in addition to the flagrant and uncontroverted evidence of discriminatory intent, Jones had also satisfied the “some evidence” standard as to discriminatory effect by introducing evidence that “law enforcement referred only him and his co-defendant Billings for a federal prosecution that involved crack cocaine, and failed to refer for federal prosecution eight non-African-Americans who were arrested and prosecuted for crack cocaine.” Jones, 159 F.3d at 978. Neither the small sample size of only 10 state prosecutions for crack cocaine nor the fact that Jones's codefendant was in fact Caucasian prevented this court from remanding Jones's case to the district court to compel discovery. Id.

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[5] The evidence that Thorpe presented to the district court in the present case, however, falls far short of the showing made in Jones. As Thorpe repeatedly concedes in his brief, the evidence that he submitted says nothing about “similarly situated” individuals. What Thorpe offered, in addition to the background statistics from the U.S. Sentencing Commission regarding rates of prosecution and imprisonment for firearm-related crimes, were the two reports from the Federal Public Defender's Office for the Eastern District of Michigan (FDO Reports). The FDO Reports demonstrated only that a large number of firearm-related prosecutions, presumably under the PSN program, had been pursued against African-Americans. Specifically, the reports showed that of the 68 “pending firearm cases with state origin” known to the FDOs, 60(88%) involved African-American defendants, 3(4%) involved Caucasian defendants, 3(4%) involved Hispanic defendants, and 2(3%) involved Native-American defendants.

The reports, however, said nothing about whether any of the “pending firearm cases” dealt with prosecutions for violations of 18 U.S.C. § 922(g), the statutory provision under which Thorpe was indicted. In other words, the two FDO Reports, as well as the more general data from the U.S. Sentencing Commission, constituted nothing more than “raw statistics regarding overall charges.” See United States v. Bass, 536 U.S. 862, 863, 122 S.Ct. 2389, 153 L.Ed.2d 769 (2002) (concluding that “nationwide statistics demonstrating that the United States charges blacks with a death-eligible offense more than twice as often as it charges whites” were insufficient for the purpose of satisfying the Armstrong standard) (quotation marks omitted). And in Bass, the Supreme Court held that such statistics “say nothing about charges against similarly situated defendants.” Id. at 864, 122 S.Ct. 2389 (emphasis in original).

The evidence presented by Thorpe in support of his motion for discovery thus failed to demonstrate that the federal government had declined to prosecute other similarly situated individuals. Thorpe concedes this fact on appeal, arguing instead that it was and still is “impossible” for him or any other PSN defendant to know what constitutes a similarly situated individual for the purposes of PSN prosecutions. He notes that unlike the “clearly set forth” statutory crimes at issue in Armstrong and Bass, “the Government has never set forth the criteria for how a case is determined to qualify for PSN prosecution.”

Thorpe's argument misses the point. Like the defendants in Armstrong and Bass, Thorpe was charged with the violation of a very specific federal statute, 18 U.S.C. § 922(g). He therefore cannot effectively distinguish those cases on the ground that there existed “a concrete definition of what would constitute a ‘similarly situated’ defendant based on the plain language of each respective statute being enforced.” Such a “concrete definition” exists in Thorpe's case as well. The PSN program, as the government properly notes, creates no new element or offense; it is simply a broad initiative designed to reduce certain types of independently defined crimes.

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An individual similarly situated to Thorpe would therefore be a felon known to federal law enforcement officers who has been arrested for “possess [ing] in or affecting commerce, any firearm or ammunition.” See 18 U.S.C. § 922(g). Thorpe does not need access to the government's “entire records on Project Safe Neighborhoods” to identify such individuals. In fact, precisely as the Supreme Court suggested to Armstrong, we suggest that Thorpe, too, “could have investigated whether similarly situated persons of other races were [arrested and/or prosecuted] by the State of [Michigan] and were known to federal law enforcement officers, but were not prosecuted in federal court.” Armstrong, 517 U.S. at 470, 116 S.Ct. 1480. Instead, Thorpe appears to have made little effort to explore state-court records that were available to him as well as to every other member of the public.

Thorpe therefore failed to present even “some evidence” tending to show discriminatory effect despite the fact that it was not impossible for him to do so. Cf. Chavez v. Ill. State Police, 251 F.3d 612, 639-640 (7th Cir.2001) (noting that, unlike in a criminal case, “[i]n a civil racial profiling case, ··· the similarly situated requirement might be impossible to prove” because the plaintiff “would not, barring some type of test operation, be able to provide the names of other similarly situated motorists who were not stopped”). To be sure, we do not mean to imply that Thorpe's discovery request constituted a “fishing expedition” undertaken in bad faith, but we do wish to point out that good faith alone cannot overcome legal insufficiency. Similarly, “[m]erely demonstrating that better evidence cannot be obtained without discovery does not suddenly render otherwise insufficient evidence sufficient.” United States v. Arenas-Ortiz, 339 F.3d 1066, 1071 (9th Cir.2003).

Thorpe does refer in his brief to race-based statistics regarding PSN prosecutions that he obtained from the Washtenaw County Prosecutor's Office pursuant to a Freedom of Information Act request. But even if we assume that these statistics add weight to Thorpe's claim of selective prosecution, they are irrelevant for the purpose of this appeal because there is no indication in either the record or the briefs-nor was there any indication given by Thorpe's counsel during oral argument-that Thorpe presented these statistics to the district court before it ordered discovery.


D. PSN's alleged discriminatory intent
Even if we assume for the sake of argument that Thorpe presented some evidence of discriminatory effect, reversal would still be called for because Thorpe, as the district court itself made clear, did not produce any evidence whatsoever of discriminatory intent. For the purpose of satisfying the discriminatory-intent prong, what “some evidence” means is not entirely clear. The Supreme Court has not had occasion to directly consider the issue, because the Court in both Armstrong and Bass found that the defendant had failed as an initial matter to satisfy the discriminatory-effect prong. Armstrong, 517 U.S. at 470, 116 S.Ct. 1480 (“The study failed to identify [similarly situated] individuals who ··· could have been prosecuted ··· but were not····”); Bass, 536 U.S. at 863, 122 S.Ct. 2389 (“We need go no further in the present case than consideration of the evidence supporting discriminatory effect.”).

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This circuit's opinion in Jones provides only slightly more guidance, because that case involved racial animus so blatant that the evidence of it, in the court's opinion, was sufficient to meet not only the “some evidence” discovery threshold but the higher prima facie merits standard as well. Jones, 159 F.3d at 977-78 (recounting how the officers who arrested Jones and his wife had, among other things, made and worn T-shirts depicting the two African-American suspects at the time of their arrest and later, while Jones was in jail awaiting trial, sent Jones a postcard of an African-American woman with bananas on her head).

Given this lack of clear guidance, a logical approach would be to apply the prevailing test for discriminatory intent that predated Armstrong, because Armstrong recognized that “[t]he requirements for a selective-prosecution claim draw on ordinary equal protection standards.” 517 U.S. at 465, 116 S.Ct. 1480 (quotation marks omitted). In McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), the Supreme Court held that in all but “certain limited contexts,” general statistics, without more, are insufficient to show discriminatory intent. Instead, a defendant hoping to prevail under the Equal Protection Clause “must prove that the decisionmakers in his case acted with discriminatory purpose.” Id. (emphasis in original); see also Wayte v. United States, 470 U.S. 598, 610, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985) (“Discriminatory purpose ··· implies more than ··· awareness of consequences. It implies that the decisionmaker ··· selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group.”) (brackets and quotation marks omitted).

At least two federal courts, including this one, however, have questioned this approach in the discovery context. The first is United States v. Bradley, 880 F.Supp. 271 (M.D.Pa.1994). In Bradley, the court noted that “ McCleskey did not address the significance of disparate impact [in] the context of a discovery request,” where the standard is “more lax.” Id. at 281, 107 S.Ct. 1756. Accordingly, the Bradley court determined that the McCleskey standard did not govern its determinations of evidentiary sufficiency at the discovery stage. The other court to express a similar view is our own. In United States v. Bass, 266 F.3d 532, 539-40 (6th Cir.2001), rev'd on other grounds, 536 U.S. 862, 122 S.Ct. 2389, 153 L.Ed.2d 769 (2002), this court noted that although “ McCleskey will certainly preclude Bass's selective prosecution claim if, at the end of discovery, he fails to show any additional evidence [of intentional discrimination, McCleskey] does not ··· pose any bar to Bass at this preliminary stage.”

Because the abuse-of-discretion standard of review governs, this uncertainty in the law reduces the effective range of the government's argument on appeal. A district court abuses its discretion when it “relies on erroneous findings of fact, applies the wrong legal standard, misapplies the correct legal standard when reaching a conclusion, or makes a clear error of judgment.” Reeb v. Ohio Dep't of Rehab. & Corr., 435 F.3d 639, 644 (6th Cir.2006) (emphasis added). Precisely because the appellate courts, including this one, have had difficulty articulating a clear and uniform standard for what constitutes “some evidence” of discriminatory intent, the district court could not have known what the correct legal standard was when it ruled upon Thorpe's motion for discovery. That the district court “applie[d] the wrong legal standard” or “misapplie[d] the correct legal standard” in granting the motion is highly unlikely absent such knowledge. Id.

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This limits the government to arguing that the district court either “relie[d] on erroneous findings of fact” or “ma[de] a clear error of judgment.” Id. Fortunately for the government, the district court's order granting Thorpe's discovery motion was clearly erroneous on its face, as discussed further below.

[6] Thorpe admits in his brief that he failed to provide the district court with any evidence of the government's discriminatory intent. He also concedes that “the original publicized plan for PSN obviously did not espouse any discriminatory purpose.” Instead, his “evidence” of discriminatory intent amounts to an inference that he contends the government itself created:

Rather, the Government proved its discriminatory intent, based on the knowledge it necessarily had at the time of the indictment against Mr. Thorpe of the overwhelmingly racially discriminatory effect the prosecution choices the U.S. Attorney for the Eastern District of Michigan was making, by pursuing PSN prosecutions almost exclusively against non-Caucasian defendants.

(Emphasis in original.) Rephrased, Thorpe's argument appears to be that the government's pursuit of a program despite knowledge of that program's discriminatory effect is by itself “some evidence” of discriminatory intent.

The caselaw does not support Thorpe's argument. To be sure, the government exaggerates by implying that statistical evidence of discriminatory effect, without more, can never raise an inference of discriminatory intent. See United States v. Tuitt, 68 F.Supp.2d 4, 10 (D.Mass.1999) (“A discriminatory effect which is severe enough can provide sufficient evidence of discriminatory purpose.”). But such a finding remains the exceedingly rare exception to the general rule. Cf. Wayte, 470 U.S. at 610, 105 S.Ct. 1524 (“Discriminatory purpose ··· implies more than ··· awareness of consequences.”).

On only a handful of occasions has the Supreme Court made such an exception. Most notable are the cases of Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), and, almost three-quarters of a century later, Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). In Yick Wo, the plaintiff presented statistics demonstrating that the City of San Francisco had applied an ordinance prohibiting the operation of laundries in wooden buildings against Chinese nationals only. The city had denied all 200 permit applications submitted by Chinese nationals, but had granted all 80 permit applications submitted by non-Chinese nationals. Yick Wo, 118 U.S. at 374, 6 S.Ct. 1064. The Court famously held:

Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.

Id. at 373-74, 6 S.Ct. 1064.

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In Gomillion, the plaintiffs alleged that the Alabama legislature's decision to alter the boundaries of the city of Tuskegee-“from a square to an uncouth twenty-eight-sided figure”-had resulted in the exclusion of all but 4 or 5 of 400(99%) possible black voters but not a single eligible white voter. Gomillion, 364 U.S. at 340-41, 81 S.Ct. 125. Echoing Yick Wo, the Court held that if these statistical allegations were to prove “uncontradicted or unqualified” at trial, “the conclusion would be irresistible, tantamount for all practical purposes to a mathematical demonstration, that the legislation is solely concerned with segregating white and colored voters by fencing Negro citizens out of town so as to deprive them of their pre-existing municipal vote.” Id. at 341, 81 S.Ct. 125.

The statistical evidence that Thorpe presents-assuming, again, that it speaks to similarly situated persons-falls far short of approaching the disparities at issue in Yick Wo and Gomillion. First, the FDO Reports from Detroit and Flint, which document the cases of only 68 individuals, “are based on a statistically unimpressive number of federal defendants.” See United States v. Turner, 104 F.3d 1180, 1185 (9th Cir.1997) (concluding that the district court had abused its discretion in granting discovery on the defendants' selective-prosecution claim). In addition, the very fact that the FDO Reports indicate that the government was pursuing similar prosecutions against Caucasian, Hispanic, and Native-American defendants, albeit in limited numbers, belies a claim of discriminatory intent towards African-American defendants specifically.

The case of United States v. Colbert, No. 04-80026 (E.D.Mich. Oct. 7, 2005), which Thorpe contends is directly on point, does not alter our analysis. In Colbert, the district court convened a hearing on Colbert's motion to dismiss the indictment against him on the ground of selective prosecution. The hearing occurred after the district court in the present case had ordered discovery and dismissed the indictment against Thorpe. At the Colbert hearing, the government insisted that Colbert's case was not a PSN prosecution, and the district court found this fact dispositive in denying Colbert's motion to dismiss. In its brief in the present case, however, the government lists Colbert as one of several PSN cases in the Eastern District of Michigan where the defendant has alleged selective prosecution. Thorpe argues that this change in the government's characterization of the Colbert case-first as a non-PSN case, and later as a PSN case-constitutes “a poor attempt to cover up what they know is an unconstitutional practice.”

But even if we assume that the proceedings in Colbert add weight to Thorpe's similar claim of selective prosecution, those proceedings occurred after the district court in Thorpe's case had already granted discovery. The transcript of the Colbert hearing is therefore irrelevant to the question of whether the district court in this case abused its discretion in granting Thorpe discovery on his selective-prosecution claim. This does not mean, of course, that the Colbert case, or the Washtenaw County statistics, are of no use whatsoever to Thorpe. He still may use them to his advantage if he decides to further pursue his selective-prosecution claim on the merits despite our holding regarding his discovery request.

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[7] Notwithstanding the inapplicability of Colbert, Thorpe argues that requiring him to make a more affirmative showing of discriminatory intent without the benefit of discovery would be patently unfair:

As PSN is not a statutory scheme, and its guidelines for case selection for federal prosecution are unknown outside of the U.S. Attorney's Office, the Government has put all PSN defendants in a Catch-22: you have to prove the threshold with evidence of discriminatory intent to get discovery from the Government, but you cannot have access to any of the information necessary to prove (or to disprove) the threshold without discovery from the Government.

The Court in Armstrong, however, was well aware of precisely this conundrum, yet still found the “rigorous” standard for discovery to be justified: “The similarly situated requirement does not make a selective-prosecution claim impossible to prove.” Armstrong, 517 U.S. at 466, 116 S.Ct. 1480. To be sure, the burden that Armstrong imposes on a defendant seeking discovery is still quite heavy, but it is not, in the Court's words, “insuperable.” Id. at 470, 116 S.Ct. 1480.

In Armstrong's wake, numerous commentators and courts alike have questioned whether the Supreme Court's reassurance would prove hollow in practice. Most opined that it would, raising virtually the same arguments that Thorpe raises now on appeal. See, e.g., Anne Bowen Poulin, Prosecutorial Discretion and Selective Prosecution: Enforcing Protection After United States v. Armstrong, 34 Am.Crim. L.Rev. 1071, 1098 (1997) (“By requiring the defendant to produce specific evidence of an unprosecuted control group before granting discovery, the Court subjects the defendant to a ‘Catch 22’: the defendant needs discovery to obtain the information necessary to entitle the defendant to discovery.”); id. at 1073 (“[The Armstrong] holding creates a barrier few defendants are likely to surmount. Consequently, few selective prosecution claims will receive any meaningful judicial hearing.”); Hubbard v. United States, No. 04-80321, 2006 WL 1374047, at *1 (E.D.Mich. May 17, 2006) (“The discovery rule established in Armstrong places a nearly impossible burden on defendants claiming selective prosecution since they cannot prove their claim without discovery and cannot obtain discovery without mustering some evidence in support of their claim.”).

Despite this criticism, the Supreme Court in United States v. Bass, 536 U.S. 862, 122 S.Ct. 2389, 153 L.Ed.2d 769 (2002), summarily and unequivocally dispelled any notions that it would consider, much less reduce, the threshold for discovery that it first set forth in Armstrong. Reversing this court's judgment that the district court had not abused its discretion in granting Bass's motion for discovery, the Supreme Court in Bass issued a brief per curiam opinion that minced no words as to Armstrong's enduring validity:

In [ Armstrong ], we held that a defendant who seeks discovery on a claim of selective prosecution must show some evidence of both discriminatory effect and discriminatory intent···· Under Armstrong, therefore, because respondent failed to submit relevant evidence that similarly situated persons were treated differently, he was not entitled to discovery···· The Sixth Circuit's decision is contrary to Armstrong and threatens the “performance of a core executive constitutional function.” Armstrong, [517 U.S. at 465, 116 S.Ct. 1480]. For that reason, we reverse.

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Bass, 536 U.S. at 863-64, 122 S.Ct. 2389. Thorpe's impossibility argument, accordingly, is misplaced.

[8] We need only briefly consider Thorpe's further suggestion that we find “some evidence” of discriminatory intent simply because all of the PSN prosecutions in the Eastern District of Michigan arise from “a few select counties,” or precisely those counties with the highest proportion of African-Americans in the population. The Ninth Circuit's opinion in United States v. Turner, 104 F.3d 1180 (9th Cir.1997), is instructive. After staying the case pending the resolution of Armstrong in the Supreme Court, the Ninth Circuit held that the district court had abused its discretion in ordering discovery relating to the defendants' selective-prosecution claim. Similar to Thorpe in the present case, the Turner defendants had attempted to persuade the Ninth Circuit that “selection of a particular community for a particular enforcement operation constitutes racial discrimination if it is foreseeable that because of the ethnic composition of the community one race will necessarily provide most of the government's targets.” Id. at 1185. The Ninth Circuit thoroughly-and, we think, correctly-rejected this line of reasoning:

The defendants' hypothetical has a superficial attraction but is seriously flawed. It is not entirely unnatural for an observer noting ethnic identity to come to the conclusion that when almost all the defendants charged with a particular offense have a certain skin color or ethnic identity that a racial or ethnic prejudice must be at work in the selection. Such an observer, however, must not be very familiar with the demographic and occupational patterns of the United States. Despite our reputation as a melting pot, different neighborhoods and different occupations often attract distinct racial or ethnic groups; so that if a particular kind of crime comes into vogue it may well be a feature of a neighborhood or of an occupation marked by one or another ethnic or racial characteristic.

In effect, as applied in this case, the defendants' hypothetical is an argument that the minorities of the inner city of Los Angeles must be denied the protection of law enforcement by the federal government because the likely suspects are overwhelmingly apt to be members of the minority living in that area. The defense is a grave perversion of proper sensitivity to the civil liberty of minorities. If any policy of government had a racially discriminatory effect, it would be to deny law enforcement on the grounds of a specious claim of racial discrimination.

Id. at 1185-86.

Thorpe's related argument regarding the racial composition of the counties selected by the U.S. Attorney for participation in the PSN initiative in the Eastern District of Michigan is similarly unavailing. He presented no evidence, in other words, that these particular counties were selected on the basis of their racial composition as opposed to being selected because of their level of gun violence.

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[9] In any event, the district court's order granting Thorpe's discovery motion was clearly erroneous on its face. Notwithstanding the fact that the court ostensibly analyzed Thorpe's motion under the prima facie standard that applies to the ultimate merits, rather than under the less onerous “some evidence” standard that applies to discovery, the court's analysis did not support and, in fact, could not have supported its conclusion. The district court, in assessing the evidence of discriminatory intent, stated in no uncertain terms:

Defendant has not addressed the second element-that the prosecution was initiated with a discriminatory purpose···· There is a strong presumption that the prosecutor acted in good faith, to overcome that presumption clear and convincing evidence to the contrary must be presented···· Defendant has not provided any evidence to overcome the presumption of good faith. The second element of the prima facie case was not established.

So even if the court had applied the correct “some evidence” standard for discovery purposes, Thorpe could not have prevailed.

[10] The district court nonetheless granted discovery, relying solely on the fact that the government had produced some of the same documents requested by Thorpe for an in camera review in a different case ( United States v. Nixon, 315 F.Supp.2d 876 (E.D.Mich.2004) (opinion ordering discovery)), before a different judge (Judge Feikens), and regarding a different issue (whether any remedy existed in federal court for two PSN defendants whose counsel had rendered ineffective assistance relating to plea agreements offered to them in state court). Because Armstrong does not afford district courts the discretion to grant discovery in selective-prosecution cases where the rigorous “some evidence” standard has not been met, the granting of Thorpe's motion for discovery necessarily constituted an abuse of discretion. The district court's “supervisory powers” justification, set forth in its order dismissing the indictment against Thorpe, does not alter this conclusion for the related reason that validating it would effectively render Armstrong moot. Cf. Bank of Nova Scotia v. United States, 487 U.S. 250, 254, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988) (“[I]t is well established that even a sensible and efficient use of the supervisory power ··· is invalid if it conflicts with constitutional or statutory provisions.”) (citation and quotation marks omitted).


E. Thorpe's in camera argument
[11] Finally, Thorpe argues that an in camera review of the materials ordered by the district court for discovery adequately addresses the government's concerns regarding the disclosure of confidential information relating to its charging decisions, thereby rendering the discovery order harmless. The pre- Armstrong caselaw provides a degree of support for this argument. See, e.g., United States v. Oaks, 508 F.2d 1403, 1405 (9th Cir.1974) (noting that the district court, in ordering discovery pursuant to a selective-prosecution claim, “can minimize the risk to the government by holding the proceeding in camera and issuing appropriate protective orders”); see also Ponte v. Real, 471 U.S. 491, 514-15, 105 S.Ct. 2192, 85 L.Ed.2d 553 (1985) (Marshall, J., dissenting) (“The in camera solution has been widely recognized as the appropriate response to a variety of analogous disclosure clashes involving individual rights and government secrecy needs.”).

*13
In light of Armstrong and Bass, however, the in camera argument is insufficient to overcome the “some evidence” threshold for discovery in a selective-prosecution case. This court in Bass had upheld the district court's grant of discovery and remanded the case to allow the government to submit materials for the court's in camera review only. United States v. Bass, 266 F.3d 532, 540 (6th Cir.2001). The Supreme Court nonetheless reversed, making no mention of the in camera review requirement, much less conceding that such a review would be sufficient to mitigate the burden of discovery imposed on the government. See generally Bass, 536 U.S. 862, 122 S.Ct. 2389; cf. Armstrong, 517 U.S. at 469, 116 S.Ct. 1480 (“Discovery thus imposes many of the costs present when the Government must respond to a prima facie case of selective prosecution. It will divert prosecutors' resources and may disclose the Government's prosecutorial strategy.”). Thorpe's in camera argument, therefore, does not overcome the district court's abuse of discretion in granting his discovery motion.

[12] Thorpe also advances the related argument that the formal reporting requirements of the PSN program minimize whatever burden his discovery request might impose on the government. But the simple fact that local U.S. Attorneys in charge of implementing the PSN program report to the Department of Justice in Washington, D.C. on a regular basis does not by itself make the content of their reports public information that is accessible through court-ordered discovery.


F. Dismissal of the indictment
Because the district court's discovery order was improper, the court a fortiori had no proper basis to dismiss the indictment. Cf. Armstrong, 517 U.S. at 461 n. 2, 116 S.Ct. 1480 (“We have never determined whether dismissal of the indictment, or some other sanction, is the proper remedy if a court determines that a defendant has been the victim of prosecution on the basis of his race. Here, it was the government itself that suggested dismissal of the indictments to the district court so that an appeal might lie.”) (quotation marks omitted).


III. CONCLUSION
For all of the reasons set forth above, we REVERSE the judgment of the district court granting discovery, REINSTATE the indictment against the Thorpe, and REMAND the case to the district court for further proceedings consistent with this opinion.


U.S. v. Thorpe  L 3780591, *1 -13 (C.A.6  (C.A.6 (Mich.),2006)