Filed: Mar. 24, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4344 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DONOVAN ANTHONY MONCRIEFFE, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:07-cr-00177-CMH-1) Submitted: February 11, 2009 Decided: March 24, 2009 Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Chris
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4344 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DONOVAN ANTHONY MONCRIEFFE, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:07-cr-00177-CMH-1) Submitted: February 11, 2009 Decided: March 24, 2009 Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Christ..
More
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4344
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DONOVAN ANTHONY MONCRIEFFE,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:07-cr-00177-CMH-1)
Submitted: February 11, 2009 Decided: March 24, 2009
Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Christopher R. K. Leibig, Andrea L. Moseley, ZWERLING, LEIBIG &
MOSELEY, P.C., Alexandria, Virginia, for Appellant. Chuck
Rosenberg, United States Attorney, Daniel J. Grooms, Edmund P.
Power, Assistant United States Attorneys, Alexandria, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donovan Anthony Moncrieffe was convicted after a jury
trial of racketeering conspiracy, in violation of 18 U.S.C.
§ 1962(d) (2006), and conspiracy to launder money, in violation
of 18 U.S.C. § 1956(h) (2006). The district court sentenced
Moncrieffe to thirty-three months’ imprisonment, and he timely
appealed. We affirm.
On appeal, Moncrieffe first argues that the district
court erred in denying his motion for judgment of acquittal as
to the racketeering count because the Government failed to prove
that he knew of the entirety of any of the three overarching
purposes of the conspiracy alleged in the indictment. This
court reviews the district court’s decision to deny a Rule 29
motion de novo. United States v. Smith, 451 F.3d 209, 216 (4th
Cir. 2006). This court will affirm the denial of a Rule 29
motion if “viewing the evidence in the light most favorable to
the [G]overnment, any rational trier of facts could have found
the defendant guilty beyond a reasonable doubt.” United States
v. Tresvant,
677 F.2d 1018, 1021 (4th Cir. 1982). This court
reviews both direct and circumstantial evidence, and permits the
“government the benefit of all reasonable inferences from the
facts proven to those sought to be established.”
Tresvant, 677
F.2d at 1021.
2
Our review of the record leads us to conclude that the
evidence was sufficient to establish Moncrieffe’s participation
in at least two of the purposes of the conspiracy - both the
illegal gambling and money laundering, and therefore, the
Government was not required to prove he participated in the
other conspiratorial acts. United States v. Banks, 10 F.3d
1044, 1054 (4th Cir. 1993).
Moncrieffe next claims the district court erred in
denying his motion for judgment of acquittal on the conspiracy
to launder money count. Moncrieffe relies on the recent Supreme
Court plurality opinion United States v. Santos, 128 S. Ct. 2020
(2008) (Stevens, J., concurring). As Santos was decided after
Moncrieffe’s trial, and Moncrieffe did not raise this particular
insufficiency claim in the district court, his claim is reviewed
for plain error. See United States v. Wallace,
515 F.3d 327,
331-32 (4th Cir. 2008); United States v. Beaver,
515 F.3d 730,
741 (7th Cir. 2008). Plain error requires Moncrieffe to
establish that: (1) there was error; (2) the error was “plain;”
and (3) the error affected his substantial rights. United
States v. Olano,
507 U.S. 725, 732 (1993). Even if he makes
this showing, “Rule 52(b) leaves the decision to correct the
forfeited error within the sound discretion of the court of
appeals, and the court should not exercise that discretion
unless the error seriously affect[s] the fairness, integrity, or
3
public reputation of judicial proceedings.” Id. (quoting
Untied States v. Young,
470 U.S. 1, 15 (1985) (internal
quotations omitted)).
We reject Moncrieffe’s claim. First, Moncrieffe’s
case is factually distinguishable from Santos. Unlike the
situation in Santos, there was no possibility that Moncrieffe’s
act of supplying payroll checks and false W-2s merged the
conduct of the Bansals’ illegal gambling and bookmaking with the
laundering of the profits from that gambling. Moreover, even
under the Santos “profits” definition of “proceeds,” Moncrieffe
was properly convicted of conspiring to violate the money
laundering statute because the “no-show” jobs and false W-2
forms Moncrieffe provided constitute evidence from which a
reasonable fact-finder could have found that Moncrieffe
laundered the profits of the Bansals’ gambling operation. 1
Accordingly, Moncrieffe’s second argument is without merit.
Moncrieffe next alleges that the district court erred
in limiting his closing argument to twenty minutes. “It is
axiomatic that the limitation of time for arguments of counsel
1
Moncrieffe argues that the Government failed to establish
that funds loaned to him by the Bansals were the proceeds or
profits of their gambling operation. That Moncrieffe may have
also been a victim of the Bansals’ loan sharking operation is
irrelevant to his money laundering conviction.
4
is within the sound discretion of the trial judge.” Butler v.
United States, 317 F.2d 249, 257 (4th Cir. 1963). This court
will reverse a district court’s decision regarding closing
argument only “when there is a clear abuse of its discretion.”
United States v. Rhynes,
196 F.3d 207, 236 (4th Cir. 1999),
vacated in part on other grounds on reh’g en banc,
218 F.3d 310
(4th Cir. 2000).
The record indicates that defense counsel’s inability
to cover every point in his closing argument resulted, not from
a “clear abuse of discretion” by the district court, but rather
from counsel’s inability to conform to the district court’s time
limitation. We conclude that the district court did not abuse
its discretion in limiting Moncrieffe’s closing argument. 2
Rhynes, 196 F.3d at 236-37 (citation omitted).
Moncrieffe next alleges the district court committed
prejudicial errors by rejecting certain of his proposed jury
instructions. A district court’s refusal to give a requested
instruction is reviewed for abuse of discretion. United States
v. Brooks, 928 F.2d 1403, 1408 (4th Cir. 1991). A district
court’s refusal to give an instruction “is reversible error only
if the instruction (1) was correct; (2) was not substantially
2
We note that the district court limited the Government
even more severely, restricting it to a total of fifteen minutes
for both closing argument and rebuttal.
5
covered by the court’s charge to the jury; and (3) dealt with
some point in the trial so important, that failure to give the
requested instruction seriously impaired the defendant’s ability
to conduct his defense.” United States v. Patterson, 150 F.3d
382, 388 (4th Cir. 1998).
Moncrieffe first argues that the district court erred
in refusing to instruct the jury that the purposes of the RICO
conspiracy were contained in paragraph seventeen of the
indictment. Moncrieffe’s argument fails because his proposed
instructions were substantially covered by the court’s
instructions.
Moncrieffe next complains that the district court
committed error in refusing to give his proposed instructions
numbered 20 and 20A. According to Moncrieffe, the district
court never explicitly defined the critical terms in Virginia
Code § 18.2-328 or told the jury that it must find a violation
of § 18.2-328 to convict him of the RICO conspiracy. We have
reviewed the transcript and conclude that Moncrieffe’s argument
fails because the district court’s instructions included all of
the aspects of illegal gambling that the jury needed to find in
order to convict Moncrieffe of the RICO conspiracy and provided,
as an example of illegal gambling, the only portion of
§ 18.2-328 that the Government alleged had been violated.
Moncrieffe’s two proposed instructions would have instructed the
6
jury on portions of the Virginia statute not alleged to have
been violated and on an exception to the Virginia statute that
the evidence at trial did not support. Accordingly, the
district court did not err in rejecting Moncrieffe’s
instructions 20 and 20A.
Moncrieffe next claims that the district court erred
in denying his requested instruction regarding the testimony of
an admitted perjurer. The district court substantially covered
Moncrieffe’s requested instruction through its instructions on
witnesses credibility. Further, there was no impairment to
Moncrieffe’s defense as he was able to fully argue to the jury
the credibility and admitted acts of perjury by the witness.
Moncrieffe next argues that the district court erred
in denying his good faith defense instruction. Moncrieffe’s
argument regarding a good faith defense is simply a claim of
lack of knowledge or intent of the underlying criminal activity
or the goals of the conspiracies. The district court gave
detailed instructions related to the mens rea requirements for
both counts, and was, therefore, not required to give
Moncrieffe’s good faith defense instruction. United States v.
Mancuso, 42 F.3d 836, 847 (4th Cir. 1994).
In his last argument related to jury instructions,
Moncrieffe claims that, based on Santos, the district court
erred in instructing the jury on the meaning of “proceeds” in
7
the money laundering statute. Moncrieffe failed to object to
the district court’s instruction, and therefore his claim is
reviewed on appeal for plain error.
Even if we assume that the district court erred in its
instruction, Moncrieffe fails to establish that he is entitled
to relief. Moncrieffe cannot show that any error by the
district court was plain because at the time of Moncrieffe’s
trial, the definition of “proceeds” in § 1956 was unsettled.
See Olano, 507 U.S. at 734; United States v. Scialabba,
282 F.3d
475, 475 (7th Cir. 2002); United States v. Grasso,
381 F.3d 160,
167 (3d Cir. 2004), vacated on other grounds, Grasso v. United
States,
544 U.S. 945 (2005). Also, Moncrieffe cannot establish
that the error affected his substantial rights because there was
overwhelming evidence that he assisted the Bansals in disguising
their illegal income. Johnson v. United States,
520 U.S. 461,
470 (1997). Accordingly, this claim fails.
Moncrieffe next argues that the district court erred
in not providing the jury with a written copy of the jury
instructions for their reference during their deliberations.
The decision to provide a set of written instructions to the
jury is within the sound discretion of the trial court and will
not be reversed absent an abuse of that discretion. See United
States v. Conley, 503 F.2d 520, 522 (8th Cir. 1974); United
States v. Parent,
954 F.2d 23, 24 n.1 (1st Cir. 1992); United
8
States v. Smith, 452 F.3d 323, 332 (4th Cir. 2006). This court
has stated that “we presume that a properly instructed jury has
acted in a manner consistent with the instructions.” United
States v. Alerre,
430 F.3d 681, 692 (4th Cir. 2005). At no
point did the jury express confusion or ask to be reinstructed.
In light of these facts, Moncrieffe fails to establish error by
the district court.
Moncrieffe next raises several claims related to
sentencing. Following United States v. Booker, 543 U.S. 220
(2005), a district court must engage in a multi-step process at
sentencing. First, it must calculate the appropriate Guidelines
range. It must then consider the resulting range in conjunction
with the factors set forth in 18 U.S.C. § 3553(a) (2006), and
determine an appropriate sentence.
Appellate review of a district court’s imposition of a
sentence is for abuse of discretion. Gall v. United States,
128 S. Ct. 586, 597 (2007); see also United States v. Pauley,
511 F.3d 468, 473 (4th Cir. 2007). The appellate court must
first ensure that the district court committed no procedural
error, such as failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately
explain the chosen sentence - including an explanation for any
9
deviation from the Guidelines range. Gall, 128 S. Ct. at 597.
If there are no procedural errors, the appellate court
then considers the substantive reasonableness of the sentence.
Id. A substantive reasonableness review entails taking into
account the totality of the circumstances, including the extent
of any variance from the Guidelines range.
Pauley, 511 F.3d at
473 (quotations and citation omitted). Even if the reviewing
court would have reached a different sentence result on its own,
this fact alone is insufficient to justify reversal of the
district court.
Id. at 474.
Moncrieffe first alleges that the district court
committed procedural error in imposing his sentence by failing
to adequately address his argument at sentencing or explain the
basis for his sentence. Although the district court was terse,
the context and record make clear the court considered and
rejected Moncrieffe’s argument based on the Government’s
response. Rita v. United States,
127 S. Ct. 2456, 2469 (2007).
Moncrieffe, therefore, fails to show the district court
committed procedural error in announcing its reason for his
sentence.
Moncrieffe next alleges the district court committed
procedural error in calculating his advisory Guidelines range on
the money laundering count. We have reviewed the sentencing
transcript and reject Moncrieffe’s argument. Moreover, any such
10
error would be irrelevant because, under the grouping rules, his
base offense level was established by his RICO conviction and
not his money laundering conviction.
Finally, Moncrieffe argues his sentence was
substantively unreasonable in that it created unwarranted
sentencing disparities among his fellow co-defendants.
Moncrieffe attempts to compare his sentence to those of
co-defendants who cooperated or were acquitted of charges of
which he was convicted. This court may presume a sentence
within the advisory Guidelines range is reasonable, and
Moncrieffe has failed to demonstrate that such a presumption is
unwarranted here. Rita, 127 S. Ct. 2459.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument as the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
11
