United States v. McIntosh

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 00-50966

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID MCINTOSH,

Defendant-Appellant.
_________________________________________________________________

Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________

January 16, 2002

Before DUHÉ, WIENER, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Primarily at issue is whether a recent amendment to the United

States Sentencing Guidelines is a clarifying amendment and should

be applied retroactively. David McIntosh also claims, inter alia:

denial of due process and insufficient evidence. AFFIRMED.

I.

In 1993, McIntosh began employment at Austin Jones,

established by Sidney Katchem (a co-defendant who testified on

behalf of the Government) to solicit investments in oil and gas

wells. McIntosh was an officer of the company; he maintained the

bank account records and client files and was a signatory on the
bank accounts. And, along with Katchem, McIntosh developed a

telephonic solicitation.

Potential investors were informed: that invested funds were

fully guaranteed (that guarantee, however, depended upon Austin

Jones’ bank balance; according to Katchem, the balance was usually

“not much”); that 100 percent “of [an investor’s] funds would work

for them” (in fact, fees and commissions were deducted, totaling,

in some instances, between ten percent and one-third of the

investment; overall, approximately $330,000 was deducted); that

“they would have a continuing working interest in any wells that

were drilled” (Katchem testified that the investors had no such

interest); and that they were investing in a “low-risk” venture

(Katchem admitted probably only one investor recouped her

investment).

McIntosh was charged in a 25-count indictment with conspiracy,

mail and wire fraud, interstate transportation of fraudulently

taken property, and money laundering. Except for one wire fraud

count, he was found guilty on all counts.

II.

McIntosh claims: (1) ineffective assistance of counsel; (2)

a rushed trial denied him due process; (3) insufficient evidence

for his convictions for interstate transportation of fraudulently

taken property and the related conspiracy count; (4) his sentence

was based on facts not alleged in the indictment and proved to the

2
jury; (5) cumulative error; and (6) a reduced sentence is mandated

by a very recent amendment to the Sentencing Guidelines, made

effective post-sentencing.

A.

McIntosh asserts his counsel were ineffective because of:

lack of criminal trial experience; and not objecting to the

presentence report. He did not raise this claim in district court.

“A claim of ineffective assistance of counsel generally cannot

be reviewed on direct appeal unless it has been presented to the

district court.” United States v. Lampazianie, 251 F.3d 519, 523

(5th Cir. 2001). Accordingly, “we resolve claims of inadequate

representation on direct appeal only in rare cases where the record

allow[s] us to evaluate fairly the merits of the claim”. Id.

(internal quotation marks omitted; alteration in original).

The record is not sufficiently developed to address this

claim. Of course, it can be raised in a 28 U.S.C. § 2255 motion.

B.

According to McIntosh, the district court rushed his trial,

denying him due process. He claims the court’s “repetitive remarks

... to the jury ... were tantamount to a left-handed tacit

impression that ... McIntosh ha[d] ... no defense”.

McIntosh concedes he did not so object. Therefore, review is

only for plain error. See, e.g., United States v. Vasquez-Zamora,

3
253 F.3d 211, 213 (5th Cir. 2001); United States v. Marek, 238 F.3d

310, 315 (5th Cir.) (en banc), cert. denied, 122 S. Ct. 37 (2001).

Plain error occurs where a “clear” or “obvious” error affects

substantial rights. See United States v. Olano, 507 U.S. 725, 732-

35 (1993); United States v. Calverley, 37 F.3d 160, 162-64 (5th

Cir. 1994), cert. denied, 513 U.S. 1196 (1995). Even then, we have

discretion whether to correct the error and, generally, will not do

so unless it “seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings”. Olano, 507 U.S. at 736

(internal quotation marks omitted).

The trial began on a Monday. According to McIntosh, the

district judge rushed trial for completion by Thursday evening.

McIntosh first cites to the court’s stating “we have got to finish

... the trial part of [this case] by Thursday ... evening, because”

he had other matters scheduled for Friday. Contrary to the

suggestion in McIntosh’s brief, this statement was not made in the

presence of the jury.

In the presence of the jury, the court stated:

[I]t’s absolutely necessary that we finish the
trial of this case, if possible, by – the
evidence by the close of business on this
Thursday. That ... may mean that we have to
maybe start a little earlier in the morning
and/or go a little later in the evening if
necessary....

(Emphasis added.) Prior to opening statements, the court also

advised the jury: “So we hope to get all that done and have you

4
[the jury] deliberating on your verdict on or before Thursday

afternoon of this week”. (Emphasis added.)

The only other statement by the court in the presence of the

jury that possibly relates to a Thursday completion is:

So if everything – there’s 25 counts in
this indictment, and we have got to read
through each one of those and tell you a
little bit about the law as it affects those.
So it’s going to take a little while to go
through that tomorrow morning, but I would
hope that we could get everything done so that
we – you would be deliberating by lunchtime
tomorrow....

(Emphasis added.)

In United States v. Anderson, 528 F.2d 590, 592 (5th Cir.),

cert. denied, 429 U.S. 837 (1976), the defendant, like McIntosh,

maintained “the district court so hurried the trial along as to

remove itself from the role of impartiality and create an

impression of guilt in the minds of the jury”. (Internal quotation

marks omitted.) Our court held otherwise: “Taking in context the

several [referenced] comments of the judge ... it does not appear

that the court was doing anything more than shepherding along an

uncomplicated trial of fairly basic issues and shows only judicial

economy rather than prejudicial judicial intervention”. Id.

Here, there was no error, much less plain error. As in

Anderson, there was no prejudicial judicial intervention; the court

was trying to complete the trial within a reasonable time frame.

Indeed, its expressed desire to finish by a certain day was not an

5
ultimatum. Instead, it informed counsel at the beginning of trial

that, should they not finish by Thursday, they could do so after

taking a week off.

Moreover, McIntosh has not asserted that the court curtailed

the examination of any witness. In addition, it gave the usual

cautionary instructions to the jurors, such as: (1) they were to

base their verdict “solely upon the evidence”; (2) McIntosh was

“presumed by the law to be innocent”; and (3) they were not to

“assume from anything [the district judge] may have done or said

during the trial that [the district judge has] an opinion

concerning any of the issues in this case”.

C.

McIntosh does not make a sufficiency challenge to all counts

of conviction. For those contested (interstate transportation of

fraudulently taken property, in violation of 18 U.S.C. § 2314, and

the related conspiracy conviction), McIntosh moved for judgment of

acquittal at the close of the Government’s evidence. But, after

presenting evidence, he did not again so move.

“[W]hen the defendant moves for judgment of acquittal at the

close of the government’s case in chief, and defense evidence is

thereafter presented but the defendant fails to renew the motion at

the conclusion of all of the evidence, he waives objection to the

denial of his earlier motion.” United States v. Robles-Pantoja,

887 F.2d 1250, 1254 (5th Cir. 1989); see United States v. Delgado,

6
256 F.3d 264, 274 (5th Cir. 2001) (failure to renew motion at the

close of all evidence “waived any objection to the sufficiency of

the evidence”).

Accordingly, “our review is limited to determining whether

there was a manifest miscarriage of justice”. Delgado, 256 F.3d at

274 (internal quotation marks omitted). That occurs only where

“the record is devoid of evidence pointing to guilt or contains

evidence on a key element of the offense [that is] so tenuous that

a conviction would be shocking”. United States v. Cathey, 259 F.3d

365, 368 (5th Cir. 2001) (internal quotation marks omitted;

alteration in original).

1.

The elements for interstate transportation of fraudulently

taken property are: (1) the interstate transportation of; (2)

goods, merchandise, wares, money, or securities valued at $5,000 or

more; (3) with knowledge that such items “have been stolen,

converted, or taken by fraud”. Dowling v. United States, 473 U.S.

207, 214 (1985); 18 U.S.C. § 2314. McIntosh asserts the evidence

is deficient that he transported funds in interstate commerce and

knew they were procured by fraud. The record is not devoid of

evidence on this point, and such evidence is not tenuous, far from

it.

To “constitute a violation of [18 U.S.C. § 2314], it is not

necessary to show that [a defendant] actually ... transported

7
anything [himself]”. Pereira v. United States, 347 U.S. 1, 8

(1954). See Hubsch v. United States, 256 F.2d 820, 822 (5th Cir.

1958) (“causing interstate transportation is made a crime under 18

U.S.C.A. § 2314”) (emphasis added); see also United States v.

Newson, 531 F.2d 979, 981 (10th Cir. 1976) (“There is no

requirement of actual physical transportation by a defendant and it

is sufficient that a defendant cause the instrument to be

transported by the negotiation process.”).

For each of counts 8-15, charging such transportation, the

Government offered evidence that McIntosh caused funds to be

transported in interstate commerce by investors to Austin Jones in

Texas.* McIntosh developed the scripts to solicit investments,

hired telemarketers, trained them to pitch these investments to the

investors, and even made sales calls himself. Accordingly, these

activities are evidence that McIntosh caused the invested funds to

be transported in interstate commerce.

There is also evidence that McIntosh knew these funds were

procured by fraud. He was an Austin Jones officer; he maintained

the bank account records; the client files were under his

oversight; and he was a signatory on the bank accounts. As stated,

*
By count, the funds (checks) and their origination were: 8,
$30,000 - Florida; 9, $5,000 - Tennessee; 10, $9,000 - California;
11, $18,000 - Kansas; 12, $5,000 - Maryland; 13, $36,000 - Georgia;
14, $157,402.17 - Colorado; and 15, $288,000 - Georgia.

8
he developed the fraudulent telephonic solicitation, and he used

false names while making sales calls.

2.

McIntosh also asserts that the evidence was insufficient to

support his conviction for conspiracy to transport in interstate

commerce fraudulently taken property. Katchem’s testimony

constitutes evidence of the conspiracy, and this evidence is not

tenuous.

D.

McIntosh’s sentence was enhanced based upon his role as a

leader and organizer and upon the total value of the fraudulently

obtained funds. Although the sentence is still within the

statutory range, he claims error under Apprendi v. New Jersey, 530

U.S. 466 (2000), because these enhancement facts were neither

alleged in the indictment nor proved to the jury beyond a

reasonable doubt.

McIntosh raises this issue solely to preserve it for possible

future review. He concedes it is foreclosed by our precedent: no

Apprendi violation occurs where a fact used in sentencing that was

not alleged in an indictment and proved to a jury does not increase

the sentence beyond the statutory maximum. See United States v.

Keith, 230 F.3d 784, 787 (5th Cir. 2000), cert. denied, 531 U.S.

1182 (2001); United States v. Doggett, 230 F.3d 160, 165 (5th Cir.

2000), cert. denied, 531 U.S. 1177 (2001); United States v.

9
Meshack, 225 F.3d 556, 576 (5th Cir. 2000), cert. denied, 531 U.S.

1100 (2001).

E.

McIntosh also claims cumulative error. He has not established

any error; therefore, there is nothing to cumulate. See Yohey v.

Collins, 985 F.2d 222, 229 (5th Cir. 1993).

F.

Recent Amendment 634 to the United States Sentencing

Guidelines became effective after McIntosh’s sentencing. He

asserts it lowers the base offense levels for money laundering

convictions, and should be retroactively applied because, according

to McIntosh, it is a clarifying amendment. See, e.g., United

States v. Anderson, 5 F.3d 795, 802 (5th Cir. 1993) (“Amendments to

the guidelines ... intended only to clarify, rather than effect

substantive changes, may be considered even if not effective at the

time of the commission of the offense or at the time of

sentencing.”) (emphasis in original), cert. denied, 510 U.S. 1137

(1994).

We agree with the Government that the amendment is not a

clarifying, but is instead a substantive, amendment. Such an

amendment is not applied retroactively. See United States v.

Carrillo-Morales, 27 F.3d 1054, 1067 (5th Cir. 1994), cert. denied,

513 U.S. 1178 (1995); United States v. Aguilera-Zapata, 901 F.2d

1209, 1213-14 (5th Cir. 1990).

10
 Amendment 634 amended U.S.S.G. § 2S1.1 (“Laundering of

Monetary Instruments”) and deleted U.S.S.G. § 2S1.2 (“Engaging in

Monetary Transactions in Property Derived from Specified Unlawful

Activity”). UNITED STATES SENTENCING COMMISSION GUIDELINES MANUAL, SUPPLEMENT

TO APPENDIX C 229-36 (Nov. 2001). Under the prior version of §

2S1.1, the base offense level was 23 if convicted under 18 U.S.C.

§§ 1956(a)(1)(A), (a)(2)(A), or (a)(3)(A), or 20 otherwise.

U.S.S.G. § 2S1.1(a)(1) and (2) (Nov. 2000). Under the prior

version of § 2S1.2, the base offense level was 17. U.S.S.G. §

2S1.2(a) (Nov. 2000).

The current version of § 2S1.1, a combination of the prior

money laundering guidelines, is entitled “Laundering of Monetary

Instruments; Engaging in Monetary Transactions in Property Derived

from Unlawful Activity”, and provides a base offense level of

either: (1) the “offense level for the underlying offense from

which the laundered funds were derived”; or (2) eight. U.S.S.G. §

2S1.1 (Nov. 2001); UNITED STATES SENTENCING COMMISSION GUIDELINES MANUAL,

SUPPLEMENT TO APPENDIX C 233 (Nov. 2001). The combining of §§ 2S1.1

and 2S1.2 and the resulting change in the calculation of the base

offense level is a substantive change, not a clarification.

Moreover, the commentary to Amendment 634 does not state it is

intended to clarify. Instead, the substantive intent is reflected

in that commentary, which states in part:

The amendment responds in several ways to
concerns that the penalty structure existing

11
 prior to this amendment for such offenses did
not reflect adequately the culpability of the
defendant or the seriousness of the money
laundering conduct because the offense level
for money laundering was determined without
sufficient consideration of the defendant’s
involvement in, or the relative seriousness
of, the underlying offense.

UNITED STATES SENTENCING COMMISSION GUIDELINES MANUAL, SUPPLEMENT TO APPENDIX C

233-34 (Nov. 2001). As this language reflects, the amendment’s

purpose was to effect substantive changes in the punishment for

money laundering offenses based upon the underlying conduct.

Further evidence that the sentencing commission did not intend

Amendment 634 to be a clarifying change is that it is not included

in the list of amendments to be applied retroactively. See

U.S.S.G. § 1B1.10(c) (Nov. 2001).

III.

For the foregoing reasons, the judgment is

AFFIRMED.

12