United States v. Boothe

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________________

Nos. 94-20617 & 96-20619 _______________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KELLY LYN BOOTHE,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (CR-H-93-257-4) _________________________________________________________________ October 24, 1996 Before KING, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Kelly Lyn Boothe and his codefendants James Aaron Martin and

Ambrose Onye Esogbue appealed their convictions for conspiracy,

wire fraud, and money laundering. We remanded Boothe’s appeal

because the district court had not ruled on his motion for new

trial. The district court subsequently denied the motion, and

now Boothe’s appeal is properly before this court. As the facts

are set out in our first opinion, we will not repeat them here.

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. Boothe argues on appeal that the trial court erred in

denying his motions for continuance and for a new trial and erred

in its application of the United States Sentencing Guidelines.

Boothe also argues that the trial court erred in refusing to

allow the impeachment of a witness, Steven Overstreet, and in its

questioning of a witness from the bench. However, Boothe’s

codefendants asserted these later points, and we adopt here our

prior disposition for the government.1

Motion for Continuance

Boothe contends that the trial court erred in denying his

requests for continuance. The granting or denial of a motion for

continuance is entrusted to the trial judge’s sound discretion

and will not be reversed absent abuse of discretion. United

States v. Jackson, 978 F.2d 903, 911 (5th Cir. 1992), cert.

denied, 508 U.S. 945, and cert. denied, 509 U.S. 930 (1993);

United States v. Shaw, 920 F.2d 1225, 1230 (5th Cir.), cert.

denied, 500 U.S. 926 (1991). “[T]he question is whether the

district court abused its discretion by unreasonably and

arbitrarily insisting on an expeditious trial.” Jackson, 978

F.2d at 912; accord Morris v. Slappy, 461 U.S. 1, 12 (1983).

1 In support of his contention that the trial court erred in questioning a witness, Boothe points to one additional question not mentioned by the other codefendants. However, it is similar in nature to the other questions and does not affect the analysis made in our previous decision.

2 Furthermore, Boothe must show that he was “materially prejudiced

by the lack of preparation time.” Jackson, 978 F.2d at 912.

Harry Loftus was Boothe’s attorney at least from Boothe’s

arraignment on February 10, 1994. The trial date was set for

March 15. On March 1, Loftus filed a motion for continuance for

seventy-five days, asserting that he had not had a chance to

proceed with discovery and that this was a complex case with a

“voluminous amount” of materials. At the pretrial conference on

March 8, Loftus argued in support of his continuance motion,

contending that because of the volume of paperwork he would not

be prepared for trial for at least thirty days. The government

opposed the motion, even though the prosecutor conceded “that

there is a large volume of paper in this case and rather complex

transactions underlying the case.” The court granted the motion

in part by granting a one week continuance and resetting the

trial for March 22.

On March 22, Loftus made a proffer of comments which Boothe

wished to have before the court:

MR. LOFTUS: Our position is that based upon the amount of time that Mr. Boothe and I have been given to prepare the case and the fact that I was ill at the time when we first started out, I didn’t inform Mr. Booth of that. I just finished up the chemotherapy that I’ve been taking since back before the first of February. We have been working diligently and there just aren’t enough hours in the day for us to get prepared in such a short period of time, and that I’m a solo practitioner. And Mr. Boothe is, I think, very afraid that he’s not going to get a fair shake through my representation.

3 The government made no response at that time.

The trial was delayed because of court business. On March

31, Boothe made another motion for continuance in order to obtain

new counsel. Boothe had expressed his belief that Loftus could

not adequately represent him due to Loftus’s illness. The court

questioned Loftus as follows:

THE COURT: Mr. Loftus, do you feel you are physically unable to try a case?

MR. LOFTUS: No, Your Honor.

THE COURT: You’re okay to that extent?

MR. LOFTUS: I have a clean bill of health from my doctor.

THE COURT: All right. . . .

. . . .

THE COURT: Let me ask you this, Mr. Loftus, do you think you’re capable of proceeding and doing a workmanlike job as an officer of the Court to defend this case [given that it] won’t even be going early next week, it would probably be mid next week based upon the case I now have in trial?

MR. LOFTUS: Yes, Your Honor, I’m ready. But if my client doesn’t have any more confidence in me than to send me a letter and request this, then he would not feel secure and it would just pile up on me.

The trial judge then questioned Loftus on his availability to

communicate with Boothe regarding the trial, and Loftus indicated

that they had been very diligent in conferring. The trial court

also noted that Loftus “has been around a long time as a member

of the bar of this court.”

4 The trial court then decided to let the prosecutor ask

Boothe questions as a vehicle for Boothe to voice his concerns

about Loftus’s ability to represent him:

MS. HARMON: Mr. Boothe, do you have a conflict with your counsel so serious to create a total lack of communication with him such that he would not be able to present an adequate defense?

MR. BOOTHE: My counsel and myself get along very well and I respect him. However, I do have some concerns with his health. I had an uncle that suffered from cancer—

THE COURT: I can’t hear you.

MR. BOOTHE: My counsel and myself have no personality conflicts. I have concern about his health and his ability to undergo perhaps a lengthy trial with a lot of information. I had an uncle who suffered from cancer and who was treated with chemotherapy. I recall very vividly how that would affect his memory at times and he would get exhausted. My position is that I just—I’m 28. The rest of my life is before me one way or the other here in this courtroom.

MS. HARMON: I understand, sir, and you did say that in your letter. The answer to the first question is, no, you do not have a lack of communication to prevent him from presenting an adequate defense? That would be no?

MR. BOOTHE: No personality conflict.

MS. HARMON: Or lack of communication?

MR. BOOTHE: No, we communicate well.

MS. HARMON: All right. Then my second and last question would be, is it your belief that Mr. Loftus is currently experiencing problems, health problems or emotional problems or mental problems so severe as to call into doubt his ability to render competent assistance at trial, or is this something you’re afraid of or foresee during the trial?

MS. BOOTHE: I don’t know the exact extent of Mr. Loftus’ health. However, my position is, once I’m in

5 this thing and I’m found guilty or not guilty, it’s a little late for me to say, well, then perhaps his physical state was a little worse than I presumed. I just don’t feel like I can afford to take that chance. If this were a civil proceeding, that would be different.

MS. HARMON: So your concern is what might happen in the future; is that correct, sir?

MR. BOOTHE: Beginning with the trial.

The trial court then denied Boothe’s motion.

It is apparent from the record that the trial court gave due

consideration to the issue. We cannot say that the trial court

acted unreasonably and arbitrarily. Boothe admitted that his

concerns were speculative and that he did not specifically know

of a current health problem that would impair Loftus’s abilities.

In the March 31 hearing regarding Boothe’s motion, Loftus clearly

and unequivocally indicated that he was ready to proceed to

trial. “In the face of an unequivocal and uncontradicted

statement by a responsible officer of the court that he was fully

prepared and ‘ready’ for trial, it was far from an abuse of

discretion to deny a continuance.” Slappy, 461 U.S. at 12.

Especially given Loftus’s long-time experience as a trial

attorney, the trial court was entitled to rely on Loftus’s

judgment that he was ready for trial.

Boothe argues that given Loftus’s prior statements that he

needed more time, the trial court should have “appreciated the

need to accommodate the appellant.” After working on the case

6 for several days, and considering that the trial would not start

for several more days, Loftus was certainly entitled to change

his prior assessment that he was not ready for trial. In effect,

Boothe is asking us to second guess the trial court’s refusal to

second guess Loftus’s unequivocal statement as an officer of the

court that he was ready for trial. That goes too far. The trial

judge did not act unreasonably and arbitrarily in denying

Boothe’s motion for continuance, and thus we find no abuse of

discretion.

Motion for New Trial

Boothe moved for a new trial on the basis that he was denied

effective assistance of counsel. In support of this motion,

Boothe submitted an affidavit indicating that when he found out

about Loftus’s cancer he “lost confidence in him,” that he felt

that Loftus was unprepared at trial, and that he did not testify

because he lost confidence in Loftus. The government apparently

filed no response, and the trial court denied the motion after we

previously remanded Boothe’s appeal.

We review the trial court’s ruling on a motion for new trial

for abuse of discretion. United States v. Logan, 861 F.2d 859,

865 (5th Cir. 1988). Logan held that the standard for evaluating

a motion for new trial based on ineffective assistance of counsel

is the basic test for ineffective assistance of counsel set forth

7 in Strickland v. Washington, 466 U.S. 668 (1984).2 The

Strickland test requires, inter alia, that the defendant show

that “‘the decision reached would reasonably likely have been

different absent the errors.’” Logan, 861 F.2d at 864 (quoting

Strickland). Boothe’s motion for new trial is supported only by

a cursory affidavit, and Boothe never even asserts that absent

his attorney’s alleged deficiences, the result of his trial would

likely have been different. Thus, the district court did not

abuse its discretion in refusing to grant Boothe’s motion for new

trial.

Sentencing

Boothe challenges his sentence for money laundering (counts

nine and ten), claiming that the sentencing court should have

determined his base offense level in reference to United States

Sentencing Guidelines (“USSG”) § 2F1.1, the fraud guideline,

rather than § 2S1.1, the money laundering guideline, because his

conduct was atypical of money laundering in that it was simply

2 Boothe argues that the rule in Logan should not apply in this case for two reasons. First, he quarrels with the wisdom of Logan. However, a panel of this court may not overrule the decision of a prior panel in the absence of an en banc reconsideration or a superseding decision of the Supreme Court. Floors Unlimited, Inc. v. Fieldcrest Cannon, Inc., 55 F.3d 181, 185 (5th Cir. 1995). Second, he argues that his ineffective assistance claim is not typical, and that his “unusual circumstances” merit a different rule. Boothe cites no authority for this proposition, and we are not persuaded that his circumstances are so unusual as to warrant a departure from the clear rule set forth in Logan.

8 the expenditure of fraud proceeds. Appendix A to USSG indicates

that “[i]f, in an atypical case, the guideline section indicated

for the statute of conviction is inappropriate because of the

particular conduct involved, use the guideline section most

applicable to the nature of the offense conduct charged in the

count of which the defendant was convicted.”

A sentencing court's factual findings must be supported by a

preponderance of the evidence, and we review such findings under

the clearly erroneous standard. The sentencing court's

interpretations of the guidelines, being conclusions of law, are

reviewed de novo. United States v. McCaskey, 9 F.3d 368, 372

(5th Cir. 1993), cert. denied, 114 S. Ct. 1565 (1994).

The district court correctly applied the USSG in computing

Boothe's sentence. The court, following the presentence report,

grouped Boothe's convictions and determined his offense level for

the most serious counts—the money laundering convictions under 18

U.S.C. § 1956(a)(1)(A)(i)—in compliance with USSG § 3D1.2 and

3D1.3. The base offense level was 23 because of the $54,500

amount of funds laundered. See USSG § 2S1.1(a). Boothe has

alleged no specific facts supporting his argument that his

conduct was atypical of money laundering. Furthermore, Boothe

has not challenged his money laundering conviction, where the

jury implicitly found, as per the trial court’s instructions,

that Boothe conducted financial transactions involving proceeds

9 from unlawful activity “with the intent to promote the carrying

on” of the activity. According to the USSG, that type of conduct

is the very conduct Congress intended to prevent. See USSG §

2S1.1 comment. Thus, Boothe’s argument is without merit.

Conclusion

For the foregoing reasons, we AFFIRM.