United States v. Cobleigh

75 F.3d 242
Court of Appeals for the Sixth Circuit·Decided February 2, 1996·No. Nos. 94-2219, 94-2221, 94-2268, 94-2327 and 94-2328·Published·Cited by 61 cases

Opinion

FORESTER, District Judge.

The appellants, Michael A. Cobleigh, Dick C. Cook, David A. Frazee, Willis E. Clark, and Donald E. Clark, appeal their convictions on various charges of conspiracy, wire fraud, and bankruptcy fraud. Additionally, Cook, Frazee, W. Clark, and D. Clark appeal their sentences. We affirm.

I

On April 13, 1994, a federal grand jury returned a thirty-eight count indictment against Cobleigh, Cook, Frazee, W. Clark, D. Clark, Katherine D. Clark, Phillip L. Lindle, John R. Bond, Daniel S. Scribner, and Annette M. Moody, charging them variously with wire fraud, bankruptcy fraud, and conspiracy to commit wire fraud. The “bustout” scheme in question involved setting up a wholesale business at a temporary locátion, placing orders by telephone to legitimate businesses, taking delivery of merchandise shipped on credit, disposing of the goods received at below fair market value, and making no or only minimal payments for the goods received on credit. After operating at a given location for a short period, the “business” would abruptly close without notice, usually with a balance due on the defendants’ rental or lease agreement. A new wholesale “business” under a different name, but operated by one or more of the defendants named [246]*246in the indictment, would then open at a different location.

In order to facilitate their “bustout” scheme, credit references were necessary to induce suppliers to ship merchandise to the bogus businesses on credit. Members of the conspiracy gave false credit references for the businesses and made fraudulent assurances to creditors for the purpose of forestalling collection efforts. Creating the illusion of reliable credit references was essential to the success of the sham operation.

Two of the codefendants, Phillip Lindle and Daniel Scribner, pled guilty prior to trial and testified against the remaining eight defendants who proceeded to trial. During the trial, the district court repeatedly instructed the jury that it must give each defendant separate consideration. On June 30, 1994, the jury returned a verdict of guilty against all five of the appellants on the conspiracy charge. While the jury acquitted several of the defendants of specific counts, Cobleigh was convicted on one count of wire fraud and one count of bankruptcy fraud, and was sentenced to concurrent 57 month terms of imprisonment, 3 years of supervised release, and a fine of $12,500.00; W. Clark was convicted of two counts of wire fraud, and was sentenced to concurrent 38 month terms of imprisonment, 3 years of supervised release, and a fine of $7,500.00; D. Clark was convicted of eight counts of wire fraud, and was sentenced to concurrent 60 month terms of imprisonment and 3 years of supervised release; Frazee was acquitted of all other charges and was sentenced to a 24 month term of imprisonment, followed by 3 years of supervised release on the conspiracy conviction. Cook, who was also acquitted of all other charges, was sentenced to a 39 month term of imprisonment, 3 years supervised release, and a fine of $7,500.00 on the conspiracy conviction. Bond did not appeal his conviction and sentence. K. Clark and Moody were placed on a consolidated, expedited appeal schedule due to the brevity of their sentences. Their convictions were affirmed in United States v. Burton, 65 F.3d 169, 1995 WL 506994 (6th Cir.1995). The appellants filed timely notices of appeal.

II

The appellants assert the following issues on appeal:

(1) Whether prosecutorial misconduct deprived the appellants of a fair trial;
(2) Whether the district court erred in denying the appellants’ motions for severance;
(3) Whether the evidence was sufficient to convict Cobleigh, Frazee, and W. Clark of conspiracy;
(4) Whether the district court improperly admitted evidence challenged by Cobleigh, Cook, and Frazee;
(5) Whether alleged cumulative error deprived Frazee of due process of law;
(6) Whether Cook, Frazee, and W. Clark were sentenced in accordance with the Sentencing Guidelines; and
(7) Whether perjured testimony was submitted to the grand jury.

Each of these issues will be addressed below.

III

A. PROSECUTORIAL MISCONDUCT

The appellants argue that several statements made by the government during the course of the trial were so improper and inflammatory that a mistrial was warranted. In support of their argument, the appellants point to the following remarks made by the prosecutor:

Opening Statement
1) collective reference to “thieves” and “swindlers”
2) types of defenses in “cases like this
3) defense arguments may be “dressed up a little ...”
Closing Argument
4) evidence as “unrefuted” or “unrebutted”
5) allegation that Cobleigh “never filed a state sales tax return”
Rebuttal
6) two comments suggesting that defense counsel hoped to succeed in confusing [247]*247and/or distracting the jury so that their clients would be acquitted as a result
7) single reference to “the defense side of the aisle”
8) “defenses are really limited in cases like this ...”
9) the alleged “sarcastic tone” of a comment regarding a defense of being charged with the “wrong conspiracy”
10) “At least Lindle and Scribner ... plead guilty to conspiracy”
11) reference to the grand jury’s decision to indict
12) “we feel that the evidence has substantiated their involvement under the law that the judge has given you”

As a general rule, “a criminal conviction is not to be lightly overturned on the basis of a prosecutor’s comments standing alone, for the statements or conduct must be viewed in context.” United States v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 1044, 84 L.Ed.2d 1 (1985). This Court recently constructed a framework to review claims of prosecutorial misconduct. United States v. Carroll, 26 F.3d 1380, 1384-90 (6th Cir.1994). First, the court should determine if the prosecutor’s statements were improper. Id.; see also United States v. Bess, 593 F.2d 749 (6th Cir.1979). Then, if the statements were improper, the court must determine if the impropriety was flagrant under United States v. Leon, 534 F.2d 667 (6th Cir.1976). Carroll, 26 F.3d at 1385. To determine flagrancy, the court should consider four factors:

(1) whether the remarks tended to mislead the jury or to prejudice the accused [including whether the trial judge gave an appropriate cautionary instruction to the jury];
(2) whether they were isolated or extensive;

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United States v. Cobleigh, 75 F.3d 242 (6th Cir. 1996).

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