United States v. Exarhos

135 F.3d 723, 1998 U.S. App. LEXIS 2625
Court of Appeals for the Eleventh Circuit·Decided February 17, 1998·No. 94-4645, 94-4744·Published·Cited by 21 cases

Opinions

WELLFORD, Senior Circuit Judge:

A five-count indictment charged Paul Morrison, Nelson Hernandez, and Michael Exar-hos with the following offenses:

Count 1. The defendants conspired in violation of 18 U.S.C. § 371 to:
a. remove and/or alter V.I.N. numbers in violation of 18 U.S.C. § 511;
b. possess stolen vehicles and parts, knowing that the V.I.N. numbers had been altered, with intent to sell or otherwise dispose of such vehicles or parts, in violation of 18 U.S.C. § 2321; and,
c. export stolen vehicles in violation of 18 U.S.C. § 553(a).
[726]*726Count 2. Defendants Morrison and Exar-hos possessed a vehicle part (Porsche engine) with intent to sell or otherwise dispose of it in violation of 18 U.S.C. § 2321 and 18 U.S.C. § 2.
Count 3. Defendants Morrison and Exar-hos possessed a vehicle part (another Porsche engine) with intent to sell or otherwise dispose of it in violation of 18 U.S.C. § 2321 and 18 U.S.C. § 2.
Count 4. Defendants Morrison and Exar-hos possessed a vehicle part (Porsche transmission) with intent to sell or otherwise dispose of it in violation of 18 U.S.C. § 2321 and 18 U.S.C. § 2.
Count 5. Defendant Morrison possessed vehicle parts (Porsche body parts) with intent to sell or otherwise dispose of them in violation of 18 U.S.C. §/2321 and 18 U.S.C. § 2.

After a jury trial, in which rib defendant testified, defendant Hernandez was convicted on the count one conspiracy charge, the sole count in which he was charged. Defendant Morrison was convicted on counts one and five, and acquitted on counts two, three, and four. Defendant Exarhos, by contrast, was acquitted of the count one conspiracy charge, and convicted on counts two, three, and four.

Defendant Exarhos filed a late notice of appeal, but after remand by this court, the district court allowed the appeal to go forward, finding “excusable neglect.” Among other assertions of error, Exarhos contends that the indictment against him should have been dismissed because it was based, in part, on false evidence. The government also appealed, challenging the district court’s calculation of Hernandez and Morrison’s sentences. Specifically, the government argues that the district court failed to account for the entire value of the stolen vehicles in calculating the sentences, limiting itself instead to consideration of the value of the parts only. Finally, defendants Hernandez and Morrison cross-appeal, claiming several sentencing errors and arguing that the prosecution improperly commented during closing argument on their silence.

I. DISMISSAL OF THE INDICTMENT

Defendant Exarhos claims that his conviction should be overturned because false evidence was presented to the grand jury. In his brief, defendant Hernandez incorporates this argument by simply referring to defendant Exarhos’ brief. We believe, however, that this issue is fact-specific and relates only to defendant Exarhos, whose contacts with a witness, Gus Nader, form the factual basis for the claim.

On two separate occasions, Nader purchased a stolen Porsche engine from the defendants, paying Exarhos in part by check and in part by cash. Aware of the pending investigation of the defendants, Nader falsified the two bills of sale, forging defendant Exarhos’ name on each. Nader later admitted that he forged the documents because he feared possible criminal prosecution himself. Before that admission, however, these altered documents had been turned over to detective Leslie Cravens, who testified before the grand jury as to their existence. However, there is absolutely no indication that the government was aware of Nader’s actions at the time it presented the case to the grand jury. Indeed, after becoming privy to Nader’s falsification, the prosecution refused to use the documents as part of its case at trial, and notified defense counsel of Nader’s actions. At that point, Exarhos moved to have the indictment dismissed, but the district court denied his motion.

A court may not dismiss an indictment, even for prosecutorial misconduct, without a showing “‘that the violation substantially influenced the grand jury’s decision to indict.’ ” Bank of Nova Scotia v. United States, 487 U.S. 250, 256, 108 S.Ct. 2369, 2374, 101 L.Ed.2d 228 (1988), quoting United States v. Mechanik, 475 U.S. 66, 78, 106 S.Ct. 938, 945, 89 L.Ed.2d 50 (1986) (O’Connor, J., concurring). There are, however, “isolated exceptions to the harmless-error rule.” Bank of Nova Scotia, 487 U.S. at 256, 108 S.Ct. at 2374; see also United States v. Kramer, 864 F.2d 99, 101 (11th Cir.1988) (declining “to adopt such a broad reading of Mechanik”). These exceptions are limited, however, to cases “in which the structural protections of the grand jury have been so [727]*727compromised as to render the proceedings fundamentally unfair, allowing the presumption of prejudice.” Bank of Nova Scotia, 487 U.S. at 257, 108 S.Ct. at 2374. The only examples cited in that opinion were race and gender bias in the selection of grand jurors. Id.

We cannot conclude that the government’s presentation of the forged documents “so compromised” the grand jury proceedings as to render them “fundamentally unfair.” The grand jury had before it police investigator Cravens’ testimony that he had located two Porsche engines with obliterated or altered identification and that Nader told him he had obtained them from Exarhos with involvement of Morrison. In addition, Cravens testified that Nader had given him copies of the cancelled checks, bearing Exarhos’ endorsement, used as partial payment for the engines. Leaving aside the falsified bills of sale, the cancelled checks and other evidence impheating Exarhos’ involvement in stolen Porsche engines were sufficient to indict.1

We find no merit in Exarhos’ first contention, particularly because he failed to make any showing of bad faith or prosecutorial misconduct.2 See United States v. Mechanic

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United States v. Exarhos, 135 F.3d 723, 1998 U.S. App. LEXIS 2625 (11th Cir. 1998).

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