United States v. Farrah

11 F. App'x 34
CourtCourt of Appeals for the Second Circuit
DecidedJune 12, 2001
DocketDocket No. 00-1618
StatusPublished

This text of 11 F. App'x 34 (United States v. Farrah) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Farrah, 11 F. App'x 34 (2d Cir. 2001).

Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and is AFFIRMED.

Rhonda Farrah appeals from a judgment of conviction and sentence entered against her following a jury trial in the District Court. Farrah was convicted of two counts of wire fraud, in violation of 18 U.S.C. § 1343; two counts of tax evasion, in violation of 26 U.S.C. § 7201; and thirty-three counts of money laundering, in violation of 18 U.S.C. § 1956(a)(l)(B)(i). The District Court sentenced Farrah, in principal part, to 60 months’ imprisonment for each count of wire fraud and for each count of tax evasion, and to 71 months’ imprisonment for each count of money laundering, all to run concurrently.

On appeal, Farrah makes a number of arguments to challenge her conviction and sentence. For the reasons below, we find no basis for reversal in any of them and therefore affirm the judgment of the District Court.

I. Issues Relating to Trial Counsel

Farrah’s first set of arguments relate to her counsel at trial. Specifically, Farrah argues that her conviction should be vacated because: (1) the District Court abused its discretion in denying her pre-trial motion for substitute counsel; (2) her counsel had a conflict of interest arising from his involvement in other litigation; (3) there was a total breakdown of the attorney-client relationship during trial; (4) her counsel provided ineffective assistance during trial; and (5) the District Court failed to conduct an adequate inquiry into the counsel’s potential conflict of interest. We reject these contentions substantially for the reasons stated in the District Court’s thorough ruling of January 16, 2001. See United States v. Farrah, 128 F.Supp.2d 103 (2001). With respect to the new material presented by Farrah on appeal, and unavailable to the District Court, we find that her counsel did not have a per se conflict of interest and that, to the extent that any conflict did exist, there has been no showing of any adverse effect from such conflict on Farrah’s representation by counsel.

[36]*36II. Sentencing Issues

Farrah’s second set of arguments relate to sentencing. Farrah argues, in principal part, that the District Court erred in departing upward under Section 4A1.3 of the Sentencing Guidelines because: (1) the District Court, rather than the jury, determined the uncharged conduct on which the departure was based, in violation of the teachings of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); (2) there was insufficient evidence to support a finding that Farrah had engaged in this uncharged conduct; (3) some of this conduct should have been classified as “relevant” conduct under Section 1B1.3 of the Guidelines, rather than as “prior similar” conduct under Section 4A1.3(e); and (4) the District Court departed upward from Criminal History Category I to Category III without mentioning the appropriateness of Category II. These contentions have no merit.

A. Apprendi

As we have explained, Apprendi does not “alter[ ] a sentencing judge’s traditional authority to determine those facts relevant to selection of an appropriate sentence within the statutory maximum.” United States v. Garcia, 240 F.3d 180, 183 (2d Cir.2001) (emphasis added). Therefore, as long as a defendant is sentenced on each count within the maximum allowed by statute, a district court can determine a defendant’s uncharged conduct for purposes of sentencing by using the traditional standard of proof — namely, a preponderance of the evidence. See United States v. White, 240 F.3d 127, 136 (2d Cir.2001).

In the case at hand, the District Court imposed concurrent terms of imprisonment of 60 months for each count of wire fraud and tax evasion, and 71 months for each count of money laundering. Each of these sentences is within the maximum allowed by statute. See 18 U.S.C. § 1343 (maximum of 360 months for wire fraud); 26 U.S.C. § 7201 (maximum of 62 months for tax evasion); 18 U.S.C. § 1956(a)(1)(B) (maximum of 240 months for money laundering). Accordingly, the District Court did not violate the teachings of Apprendi in determining Farrah’s uncharged criminal conduct.

B. Sufficiency of the Evidence

We also hold that there was sufficient evidence for the District Court to find that Farrah had engaged in the uncharged conduct that served as the basis for the upward departure. Following a careful review of the evidence at the sentencing hearing, the District Court determined that Farrah had committed fraud and bankruptcy fraud, and had faded to file tax returns. At sentencing, witnesses testified that Farrah had fraudulently obtained approximately $250,000 in advance fees from investors seeking loans. In addition, evidence was presented that Farrah had falsely reported her assets on her bankruptcy petition, and had not filed tax returns for the years 1994 through 1998. Construing all inferences in favor of the Government, see United States v. Mariani, 725 F.2d 862, 865-66 (2d Cir.1984), and noting that a sentencing court can consider information that would be inadmissible at trial so long as it is reliable, see 18 U.S.C. § 3661; Fed.R.Evid. 1101(d)(3); United States v. Brach, 942 F.2d 141, 144 (2d Cir.1991), we conclude that there was ample evidence to support a finding that Far-rah had engaged in uncharged acts of fraud, bankruptcy fraud, and failure to file tax returns.

C. “Prior Similar” Conduct

We likewise reject Farrah’s contention that the District Court committed revers[37]*37ible error in relying on this conduct to depart upward from the otherwise applicable Guidelines range. Section 4A1.3(e) permits a court to depart upward from a defendant’s criminal history category if it determines that this category “does not adequately reflect the seriousness of the defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes.” U.S.S.G. § 4A1.3. The Guidelines explain that such a determination can be based on, inter alia, “prior similar adult criminal conduct not resulting in a criminal conviction.” Id.

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Related

Apprendi v. New Jersey
530 U.S. 466 (Supreme Court, 2000)
United States v. Bridges, Furman
175 F.3d 1062 (D.C. Circuit, 1999)
United States v. Won Tae Kim
896 F.2d 678 (Second Circuit, 1990)
United States v. Daniel Michael Tropiano
50 F.3d 157 (Second Circuit, 1995)
United States v. Nicola Deriggi
72 F.3d 7 (Second Circuit, 1995)
United States v. John Baird
109 F.3d 856 (Third Circuit, 1997)
United States v. Adalberto Garcia
240 F.3d 180 (Second Circuit, 2001)
United States v. Farrah
128 F. Supp. 2d 103 (D. Connecticut, 2001)
United States v. Greer
223 F.3d 41 (Second Circuit, 2000)

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Bluebook (online)
11 F. App'x 34, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-farrah-ca2-2001.