United States v. Robert Morales, Sr.

11 F.3d 915, 93 Cal. Daily Op. Serv. 9108, 93 Daily Journal DAR 15631, 1993 U.S. App. LEXIS 32027, 1993 WL 504510
CourtCourt of Appeals for the Ninth Circuit
DecidedDecember 10, 1993
Docket92-50279
StatusPublished
Cited by50 cases

This text of 11 F.3d 915 (United States v. Robert Morales, Sr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth 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. Robert Morales, Sr., 11 F.3d 915, 93 Cal. Daily Op. Serv. 9108, 93 Daily Journal DAR 15631, 1993 U.S. App. LEXIS 32027, 1993 WL 504510 (9th Cir. 1993).

Opinions

SCHROEDER, Circuit Judge:

Robert Morales, Sr., appeals his sentence following his guilty plea to multiple counts of various crimes arising out of corrupt practices Morales engaged in while an employee of the Internal Revenue Service. The crimes involved many transactions over a period of years ending when Morales was terminated from his employment in March of 1990.

The principal questions in this appeal pertain to his guilty plea to conspiracy to defraud the United States, Count 1, and to his conviction for bribery in violation of 18 U.S.C. § 201 (1988), Count 3.

Appellant first maintains that a two-level enhancement of his sentence for bribery pursuant to Federal Sentencing Guideline 2Cl.l(b)(l) constituted an ex post facto application of the Guidelines. That Guideline provision mandates a two-level increase in the base offense level if the offense “involved more than one bribe.” That Guideline provision became effective November 1, 1989. The appellant contends that while he engaged in many bribery transactions, only one bribe occurred after the effective date of that Guideline. One of appellant’s schemes involved receipt of payments in return for helping Mario Saikhon evade fourteen million dollars in taxes. Appellant maintains that the multiple payments he received from Mr. Saikhon after the effective date of the Guidelines and continuing until termination of his employment constituted installment payments for only one bribe. Citing the Commentary Note 6 to Guideline 2C1.1, Morales analogizes his receipt of bribery payments to [917]*917installments akin to a weekly paycheck. Thus he contends his two level increase must have been based in part upon pre-guideline conduct.

The addendum to the Presentenee Report termed this contention “ridiculous.” As the addendum observed, the bribes came from various sources, and the numerous payments in 1989 and 1990 in different amounts and at different intervals, were separate acts of bribery. The district court concluded they were, and the record bears out this conclusion. Some of the appellant’s bribery schemes were implemented by phony payroll checks to the appellant’s brother-in-law (Cen-dejas) who did not in fact work for Saikhon. Also, after November 1, 1989, apart from the Cendejas checks, appellant continued to receive interest money from Saikhon. The criminal activity included investment and repayment of money in order to promote Sai-khon’s evasion of income taxes and enrich the appellant. There was no error in utilizing the enhancement provision for multiple bribes occurring after the effective date of the Guideline.

The same reasoning applies to appellant’s contention that the total loss under U.S.S.G. § 2F1.1 was improperly calculated so as to violate ex post facto principles. The record supports the district court’s conclusion that there were post-amendment losses. Thus the application of § 2F1.1 was appropriate.

Appellant also contends that the grouping of offenses that occurred both before and after the Guideline provisions violates the ex post facto clause. Appellant argues that the pre-Guidelines conduct alleged in Count 1 was used in Count 3 to increase the offense level by fifteen. He argues that the court “poured over” the loss from Count 1 onto the penalty available for Count 3 in violation of ex post facto principles.

Here the appellant has misinterpreted the district court’s sentence. The district court did not “pour over” the loss from one count to another. Instead, the district court correctly and separately considered the pre and post-Guideline conduct for each of the counts. The bribery offenses were part of a course of criminal conduct that extended beyond the effective date of the Guideline provision applied by the court. The provision was in effect at the time that the appellant committed crimes giving rise to the application of that Guideline provision. Enhancing penalties for post-Guideline conduct on acts that occurred before the Guidelines does not run afoul of the ex post facto clause. See United States v. Ahumada-Avalos, 875 F.2d 681 (9th Cir.), cert. denied, 493 U.S. 837, 110 S.Ct. 118, 107 L.Ed.2d 79 (1989). Here, as in United States v. Castro, 972 F.2d 1107, 1112 (9th Cir.1992), cert. denied, - U.S. -, 113 S.Ct. 1350, 122 L.Ed.2d 731 (1993), the defendant was not sentenced for any individual offense based on a Guideline provision that became effective after that offense was completed. Rather, the conduct for which appellant was sentenced extended beyond the time when the relevant Guideline provision became effective. See also United States v. Niven, 952 F.2d 289, 293 (9th Cir.1991), where the defendant was sentenced on individual counts for offenses completed before the Guidelines became effective and we held that the same losses should not be aggregated in imposing a separate, post-Guideline sentence. No such double counting occurred here.

Judge O’Scannlain’s dissent takes the view that conviction for bribery on Count 3 could not, as a matter of law, have extended over a period of time because bribery is not a “continuing offense.” Neither United States v. Niven, supra, nor Toussie v. United States, 397 U.S. 112, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970), upon which the dissent principally relies, involved a crime of bribery and are wholly inapposite. The bribery offense which the government pleaded and proved in this case began before the Guidelines went into effect and extended well beyond that date. The crime was charged as follows:

Count 3

1. Paragraphs 1 through 12 and 14 through 48 of Count I are hereby realleged and incorporated by reference as if set forth in full herein.
2. Beginning at a time unknown to the grand jury and continuing up to and in-[918]*918eluding March 27, 1990, within the Southern District of California, and elsewhere, defendant ROBERT A. MORALES, SR., then a public official, did knowingly and corruptly seek, accept, receive, and agree to receive the use of millions of dollars from Mario Saikhon, in return for being influenced to commit, aid in committing, collude in or allow and make opportunities for the commission of frauds on the United States, that is, among other things, setting up sham corporations designed to assist Mario Saikhon in evading the payment of taxes; in violation of Title 18, United States Code, Section 201(b)(2)(B).

The doctrine of “continuing offense” has no applicability to a situation like this where the charged criminal conduct itself extends over a period of time. The doctrine comes into play where it is contended that the actual conduct of the defendant ended but the crime continued past that time. That was the situation claimed by the government in Toussie v. United States where the Supreme Court held that the crime of failing to register for the draft was not a continuing offense and did not extend the five-year limitation period. Here there is no need for the government to argue that the defendant’s offense continued beyond the time that he stopped seeking and receiving the illegal fruits of his bribery scheme.

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Bluebook (online)
11 F.3d 915, 93 Cal. Daily Op. Serv. 9108, 93 Daily Journal DAR 15631, 1993 U.S. App. LEXIS 32027, 1993 WL 504510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-robert-morales-sr-ca9-1993.