United States v. Scott Plumley, United States of America v. Jeremy Thomas Kaune,appellant
Docket: 99-2651, 99-2997
Court: Court of Appeals for the Eighth Circuit; April 3, 2000; Federal Appellate Court
In the consolidated appeal of Scott Plumley and Jeremy Kaune, the Eighth Circuit Court affirmed the district court's decisions regarding their sentences. In 1997, Plumley and Kaune were part of a group of young white men who exhibited racial hostility, particularly toward the Hills and Dales Child Development Center, where a former girlfriend of one member had begun dating an African-American man. The group's criminal activities included vandalism and harassment, culminating in a pipe bomb explosion at the daycare on May 16, 1997, which caused significant property damage but no injuries.
While Kaune was not directly involved in the bombing, he participated in a motorcycle theft the day before, with the stolen motorcycle later used in the bombing. Following these events, a federal grand jury was convened, during which Plumley testified falsely about his knowledge of the crimes and later pleaded guilty to multiple charges, including perjury and obstruction of justice, receiving a 30-month prison sentence.
Kaune also provided false testimony regarding his involvement in the motorcycle theft, attempting to establish an alibi that was later disproven by his work records. He was subsequently indicted on charges including conspiracy to transport a stolen vehicle and perjury, and after a jury trial, he was convicted on all counts, receiving a 34-month prison sentence.
Plumley's base offense level for obstruction of justice was increased by three levels due to threats made against witnesses, as determined by the district court. The court's factual findings are reviewed for clear error, while the application of sentencing guidelines is reviewed de novo. Testimony from Schoenberger indicated that Plumley threatened physical violence if witnesses cooperated with authorities, though Plumley denied making such statements. The court recognized the close nature of the evidence but concluded the government met its burden of proof by a preponderance of the evidence. The district court's finding that Plumley issued the threat was not deemed clearly erroneous, as there was no significant contradictory evidence or implausibility in the testimony.
Plumley also argued that the severity of his threat did not justify an eight-level enhancement. However, the court characterized the threat as serious obstruction of justice, as it aimed to intimidate witnesses. The guidelines under section 2J1.2(b)(1) mandate an eight-level enhancement for threats of physical injury or property damage to obstruct justice, without requiring additional seriousness criteria. Citing precedents, the court affirmed that threats of violence inherently fall within this serious category of obstruction.
Plumley argues that the connection between his threat and the obstruction of justice charge is too weak to support a specific offense characteristic enhancement under section 2J1.2(b)(1). The relevant conduct concept is applied to assess the nexus between the conviction and the enhancement, encompassing acts by the defendant during the commission of the offense or in attempts to evade detection. The obstruction charge was based on Plumley's instruction to others to provide false testimony, which occurred after he made a threat in May 1997. Plumley contends that the timing of the threat, which preceded both his grand jury testimony and efforts to recruit others to lie, indicates a lack of connection between the threat and the obstruction offense. He also asserts a distinction between the investigations into pipe-bombing and motorcycle thefts. However, the court finds these arguments unpersuasive, noting that prior threats can still be relevant for enhancements. The court emphasizes that Plumley's actions were part of a broader scheme to evade responsibility for related crimes. Consequently, the district court's imposition of the enhancement was not clearly erroneous. Additionally, Kaune's perjury offense was adjusted upward due to substantial interference with the administration of justice, as it resulted in significant unnecessary expenditure of governmental resources.
Kaune argues that the enhancement for substantial interference constitutes "double-counting" for a repeated statement, penalizing him for exercising his right to testify. At sentencing, there was confusion regarding which statements supported the enhancement. The perjury charge was based on Kaune's grand jury testimony where he denied involvement in motorcycle theft, which he reiterated with varying alibis. Initially, the district court intended to use one of these statements for the enhancement but later relied solely on statements made during two suppression hearings.
During the first hearing on December 1, 1998, Kaune claimed under oath that federal agents advised him not to consult a lawyer before the grand jury, a claim disputed by Agent Bricko, leading to the court denying the motion to suppress his testimony. The second hearing on February 3, 1999, involved Kaune trying to suppress his statement to Bricko, arguing improper communication by an agent. He presented conflicting testimony regarding discussions with his public defender, necessitating Kaufman's testimony to counter Kaune's version. The court denied this motion as well.
These incidents were distinct from the statements leading to the perjury and false statement charges, confirming that no "double-counting" occurred. The district court required a preponderance of evidence to find Kaune untruthful and determined that he lied at both hearings, a credibility finding that is difficult to challenge on appeal. The court also concluded that Kaune's perjury resulted in unnecessary governmental and court resource expenditures, a determination not deemed clearly erroneous.
Kaune challenges the district court's decision to impose a 34-month federal sentence consecutively to a state sentence resulting from a parole revocation, arguing it was an error. The review finds no reversible error under sentencing guideline section 5G1.3, despite the district court incorrectly asserting it lacked discretion to impose a concurrent sentence. The court clarified it would not have done so regardless, and the sentence aligns with the guidelines.
Kaune also claims prosecutorial impropriety during trial, asserting that the government improperly vouched for the credibility of witnesses Jenaman, Ware, and Plumley by emphasizing their cooperation plea agreements. His objections were overruled, and the court declined to provide a cautionary instruction. The appellate review indicates that while prosecutors can address plea agreements for credibility assessment, they must not imply the defendant's guilt based on those agreements. The district court's decisions regarding the testimony and jury instructions were not deemed an abuse of discretion.
In closing arguments, the prosecutor justified the use of plea agreements to uncover the truth and accused Kaune of lying to those close to him. Kaune contends these remarks constitute improper vouching, further fueling his claims of prosecutorial misconduct.
To establish prosecutorial misconduct, a defendant must demonstrate that (1) the prosecutor's remarks were improper, and (2) those remarks prejudicially impacted the defendant's substantial rights, compromising the fairness of the trial. In evaluating the second criterion, factors include the cumulative effect of the misconduct, the strength of the evidence supporting the defendant's guilt, and any remedial actions taken by the trial court.
In this case, Kaune's attorney made unfavorable comparisons between the credibility of prosecution witnesses and certain defense witnesses during closing arguments, suggesting that plea agreements could be likened to bribery. The government's subsequent defense of plea agreements was deemed a fair rebuttal to the defense's claims, thus not warranting a reversal of the trial outcome.
The prosecutor's statement, "Here's what happened in my view," was interpreted as a summary of the evidence rather than a personal opinion of guilt, which is prohibited. While the latter would be unacceptable, the former is necessary for effective prosecution. Furthermore, given the substantial witness testimony against Kaune regarding his involvement in a bike theft, and the district court's instructions emphasizing the jury's role in credibility assessments, any potential error in the prosecutor's comments was deemed harmless.
Kaune alleged that an ex parte communication occurred when Bricko from the U.S. Attorney's office visited him after he had testified before a grand jury while represented by counsel. This visit was claimed to violate the Iowa Rule of Professional Responsibility, which prohibits lawyers from communicating with represented parties without consent or legal authorization.
Kaune asserts that the Iowa Supreme Court Board of Professional Ethics and Conduct's interpretation of Rule DR 7-104(A)(1) prohibits state prosecutors from communicating with a represented criminal defendant without the lawyer's consent. He references the Ethical Standards for Prosecutors Act, 28 U.S.C. 530B, which mandates that government attorneys adhere to state laws and rules where they operate. However, this statute, effective April 21, 1999, postdates the June 9, 1998, interaction between Kaune and Bricko, thus not applicable to this case. The court aligns with other jurisdictions stating that state disciplinary rule interpretations in federal criminal practice are governed by federal law. When appearing before federal courts, attorneys act as officers of the court, which evaluates their conduct. Consequently, the court finds Kaune’s argument for suppressing his statement to Bricko unpersuasive, as previous rulings affirm that Minnesota's equivalent rule does not prohibit government agencies from contacting a represented suspect.
Regarding his perjury conviction, Kaune challenges its basis on immateriality, asserting his response during grand jury testimony to a broad question about travel with certain individuals did not mislead or impede the investigation. The court rejects this argument, maintaining that the standard for perjury involves knowingly providing false testimony on a material issue.
The question of whether Kaune was with the named individuals at the time of the motorcycle theft is deemed significant, despite not addressing the "ultimate issue." Legal precedents indicate that truthful answers may raise questions about others' involvement in an offense, and statements that appear peripheral can become material when contextualized. Initially, Kaune faced two perjury charges, one of which he contested as multiplicitous. He cannot now argue that the pursued charge is insufficiently similar to the dropped charge. Additional claims made by Kaune have been reviewed and found to lack merit. The decision is affirmed.
