United States of America v. James A. Latimer

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-3238
UNITED STATES OF AMERICA
v.
JAMES A. LATIMER,
Appellant
ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS
(Dist. Court No. 98-cr-00038-01)
District Court Judge: Raymond L. Finch
Argued: November 14, 2002
Before: SCIRICA, ALITO, RENDELL, Circuit Judges
(Opinion Filed: December 18, 2002)
Pamela Lynn Colon
1101 King Street, Suite 2,
Christiansted
St. Croix, V.I. 00820
Counsel for Appellant

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Carl F. Morey
Assistant U.S. Attorney
1108 King Street, Suite 201,
Christiansted
St. Croix, V.I. 00820
Counsel for Appellee
OPINION OF THE COURT
PER CURIAM:
Because we write for the parties only, the background of the case need not be
set out. We reject the defendant’s arguments that: (1) the evidence was insufficient to
establish guilt, (2) the jury instructions were deficient and abridged his right to a fair trial,
(3) the District Court erred by failing to rule on and grant the defendant’s motion under 18
U.S.C. §3006A for funds to hire a medical expert, (4) a comment and question by the
District Court denied the defendant due process, (5) the District Court improperly denied
the defendant’s motion for new trial based on newly-discovered evidence, and (5) the
defendant’s counsel was constitutionally ineffective. We agree, however, that the District
Court plainly erred in calculating the amount of loss for purposes of sentencing and
imposing restitution. Therefore, we remand for resentencing and a new determination of
the amount of restitution.
In order to convict, the jury was required to find beyond a reasonable doubt that the
defendant: (1) concealed or covered up (2) a material fact, (3) that this act was taken in

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connection with an application for or receipt of compensation or other benefit or payment
under the Federal Employment Compensation Act, and (4) that this act was done knowingly
and willfully. 18 U.S.C. §1920. The defendant alleges that the evidence was insufficient on
two grounds, arguing that: (1) the government failed to prove the Indictment’s factual
predicate–that the defendant was not disabled and was able to work and (2) the government
failed to prove that the defendant acted knowingly and willfully. Contrary to the
defendant’s assertions, however, the government presented substantial evidence sufficient
to justify a reasonable jury’s finding that each of the essential elements of the crime was
satisfied. Therefore, we affirm the District Court’s denial of the defendant’s motion for
acquittal. See United States v. Salmon, 944 F.2d 1106, 1113 (3d Cir. 1991).
We also reject the defendant’s various allegations of error regarding the jury
instructions. As the defendant did not object to the jury instructions at trial, we review the
instructions for plain error, see United States v. Antico, 275 F.3d 245, 265 (3d Cir. 2001),
and find none here. First, considering the instructions as a whole and giving the “words
their common and ordinary meaning,” Victor v. Nebraska, 511 U.S. 1, 29 (1994) (citing
Estelle v. McGuire, 502 U.S. 62, 72 (1991)), we hold that the District Court provided the
jury with a correct statement as to the burden of proof. Second, we find that the District
Court did not constructively amend the indictment in violation of the defendant’s Fifth
Amendment right to due process by either (1) transforming the indictment from one that
does not state an offense to one that does or (2) altering the indictment in such a way that it
“tends to increase the defendant’s burden at trial.” United States v. Milestone, 626 F.2d

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264, 269 (3d Cir. 1980). Where, as here, “a jury returns a guilty verdict on an indictment
charging several acts in the conjunctive . . . the verdict stands if the evidence is sufficient
with respect to any of the acts charged.” Turner v. United States, 396 U.S. 398, 420, 90
S.Ct. 642, 654, 24 L.Ed.2d 610 (1970). Third, we find that the District Court did not
commit plain error by not including a definition of the term “disabled” in the instructions.
Where the jury was simply required to determine whether the defendant was “able to work”
and not whether he was “disabled,” inclusion of such a definition was not necessary.
We also refrain from finding plain error and deny the defendant’s request for a new
trial based on the District Court’s apparent failure to rule on the defendant’s ex parte
motion for funds to hire a medical expert. See 18 U.S.C. §3006A. We cannot say that the
District Court plainly erred by failing to hold the statutorily required ex parte proceeding to
determine the defendant’s eligibility for such funds where, as here, the defendant’s trial
counsel did not object to, or in any way call attention to the fact that, the motion apparently
had been forgotten.
The defendant cites Ray v. Robinson, 640 F.2d 474 (3d Cir. 1981), for the
proposition that the District Court’s failure to exercise its discretion to authorize payment
of fees for the defendant’s requested expert necessarily constitutes an abuse of discretion.
Ray is distinguishable, however, as the District Court in that case consciously refused to
conduct an ex parte inquiry based on the erroneous belief that it did not have discretion to
appoint counsel in a civil matter. Id. at 478. There is no indication that the District Court
in the case now before this court made any determination as to its ability to grant the funds

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necessary to retain the requested expert.
The government refers to a case decided by the Seventh Circuit, United States v.
Taglia, 922 F.2d 413 (7th Cir. 1991), in which a motion for severance was inadvertently
ignored by the District Court and, in spite of this error, was not renewed by counsel. The
Seventh Circuit in that case chided the defendant, stating that
Apparently the motion to sever was lost in the shuffle before trial. Those
things happen. If a motion is not acted upon, a litigant had better renew it.
He may not lull the judge into thinking that it has been abandoned and then,
after he has lost, pull a rabbit out of his pocket in the form of a forgotten
motion.
Id. (citations omitted).
We are confronted with a neglected motion of a different sort than that in Taglia, but
the underlying principles of litigation remain the same. We decline to exercise our
discretion to correct an error here where defendant’s counsel did not at any time notify the
District Court of its error. Under the circumstances, the error cannot be said to have
“seriously affect[ed] the fairness, integrity, or public reputation of the judicial
proceedings.” United States v. Turcks, 41 F.3d 893, 897 (3d Cir. 1994) (quoting United
States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed. 2d 508 (1993).
We also decline to reverse the conviction on the basis of the allegedly prejudicial
statement and question posed by the trial court. As the defendant did not object to the
Court’s question or exclamation at trial, we may reverse only upon a finding of plain error.
Plain error is present only where the action of the District Court affected substantial rights

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and had an unfair impact on jury deliberations. United States v. Parvis, 871 F.2d 310, 315
(3d Cir. 1989). We must determine whether the District Court’s conduct was “so
prejudicial as to deprive defendant . . . of a fair, as opposed to perfect, trial.” United States
v. Beaty, 722 F.2d 1090, 1093 (3d Cir. 1983).
As the District Court’s comment and exclamation do not appear to have been
intended as an evaluative comment on the quality or persuasiveness of the government’s
evidence in proving guilt or innocence–and the jury almost certainly could not have viewed
the comment as such–we deny the defendant’s request for reversal on this ground. The
comment and exclamation themselves cannot be said to have been “so prejudicial as to
deprive the defendant . . . of a fair trial,” Beaty, 722 F.2d at 1093, and the District Court
ameliorated any potential prejudicial effect by instructing the jury that any comments or
actions of the court were not intended to be an expression of the court’s favor of either the
government or the defendant. See App. at 217, 676-77. Members of the jury–who had sat
through more than two hours of video tape along with the judge–were certain to have
understood that the court was attempting with its question to shorten the video presentation
to include only essential evidence. The jury also certainly would have understood that the
Court’s later exclamation was nothing more than a simple expression of relief at the end of
the lengthy presentation rather than some sort of evaluative comment about the quality of
the evidence presented. In sum, we determine that the District Court’s question and
exclamation in this case did not deprive the defendant of a fair trial and were not
sufficiently prejudicial to merit reversal.

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We also reject the defendant’s argument that the District Court abused its discretion
by denying his motion for new trial based on allegedly newly discovered evidence. A
District Court is to grant new trial on this basis only where: (1) evidence is in fact newly
discovered; (2) facts have been alleged from which the court may infer diligence on the part
of the movant to discover those facts; (3) evidence relied on must not be merely cumulative
or impeaching; (4) the evidence is material to the issues involved; and (5) the evidence is
such, and of such nature, as that, on a new trial, the newly discovered evidence would
probably produce an acquittal. See United States v. Saada, 212 F.3d 210, 216 (3d Cir.
2000). In this instance, denial of the motion for new trial was proper as the foregoing
requirements were not met.
We decline to consider the defendant’s claim that he was denied ineffective
assistance of counsel. We generally do not review claims of ineffective assistance of
counsel on direct appeal; these claims are generally reserved for review in collateral
proceedings pursuant to 28 U.S.C. §2255, in which the record for the claims may be
properly developed. United States v. Jake, 281 F.3d 123, 132 n.7 (3d Cir. 2002). While
there is a narrow exception to this general rule where the record on direct appeal
sufficiently establishes the basis for review of such claims, making an evidentiary hearing
unnecessary, United States v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991), acting under
this exception would not be proper here. The instances of alleged ineffectiveness would be
more properly evaluated on collateral review should the defendant choose to pursue such a
course.

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While we rule against the defendant on the above claims, we conclude that the
District Court plainly erred in calculating loss for purposes of sentencing and imposing
restitution. The District Court had authority to order restitution in this case pursuant to 18
U.S.C. §3664(a). A District Court imposing an order of restitution under this provision
must exercise its discretion in light of: (1) the loss to the victim (the government in this
instance), (2) the amount of restitution owed pursuant to a plea agreement, and (3)
information relating to the economic circumstances of each defendant. 18 U.S.C.
§3664(a). The government, which bore the burden of proof on the issue of loss, concedes
that the District Court, relying on the Pre-Sentencing Report, erred in calculating loss for
purposes of determining restitution by including loss outside the offense of conviction.
See Hughey v. United States, 495 U.S. 411, 413, 110 S.Ct. 1979, 1981, 109 L.Ed.2d
(1990); see also, United States v. Silkowski, 32 F.3d 682, 689 (2d Cir. 1994) (stating that
“[i]f the district court based its determination of loss on conduct outside the offense of
conviction, no matter how ‘relevant’ that conduct might have been in a Guidelines
sentencing context, the restitution order would run afoul of Hughey”).
In a prior case, we held that where the defendant failed to contest the underlying
factors used by the District Court in imposing the order of restitution, the defendant waived
his right to contest that order. United States v. Cannistraro, 871 F.2d 1210, 1214 (3d Cir.
1989). However, Cannistraro is distinguishable in that the defendant in that case was
objecting for the first time on appeal to the specific amount of loss related to each count of
conviction, not to the inclusion of loss outside the offense of conviction. In addition,

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counsel for the defendant in that case made specific concessions and admissions to the
court relevant to its determination of a restitution amount prior to the court’s final
determination on the matter. Finally, subsequent to this Court’s decision in Cannistraro,
the Supreme Court clarified in Hughey v. United States that calculations of loss for
restitution purposes may not include loss outside the offense of conviction. See 495 U.S.
411, 413, 110 S.Ct. 1979, 1981, 109 L.Ed.2d (1990). Considering the mandate of Hughey
and the distinguishable fact situation at issue in Cannistraro, we find plain error here and
remand for correction of the error, which nearly doubled the amount of restitution owed
and seriously affected the fairness and integrity of the proceedings.
The defendant also alleges for the first time on appeal that the District Court failed
to consider his ability to pay. We find, however, no plain error here justifying reversal and
remand on that ground. United States v. Coates, 178 F.3d 681 (3d Cir. 1999). The District
Court appears to have considered the defendant’s financial capabilities, and the defendant,
who bore the burden of proof on this issue, did not object to the order before the trial court
or produce any particular evidence of inability to pay.
We do find plain error in the District Court’s calculation of loss for purposes of
sentencing, however, and reverse and remand for resentencing. Pursuant to U.S.S.G.
§3D1.2(d), where the offense level is determined largely on the basis of the total amount of
loss, these counts are grouped together. The defendant’s conduct is also such that it
triggers the consideration of “relevant” conduct under U.S.S.G. 1B.3(a)(2). See also,
United States v. Kappes, 936 F.2d 227, 230 (6th Cir. 1991) (stating that U.S.S.G.

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1B.3(a)(2) is applicable to offenses involving fraud and property crimes because
“determination of which conduct is relevant under the Guidelines is simplified [where] the
base offense level turns on quantity”). Section 1B1.3 of the sentencing guidelines,
applicable to counts grouped under U.S.S.G. §3D1.2(d), states that “the base offense level .
. . . shall be determined on the basis of . . . all acts and omissions . . . that were part of the
same course of conduct or common scheme or plan as the offense of conviction.” U.S.S.G.
§1B.3(a)(2); see also United States v. Kappes, 936 F.2d 227, 230 (6th Cir. 1991); United
States v. Silkowski, 32 F.3d 682 (2d Cir. 1994). U.S.S.G. §2F1.1(a) calls for a base
offense level of six for the counts on which the defendant has been convicted here. Under
U.S.S.G. §2F1.1(b)(1) the offense level is increased by six, however, as the District Court
calculated an amount of loss exceeding $70,000 in this instance. Consequently, if loss
resulting from conduct outside the conviction were not included in the present case, the
resulting amount of loss would have been less than $70,000 but in excess of $40,000,
justifying an increase of only five offense levels. Id.
While the District Court must specifically limit its calculation of loss to the
specific dates included in the criminal conviction for purposes of calculating restitution, it
is not so limited for purposes of applying the sentencing guidelines. United States v.
Silkowski, 32 F.3d 682, 687 (2d Cir. 1994). Counsel for the defendant persuasively argues
on appeal, however, that no evidence whatsoever was adduced by the government to prove
to any degree of certainty that the defendant’s conduct prior to July 7, 1997, was illegal or
wrongful in any way. Consequently, the defendant’s actions before July 7, 1997, cannot be

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said to have been “part of the same course of conduct” for which the defendant was
convicted. We find plain error here affecting the defendant’s substantial right to be
punished only for wrongful conduct. Therefore, we remand for recalculation of loss for
purposes of sentencing where the government did not point to, and the District Court did
not make findings with regard to, any relevant conduct that would justify inclusion of
benefits outside the scope of the conviction.
We have considered all of the defendant’s arguments and reverse and remand only
for recalculation of loss for purposes of sentencing and allocation of restitution. We
affirm the judgment of the District Court in all other respects.

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