July 21---Amish Tobacco

Just catching up a little. :) Thanks, AFPDs, for your summaries!

CHRISTOPHER SUTTON (08-6420) and RENNIE TURNER, (09-5049)

Direct Appeals

Unpublished

http://www.ca6.uscourts.gov/opinions.pdf/10a0447n-06.pdf

Defendant Christopher L. Sutton appealed his conviction for conspiracy to structure currency transactions to avoid reporting requirements (in violation of 31 U.S.C. § 5324(a)(3)), and Sutton and his co-defendant Rennie Turner appealed their sentences. Rennie Turner pleaded guilty prior to trial and appealed the reasonableness of his sentence. Sutton went to trial and was convicted before a jury with two other co-defendants. On appeal, he argued that 1) the government presented insufficient evidence on several key elements of the structuring statute, 2) his right to confront his accusers was violated, and 3) the district court violated his ex post facto clause rights by using the wrong Sentencing Guidelines edition. Court affirmed Sutton’s conviction and both defendants' sentences.

The convictions in this case arose from an expansive scheme to illegally traffic in tobacco from 1998 to 2003.

The conspirators had sought to profit from sales of "excess tobacco." The plan included selling tobacco grown on another farm with a card as if it were grown on the designated farm, selling above a quota amount, and falsely designating tobacco. The conspirators made cash purchases of tobacco in Pennsylvania, a non-quota state, of Pennsylvania-type tobacco, mainly from Amish and Mennonite farmers. This tobacco was shipped to Tennessee and Kentucky and passed off as burley tobacco that had been grown in compliance with the burley-tobacco allotment program (in some years, non-quota tobacco from Pennsylvania and Maryland was identical or almost identical to Kentucky and Tennessee quota tobacco).

To get the funds necessary for this operation, the co-conspirators structured financial transactions. Sutton and Robert D. Oldham were the leaders, and Sutton generally provided the funds to be structured.

Most of the defendants, including Rennie Turner, decided to plead guilty.

The jury found Sutton and Ron Bowen guilty; it found Joey Bowen not guilty. The district court sentenced Sutton to 60 months, the statutory max. The district court also awarded the government a forfeiture amount of $4,500,000, to be paid by Sutton. The court sentenced Rennie Turner to 51 months.

Turner appealed the reasonableness of his sentence of 51 months. He did not appeal the calculation of his offense level as 24 or his criminal history category as I. Rather, he argued that the district court failed to adequately consider mitigating circumstances and considered an impermissible factor.

As to Sutton, the evidence was found to be sufficient.

The evidence presented did not violate the defendant’s right to confront the witnesses against him. Neither the tape recordings nor a co-defendant’s statement violated the confrontation clause. The tapes were not testimonial and the co-defendant testified at trial and therefore the trial court’s failure to ask defense counsel if he wanted to cross-ex the witness was not error where counsel failed to object to the opportunity.

The trial court used the correct guideline version in sentencing the defendant by using the most current edition, even though some of the offense conduct predated the version of the guidelines used. Regardless, the Court found that the advisory range would have been the same.

Turner’s within-guidelines sentence was reasonable even though he was denied acceptance of responsibility and the court did not grant a variance from that range. The record supported both decisions.