Sentence for fraud and false claims convictions affirmed despite Sixth Amendment Booker error

SENTENCING/TRIAL/APPEAL United States v. Lawrence, No. 02-1259, ___ F.3d ___ (10th Cir. Apr. 20, 2005)(Colorado). Appeal of convictions and sentence for wire fraud, mail fraud, submitting false Medicare claims, and money laundering. HELD: (1) In pre-Booker sentencing proceeding, where district court erred by using judge-found sentencing facts to determine sentencing range, but imposed sentence two months above bottom of range and at same time refused to invoke discretion to depart downward, record shows district court would have given same sentence even under post-Booker advisory guidelines system. Because core notions of justice are not offended by not noticing sentence errors having no effect on sentence, defendant fails to meet burden of showing under fourth prong of plain error test that district court’s error seriously affected fairness, integrity, or public reputation of judicial proceedings. (2) Materiality is not element of offense of submitting false claim against government in violation of 18 U.S.C. § 287. (3) District court did not abuse discretion by denying defendant’s motion for mistrial after jury nullification pamphlet was found in jury room. Through questioning of individual jurors, judge correctly determined that pamphlet did not affect their view of case and therefore defendant was not prejudiced. Additionally, judge mitigated any potential prejudice flowing from pamphlet by addressing it in jury instructions reminding jurors that they had taken pledge to follow law as instructed by court. (4) Absent authorization from court, party is generally precluded from raising issues in supplemental brief that were not addressed in opening brief. Read the opinion here.