USA v. Peter Simone

Filing

OPINION filed : we AFFIRM the district court's judgment, decision not for publication. Jeffrey S. Sutton, Circuit Judge; Jane Branstetter Stranch, Circuit Judge and George C. Steeh, (Authoring) U.S. District Court Judge for the Eastern District of Michigan, sitting by designation.

Case: 12-1140

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NOT RECOMMENDED FOR PUBLICATION
File Name: 13a0107n.06
No. 12-1140
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PETER SIMONE,
Defendant-Appellant.

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FILED
Jan 30, 2013
DEBORAH S. HUNT, Clerk
ON APPEAL FR OM THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MICHIGAN

Before: SUTTON and STRANCH, Circuit Judges, and STEEH, District Judge*
STEEH, District Judge. A federal jury convicted Peter Simone of conspiracy, bank fraud,
and aggravated identity theft. He appeals the district court’s denial of his motion to suppress and
upward variance in the 48-month sentence imposed for the conspiracy and bank fraud counts.
Finding his claims without merit, the district court is AFFIRMED.
On May 2, 2011, Sergeant Lound of the Meridian Township Police Department (MTPD)
effectuated a traffic stop of Simone and co-defendant Kimberly Kirkby. Lound made the stop based
on a description of the two individuals and the vehicle they were driving that had been broadcast by
MTPD dispatch regarding an attempt to cash a stolen check at a Meridian Township Bank of
America branch.
The Fourth Amendment allows law enforcement officers to stop citizens as long as they have
reasonable suspicion to believe that a crime has been committed and the person being stopped
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The Honorable George Caram Steeh, United States District Court Judge for the Eastern
District of Michigan, sitting by designation.

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committed the crime. See Terry v. Ohio, 392 U.S. 1, 20-22 (1968). Where the officer "lacks
probable cause, but possesses a reasonable and articulable suspicion that a person has been involved
in criminal activity, he may detain the suspect briefly to investigate the suspicious circumstances."
United States v. Bentley, 29 F.3d 1073, 1075 (6th Cir. 1994). The totality of the circumstances must
be evaluated to determine the validity of a Terry investigative stop. United States v. Martin, 289
F.3d 392, 396 (6th Cir. 2002) (citing United States v. Roberts, 986 F.2d 1026, 1029 (6th Cir. 1993)).
Sergeant Lound, a 24-year veteran of MTPD, stopped Simone's vehicle based on the
information he received from dispatch, his experience as a road patrol sergeant, and what he
witnessed while he followed the vehicle. The dispatch report referred to the Bank of America branch
on Grand River Avenue, which was less than two miles from Lound's location on road patrol. The
report further stated that a male was driving a white Chevrolet Impala with a female passenger,
heading east on Grand River. Lound used his knowledge of the area and his experience as a road
patrol officer and sergeant to determine that the white Impala he observed driving eastbound on
Grand River was at a location consistent with the time that had passed and the posted speed limit on
that road.
Lound testified that Simone reacted to being followed by a police vehicle by speeding up and
making an erratic turn onto another street. Simone's reckless turn provides additional support for
a Terry investigative stop. Based on all of the circumstances known to Lound at the time of the stop,
he acted reasonably in determining that the Impala he stopped was the one described by the
dispatcher as containing the individuals who attempted to commit a fraud on the bank.
"[A]n investigative detention must be temporary and last no longer than is necessary to
effectuate the purpose of the stop." United States v. Davis, 430 F.3d 345, 354 (6th Cir. 2005)
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(quoting Florida v. Royer, 460 U.S. 491, 500 (1983)) (internal quotation marks omitted). The scope
of activities conducted during an investigatory stop "must reasonably be related to the circumstances
that initially justified the stop." United States v. Richardson, 949 F.2d 851, 856 (6th Cir. 1991). The
Supreme Court has stated that "[i]n assessing whether a detention is too long in duration to be
justified as an investigative stop, we consider it appropriate to examine whether the police diligently
pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during
which time it was necessary to detain the defendant." United States v. Sharpe, 470 U.S. 675, 686
(1985).
Within moments of making the traffic stop, Sergeant Lound knew that the occupants of the
Impala matched the description of a white man and woman, that the man was driving, and that the
man had a dark tan and buzz-cut hair. The vehicle had Pennsylvania plates, although the driver had
a Florida driver's license. The driver attempted to evade Lound when he realized he was being
followed. When stopped by Lound, the driver appeared nervous and lied about heading home from
a Target store in East Lansing, which Lound knew not to exist. See United States v. Torres-Ramos,
536 F.3d 542, 553 (6th Cir. 2008) (officer's initial information justified investigatory traffic stop, and
additional facts learned justified expansion of the detention beyond its original scope).
Sergeant Lound reasonably suspected the Impala's occupants of attempting to defraud the
bank, so bringing the bank employees to make a potential eyewitness identification is directly related
to the brief investigation. A 15-minute wait for the officers to arrive with the employees was
reasonable in this case. See United States v. Garcia, 496 F.3d 495, 504 (6th Cir. 2007) (duration of
investigatory stop was reasonable where canine sniff performed within half an hour of the stop).

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Officers searched Simone’s vehicle and seized evidence minutes before the bank employees
arrived and identified Simone as the suspect of the attempted fraudulent check scheme. Simone and
Kirkby were then arrested. Upon effectuating an arrest, it is MTPD protocol to impound the vehicle
and conduct an inventory search. (Page ID #730)
The doctrine of inevitable discovery is an exception to the exclusionary rule and allows a
court to admit evidence that is otherwise illegally obtained if the evidence inevitably would have
been discovered through independent, lawful means. Nix v. Williams, 467 U.S. 431, 443-44 (1984).
There is nothing speculative about the inevitable lawful discovery in this case because it was
mandated by a standard police protocol. Once the bank employees identified Simone, Lound had
probable cause to arrest and the inventory search would have happened without regard to any
allegedly unlawful search. See United States v. Kennedy, 61 F.3d 494, 497-98 (6th Cir. 1995).
Defendant proceeded to a jury trial and was convicted of all counts on October 20, 2011. (R.
57) The Presentence Report (PSR) recommended that the district court impose guidelines
enhancements based on loss amount, theft from a person, and for sophisticated means, under USSG
§§ 2B1.1(b)(1)(B), (b)(3), and (b)(10)(C). (Page ID #778) Neither the PSR nor the parties addressed
whether the obstruction of justice enhancement under § 3C1.1 should apply. The week before
sentencing, the district court notified the parties that it was considering imposing a sentence above
the guidelines. (Page ID #912)
At sentencing, the district court applied not only the loss, theft, and sophisticated means
enhancements, but also the two-level enhancement for obstruction of justice. (Page ID #896) The
court premised this last calculation on Government trial exhibits that consisted of post-arrest notes
from Simone to co-defendant Kirkby urging her either not to talk with law enforcement or to
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affirmatively lie by exculpating him. (Page ID #895-96) Commenting on one such note, which
stated, “[t]ell them in court that I had nothing to do with anything,” the district court noted, “[a]t the
very least that’s obstruction of justice. It may even be suborning perjury.” (Page ID #896)
The enhancements resulted in a criminal history category IV and an offense level of 15,
which produced an advisory range of 30 to 37 months on Counts 1 and 2. Simone objected to the
obstruction enhancement. He argued that he should receive a sentence below the guidelines because
co-defendant Kirkby had been more involved in the conspiracy but had received only a one-year
sentence. (Page ID #898)
Before imposing a sentence, the district court noted the advisory nature of the guidelines,
considered the “extensive, elaborate [and] serious” nature of the scheme, and noted the serious
nature of identity-theft as a species of fraud. (Page ID #909-910) The court assessed the scope and
nature of defendant’s “lengthy criminal history of theft offenses, of drugs, and of violence,”
concluding it was “really not a very pretty picture overall.” (Page ID #910) The district court
imposed a 48-month sentence on Counts 1 and 2, which was 11 months over the advisory guidelines
range, followed by the mandatory 24-month sentence for Count 3. (Page ID #911)
This court has held that a sentence is procedurally unreasonable if the district court
incorrectly calculates the guideline scoring range, finds the guidelines to be mandatory, fails to
consider § 3553(a) factors, selects a sentence based on clearly erroneous facts or fails to adequately
explain a sentence. United States v. Baker, 559 F.3d 443, 448 (6th Cir. 2009). In this case defendant
argues that the court improperly enhanced the adjusted offense level by relying on exhibits that had
been redacted for trial and that were therefore incomplete, and that the court did not adequately
explain the basis for its ruling.
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The exhibits were admitted at trial and therefore were part of the record in this case. It was
not unreasonable for Judge Neff, as the sentencing judge, to consider the notes in the context of the
case as a whole in calculating the appropriate Guideline range. As for explaining the basis for her
ruling, Judge Neff made clear that she felt Simone did not accept responsibility in this case, and in
fact attempted to obstruct justice and possibly to suborn perjury. (Page ID #896) Judge Neff
explained that her reasons for going 11 months over the Guideline range were to deter and to protect
the public, given her strong belief that Simone was likely to reoffend. (Page ID #911)
Simone’s substantive due process argument is based on the disparity of his sentence
compared to Kirkby’s sentence. “A district judge is not required to consider the disparity between
the sentences of co-defendants.” United States v. Wallace, 597 F.3d 794, 803 (6th Cir. 2010). The
district court stated its reasoning for imposing a sentence that was 11 months above the advisory
guidelines range: “I think that to deter, to protect the public, particularly as I said in response to my
belief that Mr. Simone’s history makes him highly likely to reoffend, . . . we therefore need to keep
him out of circulation for as long as possible.” (Page ID #911) The disparity between Simone’s and
Kirkby’s sentences is readily explained by the fact that Simone’s criminal history was far more
extensive than Kirkby’s, and Kirkby received a three-level downward departure for testifying at trial
and providing substantial assistance that resulted in sentences for others involved in the overarching
fraud conspiracy.
Accordingly, we AFFIRM the district court’s judgment.

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