Kenneth Ravenell seeks Rehearing En Banc

By Megan E. Coleman, Esq.

On May 9, 2023, Kenneth Ravenell filed a Petition for Rehearing En Banc of the panel majority’s holding that Mr. Ravenell was not entitled to a jury determination on the applicability of the statute of limitations after Mr. Ravenell raised the defense at trial.

By way of background, Mr. Ravenell was acquitted of six of the seven charges against him, the sole count of conviction was for conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h). At trial, Mr. Ravenell moved for judgment of acquittal arguing, inter alia, that the government had not proven that the money laundering conspiracy lasted into the applicable statute of limitations period, past July 2, 2014. The district court denied the motion for acquittal, finding that the government had shown evidence of acts associated with the conspiracy past July 2, 2014, and that there was no evidence of withdrawal from the conspiracy on Mr. Ravenell’s behalf. At the end of the defense case, Mr. Ravenell renewed his motion which the court again denied.

Mr. Ravenell then requested two proposed jury instructions on the statute of limitations issue. The first instruction requested that the jury find that the government must prove beyond a reasonable doubt that at least one overt act in furtherance of the conspiracy was committed after July 2, 2014. The district court denied this request, reasoning that no overt act was required for this type of conspiracy. The next day, Mr. Ravenell requested a revised instruction that the government must prove by a preponderance of the evidence that the alleged conspiracy continued after July 2, 2014. In discussions on this instruction, Mr. Ravenell offered to correct the incorrect burden of proof language to proof beyond a reasonable doubt. The court declined to give this instruction. Thus, the court gave no jury instruction regarding the statute of limitations.

On direct appeal, Mr. Ravenell argued that the district court erred in not instructing the jury on the statute of limitations and that the evidence showed that any conspiracy terminated prior to July 2, 2014. The panel majority found no reversible error in the district court’s decision not to give a statute of limitations instruction because it found that neither of Mr. Ravenell’s proffered instructions were legally correct. The panel majority was authored by Judge Wilkinson and joined by Judge Heytens. Chief Judge Gregory dissented on this issue and would have vacated Mr. Ravenell’s conviction and remanded for a new trial.

The panel majority found that 18 U.S.C. § 1956(h) does not require proof of an overt act in furtherance of the conspiracy and that Mr. Ravenell’s requested instruction “misunderstands the difference between an overt act conspiracy and a non-overt act conspiracy.” Op. 14. The panel majority explained that 18 U.S.C. § 1956(h) is a non-overt act conspiracy, meaning that the offense requires nothing more than an agreement to launder money. Such a conspiracy is presumed to continue “as long as its purposes have neither been abandoned nor accomplished, and no affirmative showing has been made that it has terminated.” Op. 14 (internal citation omitted). The panel majority found that “the burden shifts” to the defendant to “show affirmative withdrawal or termination.” Op. 15. The panel majority faulted Mr. Ravenell for failing to meet this burden and found that there was evidence of conduct undertaken in furtherance of the conspiracy past July 2, 2014. Thus, the panel majority affirmed the district court.

Chief Judge Gregory dissented because the majority held “with little to no limiting principles, that the district court was not required to instruct the jury on the relevant limitations period because Ravenell was charged and convicted of a non-overt act conspiracy.” Op. 40 (Gregory, C.J., dissenting). Chief Judge Gregory found that Mr. Ravenell’s counsel attempted to correct the mis-stated burden of proof in the second requested jury instruction, and that the district court nonetheless declined to give the instruction.

Chief Judge Gregory also found that the court’s standard instruction about “substantial similarity between the dates alleged in the indictment and the dates established by testimony or exhibits” does not “substantially cover” an instruction that the jury could not convict Mr. Ravenell of a conspiracy that did not continue past July 2, 2014. Finally, the dissent found that the statute of limitations instruction was “so important, that [the] failure to give the requested instruction seriously impaired [Ravenell’s] ability to conduct his defense.”

According to the dissent, the statute of limitations “should protect defendants charged with non-overt act and overt act conspiracies alike.” Op. 46 (Gregory, C.J., dissenting). Also, the countervailing evidence by Mr. Ravenell showing that the conspiracy terminated prior to July 2, 2014, would have been highlighted by a jury instruction on the statute of limitations. The failure to give such an instruction therefore kept the jurors “in the dark” as they viewed culpability “unconstrained by the passage of time.” Op. 50 (Gregory, C.J., dissenting). Thus, the dissent would vacate the conviction and remand the matter for a new trial.

Mr. Ravenell filed a petition for rehearing en banc, contending that the panel majority upholds “the district court’s usurpation of the jury’s authority to resolve every factual question necessary to sustain a conspiracy conviction in this case.” Mr. Ravenell asserts that the panel opinion conflicts with binding United States Supreme Court precedent and precedent from the Fourth Circuit.

Mr. Ravenell argues that once “a statute-of-limitations defense is raised,” the government then “must prove the time of the conspiracy offense” just as it must prove the elements of a conspiracy charge. Smith v. United States, 568 U.S. 106, 113 (2013). Thus, proof of continuation of the conspiracy is separate from the distinct defense of withdrawal for which the defendant bears the burden. Id. Accordingly, when a defendant charged with a non-overt-act conspiracy raises the statute of limitations defense, the continuation of the conspiracy within the limitation period becomes a fact essential to conviction, and the defendant has “the right to have a jury determine” compliance with the statute of limitations. United States v. Gaudin, 515 U.S. 506, 522-23 (1995).

In Smith, the district court adhered to such principles by instructing the jury that it could convict the defendant only “if the Government had prove[n] beyond a reasonable doubt…that the conspiracies ‘continued in existence within five years’ before the indictment.” 568 U.S. at 108. Chief Judge Gregory took the position that the district court’s refusal to instruct the same “strikes at the heart of Ravenell’s ‘fundamental constitutional right’ to a jury trial.” Op. 52 (Gregory, C.J., dissenting).

Mr. Ravenell alleged that the panel majority’s holding “also disrupts a previously unbroken line” of Fourth Circuit rulings explaining that it is the jury that determines whether the government has proven beyond a reasonable doubt that a non-overt-act conspiracy extended into the limitations period. See, e.g., United States v. Campbell, 347 F. App’x 923, 927 (4th Cir. 2009); United States v. Portsmouth Paving Corp., 694 F.2d 312, 324 (4th Cir. 1982); United States v. Head, 641 F.2d 174, 177 n.4 (4th Cir. 1981).

Similarly, Mr. Ravenell argued that “the panel opinion’s misreading of Supreme Court precedent sparks fresh conflict with decisions from other circuits.” See, e.g., United States v. Piette, 45 F.4th 1142, 1163 (10th Cir. 2022); United States v. Pursley, 22 F.4th 586, 587, 593 (5th Cir. 2022); United States v. Sher, 562 F.3d 1344, 1364, 1366 (11th Cir. 2009).

Mr. Ravenell attacks the over-complication by the panel majority in distinguishing between compliance with the statute of limitations for overt-act versus non-over-act conspiracies. Citing to Chief Judge Gregory’s dissent, Mr. Ravenell argues that the district court can properly fashion an instruction to the jury on the legal principles related to the statute of limitations that apply specifically to non-overt-act conspiracies.

Mr. Ravenell points to the panel majority’s acknowledgement that Mr. Ravenell presented evidence that the charged conspiracy had terminated prior to the limitations period, see Op. 19-20, which according to Mr. Ravenell, could have led to an acquittal if the jury had been properly instructed. Rather than have the court assess this competing evidence, Mr. Ravenell argues that Fourth Circuit precedent places that responsibility with the jury. See United States v. Lindberg, 39 F.4th 151 (4th Cir. 2022).

With respect to the accuracy of the jury instructions, Mr. Ravenell argues that “the panel majority cannot sidestep its conflict with binding precedent through reliance on…a defendant’s failure to propose a perfectly accurate instruction[.]” Mr. Ravenell takes the position, as the dissent did, that he satisfied the three-part framework for evaluating a district court’s refusal to provide a requested jury instruction. See, e.g., Op. 42-43 (Gregory, C.J., dissenting).

Mr. Ravenell contends that the panel majority effectively eliminated the government’s burden to prove the continuation of a non-overt-act conspiracy into the limitations period in conflict with Smith,568 U.S. 106, Grunewald v. United States, 353 U.S. 391 (1957), and Portsmouth, 694 F.2d 312. He contends that the panel opinion “effectively nullifies” in “all non-overt act conspiracy cases, the government’s burden to prove that the charged conspiracy continued into the statute of limitations period.” (Emphasis added).

While the “burden-shifting framework” may apply to the termination of or withdrawal from of a conspiracy, Mr. Ravenell argues that the framework does not apply to the continuation of the conspiracy. For the former, the defendant bears the burden of proof, for the latter, the government bears the burden of proof once the defendant raises the statute of limitations defense. Smith, 568 U.S. at 113.

Mr. Ravenell also contends that the panel majority disregards Grunewald, where the Supreme Court rejected the government’s attempts to “impl[y]” an indefinitely continuing conspiracy from “elements which will be present in virtually every conspiracy case.” 353 U.S. at 403-04. The Grunewald Court determined that “[s]anctioning the Government’s theory would for all practical purposes wipe out the statute of limitations in conspiracy cases.” Id. at 402. Mr. Ravenell argued that the “panel opinion embraces the very position that the Supreme Court emphatically rejected[.]”

Stay tuned to see whether Mr. Ravenell’s petition is granted.

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