United States v. Flonnory
2011 U.S. App. LEXIS 139
| 10th Cir. | 2011Background
- Flonnory, a DoD civilian employee at Fort Sill, defrauded Dennis Carver and others through a Nigerian oil scheme of false real-estate tips, with five counts tied to the June 9 check and four postdated personal checks.
- Fort Sill lies within the military jurisdiction of § 7, so Oklahoma false-pretense law (§ 21-1541.1) applies via the Assimilative Crimes Act (§ 13).
- The government proved the June 9 transfer occurred on Fort Sill; defendant contested venue/situs, arguing the crime occurred off-base or at his office.
- Carver testified the transactions largely occurred on base, and the defense acknowledged proximity of meetings; multiple witnesses supported on-base transfer in the record.
- PSR calculated loss across 12 victims totaling $194,230, attributing losses to 2004–2005 scheme, with sentencing enhancements for loss amount, multiple victims, and obstruction.
- District court sentenced Flonnory to 33 months; issues on Count 2 sufficiency, instruction on speculation, and sentencing enhancements followed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for Count 2 | Government: transfer occurred on Fort Sill; jurisdiction attached. | Flonnory: transfer not on base; insufficient location proof. | Evidence supports on-base transfer; sufficient beyond reasonable doubt. |
| Speculation instruction at deliberation | Government: no abuse; instruction unnecessary. | Flonnory: jury should be told not to speculate. | No abuse of discretion; existing instructions sufficed. |
| Loss calculation for guidelines | USSG 2B1.1 uses all relevant conduct; total loss supports higher level. | Johnson/Williamson amounts possibly unrelated; reduce loss. | Loss calculations harmless; range unchanged. |
| Obstruction of justice enhancement | Enhancement proper due to perjury at trial. | District court lacked explicit perjury findings. | Evidence supported perjury; plain-error review insufficient to reverse. |
Key Cases Cited
- United States v. Hoffecker, 530 F.3d 137 (3d Cir. 2008) (no need for speculative instruction when reasonable-doubt instruction covers)
- United States v. Dreamer, 88 F.3d 655 (8th Cir. 1996) (circumstantial-evidence instruction adequate with reasonable-doubt instruction)
- United States v. Hawthorne, 316 F.3d 1140 (10th Cir. 2003) (require explicit identification of perjury specifics in obstructions)
- United States v. Dunnigan, 507 U.S. 87 (1993) (perjury definition and need for willful false testimony)
- United States v. Rowen, 73 F.3d 1061 (10th Cir. 1996) (use of trial testimony in sentencing determinations)