United States v. Thomas Whitlow
2016 U.S. App. LEXIS 4219
| 8th Cir. | 2016Background
- Whitlow and others were indicted on conspiracy to commit wire fraud and multiple wire fraud counts for a scheme targeting elderly victims using obituaries: callers posed as relatives in need and directed victims to wire money to intermediaries who forwarded funds to Whitlow’s wife.
- Clemons (Whitlow’s wife), Amerson, Jordan, and Starks pleaded guilty and testified for the government; Whitlow objected to parts of their testimony as hearsay but the court conditionally admitted it as co‑conspirator statements.
- The jury convicted Whitlow of conspiracy and four wire‑fraud counts after the court dismissed seven other counts on the government’s agreement; Whitlow’s post‑verdict and acquittal motions were denied.
- At sentencing the Guidelines range was 51–63 months (offense level 17, CHC VI); the district court varied upward to 108 months (concurrent) based on Whitlow’s extensive theft history and ongoing risk to the public.
- On appeal Whitlow challenged: (1) sufficiency of the indictment, (2) admissibility of co‑conspirator statements, (3) sufficiency of the evidence, and (4) substantive reasonableness of his sentence.
Issues
| Issue | Whitlow’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Sufficiency of indictment | Indictment was "bare bones" and failed to allege elements or facts tying him to crimes; grand jury lacked evidence | Indictment tracked statutory language and was facially sufficient; challenges based on lack of proof are improper | Affirmed: indictment adequate; challenge to sufficiency of grand jury evidence rejected (Costello rule) |
| Admission of co‑conspirator statements (FRE 801(d)(2)(E)) | Statements inadmissible because independent evidence did not establish a conspiracy | Government met preponderance test; offered independent corroboration (victim testimony, money‑transfer records, recorded calls) | Affirmed: district court did not abuse discretion admitting statements; independent circumstantial evidence sufficient |
| Sufficiency of the evidence | Conviction rested only on co‑conspirator testimony (plea‑benefit witnesses); insufficient to link Whitlow to scheme | Jury could credit cooperating witnesses; corroborating evidence (victims, receipts, records, calls) supported convictions | Affirmed: viewed favorably to jury, evidence sufficient for conspiracy and wire‑fraud convictions |
| Substantive reasonableness of sentence | 108 months nearly double Guidelines range and therefore unreasonable | District court considered §3553(a) factors, criminal history, pattern of predatory conduct against elderly and need to protect public; variance justified | Affirmed: sentence not an abuse of discretion; variance permissible given §3553(a) factors and precedent |
Key Cases Cited
- United States v. Tebeau, 713 F.3d 955 (8th Cir. 2013) (indictment sufficiency standard)
- Costello v. United States, 350 U.S. 359 (1956) (grand jury indictment valid on its face ends inquiry into sufficiency of grand jury evidence)
- United States v. Young, 753 F.3d 757 (8th Cir. 2014) (need for independent evidence to admit co‑conspirator statements)
- United States v. Bell, 573 F.2d 1040 (8th Cir. 1978) (elements for admitting co‑conspirator statements)
- United States v. Cole, 721 F.3d 1016 (8th Cir. 2013) (standard of review for sufficiency of evidence)
- United States v. Fuller, 557 F.3d 859 (8th Cir. 2009) (accomplice/co‑conspirator testimony need not be corroborated to sustain conviction)
- United States v. Feemster, 572 F.3d 455 (8th Cir. 2009) (abuse‑of‑discretion review for substantive reasonableness)
- Gall v. United States, 552 U.S. 38 (2007) (review and standards for sentencing variances)