*1 936 consistently Rule held that not err. We have apply to to a defendant “not intended
simply
32(c)(3)(D)
to strike
require
not
a court
does
to its burden
puts
who
in sen-
material not considered
controverted
by denying factual elements
proof at trial
comment,
States,
(n. 2);
14 F.3d
3E1.1,
tencing. Bayless v. United
§
guilt.” U.S.S.G.
(8th Cir.1994);
410,
v.
Karam,
1280,
States
412
United
37 F.3d
v.
see United States
(8th
686,
Cir.1993);
(8th
Beatty,
Unit-
Cir.1994);
King,
9 F.3d
689
States v.
United
(8th
Cir.1994).
McLemore,
331,
(8th
Only
v.
5 F.3d
728,
in
ed States
F.3d
734-36
only sat-
The district court “need
may
demon
a defendant
“rare situations”
isfy
Bayless,
The next issue Smith the “Offender Characteristics” es concerns PSR, alleged he was an section of his which his for physically alcoholic and had abused objected sentencing, Smith mer wife. Before America, Appellee, UNITED STATES of this material and re to the truthfulness of quested the court strike it from the He wanted the controverted material
PSR. Eugene BALLEW, Eugene Cecil a/k/a future, because, point at in the stricken some Ballew, Appellant. it could used to his detriment. he believed be No. 94-2008. request, The district court refused Smith’s 32(c)(3)(D) noting pro that Fed.R.Crim.P. Appeals, United States Court court not have to make a vides that a does Eighth Circuit. finding as to controverted material contained in if the court does not consider it a PSR Sept. Submitted 1994. sentencing. Decided Nov. 1994. court Despite assurances from the district Rehearing Suggestion Rehearing that it would not consider the controverted En Banc Denied Dec. material, argues that court Smith now disagree. sentencing The considered it. We plainly the district court con-
record shows of the controverted material. sidered none alleges Smith also error the district court’s refusal to strike the controverted ma- terial from his PSR. The district court did Bayless, appeal we determine wheth-
3. As in
the record on
does not
instruct the district court to
not,
complied
indicate whether the district court
Rule
with
“[i]f
er it attached a written decision” and
32(c)(3)(D)’srequirement
that the court at-
copy
...
a new
... with an attachment
send
tach a written decision to the PSR in the Bureau
identifying
disputed
stating
matters
possession
stating
that the court
of Prison’s
findings resolving the
district court made no
the controverted
did not consider
material
disputes because the contested information was
However,
sentencing. Bayless,
BOWMAN, Judge. Circuit Eugene Cecil Ballew was tried before a jury and convicted of one count of mail fraud count fraud in and one of wire violation §§ charges U.S.C. 1343. The fraud against Ballew stemmed from a false claim that his red 1987 Chevrolet truck had been stolen. The District Court1 sentenced count, prison Ballew to 21 months on each concurrently, years to be served and two supervised appeals release. Ballew both his *4 his convictions and sentences. We affirm.
I.
By way background, we summarize the government’s in evidence this case. Re- Ballew, sponding previous by to a call John Coleman, representative L. a of Motors In- (MIC) Company Memphis, surance in Ten- nessee, telephoned Ballew at his home in Bluff, Missouri, 4,1987. Poplar on November statement, In a to reported recorded Ballew pick-up that red Coleman his 1987 Chevrolet Orleans, truck had been stolen in New Loui- siana, 9,1987. on or about October Coleman report mailed a claim form and a loss Ballew complet- statement form. MIC received the forms from Ballew mail November ed later, days paid 1987. Three MIC Ballew Corporation, Ford Motor lien- Credit holder, $16,750 for the loss. 31,1989, May High-
On the Missouri State way Patrol recovered the red 1987 Chevrolet in, pick-up truck at farm Charles Chatman’s Bluff, coincidentally, Poplar Missouri. Chat- man had been friends for about and Ballew years. salvage, for ten MIC sold the vehicle $10,- reducing approximately MIC’s loss at Evidence introduced trial showed Goodman, Louis, MO, ap Ilene A. for St. possession had been control pellant. reported it stolen. Bal- the vehicle after he Price, Atty., A. Asst. Michael St. lew had driven the vehicle on numerous occa- Louis, MO, appellee. receipt payment on sions after his MIC’s claim, days using his it for a at a time few HEANEY, FAGG, storage Judge, returning and then it to a locked Before Circuit key, BOWMAN, garage, a on the Judge, and Circuit to which Ballew had Senior Circuit the vehicle in Judge. Chatman farm. Ballew used n Stephen Limbaugh, 1. The Honorable N. United Missouri. Judge States District for the Eastern District pick-up truck to ham- motorcycle and the red 1987 Chevrolet legitimate businesses: two farming opera- per identification of the vehicles. and an out-of-state boat shop tion. Clayton De- Ballew enlisted Chatman and wayne Hastings, partner highway patrol recovered the state When farming operation, help him steal vehicles storage ga- the Chatman the vehicle from two, one, respective and three from their engine on the floor of rage, original was its Hastings owners. Chatman and stole vehicle Dodge Cummins diesel garage, and a arranged to four without Ballew. Ballew in front suspended from a chain engine was engine the fourth stolen vehi- have the did not have a truck. The truck Chevrolet, and put cle into Ballew’s red 1987 number, it but did have vehicle identification present storage garage Ballew was assigned Department of Revenue a Missouri engine removed from vehicle when the was number2 had been issued identification four. Ballew also enlisted Chatman and for a blue Chevrolet to Ballew trucks, Hastings help him conceal the variety troopers found a of truck truck. The including that he had the red Chevrolet identification num- parts, some with altered reported stolen. bers, vicinity They of the truck. also 628) (Mo. investigation, the Missouri plate license had After additional found a Highway *5 Ballew for his blue 1979 Chev- Patrol seized the blue 1979 been issued to State pick-up The evidence further truck to which the state of Mis- truck. Chevrolet rolet plate assigned plate and Di- that the same Missouri license souri had the license showed to the red 1987 Chevrolet rector of Revenue number found on the red had been affixed Troopers truck. 1987 Chevrolet. located it on the Senath, in Horner farm Missouri. The Hor- from the Troopers also recovered Chatman (“the stated that Horner ners the vehicle farm trucks that various dealers four other truck”) Eugene belonged farm Ballew. (1) reported had stolen: a red 1989 dual cab reported pick-up Chevrolet truck stolen from II. Murray, Kentucky, February in a dealer in convictions, For reversal of his Ballew con- (valued (2) $20,842); at a two-tone blue (1) tends the District Court abused its pick-up truck from 1985 Chevrolet the same by admitting discretion evidence that Ballew dealership reported stolen March 1989 tampered identifying with the marks of the (valued (3) $9,500); pick- a Ford at blue 1989 (2) truck; farm and court erred Horner up reported truck stolen from a dealer in by overruling his motions for a of (valued Sikeston, Missouri, in March 1989 at acquittal because the had failed (4) $19,000); gray a silver and jury produce sufficient evidence for the (from Dodge pick-up Dodge truck which the guilty beyond him a find reasonable doubt. extracted) engine was re- Cummins diesel reject these contentions. ported stolen from another dealer in Sike- (valued ston, Missouri, $18,- in March 1989 at A. 686). vehicle, Troopers a an recovered sixth orange pick-up by argues truck owned first that the District 1983 GMC Ballew, father, George the defendant’s that Court erred when it denied his motion in subsequent objection did not have a vehicle identification number. limine and at trial seek ing prior that the defendant in- to exclude evidence of bad acts The evidence showed 404(b),3 parts spe- terchanged of these trucks and under Federal Rule of Evidence various crimes, parts wrongs, 2. When a vehicle is constructed from of Evidence of other or acts is vehicles, requires safety totalled Missouri a in- prove not admissible to the character of a spection by highway patrol the state before it will person conformity in order to show action in vehicle. The Missouri De- issue a title for the however, may, It be for therewith. admissible partment of Revenue issues each reconstructed motive, purposes, proof oppor- other such as “assigned passes inspection vehicle that an intent, tunity, preparation, plan, knowledge, identification number.” identity, or absence of mistake or accident. 404(b) of Evidence states: Federal Rule by testimony regard cretion the District Court its denial of eifieally evidence and objections farm truck. We review the to the ing the Homer Ballew’s admission rulings only court for evidentiary of a district evidence. discretion, v. Whit United States abuses if Even we were convinced that (8th Cir.1994), and will
field, 31 F.3d
404(b) applied
farm
Rule
to the Horner
track
improper evidentiary
only when an
reverse
evidence, we would hold that it met the rule’s
rights of the
ruling affects the substantial
requirements
admissibility
for the
of other
that the error
defendant or when we believe
assessing
acts
When
evidence.
admissi
slight
than a
influence on the
has had more
404(b),
bility of evidence under Rule
courts
verdict,
DeAngelo,
States v.
United
(1)
may
—
factors:
consider three
whether the
(8th
Cir.),
1228, 1233
to a
evidence
relevant
material issue other
(1994);
2717, 129
-,
114 S.Ct.
L.Ed.2d
(2)
character,
than the defendant’s
whether
52(a).
see also Fed.R.Crim.Pro.
other act
is similar
kind and reason
404(b)
objection under
mischarac-
ably
charged,4
close in time to the acts
question
as evidence
terizes the evidence
(3)
sup
whether sufficient evidence exists to
crimes, wrongs,
Hor-
“other
or acts.” The
port
finding by
that the defendant
farm truck evidence is better described
ner
prior
act.5
committed
See United States
charged.
of the crime
as direct evidence
Drew,
970-71
were found
Parts of the Horner farm truck
If the evidence is admissible under Rule
pick-up truck
with the red 1987 Chevrolet
404(b),
may
court
it if
still
exclude
its
reported
had
stolen. The license
that Ballew
probative
substantially outweighed
value is
truck had
plate assigned to the Horner farm
potential
prejudice.
its
unfair
Id.
at
been on the red 1987 Chevrolet
971; see also Fed.R.Evid. 403.
The evidence further showed that' a
truck.
*6
of Revenue number found
Missouri Director
government argued,
The
and the
on
red track came from the Homer farm
the
agreed,
District Court
that the Horner farm
track and that Ballew was the owner of the
truck evidence was relevant to either intent
Homer farm track at the time it was seized
motive;
it
or
as
tended to show that Ballew
Highway Patrol.
the Missouri State
switching parts
plates
and license
be
was
charged
prevent
Ballew was
with mail fraud
tween the tracks to
the insurer from
case,
discovering
possessed
fraud in this
both of which
that Ballew still
the
and wire
reported
Ballew disin
contemplate a “scheme or artifice to de
truck he had
stolen.
1341,
genuously argues
§§
It
obvi
that intent was not a mate
fraud.” 18 U.S.C.
1343.
is
parts
ous that
were switched between the
rial issue because he never contended
claim
a mistake or an
Horner
farm track and the red track to
his false insurance
was
however,
defraud,
is an
identity
the
of the red track and thus
accident.
Intent
conceal
fraud,
v.
successfully carry out
scheme to
element of
mail
United States
both
(8th
Noland,
1384,
Cir.1992),
company. Direct evi
960 F.2d
1388
defraud his insurance
Mills,
fraud,
subject
987
charged
crime
is not
and wire
United States v.
dence of the
—
(8th
404(b).
1311,
Cir.),
heightened scrutiny
of Rule
F.2d
1314
-,
Aranda,
211, 213-
943 1683, Gooden, 91 S.Ct. 29 L.Ed.2d dence. See United States v. (8th (1971). Cir.1989), F.2d 727-28 908, 110 2594, 110 496 U.S. S.Ct. L.Ed.2d that the evidence is sufficient We conclude (1990). Whether Ballew was involved support Ballew’s convictions and that question theft of the trucks ais of fact. We deny- not err in District Court therefore did findings the factual of a district court review acquit- motion for a of ing Ballew’s sentencing at for clear error. United States tal. Cabbell, (8th Cir.1994). v. record, carefully reviewing After we can III. say not clearly that the District Court erred sentences, Attacking ar his Ballew finding that Ballew stole three of the other it gues that the District Court erred when trucks and benefitted from the theft of the Sentencing applied the Guidelines to the fourth. Whether such conduct was relevant Specifically, argues facts of his case. he charged, however, to the offense is a closer (1) improperly the court considered the four question. part opin I of this truck thefts described part of his conduct ion as relevant because Sentencing The Guidelines state that by reli the thefts were neither established relevant conduct includes: able evidence nor relevant to offenses part all such acts and omissions were (2) conviction; it erred when found that of the same course of conduct or common than minimal the offenses involved more plan scheme or as the offense of conviction. planning organizer and that Ballew an or was activity. leader of the criminal review lB1.3(a)(2> (1987). § finding U.S.S.G. The application district court’s of the Guidelines by the District Court that the truck thefts novo, findings de and its factual for clear subsequent switching parts were con- Frieberger, error. United States continuing nected to a scheme to defraud Finding no errors of company Ballew’s insurance is a factual find- fact, clearly findings law or erroneous we ing subject clearly to review under the erro- affirm Ballew’s sentences. Gooden, neous standard. See 892 F.2d at Having carefully record, reviewed the
A. say we cannot that the District find- Court’s cases, Sentencing In ing clearly fraud erroneous. provide graduated for a increase Guidelines The District Court found that Ballew had dependent
in the base offense level on the prevent law enforcement officials from (1987). amount of the loss. 2F1.1 discovering the red 1987 Chevrolet The District Court considered evidence fully carry truck order out his scheme Ballew’s involvement in the theft of four company. to defraud his insurance *8 sentencing trucks at and that the decided content, however, receiving not was with the $68,026. $10,- Adding trucks were worth .the money destroying insurance and the truck. company, 900 loss to the defrauded insurance so, using He wanted to continue it. To do he $78,- the court calculated the total loss to be disguise by partially to the truck had rebuild- $50,001 $100,000, 926. For losses of to the ing parts it with from other trucks and dis- require a Guidelines five-level increase the plates registered playing license to another 2Fl.l(b)(l)(F). § base offense level. Thus, stealing using parts truck. and integral argues
Ballew
that the evidence
the other trucks was
to Ballew’s
continuing
of his involvement in the other thefts is
concealment and
use of the truck
unreliable,
reliable,
inextricably
or
but that even if
the evi
and was
bound to the “scheme
of which the
found
dence does not constitute evidence of “rele
artifice to defraud”
sentencing
guilty.
vant conduct.”
a defen
We hold that the record
When
Ballew
this,
dant,
adequately supports
finding of
may
a district court
consider un
case
that
thefts were
charged, relevant conduct that has been es
the District Court
these
by
preponderance
to the offenses of conviction
tablished
a
of the evi-
conduct relevant
(U.S.
-,
correctly
115 S.Ct.
B. part that the truck thefts were a Court found defraud, and we have held of the scheme District that the Finally, Ballew contends finding clearly court’s is not errone that the clearly it found erred when Court The District Court further found ous. more than min- involved offense of conviction moving and “the most Ballew was “the force” orga- was an planning and that Ballew imal parties involved.” Of the culpable of all the activity. criminal nizer or leader involved, Ballew stood to three individuals disagree. gain ownership the most: of the red 1987 provide for a two- The Guidelines from his loan Chevrolet truck free if the offense in fraud cases level increase Corporation, Motor a new from Ford Credit planning.” minimal “more than' involved engine for the same vehicle from the diesel (1987). 2Fl.l(b)(2)(A) § The com U.S.S.G. truck, Dodge and new trucks for his stolen than mentary defines more to the Guidelines Additionally, farming business. Ballew en planning “more than is planning minimal as Hastings to assist him in listed Chatman and of the offense a typical for commission of the trucks. We the theft and concealment steps “significant affirmative simple form” or finding that hold that the District Court’s 1B1.1, § offense.” .... to conceal the taken organizer Ballew was an or leader of the comment, (n. 1(f)). found The District Court clearly activity is not erroneous. criminal required commission of this offense planning, minimal and we review more than IV. finding only error. United such a for clear stated, convic- For the reasons Wilson, States v. tions and sentences are affirmed. HEANEY, argued Judge, at the Senior Circuit As sentencing hearing, dissenting. mail and wire fraud charges predicated on insurance fraud nor only. my I to dissent on one issue In write mally take the form destruction view, majority concept has stretched the In this property insured the insured. breaking past of “relevant conduct” n case, developed scheme an elaborate majority point. The holds that Ballew’s sen- involving staged theft in New Orleans tence for mail and wire fraud can be en- it subsequent masking of the vehicle so alleged hanced due to his involvement with continue could not be identified and he could nearly eighteen the theft of several trucks conduct, designed to to use it. That same months after the commission of the offense detection, “significant constitutes avoid also he was convicted. See which steps ... taken conceal the affirmative lB1.3(a)(2) 2Fl.l(b)(l)(F). § I believe finding that offense.” The District Court’s link that the between the stolen trucks and plan more than minimal the offense involved entirely fraud tenuous to the insurance too therefore, clearly ning, is not erroneous. Conduct, constitute relevant and would hold finding clearly the district court’s to be erro- provide also for a The Guidelines neous. an two-level increase if the defendant was *9 leader, uncharged “organizer, manager, supervisor” or To sort out when conduct com- prises part plan, or activity involving less than five of a common scheme this criminal 3Bl.l(c) (1987). participants. court has embraced the set forth .test Hahn, F.2d 910 sentencing review the court’s factual de United States (9th Cir.1992), components regarding role in the essential of termination a defendant’s “similarity, tempo- clearly regularity, which are and the offense under the erroneous stan See, Lucht, e.g., proximity.” ral United States v. dard. United States v. — (8th Cir.1992). Chatman, Cir.1994), F.2d comment). insurance fraud and the The pres- are three elements Only of these traces discrete, identifiable are such truck thefts us. case before in the ent majority’s conclusion units of crime. The proximity temporal between degree of The swapping compo- and of that the truck thefts insurance the 1987 and 1989 truck thefts the “integral to concealment nents Ballew’s were of pattern No ascertainable fraud is small. continuing of truck” that he use the and thefts with Ballew’s links the truck regularity crucially fraudulently reported stolen un- sentencing, Corporal fraud. At insurance used the by the fact that Ballew dermined High- Overbey the Missouri State of Dennis any eighteen months without truck for theft of three to the way Patrol linked Ballew components appearance. or Sent. change in during separate incidents only two trucks purpose part-swapping the Tr. at The of 27, 28, Tr. at Sent. April of 1989. or March disguise the and foremost stolen was first produced no 30, 32, The 56-60. trucks, not to shield false stolen Ballew’s activities be- ongoing criminal of evidence report and fraudulent insurance vehicle their remote- and 1989. Given tween 1987 credulity simply It stretches to con- claim. the false insurance from and isolation ness “integral” that the 1989 activities were clude claim, cannot be considered the truck thefts fraud for which Ballew was to the insurance mail wire and component of Ballew’s regular convicted. fraud. agree the later truck thefts I that While lacking, there must be regularity is Where parts probably the an swapping and of had similarity.” showing of substantial strong “a cloaking cillary further Ballew’s ear effect of strong Hahn, No such at 911. fraud, the connection lier insurance asserted in this case. The showing has been made , together to bind these two is too tenuous the truck were fraud and thefts insurance discreet, into a identifiable units crime victims, differ- crimes with different different trial, pros continuing At the single offense. operand! ends, modi and different ent crimes certainly treated the two as ecutor accomplices, because no common There were told the separate prosecutor offenses. The of, and bene- perpetrator was the sole Ballew mail fraud jury “had committed that from, The ficiary insurance fraud. the 1987 in order insurance and fraud to obtain wire its on a majority rests decision apparently companies.” money two these insurance believing that finding purpose, of common The was also told Tr. at 215. V Trial in order to conceal truck thefts occurred the ... a “uncovered for us sepa that Chatman fraud. Yet when and mail wire I note Id. at 216. also rate scheme.” purpose of truck the the questioned about attorney Kentucky commonwealth the thefts, Overbey “[t]he testified that Officer prejudice his indict agreed dismiss with com- a custom [in] were to be used vehicles Hastings and for two of Ballew ment Hastings Clayton Mr. bining operation that due to evidence. truck thefts insufficient [as] involved in were Mr. Cecil Ballew “only testimo evidence [was] The state’s Tr. at 28. The together.” Sent. partners Chatman, an unindicted indi ny of Charles Hastings and alleged participation of Charles stolen vehicles property whose vidual on strongly indi- in the truck thefts Chatman recovered.” Common were discovered purpose was steal cates trio’s Hastings, Kentucky v. Ballew and wealth trucks, insur- up Ballew’s earlier not to cover (May No. 91-CR-005 Cir.Ct. Calloway supports anything, If the record fraud. ance 1993). simply lacks sufficient record The oc- part-swapping conclusion that similarity, regulari commonality, evidence of the stolen to conceal thefts curred proximity to hold Ballew ty, temporal or trucks themselves. through his con truck theft accountable Hahn, pointed out Circuit Ninth In and mail fraud. wire viction for does exist in 'dis illegal “when conduct to the district remand ease of I would crete, apart from units’ identifiable to resentence Ballew instructions conviction, anticipate court with the Guidelines fense *10 Hahn, for rele- enhancement the five-level without charge such conduct.” separate for deriving the truck thefts. § vant conduct 1B1.3 (quoting F.2d at Consequently, I would direct the district its additional enhance-
court to reassess ments, depend part upon all of which
finding conduct. of relevant CHAMPAGNE, Repre Debra as Personal Ricky Cham sentative of the Estate Champagne, pagne, and Richard as Per Representative of the Estate of sonal Ricky Champagne, Appellants, America, Appellee. UNITED STATES Senechal, Forks, ND, R. Alice Grand ar- brief), gued (Roger Sundling, R. on the for No. 92-3321. appellant. Appeals, United States Court Soni, Justice, Dept, Washing- Sushma Eighth Circuit. ton, DC, (Mark Stern, argued B. on the brief), appellee. for 14, June 1993. Submitted 21, Decided Nov. GIBSON,* MAGILL, Before JOHN R. ARNOLD,
and MORRIS SHEPPARD Judges. Circuit ARNOLD, MORRIS SHEPPARD Circuit Judge. early
In Ricky Champagne attempt- by taking ed suicide an overdose of medi- cation. He was admitted- to the Indian Belcourt, hospital Health Service North (a facility), day. Dakota federal on that He hospital days was released from the two la- release, ter. Less than a month after his he by shooting committed suicide himself. He years was 18 old. Champagne’s
Mr. parents govern- sued the inment federal court under the Federal Tort Act, §§ Claims see 28 2671- U.S.C. 2680, alleging malpractice medical and the consequent wrongful death of their son. Af- trial, two-day ter a bench the court entered 1992. See * submitted; January The HONORABLE JOHN R. GIBSON was Cir- he took senior status on Judge Appeals cuit of the United States Court of opinion before this was filed. Eighth for the Circuit at the time this case was