*1 America, UNITED STATES
Appellee,
v. RADTKE, Appellant. G. America, Appellee,
United States of
v. Christopher Radtke, Appellant.
Scott America, Appellee,
United States of Donohoe, Appellant.
Michael Thomas 04-2587, 04-2593,
No. 04-2611. Appeals,
United States Court of
Eighth Circuit. Dec.
Submitted: 2004. July
Filed: *7 (“RCG”) and Company
Construction Scaf- (“SSI”). Services, Douglas fold Inc. per- Radtke RCC 1971 to incorporated Depart- form work for the construction Development. Housing ment of and Urban SSI, bought scaffolding supply He com- 1990s, pany, During, Douglas SSI, part Radtke and owned all of RCC companies. and was of both RCC CEO agree- party bargaining was to collective unions, including ments with several (“Union”). Carpenters Union Joiners party any agreements. was not such SSI Douglas Radtke Radtke’s son Scott was vice-president minority of SSI. owner operations Michael was a field Donohoe manager with SSI. argument on be- presented who Counsel Beginning began SSI and RCC Radtke, Douglas appellant, half G. intermittently employees for paying ser- Engh, Minneapolis, Minneso-
was Paul C. performed vices an ad hoc with on basis on presented argument ta. who Counsel directly compa- from the checks written appellant, Christopher behalf of Scott accounts, payable” nies’ bank “accounts Lewis, Radtke, M. Donald Minne- was payroll through companies’ rather than apolis, presented who Minnesota. Counsel checks, system. referred all These argument appellant, Mi- on behalf checks,” no withheld taxes parties “cash Donohoe, was Dino chael Thomas Robert union Until payments. benefit Sicoli, Minneapolis, Minnesota. with a pay employee whether an cash through payroll sys- check or the normal argument be- presented who on
Counsel case-by-case tem was on a basis decided AUSA D. appellee half was Gerald performed. after the work had been Wilhelm, Minneapolis, Minnesota. 1990s, Douglas early In the WOLLMAN, LAY, and Before hired Rita to be SSI’s controller. Galston COLLOTON, Judges. Circuit financial officer promoted to chief She at trial that in 1997. testified she Galston COLLOTON, Judge. Circuit had the time she worked believed at Radtke, Radtke, Scott and Mi- *8 were that workers who not paying SSI for appeal chael their convictions Donohoe (“ca- company “regular employee[s]” of the the conspiracy to defraud United States workers”) withholding taxes sual without fraud, IRS, mail and tax and the federal long payment as the permissible, was so appeal also sen- They law their violations. any given in amount did exceed' not $600 tences. affirm. We used Many the cash checks to year. of employees ap- were pay SSI and RCC I. sup- Because proved Galston. amount of posed ceiling on the dollar resulted appellants’ $600 The convictions checks, workers who re- the in the cash casual during from actions 1990s con- their than totaling more $600 ceived cash checks corporations with two nection —Radtke (D. paid 14). in payable unpleasant were checks made to job.” rela- Radtke Br. at tives or friends. When workers who According were testimony, to Galston’s Scott regular payroll on the of Such, SSI RCC were project manager charge the SSI in checks, in paid cash a substitute name was of job, eventually approached HERC always used. her about possibility of all of paying job workers at the cash checks as a trial, presented At regard- evidence was persuading means of enough of them to specific ing in which cash instances checks that, participate. Galston believed be- paid were in these substitute names. Gal- cause of the dollar amount of the HERC Douglas ston testified that Radtke ex- (between job $20,000 $40,000 and labor for pressly authorized use of cash checks 1998), she could authorize the use of compensate to Marc his son on two occa- cash of checks for all the workers without time, compensation sions. One was for Douglas approval. Radtke’s She testified SSI, driving a truck for and the check was that approached Douglas she and Such made out in wife, the name Marc’s proposal, Radtke with the and that she Damita. The cash paid second check to “upside told him of the and downside Radtke, Galston, according Marc to (T. job paying cash on a Tr. this size.” at mother, made out in his the name of Diane 290). Galston, upside, according The to Radtke. A employee former SSI testified savings despite was the to SSI compensat- him that Scott Radtke told to submit a ing higher workers at a level. The down- security social and number name not his side says of which Galston she informed payment own order to receive over $600. Douglas penalties Radtke involved in- and Donohoe acknowledged paid he was terest be would assessed for SSI’s several times with checks cash made out to pay failure to taxes or union benefits on persons other than himself. if employees’ pay, ac- company’s In 1997 and use of cash checks tions were discovered. regular at SSI became with respect more particular project. to won Galston testified that she recall SSI a con- did not provide specifically informing tract to Douglas for an inspection scaffolds Radtke repair using cash project Hennepin at checks would be Energy “against (T. (“HERC”) law,” 291), Resource Tr. at but Company claimed told she job him The at that “from a risk standpoint, basically, HERC involved a scaffolding one system unhappy employee new to According project blowing SSI. to the whistle (Id. manager would Such, Radtke, bring light.” Scott Douglas this Galston, fearing might According Douglas it take more time than Radtke ex- thought pected proposal about the scaffolding, assemble the asked between it, five and ten minutes including they approving several workers if before Such saying willing employees would be he “felt that his were payment to receive in the loyal to him form cash their none of checks for work on them would (Id.). job. ... turn him savings in.” through SSI achieved its non-payment withholding taxes on the testimony Galston’s was not uncontro- paid by amounts cash checks reduced the Although verted at trial. Scott re- Such risk of loss company to the on the HERC called discussing with *9 job. the use of cash checks for and himself
SSI perform continued to services two for other on the project workers HERC 1998, in 1997, HERC but it became difficult any to he not did have recollection persuade on sign “dirty, workers to for the of April meeting by the recounted by request Radtke ed cash Similarly, Douglas pre- Such’s to use checks on Galston. large job. obligated a Galston bring that he was felt to indicating evidence sented Douglas to Radtke’s attention the that during the fact traveling of state time out the regular payroll workers not on of with him in SSI meeting recalled that Galston by or not RCC would be covered workers’ April 1998.1 compensation they if paid insurance were of job, use After the 1998 HERC cash only in checks. cash She also remembered at and continued to in- checks SSI RCC Douglas “very Radtke stating loudfly]” at did crease. Galston testified that she (T. point year.” one “no more this cash from Radtke to use approval Douglas seek 806). Tr. at jobs later felt cash checks on because she Radtke, contrast, Douglas recounted involved ... approved that “he’d risk hearing a discussion and between Galston 304). (T. doing with this.” Tr. at Galston regarding Such of cash on use checks from sought approval stated that she vari- upcoming job. Douglas an Radtke testi- including employees, ous other Scott SSI very angry” “got fied that he “became and Radtke, on large use of cash checks for right discussion,” in the middle of the tell- (Id. 306). after at jobs 1998. ing using Such to refrain from cash checks a to In won contract erect SSI in this paid because' workers manner scaffolding government-financed pro- a compen- would not be covered workers’ Minneapolis-St. at the Paul Interna- ject sation, any injured worker “end would job The contract for the Airport. tional (T. 1542-43). up suing us.” atTr. payroll. called for a certified certifi- Scott Such described a conversation attest require cation would to that SSI Douglas which Radtke ordered him to accomplished. had withholding been proper payroll just “back the cash down to our job this until after the had realizing Not main so he would employees” that not “end completed, paid been SSI some workers (T. 816). up jail.” Tr. at An RCC- a cash checks. When faced with certifica- carpenter that employed testified Such requirement force tion would her ei- Douglas told him that Radtke had said to with report paid ther amounts cash payroll cash was to Do- be discontinued. checks, revealing withholding had no hearing Douglas nohoe to also testified amounts, place respect those taken with to yell year,” “no cash this or Radtke more worked, underreport to or hours Gal- “no more cash.” ston testified that she chose exclude cash some the hours worked for checks. SSI and RCC ceased their use of cash calendar to a year checks as drew trial Testimony was unanimous at 29, 2000, agents February close. On IRS subject cash checks were the discus- at compa- executed a search warrant Galston, Such, sion and Douglas between offices, seizing nies’ and inter- documents job, occurring after the HERC but viewing employees. the nature of the differed in discussion jury A grand appellants, recollections of various witnesses. Accord- indicted Galston, Radtke, Galston, along Marc Rita ing prompt- the discussion was with Douglas Douglas 1. Radtke's Galston’s with Radtke “would have been Tues- attack on testi- mony meeting proceeded day Wednesday regarding the week" that the 1998 (T. along job following job lines: The HERC be- HERC occur. Tr. gan April April Radtke and sister testified that on week 21 was his Tuesday, April 22 he Florida his and Galston testified that she 21 and was in with "guess[]” meeting family would vacation. the time on *10 836 (a SSI), Bodin vice-president
Vernon L. of third-party administrator of the Union’s 29, 2002, Fund, July $47,873.03 on each with charging Fringe con- Benefit and going (1) spiracy Berkley to defraud the United to Risk States Administrators. Scott (2) and following the IRS and commit the Radtke twenty-four was sentenced to for failing pay joint offenses: to account over months in and to prison and several tax, 7202, § in of liability violation 26 U.S.C. sub- the fine and restitution returns, tax scribing materially to in owed false amounts also his father. Dono- 7206(1), § eighteen violation of U.S.C. and mail hoe imprison- received months’ fraud, 1341, § joint in of all ment and and liability violation 18 U.S.C. several with § of 371 (together, violation his on U.S.C. co-defendants the fíne and restitu- count”). grand the “conspiracy jury The tion amounts.
also indicted defendants on three II.
counts of mail fraud and three counts of records, falsifying ERISA in violation of 18 appeal, On all three defendants 2(b) §§ Douglas U.S.C. and 1027. Radtke challenge sufficiency of the evidence to and charged Galston were with fifteen support reviewing their convictions. In failing pay counts of to account for or over evidence, claim of insufficient we consider tax, 7202, § in violation of 26 U.S.C. and light in the evidence most favorable to Galston charged separately with fif- verdict, jury’s accept and as estab teen to subscribing materially counts lished all reasonable from inferences returns, false tax of 26 violation U.S.C. support evidence that the verdict. United 7206(1). § (8th Hawkey, v. States 148 F.3d Cir.1998). pled guilty conspiracy Galston to the will only if We reverse no rea count, count of failing jury one collect and sonable could have found the defen taxes, pay over of falsifying guilty beyond and one count dant a reasonable doubt. Walker, ERISA appellants, along records. The United States 393 F.3d (8th Cir.2005). with Bodin, Marc Radtke L. carefully and Vernon After considering together. jury record, were tried convicted the find that pre we the evidence Radtke, Radtke, Douglas jury Scott and Mi- sented to the was sufficient to sustain chael conspiracy Donohoe of the its respect count. verdict with to all three defen Douglas guilty Radtke was also found on dants. collect,
seven counts of failing to account for, tax, A. pay and over on two and counts of mail jury fraud. The Michael found Dono- Douglas argues Radtke the evi- hoe guilty filing and false fraudulent presented dence at trial was insufficient to tax return and on three counts of mail prove that acted with he the mental state fraud. Scott Radtke was convicted of required by the crimes for which he was three of mail jury counts fraud. The ac- argues convicted. He “[e]ach quitted Marc Radtke Bodin on all and charged offenses in the Indictment re- counts. quired proof that acted with intent [he] Radtke, Radtke, (D.
Douglas Scott defraud.” Do- Radtke Br. at Accord- April 13, nohoe ing Radtke, were sentenced on to Douglas the evidence thirty-six only instigated received showed Galston $20,114.67, checks, months’ imprisonment, a fine of use of permitted cash and that he $179,885.33 restitution practice belief, faith good —with $132,012.30 McShane, going advice, Wilson formed reliance on Galston’s
837 certainty inde- in that week with placed casual pay to workers legal it was —Gal- (T. a only “guesstimat[e],” the fact Tr. to ston Offered points contractors. He pendent 420) nearly 600 Radtke does only Douglas four the at not signed of that he —and evidence, and introduced into to have been in Florida for the entire cash claim checks fact, to casu- compensate April. jury, these was of The that of month heard each that Radtke was in Douglas al Workers. evidence was planning Minnesota when Scott Such that evidence believe sufficient We job. have HERC It would been the 1998 jury’s to support at trial the was presented therefore, to jury, for the con reasonable testimony intent. There was finding of Douglas present that was at clude Radtke the that recognized that Radtke Douglas illegality at which meeting a of cash illegal, was using of cash checks practice checks was discussed. to authorize such checks. proceeded but Donohoe, Such, example, Galston, and event, any In to intent defraud of a 1999 to their recollection all testified proved by need not be direct evidence. Radtke ex Douglas at which meeting Ervasti, 201 v. F.3d E.g., United States legal conse concern about pressed (8th Cir.2000). 1029, required The continuing of cash the use quences of can be inferred from the actions of intent Such, According to he acknowl checks. jury received con the defendant. The jail consequences included edged that such volume circumstantial siderable of evi April also testified to an time. Galston which it could have inferred dence from to meeting explained at which she For requisite example, mens rea. penalties and Radtke fines Douglas and Douglas Radtke was the CEO Presi from the cash checks use of would result RCC, jury and the heard dent of SSI job if the was dis practice on HERC that he a “hands-on” man testimony was covered. daily opera who was involved ager Gal Radtke asserts that Douglas companies. Evidence was tion meet testimony regarding the 1998 ston’s suggesting personally that he presented did ing not credible because Such was $28,000 using as a result profited despite being meeting allegedly recall the project at checks the HERC cash argument unpersuasive. This is present. rise to suffi gave 1999. This evidence course, determinations, are Credibility strong of intent de ciently inference make, a co-con jury for the even jury to find that permit fraud to corrobo testimony not be spirator’s need charged Radtke committed Douglas believable. States rated to be United offenses. (8th Anderson, Cir. 654 F.2d 1981). that no Douglas Radtke also claims B. Gal jury could have believed reasonable similarly maintains uncon Radtke “evidence at trial was Scott ston because at trial estab presented evidence [Douglas] was that the Radtke troverted present was SSI Annamaria, precise only lished he during Florida conspiracy alleged the time of the during have met with time Ms. Galston claims to (D. illegal use cash he knew of the him Br. at and that and Mr. Such.” Radtke to sustain his This insufficient presented It checks. is true contends, convictions, gov he because in Florida suggesting that he was evidence “any credible present failed April week of ernment during the willing participant however, that he was a meeting, never evidence date *12 any er, in plan to defraud or... protestations the the undermines good [IRS] his of (S. 22). carpenters union.” Br. faith. Radtke at Donohoe testified that he initially thought He also that use of alleges government the “of- the the cash checks sound- (T. 2290). fered ed “fishy.” little” to discredit assertion Tr. at his that His wife questioned legality practice he relied in faith the of the good on Galston’s advice (Id.). when regarding use of Donohoe told her he needed to the cash checks. use check, her a name for cash and Donohoe above, disagree. We As noted intent to recalled him not instructing Galston to use proven by defraud can be circumstantial security the social of people numbers dead evidence, and Scott Radtke admits that he checks, for doing cash because so would “was familiar with the ‘cash use of checks’ presented risk detection. The evidence at casual, pay to extra hours labor.” trial, sum, supported jury’s the determi- (Scott 13). Br. at He also con- nation that Donohoe the had state of mind signature cedes that his on a appears cash required join the conspiracy. to fraudulent cheek jury, that was shown to the and that a having witness testified to heard him respect Also with to his conviction discuss of non-employee count, the use on conspiracy names on the argues Donohoe checks. that Galston testified she that alleged ob- while the indictment a con approval spiracy tained for the use of cash to defraud both checks the IRS and “un (Donohoe Radtke, workers,” 14), from ion complained Scott and to him Br. at the government regarding prove Such’s such failed to that Scott use of checks. the fraud targeted Finally, at different victims meeting Galston testified to a constituted a she single conspiracy had rather than two they separate with Scott Radtke at which dis- conspiracies. ways cussed Where the evidence at revealing to avoid the trial use of supports multiple conspiracies, only but they cash a required checks when were single conspiracy charged the certify indict payroll. This of evidence Scott ment, only we “if reverse the knowledge evidence Radtke’s of and involvement in does not support single conspiracy and the cash provided check scheme sufficient prejudiced by was defendant the vari support jury’s for the verdict. ance between indictment and the proof.” Pullman, United States v. 187 C. (8th 816, Cir.1999); F.3d 821 see also Kot also argues Donohoe that there was States, 750, teakos v. United 328 U.S. 756- insufficient evidence to a finding sustain 57, 1239, (1946). 66 S.Ct. 90 1557 L.Ed. beyond he guilty a reasonable doubt conspiracy of the count and of mail given Whether a case involves fraud. In challenging single multiple his conviction for or conspiracies depends on conspiracy, Donohoe maintains there “whether there was ‘one overall agree was insufficient evidence show that he ment’ to perform various functions to IRS, intended objectives to defraud the and that his achieve the conspiracy.” lack Massa, precluded intent defraud him United States 740 F.2d (8th (internal Cir.1984) from joining alleged conspiracy. omitted). Do quotation argues nohoe good he relied faith This is totality determined of the on circumstances, Galston’s assurances that the use of it question because is a legal, fact, cash checks was and that he was we draw all reasonable inferences “uneducated to the workings IRS favor of the verdict. United States v. (Donohoe (8th rules regulations.” Br. at McCarthy, 97 F.3d Cir. 15). trial, testimony Donohoe’s howev- Relevant factors “includ[e] na- involved, location furthered a have fraudulent scheme is the activities ture of conspiracy of the alleged events of the an element crime described where identity conspirators § requires only statute place, the U.S.C. took involved, time in which the and the frame the defendant devise “scheme (internal quotation Id. to defraud” place- acts occurred.” artifice and cause the omitted). “any thing” ment of matter or in the mails *13 “purpose executing with the of such Here, a supported the evidence scheme or artifice.” Id. The requirement single conspiracy. there was a finding that that the matter or defendant cause' the allegedly which Donohoe conspiracy The mailed is thing by showing to be satisfied a IRS, defrauding the involved participated an act knowledge that he “did with the count the indictment conspiracy the of but that the use of mails would follow the specifically that union work allege did not ordinary course of or that the use business target appellants’ also the of the ers were reasonably of mails could been fore- have the conduct fraudulent scheme. Some of though actually seen even not intended.” true, the it directed at charged, is was v. 240, Freitag, United States F.2d 243 768 Union, conspiracy multiple with ob but (8th Cir.1985). The jury was instructed multiple jectives thing is not the same find if guilty it could Donohoe the Pullman, See F.3d at 187 conspiracies. elements, other of mail fraud were shown against fraud the de Any Union 820-21. reasonably “it that the and was foreseeable a similar as that pended on mechanism (T. 2669). mail would be used.” Tr. at IRS, of cash namely, the the use against that, during testified at trial the Donohoe place All either checks. of fraud took SSI, “assume[d]” time he worked he of SSI or headquarters at the combined meeting reporting require- that SSI was RCC, job company at sites. The identi or ments reference his time card infor- uniform: conspirators equally was ty of mation, that he familiar with Radtke, Radtke, Scott and Dono (T. fringe benefit fund. at Union Tr. par of all accused and convicted hoe were 2243). also that he knew the He testified conspira same fraudulent ticipating paid hours for with cash checks would all of the cy. And the time frame for (T. 2361). to the Union. Tr. at reported be similar. allegedly fraudulent conduct was hearing this jury’s The conclusion after reports of to the mailing The fraudulent “caused” the testimony Donohoe party third ad fringe benefit fund Union’s pur- forms mailed for fringe benefit to be 15, occurred November ministrator from §of 1341was poses reasonable. 15, 1997, through November 1999. Most over a checks were issued of the cash sufficiency challenges the of Donohoe period, April time 1998 similar between showing that he intended government’s 1999. The evidence thus and December to the Union. reports to file fraudulent single conspira supports the existence of a testimony evidence and other Donohoe’s cy- trial this contention. presented at refutes testified that he knew the use of argues Donohoe further Donohoe non-payment of his would result there was insufficient evidence cash checks benefits, yet admitted that he knowledge filing fringe of benefit of union he form of cash support payment mail fraud convic in the reports to his authorized ninety govern- This contention without merit. checks some times. tion. First, during its cross- knowledge presented actual instance of evidence ment Donohoe, moreover, sug- alleged “matter mailing thing” examination 840 he checks
gesting alleged used cash with the ex- criminal acts” must be determined purpose avoiding compliance the circumstances of press with the individual Stoehr, case. Union’s minimum United States 196 F.2d four-hour rate. In (3d Cir.1952). 276, short, of Donohoe’s complicity evidence in short-changing the Union was sufficient First, Donohoe us to urges follow the to "sustain his conviction for mail fraud. Second, Circuits, which, and Seventh he asserts, “have allowed introduction
III.
good
amended tax returns to show
faith.”
(Donohoe
In a challenge to his conviction for
Br.
points
He
to three
willfully
subscribing to
known false tax
illustrative cases: United States v. John
return,
7206,
§
son,
(1st
see 26
Cir.1990);
U.S.C.
Donohoe
F.2d
asserts
the district court erred in
Dyer,
United States v.
922 F.2d
*14
(2d
excluding
Cir.1990);
from evidence his amended re-
and United States v. Tish
year
1070,
(7th Cir.1988).
turn for tax
1999. Donohoe con- berg, 854 F.2d
1073
$4,330
report
cedes that he did not
in
by
None of the
cited
cases
Donohoe holds
income
in the form
received
of cash
that amended tax
prove
returns tend to
a
on
original
checks
his
1999 tax return.
taxpayer’s lack of criminal intent when
His
defense at trial was
he did not
filing an original return.
In
for
Tishberg,
$4,330
have
declare the
it
'because was
example,
admissibility
of the amended
not included in his
form. To
W-2
bolster
return was not
appeal
considered on
—the
defense,
sought
this
Donohoe
introduce
during
court
a
stated
discussion of the
regarding
evidence
an amended tax re-
sufficiency of the evidence that the defen
$4,330
on
reported
turn
which he
af-
“may
dant’s amended return
demonstrate
realizing
properly
ter
it was
good
classified as
faith effort to
previous
correct his
income.
granted
The district court
Tishberg,
mistakes.”
offer to willfully had charge that he to the relevant that the dis appellants argue years), previous to file tax returns failed by counting court erred as fraud loss trict not abuse its discre court did the district $62,685.13 payments benefit Union *15 any probative minimal ruling that tion They contend that SSI’s by made SSI. by outweighed substantially value was not conduct be non-payment was relevant and mis confusing the issues danger of subject to a collective was not cause SSI jury. leading the union, and bargaining agreement any with al non-payment was not
because SSI’s IV. activity in indict as criminal their leged disagree. ment. We raise two assertions appellants The sentencings: respect to their with error trial, court heard At the district of the court’s calculation the district employees per testimony payroll that SSI they were held of loss for which amounts by that was covered RCC’s formed work and the court’s consideration responsible, and that bargaining agreement, collective jury by not found a of facts that were finding ego an alter of RCC. Its SSI was Douglas beyond a reasonable doubt. by RCC’s collective that was bound SSI challenges ad- Radtke also two-level clearly not er agreement was bargaining for his role justment he received nonpayment The fact that SSI’s roneous. § to 3B1.1. pursuant offense USSG in the indict only obliquely referenced ment, moreover, preclude not the dis does A. of this conduct court’s consideration trict of loss due to determining the amount were sen Appellants each Relevant con guidelines. an fraud loss fraud under based on identical tenced need not be amount, guidelines duct under the they challenge aspects several sentencing, charged this to be considered court’s calculation of of the district “that and omissions and it includes all acts sentencing review a court’s amount. We course of conduct or part of the same of amount of loss for clear were determination Baker, as the offense of plan 200 F.3d common scheme error. United States v. lB1.3(a)(2). Cir.2000). § (8th 558, conviction.” USSG determining In fraud, that non court concluded SSI’s to district the amount of loss attributable was “ab- contributions sentencing payment of benefit required; not precision is criminal solutely portion case, a conduct.” if example, Radtke had made (S. Tr. at The court arrangements reasoned to contribute funds belated SSI, egos, RCC and as alter both ly benefi- to the third-party administrator before ted at expense employees by detected, of their the fraud was principle accepting shortchanging their labors while against “credits likely apply. loss” would them -in coverage, pay, health-care vacation But Radtke seeks credit for other bene and retirement benefits provided not contribut- fits employee-victims that do (Id.). ing to the Union’s benefit fund. directly correlate with the amounts The court’s determination SSI’s non- third-party withheld from the administra payment of benefit contributions was part part tor as of the fraud. find no We of the same course of conduct as the use of authority support proposition, this cash checks was not clear error. we are not of a mind to extend the avail
ability of against credits loss to benefits these, like paid which were to employees part plan of a to entice them to accept argues Radtke cash checks and thus to further loss 'amount should have been reduced scheme to defraud. See United States v. the amount of paid benefits SSI its (8th Cir.1998) Whatley, 133 F.3d employees. argues that although (“[W]e are not inclined to allow the defen RCC and SSI failed to make contributions ... money dants a credit for spent perpet McShane, to Wilson third-party admin uating fraud.”); United States v. cf. istrator of the Fringe Union’s Benefit Carrozzella, (2d 105 F.3d Cir. Fund, which contributions would have enti 1997) (explaining that one reason for rule employees tled benefits, to various future part funds returned as of investment the district court should have “credited” scheme are not against credited loss is *16 against the loss certain amounts that the money that “the return of as interest or companies spent give different benefits other income 4s often necessary for the employees. the same Radtke does not continue”). scheme to specify what amounts should have been (D. credited on this basis. Radtke Br. at 40-41). Appellants also charge as error sentencing The guidelines provide that (cid:127) the district court’s determination that fraud, in a involving case loss shall be $47,873.03 in compensation workers’ was by returned, reduced money “[t]he and the paid as a result of They their conduct. fair market value of the property returned argue that the correct amount of at loss rendered, and the by services the defen non-payment tributable to of workers’ dant or persons other acting jointly with compensation premiums $23,036.63. was e defendant, to the victim befor We do not believe the district court’s find offense 2B1.1, § was detected.” USSG ing clearly was erroneous. (n.3(E)(i)). comment. We do not think the
fringe paid by benefits SSI or RCC- to Both RCC and paid SSI for workers’ employees is the sort of against credit loss compensation coverage rates, at two contemplated by guidelines. “high rate,” The com rate” and a “low depending on mentary to guidelines provides type that what performed by of work was the court apply should a credit where employees. covered high The rate was defendant very returns the money prop paid dangerous for more scaffolding work erty taken part as of In the fraud'. this done at substantial (“high elevations though the was not further devel- work”), paid rate was for evidence the low while testimony oped, Galston’s could be under- low elevations. ground or at on the work mean that most or all of the stood to cash years question for the high The rate compensate were used to workers checks and 45.19 percent 36.18 between varied work, high for because rates for low work high work. wages paid for of all percent percent approached never the 45 rate tes- ranged percent from 3.94 low rate The sense, by In that there- tified to Galston. court found The district percent. 8.66 fore, presented district court was with wages paid cash percent only divergent possibilities two work, and arrived at high for checks were —that percent of cash checks used to com- were compensation $47,873.03 the workers’ as work, pensate high suggest- workers for as loss. by appellants’ spreadsheet, or that ed the district Appellants contend used, nearly all of the cash were so checks percent that 50 of by finding court erred testimony. suggested as Galston’s checks was for with cash paid work If found that 100 the district court had “uncontro- They allege that high work. percent wages paid RCC SSI only 12 testimony established verted” compensation payments workers’ required work high percent of work was attributable to the percent, of 45 the loss figure that the correct loss category, and compensation non-payment of workers’ $23,036.63. do not be- therefore We $77,463.56. 12 per- have would been is an accurate characterization lieve this by defendants would figure suggested cent court. the district the evidence before $23,036.63. have led to a loss amount of sure, appellants introduced To be choosing figures, Instead of either of these by the new owner spreadsheet prepared percent the district court settled on 50 only percent suggesting SSI appropriate apportionment, an because the high checks was for wages paid cash “precise cal- defendants’ actions had made (Defendant’s An Ex. audit work. S— (S. Tr. virtually impossible,” culation Berkley from Risk Administra- supervisor 110), did not want to and because the court tors, third-party administrator RCC’s ... any interpretation which would “adopt also testified that compensation, workers’ deceptive for their reward the defendants know “offhand” what although he did not (Id.). that “a The court observed acts.” *17 compensation of the workers’ percentage pay- of the cash very portion substantial work, high for versus low premiums were made for work on HERO ments were (S. 47), spreadsheet appellants’ Tr. at necessary in was a job,” which “there percent of RCC’s indicated about involved,” and in a scaffolding amount premiums were compensation workers’ also involved airport, at the which project 57). (Id. trial, At category. at high 110). (S. scaffolding. Tr. considerable however, testimony that provided Galston say the district court’s We cannot support to an inference was sufficient clearly erroneous. The dis finding was higher percentage of cash checks a much required only to make to trict court was high work. When asked were used of the loss.” USSG in “reasonable estimate company would save explain “what (n.3(C)). Where, 2B1.1, cash,” § as comment. compensation paying from workers’ here, fraudulent loss attributable to rate on answered that “our base Galston the relevant erection, 45 conduct is unclear because comp, workers’ was scaffold secrecy,” involved “deceit that’s 45 dollars conduct wages paid, percent 294). (T. moreover, for a sen- Al- it can be reasonable Tr. wages.” hundred per tencing judge “split to Therefore, the difference” be the mid-1980s.” argues, he he possible part any tween two extremes. was not illegal United “double-breast- Berndt, 803, (8th ing” States v. 86 F.3d scheme between RCC and SSI. Scott Cir.1996). part ownership The fraudulent conduct SSI’s here— however, management, and the district prevented the use of cash proper checks— court found that oper- SSI and RCC were keeping, record so the amount of workers’ ating egos as alter during his tenure. compensation premiums unpaid that went guilty Scott Radtke was found of partic- was not documented. The district court’s ipation in the cash check scheme that in- percent determination that 50 ap was the companies volved both and therefore his propriate percentage of work character non-involvement in RCC’s revival some work, therefore, high ized as was not clear years twelve began before the scheme is error. irrelevant to the loss amount attributable to him. 4. Douglas Radtke asserts by district court erred including suggests Donohoe that he amount of loss all benefits that RCC and should responsible only be held for the loss SSI failed pay by to use of cash checks attributable the cash person checks he prior April Douglas 1998. Because ally signed. He maintains that he should jury Radtke was acquitted of all responsible be held for the entire loss conduct occurring prior April he attributable to the cash check scheme be argues, the district in refusing court erred cause he was not in starting involved to “exclude all losses occurring prior to” scheme, had no decision-making authority (D. 42). this date. Radtke Br. at SSI, at and was in only involved a small jury’s acquittal Douglas Radtke with (Dono number of cash payments. check respect conduct, to all pre-April 1998 how hoe Br. Where, We disagree. ever, only establishes that there was rea here, activity criminal jointly undertak sonable doubt as to his involvement such en, relevant conduct is to be determined on free, conduct. The district court was still the basis of all acts and omissions “that indeed obliged, to consider whether his part were of the same course of conduct or involvement proved by had been a prepon common plan scheme or as the offense of derance of the evidence. See United lB1.3(a)(2). § conviction.” USSG “[T]he (8th Dabney,
States v.
367 F.3d
amount of
charged
loss
to a particular
Cir.2004). The district
properly
court
re
defendant need not be limited to the mon
lied on the evidence
at trial of
ey that [the
personally
defendant]
handled.
prior
Radtke’s
in finding
involvement
him Instead,
the amount
may
of loss
include
responsible for
pre-April
1998 loss
those losses
reasonably
caused
foresee
*18
by
amounts
a preponderance of the evi
able acts that co-workers committed to
dence.
further the scheme to defraud.” United
States v. Whatley,
the district
C.
two levels on the basis of
ing his sentence
pursu
an
and leader
organizer
his role as
All
appellants
three
have raised
3Bl.l(c).
argues
§
He
ant to USSG
possible applicability
to their
of
cases
position as owner of SSI and
his mere
Supreme
in
Court’s decision
United
justify this enhance
RCC cannot alone
—
Booker,
U.S.-,
States v.
125 S.Ct.
ment,
instigated
Rita
and
and that
Galston
(2005),
not shown that any affected establish of the by this error. The record does their substantial appellants’ reasonable sentences would probability rights were that judgments of the district court. For the % foregoing [*] [*] reasons, ‡ we affirm the ‡ have been more favorable had the district LAY, Judge, Circuit concurring part court known that the guidelines were advi- dissenting part. sory. See id. at 552. Scott Radtke and I concur majority opinion with the with Michael Donohoe were sentenced exception IV.A.3, of Section wherein low end of their respective guideline majority holds the district court did fact, alone, ranges, standing but this is not clearly in calculating err the total sufficient “to demonstrate a reasonable amount compensation of workers’ pay- probability that the court im- would have ments omitted aas result of the Defen- posed a lesser sentence” the absence of illegal dants’ conduct. The district court mandatory guidelines. Id. at 553. A forti- single did not articulate a why reason it ori, Douglas Radtke’s sentence the mid- disbelieved defense Terry witness Gul- guideline range dle of the is insufficient to brandson, who only testified that twelve meet the Pirani standard for demonstrat- percent of the workers involved in this ing an effect on rights. substantial scheme “high” were at the scaffold rate. The difference between 12 percent and 50 The gave district court no indica percent significant, and so the district tion that it imposed believed the sentences unjustified court’s figures cannot be over- unreasonable, were or that it would have looked claiming “precise calcula- given any appellants a lesser sen tion” is “virtually impossible.” Majority tence in mandatory the absence of guide opinion, supra, at 843. Precise calculation Although lines. the court acknowledged required, is not but a fact-finding reasoned that “the heavily Court’s discretion is influ process is. enced sentencing guidelines,” majority The attempts provide post- obligated “the Court is place to ... hoe rationalization as to how the district ... first [its] determination based on court upon could have arrived fifty- this (S. [them],” 138), Tr. at rely it did not fifty split, but with all respect, due this is solely guidelines on the jus calculations just speculation. majority sheer rea- tify Instead, it imposed. sentences sons, the district court had “If found court length discussed at the individual percent wages paid by RCC and (S. culpability of each of the defendants. required SSI workers’ compensation pay- 123-24, 138-40, Tr. at 145-47, percent,” ments of 45 then the district Where the effect of the error is “uncertain court’s calculation might have been reason- or indeterminate —where we would have to (em- Majority opinion, able. supra, at 843 speculate,” a defendant cannot meet his added). phasis Unfortunately, the district burden plain to show error warranting re court did not make that finding, and we Pirani, lief. 406 F.3d at 553. Because are speculate. not authorized to the record does not establish a reasonable probability any appellants’ sen Rita testimony Galston’s also cannot tences would have been more fairly favorable be said to Terry controvert Gul- had the district court testimony known that brandson’s regarding per- *20 scaffold “high” workers at the centage of testimony non-specif- was
rate. Galston’s identify it
ic, in sense that did “high” or referring was to the
whether she It to infer questionable
“low” rate. rate, “high” since speaking
she did percent” figure “45 she mentioned showing comport with evidence
not even years question rate for the high
that the percent. to 45 In
ranged from about 35 conflicts, potential using these Gal-
light of testimony to buttress the district
ston’s and other- suspiciously
court’s convenient unjustified simply calculation is too
wise
speculative. explained have
The district court should
why percent it of the work- apportioned “high” compensation payments to the
ers’ percent payments
rate and not, it did and since the
“low” rate. Since a substan-
only point supports evidence on respectful- I
tially apportionment, different
ly dissent. CHESHEWALLA,
Monika Aaron Michaels,
Paul Robert J.
Petkoff, Appellants,
RAND & SON CONSTRUCTION
COMPANY, Appellee.
No. 04-3199. of Appeals,
United States Court
Eighth Circuit. April 2005.
Submitted: July
Filed: