*1 America, Appellee, UNITED STATES
v. WHATLEY, Appellant. K.
Rochelle America, Appellee, STATES
UNITED
v. WHATLEY, Appellant.
J. Victor America, Appellee,
UNITED STATES Appellant. LANDESS, Todd
Michael America, Appellee, STATES
UNITED BARNETT, Jr., Appellant. B.
Harold 97-1661, 97-1663,
Nos. 97- 97-1790. Appeals,
United States Court of
Eighth Circuit. Sept. 1997.
Submitted
Decided Jan. 1998.
Rehearing Suggestion Rehearing 97-1661
En Banc Denied Nos.
and 97-1663 1998. Feb. Suggestion Rehearing
Rehearing and
En Banc Denied in No. 97-1789
Feb.
603 *2 Bradford, MO, City, E. Kansas ar-
Glenn (Edward Walsh, IV, City, F. Kansas gued MO, brief), appellant Rochelle "Whatley. Marrisonville, MO, Cason, ar-
Patrick J. *3 Whatley. appellant gued, for J. Victor Anderson, MO, City, Denise M. Kansas argued, appellant for Michael Landess. Fox, MO, City, argued, Byron Neal Kansas Barnett, appellant Harold B. Jr. MO, Fincham, City, Kansas ar- Katherine Hill, Jr., gued (Stephen L. brief),
Attorney, appellee. on the HANSEN, JOHN R. GIBSON and Before ARNOLD, Circuit MORRIS SHEPPARD Judges. ARNOLD, SHEPPARD Circuit
MORRIS Judge. husband, "Whatley Victor
Rochelle and her principals in "Whatley,were the a telemarket- Marketing Concepts ing firm called Midwest (MMC). Whatley president and shareholder, Whatley while Mr. served sole general man- variously as a consultant and a employed appel- other ager. MMC the two case, Ha- in Michael Landess and lants this Barnett, telemarketing as salesmen. rold such facts as the evidence would We state finding. Work- support a reasonable phone obtained from other ing from lists firms, telemarketing an MMC salesman say or that he would call an individual ‘V.I.P. for MMC’s she had been selected Round,” to win guaranteed and was Bonus typically included a a list that prize one from automobile, pair of Lucien Pi- new Saturn bond, watches, $10,000 savings and a card other, with much less pound gold, along All that gifts”). (“gimme items valuable that the indi- exchange MMC asked Drugs” materi- purchase No To vidual church or them to a local als and donate school. interest, he or she expressed
If a customer
“Say No to
box” of the
was sold a “starter
materials,
price from
ranged in
Drugs”
which
in fact
materials were
The
$400
$800.
specified organization,
shipped
prison
conspiracy
to the
but the
on
and 63
total cost to MMC of those materials was
prison
months in
money-laundering
representa-
counts;
MMC sales
about
$40.
Mr.
received a 60-month
pushed
having
tive
each customer into
prison
conspiracy
sentence on
charge.
directly
designated
materials
to the
delivered
Mr.
pleaded
Landess and Mr. Barnett each
organization, so that the customer would not
guilty
to one count of
to commit
disappointed
amount of materials wire fraud and one count of wire fraud and
purchased.
that his or her
had
sentenced, respectively,
to 30 months
prison.
and months in
suscepti-
Customers were chosen for their
bility
representatives
to this scheme. Sales
Whatleys appeal
their convictions and
people
focused their sales efforts on
whom their sentences. Mr. Landess and Mr. Bar-
they perceived
particularly
to be old or
lone-
appeal
nett
their sentences. We affirm the
*4
ly. They
variety
a
of
get
used
tactics to
judgments of the district court.1
Although
individuals to send
to MMC.
phone
it was
in
nowhere MMC’s internal
I.
scripts,
people
prom-
some of the
called were
case,
closing arguments
After
in this
they
specific
prize
ised that
a
big
would win
.jurors began
the
deliberating
p.m.;
at 12:30
given
and were
false statements as to the
p.m., they
at 4:00
judge
informed the district
“gimme gift.”
value of the
When a customer
they
were unable to reach a verdict.
receiving
asked what the odds were of
the
jurors
evening
then retired for the
The
and
car
prizes,
representatives
or other
sales
resumed their
following
the
deliberations
change
subject
repeat
told
the
and to
morning. After two
a half
and
more hours of
promise
the
that the customer was certain to
deliberating, they were still unable to reach a
major prizes.
win one of the four
court,
motion,
verdict. The
on its own
and
purchased
Individuals who
the materials
defense,
objection
over the
gave
then
invariably
only
would
cheapest
receive
the
jury
charge,
the
an Allen
see Allen v. United
names,
gift
however,
on the list. Their
States,
492, 501-02,
154,
164 U.S.
17 S.Ct.
put
would be
back in MMC’s file to be “re-
157,
(1896),
605 Whatleys point instructing in the which are inconsistent alleged error based on an prejudicial. conspiracy In with their jury that error convictions unless charge, we charge, Allen look to the the case of an there are numerous cases that indi- instruction, jury time that the text cate that a must stand if conviction there is receiving after deliberated before sufficient evidence the record to sustain it. charge in which charge, context Pemberton, and the United v. 121 See States F.3d jury given, whether the (8th Cir.1997). to determine 1168-69 This record is reaching guilty into verdict. was coerced evidence, replete with such as we al- have Smith, 635 F.2d v. States indicated, ready there is no error so here. (8th Cir.1980). Whatleys complain jury also . here. see no evidence coercion We dealing instructions with the Indeed, fact that the deliberated important misstate the law several gave the district court four hours after objections respects. Whatleys lodged no jurors charge suggests to us Allen court, to these instructions in the district case. held carefully We have considered however, therefore review them and we only forty-five min verdict returned plain 30; error. Fed.R.Crim.P. See see charge was not coerced. utes after an Allen Beasley, also United 102 F.3d Smith, 720-21; also 635 F.2d see See — denied, Cir.1996), cert. U.S. Cook, 810-11 *5 United States -, 1856, 117 137 L.Ed.2d S.Ct. 1058 curiam) (verdict (8th Cir.1981) (per not (1997). instructions, Having examined the at least one hour coerced when returned they carefully we are of the view that charge given). after crafted and tailored to the ease. There is Whatleys argue The the verdicts certainly nothing plainly erroneous about jury, prove coercion because the them, themselves likely say any nor can that it is we any reached verdicts at which had not error in them the outcome of the affected deliberation, ultimately day end of of the first Whatleys. adversely case to the See United receiving came to on all counts after 725, verdicts Olano, 734-35, v. 507 States U.S. 113 find 1770, (1993). instruction. We no merit 1777-78, Allen 508 S.Ct. 123 L.Ed.2d jurors argument. The had a total of 113 this against counts in of them four defen- front Whatley contends that she can Mrs. (the Whatleys two not dants and defendants money laundering not be of in vio convicted They two
part appeal). acquitted of this 1957(a), 1957(d)(1), § § lation of 18 U.S.C. a mixed for defendants and reached verdict by since she was not convicted offense Whatley. we as- both Mr. and Mrs. Unless allegedly money. she obtained the which enough sume hours is not time to that ten jury But the fact did not convict her that the counts, number reach on that of verdicts underlying wire on the relevant fraud do, is nothing which not there this we will money-laun charges undermine the does not tending record to that this Allen show dering relies convictions here. reaching jury coerced into its verdict. O’Hagan, principally on States v. 92 United (8th Cir.1996), 612, on rev’d other F.3d 628 II. — U.S. -, 2199, 117 S.Ct. 138 grounds, (1997), proposition 724 for the that a Whatleys maintain that be L.Ed.2d cannot money-laundering conviction stand jury acquitted cause all of defendants counts, underlying a on an of- fraud without conviction underlying wire there But in that case that as a no to and no con fense. we ruled scheme defraud thus matter of the acts that defendant spiracy. are a number infirmities law There illegal and pres committed were not therefore in this but it is sufficient for argument, for the mon- predicate there was no offense purposes ent to note that is 613-14, 622, ey-laundering charge. Id. punishable is it crime in itself and whether contrast, case, by In there present Pereira v. succeeds or fails. See United States, 364, properly 1, 11, 358, court 74 98 is no doubt that district S.Ct. 347 U.S. (1954). charges jury, to the if the submitted the wire fraud acquittals L.Ed. Even 435 606 pre- was sufficient only
because there
evidence
if we are left with the definite and firm
sented at trial that violations of the law had
conviction that
the district court erred.
Garrido,
occurred.
808,
v.
995 F.2d
812
(8th
denied,
Cir.1993),
926,
cert.
510 U.S.
114
question
relevant
when
330, 331,
(1993).
S.Ct.
Berndt, Cir.1996). 811 In ease, this the district court calculated the loss III. by determining revenues, gross MMC’s mi respect sentences, With to their all money nus the lost to MMC from refunds suggest Supreme the defendants that the payment and checks on which stopped, Court’s recent decision in United States v. spent prizes, MMC on —Watts, -, U.S. S.Ct. *6 money the spent that MMC “Say on the No (1997) (per curiam), obligates L.Ed.2d 554 to Drugs” products. specific findings district courts to make de- tailing precisely acquitted how conduct used suggest defendants first that sentencing purposes for proved by has been the amount of loss by should be reduced preponderance a of the evidence. We dis- allowances for a profit reasonable and the agree. only holds a sentencing Watts that running business, is, overhead of their that may court consider the underlying conduct the costs of salaries for employees, of han acquitted an long “so as that conduct dling prizes of the and the No to proved by preponderance has been a of the Drugs” products, shipping and of those -, evidence.” Id. at 117 prizes S.Ct. at 638. products. and But the district court The ease requirement contains no even that a found that the defendants’ business was a district court state on the record that conspiracy its fraud, to commit wire and we are sentencing findings supported by pre- are a not inclined to allow profit the a defendants ponderance evidence, of the much less that for defrauding people or a credit for money provide such a court a detailed account of all spent perpetuating a fraud. of the facts that underlie these findings. We Mr. Landess and Mr. Barnett enough
believe that it is if a district court suggest that the amount of loss used to fix simply findings makes the factual necessary their sentences should reflect their own support sentencing adjust- relevant Earles, conduct. in We held United States v. ments. (8th 1175, Cir.1992), 955 however, F.2d 1180 A district court’s findings factual that the charged amount of loss particu to a must, course, sentencing supported lar defendant need not be limited to the by evidence sufficient to convince a reason that he personally or she handled. able fact that preponder Instead, finder that evidence may amount of loss include ates in favor of those findings. We review by those reasonably losses caused foresee findings those for clear error and reverse able acts that co-workers committed to fur-
607 Id.; charity, see also with U.S.S.G. to defraud. accordance the scheme ther 2F1.1(b)(3)(A), Sandow, 388, § proper. therefore 392-93 United States Cir.1996). (8th There sufficient evidence Nor do we see to reverse reason the district court to conclude case for this imposition sentencing the district court’s of a losses actions that caused that co-workers’ that the victims in enhancement basis reasonably foreseeable to Mr. Landess unusually this case were vulnerable. See part of the same Barnett and were and Mr. 3A1.1(b). sentencing en U.S.S.G. This in which to commit wire fraud applies hancement when a defendant chooses they engaged. target particular group victim or age physical victims on the basis of or of or Landess, worked for Mr. who mental condition. See v. Cal United States ten only the four of the organization for first (8th Cir.1991). 29, laway, 943 F.2d A operated, challenges it that months person reasonable on the ba could conclude that court em of loss the district amount presented sis of the evidence at trial and fix court ployed to his sentence. district sentencing hearing that the defendants which Mr. the amount of loss for determined elderly targeted the those who were and responsible by taking the total Landess susceptible opera known to be to the sort of operation, di by of loss caused amount Indeed, Whatleys one tion that ran. opera byit the ten months of MMC’s viding piece sentencing of evidence introduced at tion, multiplying four. Mr. result purchased that MMC so-called “re indicates unfair, suggests that method is this Landess sponse who leads” listed customers since, operation gener says, probably he “buy anyone everyone from would stages. during its less revenue earlier ated ability,” was also evi has sales and there however, believe, court’s We district that Mr. these cus dence described calculating attributable the loss method therefore, believe, “dupes.” tomers as We already have him was reasonable. As we provided basis this record a sufficient said, need not the loss be determined application court’s of the vul district precision. Furthermore, ac Mr. Landess’s enhancement. See United nerable-victim may beginning operation at the tions Jackson, F.3d 506-08 reaped long after his have created benefits — denied, Cir.1996), U.S. -, -, cert. The district was in the best departure. court -, 117 S.Ct. 136 L.Ed.2d position competing con to evaluate these (1996). 318, 417, 636 cerns, reject not factual find and we will its *7 Finally, Whatley appeals Mrs. the they clearly ings unless we think that are finding the total amount district court’s as to erroneous, which we do not. conclude, money that she We of laundered. however, find Whatley challenge Mrs. the that we need not review this Mr. and money of does findings ing, as the amount laundered district court’s that the defendants of acting Whatley’s Mrs. sentence. The falsely they were on not affect represented the charity calculated in with they and that defrauded fense level behalf of accordance Whatley’s sentencing guidelines unusually believe for Mrs. vulnerable victims. We greater than the for the conviction was there was sufficient evidence money-laun Mrs. level for her court to conclude that Mr. and offense calculated district sentencing the Whatley’s organization misrepresented dering conviction. Under related charity. guidelines provision grouping acting it on behalf of a counts, applies to higher telemarketing script offense level indicates that convictions. of the sentence for both Drugs” products bought by victims calculate No to 3D1.2(d). Thus, if we even to schools U.S.S.G. Whatleys’ going scheme were See Whatley laundered script term to find that Mrs. also uses the were and churches. concluded, money than the court transfer of funds less district “donation” describe the not Whatley’s sentencing range would Whatleys’ operation. from the victims to affected, was at mis and since her sentence An of their sentence for enhancement very range, we conclude they acting on behalf bottom that representing that that Mrs. that the amount not affect her sentence in America,
laundered did UNITED STATES of way. Plaintiff-Appellee,
IV. EAGLE, Wallace J. Jr. Defendant- Appellant. assignments considered the other We have by of error the defendants and find advanced No. 97-1657. no in them. We therefore affirm the merit Appeals, States Court judgments of the district court in all re- Eighth Circuit. spects. 22, 1997.
Submitted Oct. GIBSON, Judge, JOHN R. Circuit Decided Jan. 1998. concurring. Rehearing Denied Feb. I in the of the conviction concur affirmance concur in appeal and sentences under opinion.
the court’s separately only
I to underscore that write says court
nothing today should be read
by judges unqualified approval as an district charge given
of the in this case which Allen proof.
made no to the burden of reference
This one of the factors that led to a States,
reversal in Potter v. United Cir.1982), although in- Potter least
struction in had at three other charges variations from the Allen
substantive approved ap- courts of have been
peals. recognizes, general As the court
objection made, the Allen but omitting
after the instruction was read paragraph, appellants
third concede that fur- objection Thus, specific
ther was not made. respect to the contents instruc-
tion language omission of the con- proof,
cerning the court’s burden review
today plain is error. The burden of
proof was referred to nine times the in- given
structions conclusion
of the evidence. argued appellant issue central is and,
the coercive effect of the instruction as today, court holds under record be-
fore was no coercion. us there