*4 TJOFLAT, Bеfore HULL and programs fostering volunteer and commu- WILSON, Judges. Circuit nity service granted activities. CNCS funds ETA for the purpose limited WILSON, Judge: Circuit organizing senior volunteers to engage (“Williams”) Alma appeals Williams schools, community service hospitals convictions for five counts of wire fraud and museums. and one count theft concerning pro- During approximate- wired CNCS grams receiving federal [hereinafter funds $320,000 ly grants federal to ETA’s theft”], “federal funds in violation management account for its Foster §§ U.S.C. 1343 and the resulting and Grandparent Program and the Retired imposed 33-month sentence the district Program. Senior Volunteer ETA’s use appeal, court. argues On grant funds was limited the direct her convictions violate the Jeopar- Double costs of managing these programs, includ- dy Clause. Williams also argues that the ing mileage reimbursements and small sti- evidence at trial was insufficient to support pends to volunteers, low-income senior and conviction, and that the district court director, salaries for a prоject full-time constructively indictment, amended the im- coordinators, full-time a part-time properly evidence, admitted improper- bookkeeper. also ly applied CNCS authorized ETA sentencing adjustments. three spend grant reasons, For funds on following certain adminis- affirm convictions, trative overhead but vacate her costs CNCS had pre- sen- tence approved and remand this budgets case back to the built into the district court for resentencing program. each prohibited consistent Grant rules ser- opinion. this providers vice such as using ETA from eight-level adjustment for the amount of grant pay funds to for administrative over- adjustments, pre-authorized applying loss. After these indirect costs head separate through a line-item the district court Williams to CNCS sentenced budget. thirty-three imprisonment, months applicable guidelines range. bottom of later in
As we describe further detail opinion, grant ETA spent this II. DISCUSSION money unauthorized items such as payable to salary, checks made Jеopardy A. Double Williams, general operating ETA Bunnis sepa- first contends that her rent and utilities for facilities not expenses, rate convictions for wire fraud and federal being grant programs, used the federal Jeopardy funds theft violate the Double plumbing work for one Williams’s of the Fifth Amendment because Clause Despite rental separate properties. the factual basis of her conviction is theft restrictions, spent approxi- ETA CNCS parcel” of the “part and scheme to defraud one-third, $101,000, mately *5 underlying her conviction for wire fraud. expenditures. funds on unauthorized She also asserts that her convictions on grand jury charged A federal Williams multiple counts of wire fraud constitute and her husband with seven counts of wire jeopardy. double fraud, theft, of one count federal funds and of We review claims constitution thereto, aiding abetting other each Brown, al error de novo. United States v. 1343, 666, §§ pursuant to and 2. 18 U.S.C. (11th Cir.2004). 1266, 1268 trial, At showed a Where a defendant fails to assert double authority had ETA primary over court, claim district jeopardy before the and that she direct control finances had however, has she forfeited that claim. bookkeepers managed over the who Lewis, 1219, United States grant funds. The evidence showed (en banc). none We bookkeepers, following how the orders, theless review such forfeited claims charged personal unapproved, ex- plain error standard OfFederal Rule of penditures grant programs the federal 52(b). Lewis, 492 Criminal Procedure using percentage-based a formula that As ex Supreme F.3d at 1222. Court support good of Williams devised. Olano, defense, plained United States v. 507 U.S. faith Williams testified she 725, 1770, 113 S.Ct. 123 L.Ed.2d was unaware her use “[mjere (1993), forfeiture, the defendant’s did improper funds was and that she not waiver, extinguish opposed as does not government. intend to defraud the 52(b).” at an ‘error’ under Rule Id. jury convicted Williams on five counts of- at S.Ct. on wire fraud and the federal funds theft
count, acquitted it but Bunnis Williams of not jeopar- Williams did raise her double сharges. all Al- dy arguments to the district court. claims, advisory guide- though failed to raise the
To determine Williams’s
she
to vol-
sentence,
applied
steps
line
court
made no affirmative
Lewis, 492 F.3d
adjustments
untarily
waive them. See
upward
four
(1)
(finding
1221-22
that defendant did
aggrava-
base offense
two-level
at
level:
(2)
waive,
forfeited,
ting
adjustment;
jeopar-
abuse
but rather
double
role
two-level
(3)
it
first time
adjustment;
dy
raising
a two-level ob-
claim when
for the
trust
(4)
justice adjustment;
appeal). Consequently,
Williams’s fail-
struction
long
raise these claims did not
“each
proof
ure to
result
so
statute requires
relinquishment
her intentional
of a known an additional fact which the other does not
”
right,
Blockburger,
and we review these forfeited claims
....
284 U.S. at
for plain error.
S.Ct. at 182. The Blockburger test is one
of statutory interpretation in which we
matter,
As a threshold
will
“[w]e
examine the
each
elements
offense to
(1)
plain
correct
error when
an error has
Congress
determine whether
intended to
(2)
occurred,
(3)
plain,
the error was
punishments.
authorize cumulative
Alber
rights.”
error
affected substantial
States,
naz
450 U.S.
Lewis, 492
at
“If
all three
1137, 1141,
101 S.Ct.
1241 subjects the defendant only §§ and indictment not analyses The elemental offense, for sentences one but that Williams’s convic- to numerous 666 demonstrate “prejudiced theft the defendant and con- and federal funds also for fraud tions wire jury by suggesting Wire fraud one satisfy Blockburger test. fused of the defendant’s committed.” proof neither several crimes have been requires but Hearod, re- organization F.2d relationship to States v. agency United (5th Cir.1974) curiаm).3 funds, of theft. proof nor A ceiving (per multi- proof no requires Federal funds theft therefore plicitous indictment violates transmissions use wire of interstate it jeopardy of double because principles or artifice during purported scheme jury opportunities numerous gives im- to the contention Contrary defraud. for offense. convict the defendant the same argument, use plicit Williams’s determine Blockburger use the test to We is a substan- commerce wires interstate multiplicitous, whether an indictment tive, that the jurisdictional, element albeit verifying requires that each count an ele- beyond must reason- prove that the other counts do not proof ment §§ each able doubt. Because Ward, at require. required of an element not
requires proof requires proof of a Wire fraud other, for Williams’s convictions artifice and the use scheme or to defraud Blockburger test. satisfy crimes both interstate wire transmissions further Counts Multiple 2. Convictions of ance the scheme. U.S.C.
Wire Fraud targets not the defendant’s Section defraud, but creation of scheme Likewise, in Williams’s we find no error aof scheme to de defendant’s execution of wire multiple counts convictions end, punishes it each inter fraud. To each count satisfies because transmission that carries out state wire argues that test. Williams Blockburger States, Sibley v. that scheme. See multiplicitous because the indictment Cir.1965). Where *7 defraud, alleged only it one scheme scheme or artifice defraud involves one government manipulated into which the transmissions, multiple each wire wire of separate grant counts each wire with may a form the basis for transmission ETA’s ar- funds into account. Williams’s determining In whether separate count. it a funda- fails because rests on gument execution, is an wire transmission each misinterpretation of the wire fraud mental the look to the function of courts must statute. in the of the wire transmission context if multiplicitous is An indictment overall scheme and examine defendant’s chаrges single in more than it a offense the transmission furthers how that States, v. United one count. Ward 694 scheme. (11th 654, (quoting F.2d 660-61 Moreover, Torre, plainly of 1343 La text v. De 634 United States Cir.1981)). not make a 792, that the defendant need multiplicitous 794 A states Prichard, title, City imprisoned In v. 661 F.2d not more Bonner fined under this of 1206, (11th Cir.1981) (en banc), years, than both. 10 we 1209 (b) referred to in The circumstance subsec- precedent of adopted binding all decisions as (a) organization ... tion ... is that prior down the former Fifth Circuit handed receives, any year period, benefits one 30, September of close business on $10,000 program under a Federal excess grant[ involving ].... a 1242 herself, may transmission but analogous interpretation
wire
cause made an
statute,
such
to be
to fur-
bank
holding
wire transmission
made
fraud
that “[u]nder
1344,
scheme to defraud. The
ther her
statute
18
a
may
U.S.C.
prevents
thus
defendants from escaping
charged
separate
counts for each ‘execu
liability merely
criminal
because another
tion’ of the
scheme
defraud.” United
party
588,
makes thе wire
Sirang,
transmission under- States v.
70 F.3d
595
Cir.1995);
lying
charge. Consequently,
see also
United States De La
Mata,
1275,
(11th Cir.2001)
prioñ
decision to
agency’s
disburse
266 F.3d
1287
(“The
periodic
through
by §
funds
installments
unit
the offense created
liability
attempted
neither
criminal
nor
each execution or
bars
consti-
execution of
”).
tutes an unfair conversion of one
scheme
defraud ....
offense
context,
bank
multiple
fraud
into
counts.
have found that
in determining
“[r]elevant factors
whether
Precedent under
the mail fraud and
multiple
there are
executions are ...
statutes,
§§
bank
U.S.C.
1341 and
number of transactions[ ] and the number
1344, respectively, supports this conclu-
money.”
Sirang,
movements of
States,
sion.4 In
Badders
United
at 595. Our sister circuits faced with this
367,
391,
(1916),
S.Ct.
L.Ed.
interpretations
issue have reached similar
so
Supreme
long
Court held that
1341, 1343,
§§
of 18 U.S.C.
and 1344.5
each
“ha[d]
act
been found to have been
done
purpose
executing
Here,
charged
indictment
scheme,
....
is no
there
doubt that the
devising
“a
scheme and arti
law
putting
make each
of a letter into
fiсe to
money by
defraud and obtain
means
”
postoffice
separate
offense.” Id. at
pretenses
false and fraudulent
....
R.
394,
We
applied
1,
B. We examine theory of in prosecution ment’s determin argues next that the evidence Williams ing sufficiency of the evidence. United to her intent only not failed establish to Ross, 970, (11th States v. 980 F.3d defraud, but failed to steal or also rebut Cir.1997). trial, government At ad support good her faith defense. In of her theory vanced devised a defense, misap- testified her in knowingly scheme to defraud which she plication grant funds was due to her grant personal misused federal funds for misunderstanding grant honest rules expenses misapplied grant funds to conditions, and that ordered ETA she items not approved the CNCS line-item Quickbook records, to bookkeepers modify budget. scheme, In furtherance of this faith, in good once learned of her she Williams caused make CNCS to scheduled addition, previous accounting errors. wire grant transmissions of federal funds prosecution Williams claims that the failed account, into ETA’s over she exer which to proof meet its burden of because it did authority cised money final for how any not financial loss suffered establish spent. the victim of fraud. challenges review de novo We government The presented sufficient ev- sufficiency of the evidence criminal tri idence, circumstantial, prove direct als, light the evidence in the viewing most trial, intent to During Williams’s defraud. government. favorable to the showed Futrell, (11th 1286, v.
States
F.3d
direction,
the ETA issued a
curiam). The
(per
Court will $15,000
payable
check
order
to the
of P.R.
any
gov
resolve
conflicts
favor of the
Property Investments, the umbrella name
accept
ernment and
all reasonable infer
private
properties.
rental
support
govern
ences that
tend to
also
evidence
showed that Williams
Ward,
ment’s case. United States
197 authorized checks to be used for other
Cir.1999).
F.3d
We as
items,
unapproved
personal
such as a
sala-
jury
all credibility
sume that
made
ry, payments on Bunnis Williams’s car
support
choices
of the verdict. United
note,
payments
rent
night
on Williams’s
Thompson,
States v.
F.3d
club, expenses
home,
related to
new
their
—
denied,
Cir.2006), cert.
grounds
construction work on ETA
-,
127 S.Ct.
butting government’s into evidence “[i]t account, $320,081. ETA’s totaling not Al- enough put for a forth a innocence, though grant require rules did ETA hypothesis reasonable be cause maintain jury separate is not funds in a issue whether rea account, sonably acquitted could have but whether the rules did mandate that ETA it reasonably guilt keep tracking could records the expen- have found be detailed yond a Thompson, grant money reasonable doubt.” diture of that grant ensure *10 F.3d at spent only approved pro- funds were Director, also fails. Wire fraud does CNCS Financial As Chief costs.7 gram authority require government prove the to actual supervisory had direct Williams bookkeepers required and the financial loss or that the defendant benefi- ETA over Ross, to the Foster bookkeepers to allocate costs her See 131 F.3d ted from scheme. (“Punishment Program and Retired Senior Grandparent under the wire fraud at percent- to a Program pursuant is not limited to successful Volunteer statute en- schemes.”). Rather than Rather, she devised. age-formula “[t]he only for that funds were used grant sure needs show that the accused merely to or- expenses, approved program and to defraud his victim that his intended bookkeepers percent- to use her the dered ‘reasonably or her communications were from expenditures for all age-formula persons ordinary calculated to deceive ” book- example, For ETA ETA’s account. Ross, prudence comprehension.’ and charge formula to keepers used (quoting Zweifel, F.3d at 986 Pelletier $15,000 to $9,000 payable check P.R. Cir.1991)). 1498-99 grant pro- the to two federal Investments our We conclude frоm review of investigators determined grams. CNCS to record that evidence was sufficient direction, the ETA that under Williams’s defraud, well prove intent as William’s $101,000 in unau- charged approximately of wire fraud and requisite as the elements grant expenditures thorized A rational finder of federal funds theft. during 2001. programs infer from the evidence that fact could evidence, light when viewed in Williams knowingly participat- devised and government, most favorable by apply- ed in a to defraud CNCS scheme juror to to allow a reasonable sufficient promise to use ing grant funds with the guilt for wire find Williams’s only program for approved expendi- them beyond theft a reasonable federal funds tures, that caused wire transfers she Although Williams testified doubt. her scheme. to be made furtherance of knowledge her actions she lacked also could infer that jury A reasonable jurors were the sole wrongful, were ETA, position agent as her credibility free to dis- judges of and were fraud, embezzled, stole, inten- obtained reject good testimony her credit tionally misapplied, knowingly convert- Schofield, faith See Conklin v. defense. $100,000 funds of federal approximately ed (11th Cir.2004) 1200-01 Pro- Grandparent Foster belonging convicting (finding defendant of Pro- and Retired Senior Volunteer gram murder, necessarily discredited defen- jury gram. theory testimony rejected his dant’s defense). self Jury Instructions and Con- C. Pattern structive Amendment argument that the evi Williams contends govern dence insufficient because a con- jury instructions created to show financial loss suffered court’s ment failed where, here, grantees may be as Requiring This difficult ETA and other main- operating programs addi- grantee is other grant separate in a account tain federal funds may grant programs, and way the federal easiest and clearest tion to would have been the building. allowing doing same While By so in the funds. com- to track federal funds, responsible fully for her criminal placed a Williams is mingling rules conduct, why permits com- CNCS grantees a method of wonder burden on to create funds, temрt grantees which expenditures mingling of separating of federal funds their dipping to risk into responsibilities, such in these circumstances from other financial pool federal funds. unapproved overhead costs. of available administrative *11 1246 indictment, jury to her the district court’s
structive amendment instructions con- rights process her due under the violating structively amended the indictment to al- Fifth Amendment.8 jury low a to find her guilty aiding and abetting someone her other than husband.
A constructive amendment
to
resulting from the
the indictment
district We find no such error from our review
jury
per
se
court’s
instructions
revers
of the instructions. The district court in-
States,
See Stirone v. United
ible error.
jury
structed the
as follows:
212, 219,
270, 274,
80
4
361 U.S.
S.Ct.
the acts or
of an agent,
[I]f
conduct
(1960);
States v.
L.Ed.2d 252
Behe
employee, or other
of a
associate
defen-
(11th Cir.1994).
ty
Under
willfully
dant are
directed
authorized
Amendment,
the Fifth
a defendant has the
defendant,
by such
or if a defendant aids
felony
right
charges
to
tried on
re
person by
and
another
willfully
abets
grand
aby
jury
turned
indictment. Sti
joining
person
together with that
in the
ronе,
U.S. at
S.Ct. at
272.
crime,
commission of the
then the law
grand
may
Only
jury
broaden
responsible
holds such defendant
for the
once it
charges in
indictment
has been
just
conduct
person
other
as
returned,
may
the district court
and
not do
though
personally
the defendant had
en-
so
constructive amendment.
Id. at
gaged
the conduct.
“
215-16,
S.Ct. at 272.
‘A
constructive
R. 6 at 18.
to
amendment
the indictment occurs
jury
modify
where the
instructions so
The district court has discretion in the
charged
the offense
elements of
that the wording
style
instructions,
jury
have been convicted on a
long
so
accurately
as the instructions
re-
ground
alleged by
grand jury’s
Starke,
flect the law.
Lignarolo, 770 F.2d 981 n. 15 fenses principal as a her through direction Cir.1985)). (2) of ETA employees, or that Williams person aided another to commit the of- charged The indictment Williams fenses, husband, criminally and thus find Williams, her and her liable Bunnis with оther, accomplice. as aiding abetting each Williams her violation hus- 2,§ band conjunction charged of 18 were each U.S.C. with with substan- seven counts, counts of wire fraud tive and one count as well as aiding other, federal funds theft. argues Williams abetting together each and tried Fuentes-Coba, right We note proceeding.’’ exercised her United States v. prior Cir.1984). review district court’s instructions Be charge the final and had amended it to in cause Williams raises constitutional chal theory lenge clude instructions of defense. to this instruction under Fifth Although suggested grand several jury requirement, modifi Amendment’s howev cations, er, object pattern did not she we frame our review standard States, Normally, instructions for U.S.C. set forth in Stirone United 361 U.S. 212, 215-17, 270, 272-73, challenges jury review instructions not 80 S.Ct. 4 L.Ed.2d error, plain (1960). Indeed, reversing only raised at trial challenge if Williams's court, clearly goes the instructions were “so erroneous as to whether the giving instructions, grave miscarriage a likelihood of jurisdiction. result in those exceeded its fairness, Statеs, justice seriously ... McCoy affect[ ] v. United public (11th Cir.2001). integrity reputation judicial of [the] *12 court, Thus, sponte, sua should have exclud these trict instructions co-defendants. Smith, the evidence.” United States v. ed accurately the distinction be- reflected F.3d liability 459 accomplice principal and tween J., Here, (Tjoflat, specially concurring), cert. de the district the indictment.
from —nied, -, S.Ct. jury for pattern the instruction court read (2007). L.Ed.2d court did § 2. the district While 18 U.S.C. name in specify Bunnis Williams not Federal of Evi Under the Rules impermissi- it did not charge, pattern this dence, crimes, wrongs, evidence of other of the expand scope the indictment.
bly acts is inadmissible character evidence in find no error the therefore We prove person’s to be used court’s instructions. 404(b). to propensity act. Fed.R.Evid. in the analyze jury must instructions We however, “may, evidence be admissi Such the presented the evidence context purposes, proof for other such as ble theory at trial to determine government’s intent, motive, opportunity, preparation, amendment to the a constructive whether identity, or absence of plan, knowledge, has In context of occurred. the indictment Id. In this ]....” mistake accident! case, the presented evidence this case, argued good faith de jury to find did not allow instructions fense, claiming of federal misuse never bookkeepers were nothing an in grant funds was more than —-who charged wrongdoing with criminal rebuttal, gov advertent mistake. —were culpable wire and fed- principally ernment offered evidence Williams’s to funds theft and base Williams’s eral history non-compliance with federal the book- aiding abetting on her guilt regulations prove her intent reading of she directed. Such a keepers defraud, knowledge and establish her light jury instructions untenable gave lack of mistake. The court show theory prosecution’s and evidence. instructions, immediately both appropriate claim that reject therefore We it and in after admitted evidence in a the instruсtion resulted constructive charge, limiting jury’s consider final dis- find no error amendment and determining this ation of evidence pattern court’s use of the instruction. trict commit intent and whether she or mistake.
ted the acts accident We Evidence D. Admission of did find that the district court therefore plain admitting this not commit error claims, time for the first 404(b). under Rule evidence court appeal, the district erred admitting evidence of her failure to follow Adjust- Level Application E. of Offense for the federal the terms conditions ments regulatory viola grants and other program stan object apply two-pronged We tions. Because Williams failed claims that the district evidence dard to review timely to introduction this sentencing trial, erroneously applied plain this issue for court at review First, Baker, adjustments. we review F.3d guidelines error. United States Cir.2005). underlying the district 1189, 1202 findings admis the factual For the error, clear sentencing determination for court’s plain of evidence to constitute sion Walker, obviously have error. United States the evidence must been “so (11th Cir.2007). re that, We then despite prejudicial inadmissible and facts of those object, application the dis- view the court’s counsel’s failure defense novo. Id. de ager, guidelines Although supervisor to the of one or more other participants.9 are sentencing guidelines advisory now Supreme after Court’s decision in *13 sentencing guidelines The federal pro Booker, 220, United States v. 543 125 vide for an increase in the defendant’s (2005), 621 S.Ct. 160 L.Ed.2d “district base offense two level levels “if the required correctly courts are still calcu- organizer, leader, defendant was an man advisory appropriate guidelines late the ager, any activity supervisor or criminal v. (a) Livesay, States other than United range.” 484 or described [subsections] (b).” 3B1.1(c).10 Cir.2007) (11th § U.S.S.G. The commen (per F.3d 1329 cu- tary qualify adjust states that for an riam). imposed by The sentence ultimate 3B1.1, § ment under “the defendant must the district court reviewed for reason- is leader, have been the organizer, manager, factors light ableness outlined in or supervisor of or more partici one other 3553(a). United States v. § 18 U.S.C. pants.” 3B1.1, § cmt. U.S.S.G. n.2.11 Scott, Cir.2005). “Participant” is as “a person defined who is criminally responsible for the commis Adjustment 1. Aggravating-Role offense, sion of the but need not have been Id., convicted.” n.l (emphasis cmt. add argues the district court ed). erred in applying aggrava the two-level
ting-role adjustment per U.S.S.G. The district court would not have been 3B1.1(c) § acquittal because her husband’s precluded applying § from ad- 3B1.1 any on all counts precludes basis for find justment merely because Williams’s hus- ing organizer, leader, that she was an acquitted man- band was on all At counts.12 Gallo, Sep- 9. Because Williams was sentenced on United States v. 18, 2006, (11th Cir.1999). tember all citations to the sentenc- statements, ing policy guidelines, commission sentencing hearing, 12.At argued thereto, commentary, and amendments are to against application any upward adjust- Commission, Sentencing United Slates Guide- 3B1.1, stating: § ment under (2005), lines Manual which was in еffect on If the Court will recall Ms. Williams and that date. charged her husband were of- these fact, said, (b) (a) specifically "they fenses. he provide: 10. U.S.S.G. 3B1.1 jury aided and abetted each other.” The Based on the defendant's role in the of- guilty returned a not verdict as to all counts fense, increase the offense level as follows: Williams, as to Mr. then we’re left with (a) organizer If the was an defendant or theory under the that she aided activity leader aof criminal that involved and abetted herself. participants five or more or was otherwise Although R. at 16. specifi- Williams did not extensive, by 4 increase levels. cally sentencing hearing state at the that her (b) manager If the was a or su- “partici- husband could not counted as a (but leader) pervisor organizer not an or pant” acquitted, argu- because he was this activity and the criminal involved five or preserved adequately ment was her her participants more sive, was otherwise exten- counsel, objections, through sentencing. at increase 3 levels. Massey, See United States Supreme Court has held that "com (finding that the defendant mentary in the Guidelines Manual that inter adequately preserved objections had prets explains guideline is upward justice authoritative adjustment obstruction unless it violates the Constitution or a federal the basis of her "willfulness” where the defen- statute, with, plainly is inconsistent or a "repeatedly dant’s counsel referenced the ef- of, guideline.” reading erroneous Stin fect of Zoloft and heroin on her mental state” States, 36, 38, son 508 U.S. specifically but "did not utter the 'in- words ' 1913, 1915, (1993); ”). S.Ct. L.Ed.2d tent' or rea[.]’ mens guidelines A “participant,” face theft. as the court the same did sentencing, term, person “a who is crimi reasonable defines proof beyond burden — jury at trial. The nally responsible faced for the commission of the doubt—that 3B1.1, ad applied have 3B1.1 cmt. n.l. court could offense.” U.S.S.G. justment by preponderance if it found Bunnis’s intent to defraud and steal is a that Bunnis Williams question the evidence threshold for determin requisite responsible for wire criminally responsibility. his criminal Because ing theft and that federal funds scheme or permit commingling rules expressly degree exerted some Alma Williams funds in ETA’s account and Bunnis *14 control, him. leadership or influence over Chief Executive Officer was the Williams Ndiaye, United States v. See ETA, he have funds could taken from — denied, Cir.), cert. account, intending ETA’s without to de -, 127 S.Ct. 166 L.Ed.2d fraud the or steal (2006). may Although funds. these facts amount conduct, they unethical fall short of to therefore, question,
The is relevant preponderance a of the demonstrating by a “partici- Bunnis Williams was whether was that Bunnis Williams crimi evidence criminally pant,” responsible or someone nally responsible for his wife’s wire fraud of Williams’s wire commission federal funds theft. See States appli- theft. The district court’s fraud and Yates, 1179, 1182 Cir. per- to a § cation of 3B1.1 determine that curiam) 1993) (per (reviewing guide question a a law that “participant” son is § novo, commentary to 3B1.1 and conclud lines de while we review we review that the court’s statement that ing district findings for error. underlying factual clear in an organi defendant was “involved upward applying In the two-level ” extensive,’ that was zation ‘otherwise 3Bl.l(c), § adjustment under the district correct, a if insufficient as matter even was considered, alia, inter Bunnis court adjustment justify upward of law in the “participation scheme.” 3B1.1(a)). § under however, reveals, Bun- This that record as a Because the evidence is insufficient nis’s role was de minimis insufficient 3B1.1(c) to show that Williams was matter law adjustment. § justify upward a leader, organizer, manager, supervi or “an court sentencing, At district found in participants of one more other fraud, sor directed accomplish activity,” we conclude that criminal cover unautho accounting entries to in two- applying court erred ex rized which included travel expenses, aggravated-role adjustment under Bunnis level penditures payments” and “loan 3B1.1(c). § Bun- U.S.S.G. court also found that Williams. The often take and use nis Williams would Adjust- Abuse Position Trust bookkeepers’
ETA without checks ment justifying and without his ex knowledge
penses. that the district court contends abuse-of- deciding, applying these two-level
Assuming, without
erred
level,
correct,
adjustment to her
offense
they
go trust
base
findings
factual
are
do not
3B1.3,
§
she did
establish,
per
a
U.S.S.G.
because
preponderance
far
so
evidence,
position
public
private
a
trust
occupy
was
of the
that Bunnis Williams
sentencing
The
in in relation to' CNCS.
criminally culpable “participant”
sentencing
guidelines provide
funds
wire fraud or federal
may increase the
court
defendant’s base
ernment
have been a
victim
if
offense level
two levels
the court
scheme,
Medicare fraud
an abuse-of-trust
preponderance
finds
evidence
adjustment
unjustified
because the
position
that the “defendant abused a
of defendant “did not occupy
sufficiently
public
private
...
trust
a manner
proximate position of trust
relative to
significantly
facilitated the commis Medicare.” Id. at
holding,
so
sion or conceаlment of
the offense.”
“statutory
found that
reporting require-
§ 3B1.3.
application
U.S.S.G.
note ments do not
position
create a
of trust
accompanying
3B1.3 defines “position of
relative to a victim of the crime.” Id. We
public or private
position
trust” as “a
...
confirmed this
finding United States v.
by professional
characterized
or manageri Mills,
(11th Cir.1998),
3. Obstruction Justice jury charge dence nor its final constituted applied court two-level error, and there is sufficient evidence to obstruction-of-justice adjustment to support Williams’s For convictions. Williams’s base offense level because reasons, affirm we foregoing Williams’s amend began accounting sentence, As convictions. system unapproved some of remove findings jus district court’s factual do expenditures learning allega- after of the tify adjustments application aggra pending investigation. tions vated role or for abuse trust. There argues that she bore no fraudu- fore, vacate Williams’s sentence and intent lent when she ordered realloca- for resentencing remand without the up Quickbooks, expenses tion of and that adjustments ward U.S.S.G. only correcting she her prior misun- 3B1.1(c) §§ and 3B1.3. derstanding program expenditures of how AFFIRMED, PART; IN VACATED under government reg- should classified REMANDED, AND IN PART. reject argument. ulations. We Section 3C1.1 provides for an HULL, Judge, Circuit concurring in upward adjustment by if two levels part dissenting part: “willfully imped obstructed or 11(A)- I concur full in Sections I and ed, attempted to obstruct or impede, (E)(2) (E)(3) (D), majority’s justice respect the administration However, opinion. 11(E)(1), toas Section investigation, prosecution to the or sen I conclude that the district applica- court’s tencing of the instant offense of conviction tion two-level role enhancement § 3C1.1. An example ...U.S.S.G. must respectfully be affirmed and thus such conduct is “producing obstructive *17 false, altered, a dissent as to attempting produce the reversal in Section or 11(E)(1). or during counterfeit document record investigation or proceeding.” official official majority notes, opinion As the 3C1.1, § cmt. n.4. U.S.S.G. Notwithstand appeal argues on the district court ing good faith, assertion of Williams’s improperly found her husband was a there is sufficient evidence in the record to for “participant” purposes applying support finding the district court’s that she 3B1.1(c). role enhancement § in U.S.S.G. did in fact direct the bookkeepers alter 3B1.1(c) Section authorizes a two-level accounting
the ETA’s records to conceal in a increase defendant’s level if offense unapproved expenditure of federal leader, the defendant “organizer, was the finding funds. The district court’s was not manager, supervisor or in any criminal clearly erroneous, and we affirm the dis (a) activity than other described in or application § trict court’s of the 3C1.1 ad (b)....”1 3B1.1(c). § justment. U.S.S.G. qualify To 3B1.1(c) enhancement, § for a role “the III. CONCLUSION must organizer, defendant have been the leader, manager, supervisor Williams’s convictions for or five counts of of one or wire fraud and one count of federаl participants.” funds more other U.S.S.G. (a) provides § Subsection 3B1.1 for a four-level offense level increase if defen- and would affirm district majority this issue opinion As cmt. n.2. § 3B1.1 3B1.1(c) § “is who of the two- notes, “participant” application a is someone court’s commission for the criminally responsible enhancement.3 level offense, not have been but need n.1 § cmt. 3B1.1 convicted.” U.S.S.G. added).
(emphasis appeal, her on
According to Williams partici- a could not be considered
husband jury. acquitted he was pant because REESE, Plaintiff-Appellant, Edward J. majority opinion fully agree with I consider an properly court the district HERBERT, in his individual ca Josh co-defendant, such Williams’s acquitted Ellis, Danny pacity, in his individual husband, § for 3B1.1 participant be a Geddie, capacity, in his individ Jason purposes.2 Geddie, capacity, indi ual Joe his appeal that the argument on Street, Phillip in his capacity, vidual counted her hus- improperly court district capacity, Defendants-Ap individual is limited to participant as a band pellees acquit- as a husband’s status co-defendant No. 06-14231. jury. brief does ted insuffi- that the triаl evidence was argue Appeals, Court of States by preponder- a finding support cient Eleventh Circuit. that her husband was ance of the evidence May activity knowingly the criminal involved 3Bl.l(c) sentencing purposes for Thus, reach I would not
enhancement. Cir.2006) (explaining defendant "organizer a crimi was or leader of dant legal partici preserve appeal if activity that involved five or more issue nal "fails pants objection or extensive was otherwise are in predicates the factual of an 3B1.1(a). (b) record, provides Subsection U.S.S.G. sentencing but were cluded in the level increase if for a three-level offense presented under a differ to the court "manager supervisor was the legal theory”); United States Gallo- ent leader) (but organizer and the crim not an Chamorro, participants activity five or more inal involved ("To preserve appeal, general an issue for ....” U.S.S.G. extensive otherwise objection objection grounds other оr an Thus, 1.1(b). activity impli 3B criminal Zinn, suffice."); *18 will not United States (c) by a two-level increase cated subsection (concluding F.3d participants five and is not involves less than that, "clearly if a fails to articulate extensive." "otherwise during sentencing,” the specific objection objection issue is reviewed waived is acquitted-hus 2. Williams did not advance event, error). plain any ac only for Instead, argument in the court. band argument quitted-husband advanced 3B1.1(c) objection role to the Williams's rejected appeal Williams on must be sentencing was had at that she enhancement de novo of review—whether either standard bookkeepers and good faith on her relied plain error. availability advise to the accountant to her as and use of the federal funds that she challenges application of did essentially Because Williams innocent. impermissible double- enhancement as role object on the to the role enhancement argument counting. not addressed This urged appeal, grounds husband-related event, and, any it is majority opinion, plain error. See our review should warrant discussion. meritless and does not Massey, United States