*1 therefore, agree, the decision of I

Secretary be affirmed. of Labor should America,

UNITED STATES

Plaintiff-Appellee, ELLERBEE,

John L. Defendant-

Appellant.

No. 94-2278. Appeals,

United States Court

Sixth Circuit. 13, 1995.

Submitted Oct.

Decided Jan. *2 to a of 24 Ellerbee term

court sentenced months incarceration. appeal, oral was waived

On Appellant the briefs. this case was heard on (1) presented at argues: the evidence a of law to trial insufficient as matter (2) guilt; that the evi- support a support presented was insufficient dence finding, at made the District Court’s engaged in sentencing phase that planning” in order “more enhancement; support a two-level sentence (3) court committed error that the trial depart failing to downward argued “minor guidelines to Ellerbee’s due (4) fraud; that the trial role” the mail adopting a error court committed question in order to valuation of the required market value” determine the “fair appellant’s sentence. For to determine reasons, following affirm the conviction we and sentence. trial, presented at

From the evidence light favorable to the viewed most summary following is a brief prosecution, the essentially facts. Ellerbee of the relevant would, whereby nu- ran a scheme he under names, sign up with the Colum- merous false part of House Record Club. As Colum- bia Attorney Hiyama, Asst. U.S. Stephen L. “introductory typically offer” the club bia’s (briefed), Detroit, MI, for U.S. join, allowing incentives to such offered (briefed), Detroit, MI, Morgan E. Joan purchase eight tapes, al- the subscriber to John L. Ellerbee. cent. The member bums or CDS for one minimum obligated purchase was then MOORE, KENNEDY and Circuit Before: 8) regular (usually 6 or items number *, Judge. Judges; District POTTER the next two to price from the Club over years. receiving the free three After POTTER, D.J., opinion delivered street), (which Eller- he later resold on the court, MOORE, J., joined. in which later invoices that bee would then refuse the 109-110), KENNEDY, (pp. J. delivered name at the addresses sent to the false were concurring opinion. separate he utilized. POTTER, Judge. District JOHN W. address, his own used Canfield; step-daughter, that of his appeals criminal East Defendant/appellant address, Defendant, Coplin; a third 4325 East- sentencing. after or conviction lawn, fraud, The addresses were trial, for the deliveries. of mail a bench was convicted apartments, 1341; into nonexistent using to fur- all subdivided fictitious names U.S.C. defraud, 1342; picked at random from and the names were 18 U.S.C. ther a scheme to telephone Appellant submitted transportation book. the interstate membership applications, fraud, total of 221 false 2314. The district taken 18 U.S.C. Potter, sitting by designation. John W. *The Honorable Ohio, Judge for the Northern District District applications Supreme were from Ellerbee’s 208 of the Court held that in address, address, Coplin determining five bore of evidence to Eastlawn address. As a re a criminal “the bore the conviction relevant whether, applications, question viewing sult sent House after the evi- *3 Coplin light 1811 cassettes to dence in the CDS and 506 most favorable to the prosecution, and Canfield addresses.1 rational trier of fact could have found the essential elements of the of to the The total value the items sent beyond a crime reasonable doubt.” at Coplin placed Canfield and addresses was 443 U.S. at 99 2789. S.Ct. at $81,670.00. from amount was reached This testimony by employee, Marga- a Columbia Ellerbee’s reliance on Leon is therefore Ames, placed general ret of which misplaced, subsequent argument and his per per on the tape CD and $15.00 $10.00 interpretation of the evidence is therefore unable, Ames was howev- merchandise. Ms. light baseless. The evidence viewed er, testify House as who prosecution, most favorable to the as related actually figures determined these or how above, adequately supports Ellerbee’s convic- they were determined. tion. Appellant argues “spillover” also that evi- appellant to convict of order unfairly fact, dence biased the trier of fraud, government

mail had to establish proof that no specific as his following elements: arguments intent to defraud. Both of these defraud; of a 1. the existence scheme to pertain to the of the evi- 2. mail in use furtherance and, diseussed, dence as are above without scheme; and merit. culpable participation 3. the accused. that, argues next § present- See 18 U.S.C. 1341. The evidence trial, phase sentencing of his the district light ed is in the most reviewed favorable erroneously appellant court found that en findings prosecution, and the trial court’s gaged in “more than planning.” minimal findings only reversed if the trial court’s finding supported This a two-level sentence “clearly were United v. erroneous.” States enhancement. The trial Bashaw, court 982 168 F.2d may appellant’s increase convicted offense theory only Appellant’s is that he was points if level two the offense involved scheme, dupe mind whose master planning.” “more than minimal U.S.S.G. “Derrick”; only was an individual known as 2Bl.l(b)(5). appropriate The standard of supposedly operation Derrick ran review the trial court’s “more paid only appellant per tape. Ap one dollar planning” instance is one pellant argues only equivo that since there is Eve, of clear v. error. United States 984 guilt cal and no circumstantial evidence F.2d 701 evidence, direct evi insufficient support Appellant argues dence to his conviction. than To that “more minimal appellant proposition planning” planning than relies on the case means more is nec- (6th Leon, essary simplest of United commit the offense in Cir.1976). holding Commentary. The in this is no form. See U.S.S.G. Stone, longer good than typical law. United States v. Ellerbee maintains that “more (6th Cir.1984);2 creating dummy planning” F.2d 361 see also Jack would include cor- 307, 318-19, accounts, Virginia, multiple son v. porations, U.S. bank etc. The (1979). 2781, 2788-89, argument S.Ct. 61 L.Ed.2d 560 follows since all did every hypothesis except 1. The sent to ad- CDS and the Eastlawn remove reasonable Stone, apparently dress were not the de- guilt.” attributed to The court F.2d at 362. fendant. previous indicating further held decisions rejected approval contrary of a rule "are Stone, 2. held the court that "circumstantial Id. at overruled.” guilty evidence alone can sustain a verdict so, to do circumstantial evidence need Nagi, 212-13 applications, upward enhance- States v. fill out Cir.1991). (6th Court, best, improper. At ment is pre- plain The evidence review error. merit. lacks Ellerbee’s sented, light reviewed in most favorable require planning minimal does not than More prosecution, appellant was shows that in its most be committed the offense sole, major, if participant fraud form, appellant impliedly ar complicated The failure to de- scheme. district court’s something just more it must be gues; rather part plain downward was not error. simplest in its form. “More crime than the planning” minimal can be deduced than interesting appellant’s most acts, repeated is typical, than planning more *4 assigned errors is that the his contention In in crime. this steps to conceal the calculating district court erred in the amount stance, the crime appellant committed by adopting of the of loss a retail valuation applica filling over hundred through out two goods question in in the order to determine acts), false names and (repeated tions used required “fair market value” to determine (concealment), picked two over addresses Ellerbee’s sentence. The court’s standard of telephone of the false names out hundred review in this is also one of clear instance (more planning). than minimal book Kohlbach, 38 error. United States v. F.3d the enhancement was evidence indicates that warranted. Further, pointed govern- the as out require Sentencing As the Guidelines ment, in of comments the one the of that the amount loss attributable to Eller- guidelines particularly germane: “[m]ore is fraud be taken account in deter bee’s into planning pres- deemed [also] is pertinent sentencing range, mining the repeated acts involving in over ent 2Fl.l(b)(l), Court must look U.S.S.G. the time, period unless it is clear that each of meaning of “loss.” Section purely opportune...” instance was Sentencing n. 2 of the comment Guidelines 1(f) (emphasis n. 1B1.1 comment U.S.S.G. property defines “loss” as value of the “the added). Ivery, 999 also United States v. See taken, damaged Ordinarily, destroyed.” or stated, As this F.2d 1043 property destroyed is the when taken or loss acts over 12 repeated scheme involved particular is the fair market of the value months, and each was as a result instance property Appellant argues at issue. that in fraud-inducing appellant, the the efforts case, this the be valued at the should being “opportune.” The merely rather than per tape for appellant which claims he $1.00 Ellerbee’s offense district court’s that alternative, goods. sold the the planning more than minimal was involved that, argues membership pro since the club proper. eight that the had for vided albums could be sentencing, appel respect to With long eventually penny as as the member argues that court com lant also the district loss, albums, bought six as additional the by failing depart downward mitted error to by using per tape calculated unit value or the sentencing guidelines in due to Ellerbee’s CD, be averaged should out over fourteen El- argued “minor role” the mail fraud. in instead of albums “free” albums only argues player that he a small lerbee was per membership. received mysterious larger in a scheme that the actually Derrick was the criminal master cites United States Warshaw (6th Cir.1994), plot sky, supporting mind behind the to defraud Columbia totally proposition House. This without the retail market where merit, appears repeat question, Eller- to in application be a has no the crime argument concerning improper it is bee’s then use a retail valuation Furthermore, goods. appellant did of the the evidence. establish market value Warshawsky, however, court. not raise this issue the district dealt with fraud before wholesalers, Ordinarily, amongst to address victim was a this Court declines and the market; player not raised court below. See thus that issues wholesale case, KENNEDY, inappropriate Judge, it was to use the Circuit concurring. goods. Id. at 213-14. panel’s I opinion concur except for fraudulently valuation obtained distinction, place Because of the market goods. The District Court decided the fair Warshawsky apply does the scenario the stolen based on bar, In the case at Co- before Court. testimony of an employee Columbia place acting in the retail lumbia market (“Columbia”) House Record Club Moreover, by selling Ellerbee to consumers. “generic values” of a disc and cas- selling acting market this same tape sette were' respectively. $15 $10 albums these same consumers. It However, only did Columbia sell say be a also mistake to the valuation products less, specific for involved but price; of a arrived was use “retail” showing anyone also there was no sold actuality, presented evidence showed products prices. these those products tended to market price, case, somewhat below retail and it was Co- we are with the prices question lumbia’s that were used to establish of whether value be should deter goods’ price mined Simply fair market value. be- reference to the for which *5 tapes and cassettes are cause Columbia to offer the sold in chose introducto stores, retail or whether value should ry goods be at a substantial discount as an the charged determined amount join incentive to not the record club does particular Columbia for these labels. The goods mean that the value of was market the easily latter is appro market and ascertained lessened. United v. Col somehow States priate in this case. See United States v. (3rd letti, Cir.1992) (rejecting Warshawsky, 20 F.3d 204 In appellant’s since the victim Warshawsky, rejected we consideration of diamonds,' typically discounted the discount price retail where “the retail market has loss); price determining should utilized in be literally no connection to th[e] case.” War Williams, see also United v. 50 F.3d shawsky, 20 F.3d at 213. (10th Cir.1995) (where 863, 864 items were retailer, proper from to stolen measure loss property The of the value taken is said to value); by retail value rather than wholesale gain reflect harm to the and the victim the Larracuente, 672, comment, United States v. 952 F.2d the defendant. U.S.S.G. (2d Cir.1992) (use 674 of retail boot value of hypothetical prices The retail (backg’d.). tapes proper high tapes leg quality where compact tapes assigned by discs and Colum- market); in a would allow their sale charged bia to its but not cassettes Austin, States v. No. United are irrelevant either of these consider- WL normally ations. Columbia does not receive purported prices” the “retail for these instance, In this adequate there is evidence suggests the the record defendant’s the valuation arrived at the gain supposed under property’s was well the appellant’s District proposed Court. The Therefore, suggested prices retail value. the fact, may, method valuation a more be gain the the reflect neither to the determining accurate method of Columbia’s nor the harm victim. Fur- defendant loss; however, may fact that it the be the thermore, there was no evidence more accurate of the two methods not does buyer any pays prices. or seller these make the district court’s clear- determination prices The discs and cas- 2F1.1, ly erroneous. com- See U.S.S.G. Columbia, actually charged by settes on the 8; Colletti, 1345; n. ment 984 F.2d at hand, easily other are ascertained and are a (6th 327, States v. 25 F.3d Essentially, truer reflection market value. Cir.1994). clearly The is not errone- a “club member” receives CD’s for free ous. obligated buy more at then is six $15 The piece. Using conviction and sentence are AF- figures, these the market value This, FIRMED. rather $6.43/eompaet disc. than the assessing values,” accurately part of the test reflects second “generic assigned adequately value to which the market goods. extent of the stolen gain harm to the victim or measures the (3d Colletti, 984 F.2d 1339 v. United States Warshawsky, 20 F.3d the defendant.” relies, panel is distin- Cir.1992), on which Colletti, prose- was defendant guishable. courier, robbery a diamond cuted for the argues, ultimate government “[T]he to a discount diamonds was to deliver fraudulently who mer- obtained purchasers of this of the diamonds jeweler. street, The retail chandise, bought it on the are who defendant, $626,000. According to buy otherwise very people who would same seller, the diamonds to whom stores,” discount thus the goods at retail the same delivered, have have been were to making those sales. is harmed victim discount of that at a 25% marketed them “ultimate just likely that the Why isn’t it in- that the further noted price. Defendant bought have purchasers” would otherwise $289,000. claim for jeweler’s settled the surer goods through Columbia? same Nevertheless, held that appeals court event, hypothetical positing rather than in the record to adequate evidence purchase hypothetical at a foregone retail greater value of actual market support an held that market value should price, we have district $500,000 therefore the than price at which be determined clearly erroneous. court’s decision than goods for sale rather victim offered the may distinguished be Colletti Warshawsky, 20 price. a fictitious retail agreed to have appear parties in that ease Perry, (citing F.3d at 213 United States $626,000 figure represent did (5th Cir.1981)). stolen merchandise. value of the actual retail *6 readily-ascertainable Since there exists agree- case, were not parties case, appropriate it is market value for the fair only proof offered ment and the REMAND for an the sentence and VACATE goods was the of the stolen market value prices of inquiry into the fair market admittedly testimony an un- disputed tapes as sold Columbia. discs and cassette informed witness. Warshawsky it rejects because panel amongst fraud wholesalers dealt with market. in the wholesale player was a

victim similarly theft of a Warshawsky involved

But “suggested retail hypothetical

product with a its court based upon which the district

price” Warshawsky, 212. As valuation. Id. at America, UNITED STATES found market value this case the Plaintiff-Appellee, connection to the has little District Court Warshawsky, at 213. both case. cases, showing that the mer- no (95-5648) Johnny Arnold HALLIBURTON sold ever have been chandise would (95-5649), Nancy Jane Welborn prices suggested at the retail outlet Defendants-Appellants. government. Nos. 95-5649. value, being mea- rather than Fair market market, easily hypothetical an sured Appeals, United States Court for the amount in this measured Circuit. Sixth merchandise. sells which Columbia 15, Argued Sept. 1995. readily available there is such Where fair market value to determine the means Decided Jan. merchandise, clearly erroneous I believe it is “If employ it. some readily-ascertainable, property is the stolen proceed to the sentencing court must