U.S. v. Whatley

• Citation: 133 F.3d 601
• Decision Date: 07 January 1998
• Docket Number: Nos. 97-1661,97-1663,97-1789 and 97-1790,s. 97-1661
• Parties: UNITED STATES of America, Appellee, v. Rochelle K. WHATLEY, Appellant. UNITED STATES of America, Appellee, v. J. Victor WHATLEY, Appellant. UNITED STATES of America, Appellee, v. Michael Todd LANDESS, Appellant. UNITED STATES of America, Appellee, v. Harold B. BARNETT, Jr., Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 601

133 F.3d 601

UNITED STATES of America, Appellee, v. Rochelle K. WHATLEY, Appellant.

UNITED STATES of America, Appellee, v. J. Victor WHATLEY, Appellant.

UNITED STATES of America, Appellee, v. Michael Todd LANDESS, Appellant.

UNITED STATES of America, Appellee, v. Harold B. BARNETT, Jr., Appellant.

Nos. 97-1661, 97-1663, 97-1789 and 97-1790.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 8, 1997.

Decided Jan. 7, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied in Nos. 97-1661

and 97-1663 Feb. 19, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied in

No. 97-1789 Feb. 20, 1998.

Glenn E. Bradford, Kansas City, MO, argued (Edward F. Walsh, IV, Kansas City, MO, on the brief), for appellant Rochelle Whatley.

Patrick J. Cason, Marrisonville, MO, argued, for appellant J. Victor Whatley.

Denise M. Anderson, Kansas City, MO, argued, for appellant Michael Landess.

Byron Neal Fox, Kansas City, MO, argued, for appellant Harold B. Barnett, Jr.

Katherine Fincham, Kansas City, MO, argued (Stephen L. Hill, Jr., United States Attorney, on the brief), for appellee.

Before HANSEN, JOHN R. GIBSON and MORRIS SHEPPARD ARNOLD, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Rochelle Whatley and her husband, Victor Whatley, were the principals in a telemarketing firm called Midwest Marketing Concepts (MMC). Mrs. Whatley was president and sole shareholder, while Mr. Whatley served variously as a consultant and a general manager. MMC employed the two other appellants in this case, Michael Landess and Harold Barnett, as telemarketing salesmen.

We state such facts as the evidence would support a reasonable jury in finding. Working from phone lists obtained from other telemarketing firms, an MMC salesman would call an individual and say that he or she had been selected for MMC's "V.I.P. Bonus Round," and was guaranteed to win one prize from a list that typically included a new Saturn automobile, a pair of Lucien Picard watches, a $10,000 savings bond, and a pound of gold, along with other, much less valuable items ("gimme gifts"). All that MMC asked in exchange was that the individual purchase "Say No To Drugs" materials and donate them to a local church or school.

If a customer expressed interest, he or she was sold a "starter box" of the "Say No to Drugs" materials, which ranged in price from $400 to $800. The materials were in fact shipped to the specified organization, but the total cost to MMC of those materials was only about $40. The MMC sales representative pushed each customer into having the materials delivered directly to the designated organization, so that the customer would not be disappointed with the amount of materials that his or her money had purchased.

Customers were chosen for their susceptibility to this scheme. Sales representatives focused their sales efforts on people whom they perceived to be old or particularly lonely. They used a variety of tactics to get individuals to send money to MMC. Although it was nowhere in MMC's internal phone scripts, some of the people called were promised that they would win a specific big prize and were given false statements as to the value of the "gimme gift." When a customer asked what the odds were of receiving the car or other prizes, sales representatives were told to change the subject and to repeat the promise that the customer was certain to win one of the four major prizes.

Individuals who purchased the materials would invariably receive only the cheapest gift on the list. Their names, however, would be put back in MMC's file to be "reloaded," and they would be called again and told that they had a chance to win one of the larger prizes if they bought additional "Say No to Drugs" materials. If a customer tried his or her luck again, he or she would again receive a "gimme gift." No one, whether a one-time donor or one who was "reloaded," ever received an award other than a "gimme gift."

The Whatleys were indicted on one count of conspiracy to commit wire fraud and 106 counts of wire fraud, in violation, respectively, of 18 U.S.C. § 371 and 18 U.S.C. § 1343. In addition, Mrs. Whatley was indicted on six counts of money laundering, in violation of 18 U.S.C. § 1957(a), § 1957(d)(1). A jury convicted the Whatleys of conspiracy but acquitted them on all 106 counts of wire fraud; the jury convicted Mrs. Whatley on five of the six money-laundering counts against her. Mrs. Whatley was sentenced to 60 months in prison on the conspiracy charge and 63 months in prison on the money-laundering counts; Mr. Whatley received a 60-month prison sentence on the conspiracy charge. Mr. Landess and Mr. Barnett each pleaded guilty to one count of conspiracy to commit wire fraud and one count of wire fraud and were sentenced, respectively, to 30 months and 24 months in prison.

The Whatleys appeal their convictions and their sentences. Mr. Landess and Mr. Barnett appeal their sentences. We affirm the judgments of the district court. ¹

I.

After closing arguments in this case, the jurors began deliberating at 12:30 p.m.; at 4:00 p.m., they informed the district judge that they were unable to reach a verdict. The jurors then retired for the evening and resumed their deliberations the following morning. After two and a half more hours of deliberating, they were still unable to reach a verdict. The court, on its own motion, and over the objection of the defense, then gave the jury an Allen charge, see Allen v. United States, 164 U.S. 492, 501-02, 17 S.Ct. 154, 157, 41 L.Ed. 528 (1896), to encourage it to continue deliberating and, after four more hours, it reached verdicts on all counts.

The Whatleys assert that the district court erred because it did not give the complete Allen charge contained in Eighth Circuit Model Criminal Jury Instruction 10.02. It is true that the district court failed to read any part of the third paragraph of this instruction, which reiterates the burden of proof; the instruction was otherwise correct and complete, however, directing jurors to deliberate with a view to reaching a verdict, so long as one could be reached without violating any juror's convictions about the ultimate truth of the matter before them.

We examine the correctness of jury instructions as a whole and not atomistically, see United States v. Park, 421 U.S. 658, 674-75, 95 S.Ct. 1903, 1912-13, 44 L.Ed.2d 489 (1975), and we will not reverse a conviction based on an alleged error in instructing the jury unless that error was prejudicial. In the case of an Allen charge, we look to the text of the instruction, the time that the jury deliberated before and after receiving the charge, and the context in which the charge was given, to determine whether the jury was coerced into reaching a guilty verdict. United States v. Smith, 635 F.2d 716, 721 (8th Cir.1980).

We see no evidence of coercion here. Indeed, the fact that the jury deliberated for four hours after the district court gave the Allen charge suggests to us that the jurors carefully considered the case. We have held that a verdict returned only forty-five minutes after an Allen charge was not coerced. See Smith, 635 F.2d at 720-21; see also United States v. Cook, 663 F.2d 808, 810-11 (8th Cir.1981) (per curiam ) (verdict not coerced when returned at least one hour after charge given).

The Whatleys argue that the verdicts themselves prove coercion because the jury, which had not reached any verdicts at the end of the first day of deliberation, ultimately came to verdicts on all counts after receiving the Allen instruction. We find no merit in this argument. The jurors had a total of 113 counts in front of them against four defendants (the Whatleys and two defendants not part of this appeal). They acquitted two defendants and reached a mixed verdict for both Mr. and Mrs. Whatley. Unless we assume that ten hours is not enough time to reach verdicts on that number of counts, which we will not do, there is nothing in this record tending to show that this Allen charge coerced the jury into reaching its verdict.

II.

The Whatleys maintain that because the jury acquitted all of the defendants on the underlying wire fraud counts, there was no scheme to defraud and thus no conspiracy. There are a number of infirmities in this argument, but it is sufficient for present purposes to note that conspiracy is a crime in itself and is punishable whether it succeeds or fails. See Pereira v. United States, 347 U.S. 1, 11, 74 S.Ct. 358, 364, 98 L.Ed. 435 (1954). Even if the acquittals to which the Whatleys point are inconsistent with their convictions on the conspiracy charge, there are numerous cases that indicate that a conviction must stand if there is sufficient evidence in the record to sustain it. See United States v. Pemberton, 121 F.3d 1157, 1168-69 (8th Cir.1997). This record is replete with such evidence, as we have already indicated, so there is no error here.

The Whatleys also complain that the jury instructions dealing with the conspiracy charge misstate the law in several important respects. The Whatleys lodged no objections to these instructions in the district court, however, and we therefore review them only for plain error. See Fed.R.Crim.P. 30; see also United States v. Beasley, 102 F.3d 1440, 1452 (8th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1856, 137 L.Ed.2d 1058 (1997). Having examined the instructions, we are of the view that they were carefully crafted and tailored to the case. There is certainly nothing plainly erroneous about them, nor can we say that it is likely that any error in them affected the outcome of the case adversely to the Whatleys. See United States v. Olano, 507 U.S. 725, 734-35, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993).

Mrs. Whatley contends that she cannot be convicted of money laundering in violation of 18 U.S.C. § 1957(a), § 1957(d)(1), since she was not convicted of the offense by which she allegedly obtained the money. But the fact...