168 F.3d 741 (5th Cir. 1999), 98-10118, United States v. Powers

Docket Nº:98-10118.
Citation:168 F.3d 741
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John Brian POWERS, Defendant-Appellant.
Case Date:February 25, 1999
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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168 F.3d 741 (5th Cir. 1999)

UNITED STATES of America, Plaintiff-Appellee,


John Brian POWERS, Defendant-Appellant.

No. 98-10118.

United States Court of Appeals, Fifth Circuit

February 25, 1999

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Susan B. Cowger, Lynn V. Hastings, Asst. U.S. Attorney, Dallas, TX, for Plaintiff-Appellee.

Joel M. Androphy, Berg, Androphy & Wilson, Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas.

Before EMILIO M. GARZA, BENAVIDES and DENNIS Circuit Judges.

BENAVIDES, Circuit Judge:

John Brian Powers ("Powers") appeals from his October 14, 1997 conviction and January 22, 1998 sentence for mail fraud, wire fraud, and money laundering. Powers contends that the evidence at his trial was insufficient to support his convictions; that the district court abused its discretion in admitting evidence of extrinsic transactions in addition to a witness's prior consistent statements; that the district court erred in imposing a breach of position of trust enhancement as well as an obstruction of justice enhancement; and that the district court erred in imposing his sentence subject to the money laundering guidelines. For the reasons set forth below, we AFFIRM.


On May 20, 1997, Powers was indicted by a grand jury in the Northern District of Texas. He was charged in Count 1 with a conspiracy to violate the mail and wire fraud laws, in violation of 18 U.S.C. § 371. Counts 2 through 7 charged him with executing his scheme by various mailings, in violation of 18 U.S.C. § 1341. Counts 8 through 15 charged him with executing the same scheme by use of the wires, i.e., telephone calls, in violation of 18 U.S.C. § 1343. Counts 16 through 20 charged him with money laundering to hide the proceeds of his fraud, in violation of 18 U.S.C. § 1956(a)(1)(B)(i).

Trial by jury commenced before United States District Judge Maloney on October 6, 1997. Powers moved for judgment of acquittal at the close of the Government's case and renewed this motion following the trial. On October 14, 1997, the jury returned verdicts of guilty on all counts submitted to it (counts 1 through 15 and 17 through 20; count 16 had been dismissed at the request of the attorney for the United States). Powers was sentenced on January 22, 1998, to 57 months imprisonment, a three-year term of supervised release, restitution of $27,437, and a mandatory special assessment of $950. Pending the outcome of his appeal, Powers was released on bond.

Powers' criminal convictions stem from abuses of his position at Oryx Gas Marketing,

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a wholly-owned subsidiary of Oryx Energy Company ("Oryx"). Employed as a gas marketer, his job was to find markets and get the best value for Oryx's natural gas. In order to maximize profits, Oryx strongly discouraged its sales staff from selling to marketing companies, preferring to sell its gas directly to the end-user. 1

One of Oryx's major customers was ISP, which bought natural gas for its plant at Texas City, Texas. ISP and Oryx had an ongoing gas sales contract in 1992 and 1993. George Matzke and Chuck Nuckolls were purchasing agents at ISP. Matzke was Nuckolls' supervisor. Powers handled ISP's account at Oryx.

In November, 1990, Powers and Matzke formed Long Valley Energy ("Long Valley"), using Powers' home address in Plano, Texas as the registered agent address. 2 The company never held any assets. In early 1992, Powers and Matzke discussed having Long Valley buy gas from Oryx which it would then resell to a third party, Cowboy Pipeline, at a profit. ISP, in turn, would buy from Cowboy Pipeline all the gas that Cowboy had purchased from Long Valley. 3

Normally, a company like Long Valley--without any credit history or assets--would have difficulty buying gas from Oryx on credit. Oryx, however, never requested credit approval for Long Valley. Such a request for credit approval would have come from the salesperson making the deal which in this case was Powers.

Powers was also the Long Valley contact for Elise Wogan, the gas seller/buyer at Cowboy Pipeline. Wogan talked to Powers every month and provided him with the gas volume requirements for ISP for the coming month. Wogan asked Powers more than once if Cowboy could buy directly from Oryx. Powers did not respond to these inquiries.

Monthly sales between Oryx and Long Valley continued until January of 1993. During this time, Long Valley always paid a lower price to Oryx than Cowboy paid to Long Valley. The profits Long Valley earned by being inserted as a middleman were generally split equally between Matzke and Powers. Powers deposited the funds he received into the account of another corporation, ITEX, which he and his wife formed in 1992. Mrs. Powers would then write checks made payable to herself on the ITEX account and deposit these checks into the joint account she shared with her husband.

In addition to the sales to Cowboy Pipeline, Long Valley also sold gas to two other companies: American Central Gas Marketing ("American Central") 4 and Yuma Gas Corporation ("Yuma"). 5 Powers orchestrated the sales by Long Valley, and simply told Matzke to expect confirmation of them. Matzke never talked to anyone at either American Central or Yuma. Once again, the

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profits to Long Valley from these deals were split equally between Powers and Matzke.


Powers challenges the sufficiency of the evidence to support his convictions for wire fraud, mail fraud, and money laundering. The standard of review for sufficiency of the evidence is high. See United States v. Truesdale, 152 F.3d 443, 446 (5th Cir.1998). In evaluating the sufficiency of the evidence on appeal, the reviewing court must consider the evidence in the light most favorable to the Government, drawing all reasonable inferences in support of the jury's verdict. See id. The evidence is sufficient if a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See United States v. Gaytan, 74 F.3d 545, 555 (5th Cir.1996). A review of the sufficiency of the evidence, however, does not include a review of the weight of the evidence or of the credibility of the witnesses. See United States v. Myers, 104 F.3d 76, 78-79 (5th Cir.1997).

  1. Wire Fraud Counts

    Counts 8 through 15 of the indictment charged Powers with executing a scheme to defraud by use of the wires, i.e., telephone calls, in violation of 18 U.S.C. § 1343, "[o]n or about" June 16, 1992, July 23, 1992, August 21, 1992, September 8, 1992, October 21, 1992, November 17, 1992, December 15, 1992, and January 6, 1993, respectively. In order to establish wire fraud, the Government must prove that a defendant knowingly participated in a scheme to defraud, that interstate wire communications were used to further the scheme, and that the defendants intended that some harm result from the fraud. See United States v. St. Gelais, 952 F.2d 90, 95 (5th Cir.1992). An intent to defraud for the purpose of personal gain satisfies the "harm" requirement of the wire fraud statute. See id.

    The evidence presented at trial establishes that Powers and Matzke devised a scheme to defraud Oryx. Their intent was to insert Long Valley as a middleman between Oryx and ISP to obtain for their own personal gain a portion of Oryx's monthly profits on the sale of gas. To implement the scheme, Powers, who lived in Texas and Matzke who lived in New Jersey, of necessity communicated by telephone. The evidence showed that Matzke and Powers spoke on the telephone several times a month, including on the dates listed as individual counts in the indictment, and that "some of the calls involved the [Long Valley] transactions." The Government, however, failed to prove at trial that the telephone conversations which took place on the dates alleged in the indictment included discussion of the fraudulent scheme.

    Powers argues that the Government's evidence was insufficient to prove wire fraud because it did not demonstrate that the specific telephone calls alleged in the indictment were made in furtherance of the fraud. Relying on United States v. Galvan, 693 F.2d 417 (5th Cir.1982), Powers asserts that the Government must not only prove that the calls alleged in the indictment were made between Matzke and Powers, but also that, in those particular conversations, Powers and Matzke discussed the unlawful activity.

    The Government correctly disputes Powers' legal conclusion. It is well established in this Circuit that the alleged time of the offense is not an essential element of the offense charged in the indictment. See United States v. Bowman, 783 F.2d 1192, 1197 (5th Cir.1986) (finding nine month variance between the mailing date alleged in the indictment and the date to which witness testified at trial not fatal). The prosecution is "not required to prove the exact date [alleged in the indictment]; it suffices if a date reasonably near is established." United States v. Grapp, 653 F.2d 189, 195 (5th Cir.1981); see id. (affirming conviction where evidence showed the mailing in "the middle of 1977" and indictment alleged mailing "on or about May 27, 1977"). Furthermore, Appellant's reliance on United States v. Galvan, 693 F.2d 417 (5th Cir.1982), is misplaced. In Galvan, the Government attempted to prove a conspiracy by introducing phone records that indicated telephone calls between residences of the alleged conspirators. See id. We held that evidence showing mere telephone calls between alleged conspirators, absent proof of the subject matter of their conversations,

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    was insufficient. See id. Unlike Galvan, the instant case is not one in which the jury...

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