U.S. v. Frank, 03-1427.

• Decision Date: 05 January 2004
• Docket Number: No. 03-1452.,No. 03-1427.,03-1427.,03-1452.
• Citation: 354 F.3d 910
• Parties: UNITED STATES of America, Appellee, v. Robert H. FRANK, also known as "Butch" Frank, Appellant. United States of America, Appellee, v. Lorin A. Ahlers, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

354 F.3d 910

UNITED STATES of America, Appellee, v. Robert H. FRANK, also known as "Butch" Frank, Appellant.

United States of America, Appellee, v. Lorin A. Ahlers, Appellant.

No. 03-1427.

No. 03-1452.

United States Court of Appeals, Eighth Circuit.

Submitted: October 22, 2003.

Filed: January 5, 2004.

Rehearing and Rehearing En Banc Denied: February 17, 2004^*.

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Wallace L. Taylor, argued, Cedar Rapids, IA, for Appellant Frank.

Robert J. Murphy, Dubuque, IA, for Appellant Ahlers.

Richard L. Murphy, argued, AUSA, Cedar Rapids, IA, for appellee.

Before LOKEN, Chief Judge, and HEANEY and MORRIS SHEPPARD ARNOLD, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

These are appeals by Robert Frank and Lorin Ahlers from their convictions and sentences. Mr. Frank was convicted on forty-nine counts, including mail fraud, conspiracy to defraud the United States, making false statements, obstruction of justice, and money laundering, and he was acquitted on two counts. He challenges the district court's¹ rulings concerning the admission of evidence, the denial of his motions for judgment of acquittal and new trial, a jury instruction, the calculation of the base offense level for his sentence, the assessment of an obstruction-of-justice enhancement, and an upward adjustment imposed for his role in the offense. Mr. Ahlers was convicted on nine counts, including wire fraud, conspiracy to defraud the United States, obstruction of justice, and money laundering, and he was acquitted on one count. He challenges the district court's rulings concerning the admission of evidence, the denial of his pretrial motion to sever, the denial of his motions for judgment of acquittal and new trial, the calculation of the base offense level for his sentence, and the failure to grant his motion for a downward sentencing departure. We affirm the district court in all respects.

I.

Mr. Frank was convicted in federal court in 1988 for burning down the house of Iowa District Court Judge Thomas Nelson, who had entered an adverse ruling against him. The indictment in the instant case charged Messrs. Frank and Ahlers with devising and participating in a scheme to defraud the United States in relation to its efforts to collect a fine and restitution payments arising from that arson conviction. The government's case against both defendants was premised largely upon the theory that they had agreed with others to hide Mr. Frank's assets from the government and to lie about the existence and ownership of those assets.

After the verdict was returned against them, both defendants filed motions for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 and alternatively for a new trial pursuant to Federal Rule of Criminal Procedure 33. They contend that the district court erred in denying these motions because there was insufficient evidence to convict them of any offense. They argue generally that they committed no crimes because all of the assets that the government contends were owned by Mr. Frank were actually owned by others, and thus there could not have been any false statements, fraud, obstruction, concealment, or money laundering regarding those assets.

In reviewing the denial of a motion for judgment of acquittal, we view the evidence in the light most favorable to the verdict, giving the government the benefit of any reasonable inferences to be drawn from the evidence. United States v. Howard, 235 F.3d 366, 373 (8th Cir.2000). We "reverse only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt." Id. In reviewing the denial of a motion for a new trial, we affirm a district court's ruling absent a "clear and manifest abuse of discretion." United States v. Jiminez-Perez, 238 F.3d 970, 974 (8th Cir.2001). "A new trial should be granted only `if the evidence weighs heavily enough against the verdict that a miscarriage of justice may have occurred.'" Id. (quoting United States v. Rodriguez, 812 F.2d 414, 417 (8th Cir. 1987)).

Viewing the evidence presented to the jury in the light most favorable to the government, we hold that it cannot be said that a juror must have had a reasonable doubt as to any count of conviction, and we are unable to conclude that a miscarriage of justice may have occurred. Both defendants' motions for judgment of acquittal and new trial were thus properly denied.

Mr. Frank was convicted on twenty-two counts of mail fraud in violation of 18 U.S.C. § 1341. These convictions require proof that Mr. Frank voluntarily and intentionally devised or participated in a scheme to defraud the United States by concealing his assets, that he entered into the scheme with the intent to defraud, that he knew that it was reasonably foreseeable that the mails would be used, and that he used the mails in furtherance of the scheme. See United States v. Bearden, 265 F.3d 732, 736 (8th Cir.2001).

In 1998, Mr. Frank was released from prison on parole from his arson conviction. One of the conditions of his parole required him to make payments on the fine and restitution order imposed on him following his conviction. To aid in monitoring his ability to pay, he was required to submit monthly financial reports to the sentencing court's probation office disclosing, inter alia, all employment that he engaged, income that he received, and vehicles that he owned during the relevant month. Seventeen of Mr. Frank's mail fraud counts charged him with executing a scheme to defraud the United States, inhibiting its efforts to collect on the financial judgment, by mailing the probation office monthly financial reports that did not accurately reflect his assets and income. While Mr. Frank reported virtually no assets or income on the financial reports, the government presented evidence that he in fact owned many motor vehicles and that he had significant income from work done for Sproule Construction and for KW Sales (a business that the government contends was created at the request of Mr. Frank to hide his income from the government). After reviewing the evidence, we conclude that it was sufficient to sustain Mr. Frank's conviction on each of these counts.

Three counts charged Mr. Frank with mail fraud based upon three letters to the United States Attorney's Office, each of which asserted that a man named Irvin Valentine did not have the money to pay a debt that he allegedly owed to Mr. Frank. Mr. Frank had earlier advised the government during a debtor's examination that he had lent money to Mr. Valentine, and the United States had thus initiated a garnishment action against Mr. Valentine. Mr. Valentine testified at trial, however, that there was no such debt. There was evidence that Mr. Frank, prior to sending the letters, had bought cars using the money that he had falsely claimed to have lent to Mr. Valentine. The mail fraud counts were based on the government's contention that because of the letters sent by Mr. Frank, it pursued the wrong avenue of collection and was impeded in its ability to garnish his income. Mr. Frank concedes in his brief that "the testimony of Mr. Valentine that there was no such debt may preclude the granting of a judgment of acquittal," but he nevertheless asserts that "a new trial is justified." We disagree with Mr. Frank's apparent position that, while a reasonable jury could have found him guilty on these counts beyond a reasonable doubt, the evidence relating to the letters weighs heavily enough against the verdict that a miscarriage of justice may have occurred.

The final two mail fraud counts related to the use of the mail to transfer titles for a Dakota truck and a Cutlass automobile, both of which the government contends Mr. Frank purchased out of state. Mr. Frank, however, argues that "there was no fraud involved in the transactions involving these vehicles, so there can be no fraud involved in sending the titles through the mail."

The Cutlass was purchased under the name of Cross Creek Stables, a body shop for used cars operated by John Helm. Mr. Helm testified that Mr. Frank, who had been his friend for many years, had approached him and stated that "[h]e needed to use my license to buy a few cars" in order to "[m]ake a little money." Mr. Helm testified that, during this discussion, Mr. Frank explained that "he couldn't get a license" himself because "he owed money," and that he "[c]ouldn't have no assets" because the government "would probably take all of his assets." The government presented evidence that Mr. Frank had purchased the Cutlass at an auction in Wisconsin using the name of Cross Creek Stables, and that the vehicle title was mailed to Cross Creek Stables in Iowa. Mr. Helm testified that Mr. Frank then asked him to register the car in Iowa in his business's name in exchange for one hundred dollars. In light of this evidence, Mr. Frank's argument that the car "was purchased by Cross Creek Stables" and "was never in Mr. Frank's name" is beside the point. The transaction was fraudulent, according to the government's theory, precisely because the title to the Cutlass "was never in Mr. Frank's name" despite the fact that he was the real party in interest and that he was the one who purchased the car from the auction.

The government presented evidence that the Dakota truck was purchased by Mr. Frank in Illinois, at which time Mr. Frank falsely represented to the seller that he owned a "car dealership" named KW Sales and that the sale was a "dealer-to-dealer" transaction. The government's evidence showed that the seller mailed the title to Mr. Frank in Iowa, pursuant to Mr. Frank's instructions, that Mr. Frank then transferred title to KW Sales, and that Mr. Frank later sold the car and received $3,000. Mr. Frank argues simply that the "truck was purchased by KW Sales" and that "[t]he title was in the name of KW Sales." Mr. Frank has...