U.S. v. Dupre

• Decision Date: 06 September 2006
• Docket Number: Docket No. 05-2223-CR(L).,Docket No. 05-2272-CR(CON).
• Citation: 462 F.3d 131
• Parties: UNITED STATES of America, Appellee, v. Roberta DUPRE, Beverly Stambaugh, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

462 F.3d 131

UNITED STATES of America, Appellee, v. Roberta DUPRE, Beverly Stambaugh, Defendants-Appellants.

Docket No. 05-2223-CR(L).

Docket No. 05-2272-CR(CON).

United States Court of Appeals, Second Circuit.

Argued: April 5, 2006.

Decided: September 6, 2006.

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Colleen P. Cassidy, Federal Defenders of New York, Inc., New York, NY, for Defendant-Appellant Roberta Dupre.

Denis Kelleher, Kelleher & Dunne, LLP, New York, NY, for Defendant-Appellant Beverly Stambaugh.

Bret R. Williams, Assistant United States Attorney (Michael J. Garcia, United States Attorney, Katherine Polk Failla, Assistant United States Attorney, on the brief), United States Attorney's Office for the Southern District of New York, New York, NY, for Appellee.

Before CABRANES, SOTOMAYOR, and RAGGI, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge.

We consider here a claim of a prejudicial variance from an indictment for wire fraud under 18 U.S.C. § 1343 and the role a victim's religion may play in a sentencing judge's application of United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") § 3A1.1 (b) (authorizing increased sentences for those committing crimes against a "vulnerable victim").

Defendants Roberta Dupre and Beverly Stambaugh appeal from an amended judgment of May 26, 2005, entered by the United States District Court for the Southern District of New York (Denise Cote, Judge) following a jury trial, convicting each of them of wire fraud in violation of 18 U.S.C. §§ 1343 and 2¹ and conspiracy to commit wire fraud in violation of 18 U.S.C. § 371.² The District Court sentenced Dupre principally to 168 months of imprisonment and Stambaugh principally to 108 months of imprisonment. The defendants are currently serving their sentences.

BACKGROUND

The jury having found the defendants guilty, we review the evidence in the light most favorable to the prosecution. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The prosecution demonstrated at trial that Dupre and Stambaugh bilked investors of over $1 million through an elaborate "advance fee fraud."³ Describing herself as an "international financier" representing a company called "Global Exchange," Dupre told investors—over a period of approximately ten years beginning around 1994— that she was working to release frozen assets once held by the family of the late Philippines president Ferdinand Marcos. She promised that for every $1,000 an investor contributed to the "Roberta Project," Citibank in New York would pay the investor $500,000 when the project "funded."⁴ Dupre spent hundreds of thousands of investor dollars on personal expenses, including the maintenance of a room for years at the Park Central Hotel in midtown Manhattan. Stambaugh joined the scheme in 2002, participating by soliciting funds, sending regular e-mail messages to investors reassuring them about the progress of the enterprise, and withdrawing invested money for her personal use.

Following inquiries by police in Montrose, Colorado prompted by an investor's complaint in February 2003, the Federal Bureau of Investigation ("FBI") took over the investigation. In September and October 2003, an undercover FBI agent posing as a money manager spoke to Stambaugh and Dupre by telephone, wire transferred $1,000 to the defendants' bank account, and then met with Dupre in person to solicit additional details. Dupre was arrested in February 2004, and Stambaugh was arrested in March 2004. The defendants were each charged with one count of wire fraud in violation of 18 U.S.C. §§ 1343 and 2 and one count of conspiracy to commit wire fraud in violation of 18 U.S.C. § 371.

At trial, the prosecution produced witnesses, including victims of the fraud who had paid thousands of dollars and received no returns, the undercover FBI agent, a manager of the Park Central Hotel, a member of the Marcos family,⁵ and an FBI accountant. The prosecution also introduced exhibits including recordings of the undercover agent's conversations with the defendants, records of wire transfers and bank deposits and withdrawals, and messages sent by the defendants to victims of the fraud. Many of these messages contained religious themes or imagery. For example, one e-mail message indicated that the "Lord has told Roberta to encourage all of you and that the victory is at hand." The defense's theory of the case was that Dupre and Stambaugh believed the Roberta Project to be legitimate and, accordingly, acted in good faith, without the fraudulent intent necessary to have committed the crimes charged.⁶ See, e.g., United States v. Regan, 937 F.2d 823, 827 (2d Cir.1991) ("The Government is required to prove beyond a reasonable doubt that the defendant was guilty of a conscious knowing intent to defraud." (internal quotation marks omitted)).

The jury found both defendants guilty of both counts charged in the indictment— wire fraud and conspiracy to commit wire fraud. After trial, the District Court reviewed the Presentence Investigation Report ("PSR") prepared by the United States Probation Office for each defendant. Dupre's PSR indicated that her base offense level was seven and recommended the following enhancements: (1) sixteen levels because the loss exceeded $1 million, (2) six levels because Dupre defrauded more than 250 persons, (3) two levels because some victims were especially vulnerable, and (4) four levels because Dupre was the leader of an extensive criminal enterprise. The adjusted offense level of 35, combined with a criminal history category of I, resulted in a Guidelines range of 168 to 210 months of imprisonment. Stambaugh's PSR included the same findings with the exception that Stambaugh had an adjusted offense level of 31, four levels lower than Dupre, because Stambaugh was not treated as the leader of the enterprise. Stambaugh's resulting Guidelines range was 108 to 135 months of imprisonment.

The District Court rejected defendants' various challenges to the PSR and, after considering and rejecting their requests for downward departures, sentenced each defendant to the bottom of the Guidelines range identified in her PSR.

This appeal followed.

DISCUSSION

Defendants raise several issues on appeal, alleging: (1) the admission of certain e-mail messages that assertedly were inadmissible hearsay violated defendants' rights under the Confrontation Clause of the Sixth Amendment, (2) an abuse of discretion by the District Court when it excluded expert evidence concerning defendants' mental state, (3) insufficiency of the evidence against Stambaugh, (4) erroneous jury charges on the defense of good faith and on the need for unanimous agreement about certain facts, (5) constructive amendment of, or prejudicial variance from, the substantive wire fraud count of the indictment, (6) improper imposition of the vulnerable victim enhancement for both defendants, and (7) inappropriate enhancement of Dupre's offense level for being the leader of a complex criminal enterprise.

I. The Admission of the "Project Nine" E-mail Messages Was Not Erroneous

We review evidentiary rulings for abuse of discretion, and we will vacate a conviction on the basis of an evidentiary ruling only if we conclude that there was a violation of a substantial right. See United States v. Ebbers, 458 F.3d 110, 123 (2d Cir.2006).

Defendants object on hearsay and Sixth Amendment grounds to the District Court's admission of e-mail messages sent by a group of investors, self-identified as "Project 9." The Project 9 group demanded more information about the Roberta Project and speculated that it was a fraud. In a message sent from Stambaugh's e-mail account to Roberta Project participants and signed "Roberta," defendants responded to the "Project 9" messages. Included with defendants' response were e-mail messages sent by Project 9 and the defendants, including the original message sent by Project 9, which complained that investor funds were "being used to accommodate Roberta in a luxury hotel in central New York [C]ity" and threatened to seek legal recourse if the authors' concerns were not addressed.

"`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). Although the authors of the "Project 9" messages did not testify at trial, the messages were not hearsay because they were not offered in evidence to prove the truth of the matters asserted. The prosecution offered the Project 9 messages to provide context for defendants' messages sent in response to them, messages whose admissibility is not contested. See Fed.R.Evid. 801(d)(2).⁷ In addition, the messages served to rebut defendants' argument that they had no reason to know the Roberta Project was fraudulent. See Smith v. Duncan, 411 F.3d 340, 346 n. 4 (2d Cir.2005) ("[T]he mere utterance of a statement, without regard to its truth, may indicate circumstantially the state of mind . . . of the declarant and is not hearsay." (internal quotation marks omitted)). The messages demonstrated that defendants had received communications detailing the project's likely bogus nature.

Because the "Project 9" e-mail messages were not admitted for their truth, the Sixth Amendment's Confrontation Clause is not implicated. See United States v. Paulino, 445 F.3d 211, 216-17 (2d Cir. 2006); United States v. Barone, 913 F.2d 46, 49 (2d Cir.1990).

II. The District Court's Exclusion of Evidence Concerning Dupre's Mental State Was Not Erroneous

Dupre challenges the District Court's refusal to admit proffered expert testimony concerning her mental state and capacity. We review this evidentiary ruling for abuse of discretion. See United States v. Cruz, 363 F.3d 187, 192 (2d Cir. 2004). "A district court's determination with respect to the admission of expert testimony is not an abuse of discretion unless it is manifestly...