U.S. v. Brown

• Decision Date: 10 November 1993
• Docket Number: No. 92-7707,92-7707
• Citation: 7 F.3d 1155
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jackie V. BROWN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1155

7 F.3d 1155

UNITED STATES of America, Plaintiff-Appellee, v. Jackie V. BROWN, Defendant-Appellant.

No. 92-7707.

United States Court of Appeals, Fifth Circuit.

Nov. 10, 1993.

Robert G. Johnston, Alexander, Johnston & Alexander, Cleveland, MS (Court Appointed), for defendant-appellant.

Paul D. Roberts, Asst. U.S. Atty., Robert Whitwell, U.S. Atty., Oxford, MS, for plaintiff-appellee.

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

Before GARWOOD, DAVIS and SMITH, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Jackie Brown (Brown) participated in a money order scam operating out of Parchman State Penitentiary in Mississippi. A jury found him guilty of conspiracy to alter and pass altered postal money orders and aiding and abetting mail fraud. The district court imposed concurrent sentences of 15 months' imprisonment and 3 years' supervised release on each count, and ordered Brown to pay $1,092 in restitution. Brown appeals the district court's application of the Sentencing Guidelines and certain evidentiary rulings. We affirm.

Facts and Proceedings Below

In January 1992, Evelyn Lomoriello (Lomoriello), a sixty-five-year-old Florida retiree, began corresponding through a "lonely hearts pen-pal club" with Richard Sims (Sims), an inmate at Parchman State Penitentiary in Mississippi. In April 1992, Lomoriello began accepting collect calls from Sims. In their conversations, Sims informed her that he planned to receive several money orders from Johnny Clark, whom he represented as his case worker. Telling Lomoriello that he needed the money to pay his fines, Sims asked her to deposit the money orders in her bank account and to send $5,000 of the money to a man identified as Jackie Brown in Cleveland, Mississippi.

On April 3, 1992, Lomoriello received 8 $700 money orders, totalling $5,600. Pursuant to Sims's instructions, she deposited them in her account, sent $5,000 to Brown in Cleveland by wire transfer, paid $200 to Western Union, and kept $400 for herself to pay for the collect calls. When Lomoriello's bank discovered the money orders had been altered to reflect $700 instead of their true $1 face values, the bank charged the $5,600 back to her account. Two weeks later, Lomoriello received a second set of altered money orders from Clark. By this time, however, police had warned her of the scam, and she turned the altered money orders over to postal authorities.

On April 6, 1992, Brown, a contract food manager at Parchman, received three Western Union drafts (one in the amount of $1,000 and two $2,000 drafts), and attempted to cash them the following day. The Western Union agent cashed only the $1,000 draft and then called the police to inform them that Brown, using Parchman prison identification, had received the money from a woman in Florida. After learning from Lomoriello that she had been corresponding with a Parchman inmate, Detective Serio of the Cleveland Police Department attempted to contact Brown. On April 8, 1992, Brown came to the police station and turned over the two uncashed $2,000 drafts and $500 of the draft that he had cashed. The following day, Brown voluntarily returned to the police station and gave Inspector Collins a handwritten statement admitting that he had picked up the money orders at the direction of Parchman inmate Ronnie Franklin. At trial, Brown admitted he was to receive $500 for smuggling the money into Parchman.

Josephine Fortner (Fortner), a Michigan retiree, testified that she had also been corresponding with an inmate at Parchman named Richard Sims. Fortner received $3,500 in altered money orders from Johnny Blackman, who claimed to be Sims's case worker. Following Sims's instructions, she cashed the money orders, kept $500 for herself, and sent $3,000 via Express Mail to Jackie Brown at 900 White Street, Apartment 10-D, Cleveland, Mississippi. Upon discovery of the alterations, her bank charged the $3,500 to her account.

Brown was indicted and found guilty on charges of conspiracy to alter and pass altered postal money orders in violation of 18 U.S.C. § 371 (count one), and aiding and abetting mail fraud in violation of 18 U.S.C. §§ 2 and 1343 (count two). Over his objections to the presentence report (PSI), the district court imposed concurrent sentences of 15 months' imprisonment and 3 years' supervised release on each count, and ordered Brown to pay $1,092 in restitution to Lomoriello. Brown now appeals, arguing that the district court erred by (1) misapplying the Sentencing Guidelines, (2) refusing to dismiss count two as duplicitous, (3) admitting evidence of other money orders sent to Lomoriello and cash sent to Brown's address, and (4) refusing to admit a handwriting report. Brown's brief also makes a passing assertion that the district court erred by admitting Brown's written statement. We find no reversible error, and accordingly we affirm.

Discussion

I. Application of the Sentencing Guidelines

The base offense level for fraud and deceit is six. U.S.S.G. § 2F1.1(a). The district court, in sentencing Brown, added a total of eight additional offense levels. We review the district court's application of the Sentencing Guidelines de novo, and we review its findings of fact under a clearly erroneous standard. United States v. Wimbish, 980 F.2d 312, 313 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2365, 124 L.Ed.2d 272 (1993). A factual finding is not clearly erroneous as long as the finding "is plausible in light of the record as a whole." Id.

A. Amount of Loss

The Sentencing Guidelines provide for a 2-offense level enhancement if the loss resulting from a fraud or deceit offense exceeds $5,000. U.S.S.G. § 2F1.1(b)(1)(C). Since the district court's calculation of the amount of loss is a factual finding, we review this determination for clear error. Wimbish, 980 F.2d at 313; United States v. Sowels, 998 F.2d 249, 251 (5th Cir.1993). Brown argues that since he returned the 2 uncashed money orders and $500 in cash, the actual loss caused by his actions was only $700 ($500 he spent and $200 charged by Western Union). Section 2F1.1, however, states that if the "intended loss that the defendant was attempting to inflict can be determined, this figure will be used if it is greater than the actual loss." U.S.S.G. § 2F1.1, comment. (n. 7). Where a defendant attempts to pass altered or forged checks, the face value of the checks reflects the intended loss, even if the money is recovered or returned. ¹ Wimbish, 980 F.2d at 316; see also Sowels, 998 F.2d at 252 (combined credit limit of stolen credit cards totalling $351,600 represented intended loss regardless of the actual charges made); United States v. Lghodaro, 967 F.2d 1028, 1031 (5th Cir.1992) (full value of fraudulently filed insurance claim even though defendant only received a portion of the claim). In the present case, the defendant clearly intended Lomoriello to suffer a loss exceeding $5,000. He should not be rewarded simply because law enforcement officials thwarted his plans.

B. More Than Minimal Planning

The Sentencing Guidelines provide for an enhancement of two offense levels "[i]f the offense involved (A) more than minimal planning, or (B) a scheme to defraud more than one victim." U.S.S.G. § 2F1.1(b)(2). The Guidelines define "more than minimal planning" as "more planning than is typical for commission of the offense in a simple form," or "[taking] affirmative steps ... to conceal the offense." U.S.S.G. § 1B1.1, comment. (n. 1(f)). The determination as to whether the "defendant engages in more than minimal planning is a fact question reviewed under the clearly erroneous standard." United States v. Barndt, 913 F.2d 201, 204 (5th Cir.1990).

The PSI indicates the criminal conspiracy in which Brown participated was an elaborate scheme involving significant planning to obtain and alter United States Postal Service money orders, to target and manipulate specific victims, to conceal the offense, and to smuggle the proceeds into the penitentiary. The scam required coordination and cooperation among at least one prison inmate, the alleged "case worker" who sent the altered drafts to Lomoriello, and Brown. Brown's role alone, which involved picking up the drafts, cashing them, and smuggling the money back into Parchman, took more than minimal planning to accomplish.

Brown argues that the scam involved no more planning than a typical prison money order scam. The Guidelines, however, do not require the government to prove that the instant offense was somehow more elaborate than comparably elaborate offenses, but rather that it involved more planning than a "simple form" offense. To commit a money order scam in its "simple form," a defendant would merely obtain money orders, alter the amounts, and cash them. Since the planning required for the instant offense greatly exceeds this model, we conclude the district court did not clearly err in assessing the enhancement. ²

C. Vulnerable Victims

The district court imposed a two-point enhancement after finding that Lomoriello was an unusually vulnerable victim to this sort of fraud. The Guidelines permit this enhancement if the defendant knew or should have known that a victim of the offense was unusually vulnerable due to age, physical or mental condition, or that a victim was otherwise particularly susceptible to the criminal conduct. U.S.S.G. § 3A1.1. The determination of "vulnerability is a complex fact dependent upon a number of characteristics which a trial court could not possibly articulate completely," and is certainly "not reducible to a calculation of the victim's age or to a diagnosis of the victim's disease." United States v. Mejia-Orosco, 868 F.2d 807, 809 (5th Cir.), cert. denied, 492 U.S. 924, 109 S.Ct. 3257, 106 L.Ed.2d 602 (1989). We give due deference to the district court's determination of vulnerability and of what the defendant knew or should have known in this...