815 F.3d 430 (8th Cir. 2016), 15-1587, United States v. Whitlow

Docket Nº:15-1587
Citation:815 F.3d 430
Opinion Judge:KELLY, Circuit Judge.
Party Name:United States of America, Plaintiff - Appellee v. Thomas Whitlow, Defendant - Appellant
Attorney:For United States of America, Plaintiff - Appellee: Steven A. Russell, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Lincoln, NE. For Thomas Whitlow (Federal Prisoner: 06770-031), Defendant - Appellant: Jon M. Braaten, ANDERSON & CREAGER, Lincoln, NE; Thomas Whitlow, CORRECTIONS CORPORATION OF...
Judge Panel:Before RILEY, Chief Judge, BEAM and KELLY, Circuit Judges.
Case Date:March 07, 2016
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
SUMMARY

Defendant appealed his conviction and sentence for conspiracy to commit wire fraud and four counts of wire fraud. The court concluded that the district court did not err in denying defendant's motion to dismiss the indictment where the indictment sufficiently contained the elements of the offense charged; the district court did not abuse its discretion in admitting testimony of co-conspirators... (see full summary)

 
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Page 430

815 F.3d 430 (8th Cir. 2016)

United States of America, Plaintiff - Appellee

v.

Thomas Whitlow, Defendant - Appellant

No. 15-1587

United States Court of Appeals, Eighth Circuit

March 7, 2016

Submitted November 20, 2015

Page 431

Appeal from United States District Court for the District of Nebraska - Lincoln.

For United States of America, Plaintiff - Appellee: Steven A. Russell, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Lincoln, NE.

For Thomas Whitlow (Federal Prisoner: 06770-031), Defendant - Appellant: Jon M. Braaten, ANDERSON & CREAGER, Lincoln, NE; Thomas Whitlow, CORRECTIONS CORPORATION OF AMERICA, Leavenworth, KS.

Before RILEY, Chief Judge, BEAM and KELLY, Circuit Judges.

OPINION

Page 432

KELLY, Circuit Judge.

Following a three-day trial, a jury convicted Thomas Whitlow of conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349, and four counts of wire fraud in violation of 18 U.S.C. § § 1343 and 2. The district court1 sentenced Whitlow to five concurrent terms of imprisonment of 108 months. Whitlow appeals, claiming the evidence was insufficient to establish his participation in the conspiracy and that the court erred in admitting his co-conspirators' testimony. He also challenges the sufficiency of the indictment and the substantive reasonableness of his sentence. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

I. Background

Using family information he obtained from newspaper obituaries, Whitlow called elderly people claiming to be a relative in need of immediate funds to cover an emergency, such as an arrest or car accident. The people called were directed to wire the money to Tempest Amerson, Isys Jordan, or Rosland Starks, who then forwarded the money to Whitlow's wife, Yolanda Clemons. Amerson, Jordan, and Starks received a small portion of the wired money for their part in the scheme.

A 12-count indictment was entered against Whitlow and the others, charging them with conspiracy to commit wire fraud and eleven counts of wire fraud. Whitlow pleaded not guilty. Clemons, Amerson, Jordan, and Starks pleaded guilty and testified at the trial. Whitlow objected to a portion of their testimony as inadmissible hearsay. After conditionally allowing the testimony, the court determined at the close of the government's case that the disputed statements were admissible co-conspirator statements.

Following the close of the government's evidence, Whitlow moved for a judgment of acquittal on all counts. The government

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agreed on seven of the wire fraud counts and the court dismissed those counts. The court denied Whitlow's motion for judgment of acquittal on the remaining counts.

At the close of all the evidence, Whitlow renewed his motion for judgment of acquittal on the remaining five counts. The district court denied the motion. The jury found Whitlow guilty on all counts. Whitlow again moved for a judgment of acquittal, which was again denied by the district court.

At Whitlow's sentencing hearing, the district court determined Whitlow's offense level was 17 and his criminal history category was VI, resulting in an advisory Sentencing Guidelines range of 51 to 63 months' imprisonment. The district court varied upward from the calculated range based on Whitlow's thirty-five year history of committing larceny, burglary, and shoplifting--which included previous convictions for committing wire fraud against the elderly--and the fact that Whitlow was under federal supervision when he committed the offenses in this case. The court sentenced Whitlow to a term of imprisonment of 108 months on each count, to be served concurrently.

II. Discussion

On appeal, Whitlow raises several issues. We address each in turn.

A. Sufficiency of the Indictment

Prior to trial, Whitlow filed a pro se motion, which the court construed as a motion to dismiss the indictment for lack of sufficient evidence. On appeal, Whitlow argues that the indictment was so deficient that it failed to charge the offenses of conspiracy to commit wire fraud and wire fraud, and that the grand jury lacked sufficient evidence to indict him.2 Our review of a challenge to the sufficiency of an indictment is de novo. United States v. Tebeau, 713 F.3d 955, 962 (8th Cir. 2013). An indictment is sufficient if it contains the elements of the offense charged, lets the defendant know what he needs to do to defend himself, and would allow him to plead a former acquittal or conviction if he were...

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