United States v. Whitlow

• Decision Date: 07 March 2016
• Docket Number: No. 15–1587.,15–1587.
• Citation: 815 F.3d 430
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Thomas WHITLOW, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

815 F.3d 430

UNITED STATES of America, Plaintiff–Appellee

v.Thomas WHITLOW, Defendant–Appellant.

No. 15–1587.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 20, 2015.

Filed: March 7, 2016.

Jon M. Braaten, argued and on the brief, Lincoln, NE, for Defendant–Appellant.

Steven A. Russell, AUSA, argued and on the brief, Lincoln, NE, for Plaintiff–Appellee.

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

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 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 charged with a similar offense. Id. Usually an indictment that tracks the statutory language is sufficient. Id.

Whitlow does not specifically identify how the indictment is deficient. Instead he generally challenges it as "bare bones" and "without any factual statement of his involvement," such that none of the "elements of conspiracy can be proven." To the extent Whitlow's argument relies on a lack of proof, we agree with the district court that such a challenge to an indictment is not allowed. See Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956)

("An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits."). Moreover, our review of the indictment shows it includes all the elements of the crimes charged. The district court did not err in denying Whitlow's motion to dismiss the indictment.

B. Admission of Co–Conspirator Statements

At trial, Clemons, Amerson, Jordan, and Starks testified about conversations they had with each other and with Whitlow about the wire fraud scheme. Whitlow claims the district court erred in allowing this testimony because independent evidence did not establish the existence of a conspiracy. Federal Rule of Evidence 801(d)(2)(E)

allows the admission of a statement made by a co-conspirator of a defendant if the statement was made "during and in furtherance of the conspiracy." In order for an out-of-court statement of a co-conspirator to be admissible, the government must show by a preponderance of the evidence "(1) that a conspiracy existed; (2) that the defendant and the declarant were members of the conspiracy; and (3) that the declaration was made during the course and in furtherance of the conspiracy." United States v. Bell, 573 F.2d 1040, 1043 (8th Cir.1978). "[A]lthough courts may consider the contents of the statements, the government must produce independent evidence outside of the statements themselves to establish the existence of the conspiracy." United States v. Young, 753 F.3d 757, 771 (8th Cir.2014). The independent evidence needed to establish the existence of a conspiracy may be entirely circumstantial. Id. We review a district court's admission of out-of-court statements pursuant to Federal Rule of Evidence 801(d)(2)(E) for an abuse of discretion, recognizing that a district court's discretion is broad in conspiracy trials. Id.

Here, the district court conditionally allowed Clemons, Amerson, Jordan, and Starks to testify about discussions they had with each other and with Whitlow regarding the wire transfers. At the close of the government's case, the court found that the government had proven by a preponderance of the evidence all the Bell prerequisites. In doing so, the district court considered the contents of the statements themselves but also found there was independent evidence establishing the existence of the conspiracy.

Included in the statements the district court conditionally admitted was testimony from Amerson recounting how she had been recruited by her aunt, Yolanda Clemons, in May 2011 to pick up wire transfers and forward them to Clemons. Amerson testified Clemons directed her to pick up the wire transfers from one location and forward the money from a different location. Amerson testified it was usually Clemons who gave her the information about who was sending the wire transfers but that on one occasion Whitlow gave her the information. Amerson testified that Clemons told her she could keep some of the money but not to ask any questions. Amerson testified regarding receiving wire transfers from Keith Reasoner and Edna Bennett. At Clemons's request, Amerson recruited Jordan to assist with the wire transfers.

Clemons corroborated Amerson's testimony, stating that in early May 2011, Whitlow asked her to look up telephone numbers from out-of-state obituaries and to recruit others to pick up wire transfers. Clemons contacted her niece, Amerson, to ask her to assist, and Amerson agreed. Clemons testified she gave the telephone numbers she found to Whitlow. Whitlow would tell her there was going to be a wire transfer and she would then contact Amerson to pick up the wire transfers. Clemons testified she would either spend the money she received or give it to Whitlow. Clemons testified she told Amerson the procedure to follow in picking up the wire transfers and asked Amerson if she knew anyone else who would pick up wire transfers.

Jordan testified Amerson contacted her in August 2011 asking her if she needed extra money and would pick up wire transfers. Jordan testified she also spoke with Clemons and Whitlow about additional wire transfers. Starks testified she was contacted by Clemons to pick up wire transfers.

The court found the conditionally admitted testimony was independently corroborated by Edna Bennett, Elvena English, and Keith Reasoner, who testified to receiving calls from a male caller who identified himself by name as a nephew. The male caller then asked each of them to wire money purportedly to help him out in a time of need, and he gave them wire transfer information, including the name of the person who would receive the money. Reasoner and Bennett were told to wire money to Amerson, and English was told to wire money to Jordan. All three stated they did not know the person to whom they were directed to wire money. English identified a piece of paper on which she had written Jordan's name and address while talking to the male caller. The name and address on the piece of paper matched the name and address on the receipt English received from Western Union when she wired the money.

All three victims also testified that a relative had recently died, that the obituary was in the newspaper, and that the obituary contained...