U.S. v. Brawner

• Decision Date: 02 April 1999
• Docket Number: No. 96-2298,96-2298
• Citation: 173 F.3d 966
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven D. BRAWNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 966

173 F.3d 966

UNITED STATES of America, Plaintiff-Appellee, v. Steven D. BRAWNER, Defendant-Appellant.

No. 96-2298.

United States Court of Appeals, Sixth Circuit.

Argued June 12, 1998.

Decided April 2, 1999.

Scott E. Pederson (argued and briefed), Grand Rapids, Michigan, for Defendant-Appellant.

Janice Kittel Mann, Asst. U.S. Atty., Timothy P. VerHey (argued and briefed), Office of the U.S. Attorney, Grand Rapids, Michigan, for Plaintiff-Appellee.

Before: DAVID A. NELSON and RYAN, Circuit Judges; ROSEN, District Judge. ^*

RYAN, Circuit Judge.

The defendant, Steven D. Brawner, appeals his conviction and sentence for conspiracy to commit mail fraud and wire fraud and for the substantive offenses of money laundering and wire fraud. Brawner contends that the district court abused its discretion by permitting the testimony of an expert on the practices of fraudulent telemarketing operations. In addition, Brawner challenges his sentence, claiming error in the district court's determination of the amount of loss attributed to him as relevant conduct and the applicability of the vulnerable-victim enhancement. We will affirm.

I.

Brawner was indicted and convicted on the charges laid in Counts 1, 2, 3, 5, and 14 of a 14-count indictment stemming from his ownership and operation of two telemarketing businesses. Count 1 charged Brawner with conspiring with four codefendants to commit mail and wire fraud in violation of 18 U.S.C. § 371. Count 2 charged him with money laundering in violation of 18 U.S.C. § 1956, and Counts 3, 5, and 14 charged wire fraud in violation of 18 U.S.C. § 1343. Brawner was sentenced to 57 months' imprisonment. Brawner owned and operated two separate telemarketing operations. The first, National Marketing, operated out of California from 1989 through May 1993. The second, International Concepts, operated out of Grand Rapids, Michigan, from June 1993 through September 1993. Count 1 alleged that the activities of both operations were part of the charged conspiracy.

FBI Agent Stuart Roberts was listed in the government's pretrial disclosure as an expert on the subject of fraudulent telemarketing operations. Two of Brawner's codefendants filed a motion in limine to exclude Roberts's testimony on the grounds that he was not an expert, that expert testimony was not necessary for the jury to understand the issues in the case, and that the prejudice that would result from such testimony would outweigh its probative value. Brawner joined in this motion at trial. The court denied the motion, reasoning that expert testimony on sophisticated telemarketing schemes and practices would assist the trier of fact.

Before addressing the challenge to Roberts's expertise, we summarize his testimony describing the defendant's alleged modus operandi.

The foundation for Roberts's testimony included his statements that he had garnered extensive expertise on the subject during his nine years with the federal telemarketing fraud task force, and that he had testified as a telemarketing expert in three prior criminal trials. Roberts then detailed the methodology typically followed by fraudulent telemarketers. He explained that "leads" are purchased and that these leads often identify individuals who have entered a contest by filling out a personal data card or perhaps by remitting a small qualifying fee. The data cards generally contain the entrant's name, address, phone number, and age. Roberts testified that elderly persons constitute the main group targeted by fraudulent telemarketing organizations because the elderly, for several reasons, are susceptible to telemarketing fraud. These people are thought to be predisposed to sending money in the hope of striking it big; therefore, they are good prospects for fraudulent telemarketers. Roberts testified that documentary evidence indicated that International Concepts had purchased leads from a "leads broker" and that each lead contained the respondent's age.

Roberts also examined telemarketing "scripts" seized from Brawner's International Concepts operation. Roberts testified that the scripts were consistent with a "one-in-five" sales pitch commonly used by fraudulent telemarketers. In a one-in-five scheme, the telemarketer tells the prospect that he has been chosen for one of five "valuable" prizes; however, the prospect is first pressured into buying a promotional product at an inflated price. He is then told that the "small amount of money" he is required to send in will pale in comparison to the value of the prize he will win. In reality, however, the promotional product and the prize actually awarded--typically a relatively cheap "gimmie gift"--are worth, at most, about 30% of the remitted payment.

Roberts also identified a tape-recorded conversation seized from International Concepts as a "verification call" typically used by fraudulent telemarketers in order to verify that the prospect has succumbed to an earlier one-in-five pitch. During such calls--which, unlike the sales pitch, are recorded--the telemarketer induces the victim to say that he agreed to send money in order to purchase the product, rather than to qualify for the prize. Thus, the verification call serves as a disclaimer.

Roberts testified that Brawner's business operations were consistent with those generally followed by fraudulent telemarketing organizations. The government then called 14 witnesses, each of whom claimed to be a victim of the scheme. All of the witnesses testified, in general, that they were never told that the award they would receive would be worth less than the money solicited from them. Four of these witnesses testified that they did receive the agreed upon merchandise and a prize. Chad Duvall, a former employee of Brawner's National Marketing operation, testified that he was paid to mislead customers into believing they would receive a valuable reward, and that he never told them that they would actually lose money on the transaction. Duvall stated that he preferred calling persons over 60 years of age because they were more likely to participate in the promotion. He testified that he and Brawner "reloaded" customers, which means they would make follow-up calls to victims who participated in an earlier one-in-five promotion in an attempt to sell them on a new one-in-five promotion, typically one requiring a larger remittance. The government also introduced a tape "verifying" a sale to an 80-year-old woman. The tape revealed that the woman sent in her entire month's income only because the salesman had assured her she had won a large cash award. This same tape was used at sentencing to establish a basis for assigning a vulnerable-victim enhancement to the base offense level pursuant to section 3A1.1(b) of the United States Sentencing Guidelines. Finally, an investigative survey of International Concepts's alleged victims revealed that 75% of the respondents, equaling approximately 70% of all victims, were older than 62.

II.

A. Expert Testimony

Brawner argues that the district court erred by allowing Agent Roberts to render expert testimony. In an argument completely unhelpful to this court and devoid of citation to relevant legal authority, the defendant argues that Roberts's opinion testimony was "grossly unfair" and "not necessary to determine if lying is occurring." It is, of course, well settled that "necessity" is not a condition precedent for the admissibility of opinion testimony under Federal Rule of Evidence 702; rather, the test is whether the opinion "will assist the trier of fact." The rule states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Fed. R. Evid. 702. Brawner complains that it was improper for Roberts to render an opinion concerning an ultimate issue in the case. But again, Brawner is mistaken. Federal Rule of Evidence 704(a) provides that "testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." Fed.R.Evid. 704(a).

As for the government's argument that Brawner waived any objection to Roberts's testimony, it is clear that a party must have preserved an issue at trial in order to challenge it on appeal, unless plain error exists such that the "substantial rights" of a party have been affected. See Fed.R.Crim.P. 52; Fed.R.Evid. 103(a)(1) and (d); United States v. Bonds, 12 F.3d 540, 554 (6th Cir.1993). Here, Brawner failed to object at trial when the government tendered Roberts as an expert, apparently choosing to rely on his earlier motion in limine.

The question of whether a party who has raised an evidentiary issue by motion in limine and lost must again object at trial in order to preserve appeal on the issue is one which has split the circuits and is the subject of a proposed amendment to Federal Rule of Evidence 103. For a discussion of the circuit splits and the proposed rule, see JONES, ROSEN, WEGNER AND JONES, FEDERAL CIVIL TRIALS AND EVIDENCE paras. 4:457-4:464 (The Rutter Group 1999). Some courts take the view that where an issue was thoroughly explored during hearing on the motion in limine and the trial court's ruling was explicit and definitive, no further action need be taken at trial to preserve the issue for appeal. See, e.g., Palmerin v. City of Riverside, 794 F.2d 1409, 1413 (9th Cir.1986); American Home Assurance Co. v. Sunshine Supermarket, Inc., 753 F.2d 321, 324 (3d Cir.1985). Other circuits have required a party who has not prevailed on a motion in limine to object at trial when the contested evidence is offered in order to preserve the issue for appeal. See, e.g., Marcel v. Placid Oil Co., 11 F.3d 563, 567 (5th Cir.1994); Hendrix v. Raybestos-Manhattan,...