U.S. v. Goodyke

• Decision Date: 25 April 2011
• Docket Number: 10–1367.,Nos. 10–1366,s. 10–1366
• Citation: 639 F.3d 869
• Parties: UNITED STATES of America, Appellee,v.Larry P. GOODYKE, Appellant.United States of America, Appellee,v.David L. Robinson, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

639 F.3d 869

UNITED STATES of America, Appellee,

v.Larry P. GOODYKE, Appellant.United States of America, Appellee,

v.David L. Robinson, Appellant.

Nos. 10–1366

10–1367.

United States Court of Appeals, Eighth Circuit.

Submitted: Dec. 17, 2010.Filed: April 25, 2011.

Alex S. McCauley, Jenab & McCauley LLP, Olathe, KS, for appellant Larry P. Goodyke.Kenton M. Hall, Kansas City, MO, for appellant David L. Robinson.Brian P. Casey, Asst. U.S. Atty., Kansas, MO (Beth Phillips, U.S. Atty., on the brief), for appellee.Before RILEY, Chief Judge, BEAM and BENTON, Circuit Judges.BEAM, Circuit Judge.

Larry Goodyke and David Robinson appeal their convictions and sentences for conspiracy to produce fraudulent diplomatic identification cards and for wrongfully using the Department of State seal, in violation of 18 U.S.C. §§ 2, 371 and 1017. We affirm.

I. BACKGROUND

Goodyke, Robinson, and others who are not involved in this appeal (collectively, “defendants”) participated in a scheme whereby they marketed and sold fraudulent “diplomatic immunity” cards. Defendants represented to potential buyers that obtaining the cards would enable purchasers to avoid paying taxes, and would entitle them to immunity from being detained or arrested by law enforcement officers. The cards themselves contained an “apostille” number. An apostille is a document issued by a state government that certifies the legitimacy of a notary stamp on a document and is intended for use in foreign transactions. Defendants obtained most of their apostille numbers from the Kansas Secretary of State's office. The cards bore the seal of the United States Department of State in the lower left corner, said “State of Kansas” on the top, and bore the seal and signature for the Kansas Secretary of State's office. Defendants misrepresented to the buyers that the apostille number gave them authorization to use the United States Department of State seal on the cards. The scheme was discovered when one of the defendants sold such a card to an undercover police officer. At trial, this officer, several other card purchasers, and a co-defendant who pleaded guilty, all testified about the details of the scheme. Evidence at trial indicated that purchasers spent anywhere from $450 to several thousands of dollars on the cards and affiliated products (license plates, metal badges, etc.). The jury returned guilty verdicts on all counts.

At sentencing, as relevant, the district court ¹ found that there should be an eight-level enhancement because the loss was greater than $70,000, and a four-level enhancement because there were more than fifty victims. The court also applied a two-level enhancement because defendants misrepresented that they were acting on behalf of a government agency, and applied a two-level obstruction of justice enhancement to Robinson. Robinson was sentenced to seventy-five months' imprisonment and Goodyke to sixty months' imprisonment.

On appeal, Goodyke challenges the sufficiency of the evidence, and both defendants challenge the district court's sentencing findings with regard to amount of loss, number of victims and official agency misrepresentation. Robinson also challenges the district court's imposition of the obstruction of justice enhancement.

II. DISCUSSIONA. Goodyke's Sufficiency Challenge

We review a challenge to the sufficiency of the evidence deferentially, viewing the evidence in the light most favorable to the jury's verdict, and affirm if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Inman, 558 F.3d 742, 747 (8th Cir.2009).

To prove a violation of § 1017, the government must prove that Goodyke (1) procured or sold a document; (2) knowing the seal of the United States Department of State had been fraudulently affixed to the document; and (3) did both of the foregoing with fraudulent intent. 18 U.S.C. § 1017. To show a conspiracy, the government must prove an agreement to perform an illegal act, that Goodyke knew of the agreement and took steps to become a part of the agreement. United States v. Jenkins–Watts, 574 F.3d 950, 959 (8th Cir.2009), cert. denied, ––– U.S. ––––, 130 S.Ct. 1915, 176 L.Ed.2d 387 (2010).

Viewed in the light most favorable to the jury verdict, there was sufficient evidence on all of the elements of the crimes to support Goodyke's convictions. The jury heard myriad witnesses and viewed numerous emails detailing the scheme, the theory behind the scheme, and the scope of the fraud and the connections between the defendants acting in concert. The jury heard that Goodyke created a copy of the Department of State seal to place on the cards and continually modified the seal and the cards to make them look more legitimate. And, though Goodyke received notice that wrongfully obtaining an apostille and misusing the seal was illegal, he continued to market and sell the cards. Finally, there was evidence that Goodyke drafted documents to explain to potential customers why it was legal for him to use the Department of State seal on the cards. Accordingly, Goodyke cannot establish there was insufficient evidence that he acted with fraudulent intent. Furthermore, there was sufficient evidence that Goodyke entered into an agreement with numerous of his codefendants to commit this crime. The evidence showed that after receiving his own diplomatic immunity cards and materials in October 2006, Goodyke offered his services to defendants and represented that he had the talent and resources to improve upon the quality of the cards and related products. Numerous communications ensued between Goodyke and the other defendants following his October 2006 entrance into the conspiracy. The voluminous trial transcript is replete with sufficient evidence to support Goodyke's conviction on all counts.

B. Sentencing

Goodyke and Robinson both challenge the district court's sentencing findings with regard to amount of loss and number of victims, as well as the district court's decision to increase their base offense level because they misrepresented themselves to be official government agents. We review the district court's application of the Guidelines for clear error, giving deference to the determination based upon the district court's unique position to assess the evidence. United States v. Jenkins, 578 F.3d 745, 749 (8th Cir.2009), cert. denied, ––– U.S. ––––, 130 S.Ct. 1550, 176 L.Ed.2d 141 (2010).

United States Sentencing Guidelines Manual § 2B1.1(b) instructs the district court to increase the base offense level incrementally based upon the amount of loss. A loss of greater than $70,000 increases the base offense by eight levels. U.S.S.G. § 2B1.1(b)(1)(E). The Guidelines further provide that when the number of victims is fifty or more, the court should increase the base offense by four levels. Id. § 2B1.1(b)(2)(B). The district court based its calculations upon the testimony of the purchasers about how much they paid for the cards as well as a spreadsheet seized from Goodyke's computer indicating that at least 100 people had purchased the cards. The same spreadsheet showed that the venture had generated at least $65,000. The government presented additional evidence at both trial and sentencing that individuals not accounted for on Goodyke's spreadsheet sent $9,000 to Goodyke (and then never actually received any cards, according to testimony at trial), placing the loss, for Guidelines purposes, in excess of $70,000.

Defendants focus their appellate arguments on the idea that the purchasers were not “victims” because they either should have known the cards were fraudulent, or, alternatively, that they were happy with the fraudulent cards-in essence, they got what they paid for. Upon review of the trial transcript, this argument is well taken. However, it cannot overcome the district court's factual findings, not clearly erroneous based upon the evidence presented at trial, that there were at least fifty victims and over $70,000 in loss. The people that bought the cards were told that the cards had legal significance that the cards did not, in fact, have. And, one person testified that though he paid Goodyke $9,000, he never did receive any cards. Many of these purchasers were predisposed to the same manner of thinking as Goodyke and Robinson regarding an individual's ability to “opt out” of the federal system. But the purchasers' predispositions are immaterial to the issue of whether they were also victims of Goodyke and Robinson's scheme to sell fraudulent diplomatic immunity cards. Arguably, the fact that many of the card purchasers honestly believed that they had some sort of immunity by purchasing the cards makes them more compelling “victims,” not less.

Defendants next argue the district court erred in applying a two-level enhancement for misrepresenting themselves as government agents. See ...