U.S. v. Hance

• Decision Date: 16 August 2007
• Docket Number: No. 06-4071.,06-4071.
• Citation: 501 F.3d 900
• Parties: UNITED STATES of America, Appellee, v. James HANCE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

501 F.3d 900

UNITED STATES of America, Appellee, v. James HANCE, Appellant.

No. 06-4071.

United States Court of Appeals, Eighth Circuit.

Submitted: May 15, 2007.

Filed: August 16, 2007.

Angela L. Campbell, argued, Assistant Federal Public Defender, Des Moines, Iowa, for appellant.

Shannon Leigh Olson, argued, Assistant U.S. Attorney, Des Moines, Iowa (Matthew G. Whitaker and Mary C. Luxa, on the brief), for appellee.

Before BYE and SMITH, Circuit Judges, and NANGLE,¹ District Judge.

SMITH, Circuit Judge.

James Hance was indicted on five counts of mail fraud in violation of 18 U.S.C. §§ 1341 and 1342. Hance moved the district court to dismiss the charges, contending that the indictment was flawed. The district court rejected Hance's efforts to invalidate the indictment. After trial, the district court sentenced Hance to 51 months' imprisonment. Hance appeals the district court's denial of his motions to dismiss, one of the court's evidentiary rulings, and three of six sentencing enhancements. We affirm the motions to dismiss and evidentiary ruling, but reverse and remand for resentencing.

I. Background

Hance orchestrated a mail fraud scheme that began in 1995 by renting a post office box in New York under an assumed name. Three years later, Hance began his "Wealth Building Program," which required participants to send Hance $25.00 cash and 10 first class postage stamps in exchange for a list of 200 "very responsive" names and addresses. These participants would enroll a new generation of participants by selling them a list of 200 names and addresses. Hance mailed an estimated 234,000 individuals his program, promising the recipients the opportunity to rapidly earn large incomes. Hance received a commission at every level of sale.

The program's information packet contained a two-page promotional flyer detailing the program's mechanics, testimonials from several individuals who claimed high financial reward from the program, a letter from an attorney—J.R. Thompson— verifying the legality of the program, and a page answering frequently asked questions. The information packet also included a telephone number for Thompson and a guarantee that the "U.S. Postal Service [USPS] has determined that this program is entirely legal. . . ."

The USPS launched an investigation into Hance's Wealth Building Program, initially focusing upon Hance's false claim that the USPS had approved the program. In July 1999, federal authorities, pursuant to a warrant, searched Hance's home. They found a list of nearly 24,000 participants, $30,000 worth of first class stamps, and large amounts of cash in small denominations. Investigators testified that Hance told them that he was simply a middle man, forwarding the cash, stamps, and other materials to a corporate headquarters in Belize where all official records were kept. But, postal investigators found no connection between Hance and any Belizean corporation.

The investigators also could not find J.R. Thompson—the alleged attorney whose name appeared in the information packet—or any of the individuals whose names appeared in the testimonial. Hance later admitted that he did not know the individuals appearing in the testimonial and that the information packet had been copied from a different program run by business associates who had assured him that the program was legal. He also admitted that he copied the Thompson letter from the original program but changed the telephone number.

On May 11, 2004, one month before the statute of limitations would have run, the government charged Hance with five counts of mail fraud. A jury found Hance guilty of four of them, and the district court sentenced him to 51 months' imprisonment, a $10,000 fine, and $498,333 in restitution. Hance appeals, raising five arguments challenging both his conviction and sentence. We affirm in part and reverse in part.

II. Discussion

Hance avers that: (1) the indictment was flawed and filed impermissibly late in violation of his due process and statutory rights; (2) the evidence was insufficient to substantiate the jury's verdict; (3) an undisputed evidentiary error prejudiced his defense; (4) the prosecutor engaged in misconduct; and (5) the district court erred by enhancing his sentence based upon the total loss to victims, sophisticated means, and obstruction of justice.

A. The Indictment

Prosecution for mail fraud is subject to a five-year statute of limitations pursuant to 18 U.S.C. § 3282. To comply with the statute, the government was required to file an indictment by July 21, 2004. The government filed a five-count indictment on May 11, 2004. The government filed a superseding indictment on July, 27, 2004— six days after the statute of limitations expired—alleging the same five counts and several additional facts; no new counts were added to this indictment. Hance avers that the district court erred by rejecting his motion to dismiss because the indictment was: (1) time-barred by the five-year statute of limitations; (2) filed in a manner that caused an unreasonable delay in violation of his due process rights; and (3) insufficient as a matter of law.

1. Statute of Limitations

We review de novo the district court's denial of Hance's motion to dismiss. United States v. Dolan, 120 F.3d 856, 867 (8th Cir.1997). Hance contends that the statute of limitations expired before the government filed the indictment. Hance acknowledges that "a superseding indictment filed while the original indictment is validly pending relates back to the time of filing of the original indictment if it does not substantially broaden or amend the original charges." United States v. Gomez, 38 F.3d 1031, 1036 n. 8 (8th Cir. 1994). But, Hance contends that the original filing was substantially and unfairly broadened because the government's superceding indictment added facts affecting sentencing. We disagree.

The Supreme Court implicitly rejected this argument in Booker, where the Court stated that requiring the government to allege sentencing facts in an indictment "would create a system far more complex than Congress could have intended." United States v. Booker, 543 U.S. 220, 254, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In fact, the Supreme Court explicitly noted that requiring the government to allege sentencing facts in a complex mail fraud case "would destroy the system." Id. at 253, 254, 125 S.Ct. 738; United States v. Glover, 413 F.3d 1206 (10th Cir.2005) ("However, the Court did not hold that facts supporting sentencing factors had to be included in the indictment."). Because sentencing facts are not required in the indictment, we conclude that their later inclusion does not substantially broaden or amend the original charges and thus find no error in the district court's denial of Hance's motion to dismiss the indictment.

2. Unreasonable Delay

Hance also avers that the government prejudiced his defense by unreasonably delaying the filing of the indictment.² Because Hance was indicted within the statute of limitations period, he is required to show, inter alia, that the delayed filing caused him actual prejudice. United States v. Bartlett, 794 F.2d 1285, 1289-1290 (8th Cir.1986). We review for clear error the district court's finding that he did not make this showing. United States v. Sturdy, 207 F.3d 448, 452 (8th Cir.2000). To show actual prejudice, the defendant must identify specific, concrete, and germane testimony or documents that were lost due to the delay. Bartlett, 794 F.2d at 1289-1290. Hance does not identify any absent witnesses or missing documents that prejudiced his defense. Instead, he makes general grievances, arguing that alleged victims would likely not remember mailing a pittance to his company years ago. Hance fails to show unreasonable delay under our precedent. As we have noted before, "[s]peculative or conclusory claims alleging `possible' prejudice as a result of the passage of time are insufficient." Id. Because Hance cannot offer concrete examples demonstrating that his defense was prejudiced, we hold that the district court did not err.

3. Sufficiency of Indictment

Hance also challenges the sufficiency of his indictment, contending that the government failed to allege several vital facts. "A challenge to the sufficiency of the indictment is a question of law that we review de novo." Dolan, 120 F.3d at 864 (internal quotation and citation omitted). "To be sufficient, an indictment must fairly inform the defendant of the charges against him and allow him to plead double jeopardy as a bar to future prosecution." Id. "Typically an indictment is not sufficient only if an essential element of the offense is omitted from it." United States v. Cuervo, 354 F.3d 969, 985 (8th Cir.2004). Hance does not argue that his indictment failed to list an essential element of his offense. Instead, he argues that the government failed to list every false statement that he allegedly made to his victims. Hance may, as a matter of course, have been entitled to those details; however, this information need not be included in an indictment, but may be requested through a bill of particulars. United States v. Arenal, 768 F.2d 263 (8th Cir.1985) ("The purpose of a bill of particulars is to inform the defendant of the nature of the charges against him, and to prevent or minimize the element of surprise at trial."). The record does not reflect that Hance requested a bill of particulars; therefore, the government was under no obligation to volunteer such information. Accordingly, we hold that the indictment was sufficient.

B. Sufficiency of Evidence

Hance avers that the evidence was insufficient to sustain his conviction. "Evidence is sufficient to sustain a conviction if, viewing the evidence in the light most favorable to the government, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Craft, 478 F.3d 899, 900 (8th Cir.2007). The...