U.S. v. Page

• Decision Date: 16 November 1995
• Docket Number: 93-8751,Nos. 93-8706,s. 93-8706
• Citation: 69 F.3d 482
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ed PAGE, a/k/a Ed Rose, Mary M. Jackson, a/k/a Mary King, a/k/a Denise Wood, a/k/a India Bullock, Doris Y. Rogers, a/k/a Evon Rogers, a/k/a Evon Wellington, Davis Scalise, a/k/a David Baker, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Seeta McKNIGHT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 482

69 F.3d 482

UNITED STATES of America, Plaintiff-Appellee, v. Ed PAGE, a/k/a Ed Rose, Mary M. Jackson, a/k/a Mary King, a/k/a Denise Wood, a/k/a India Bullock, Doris Y. Rogers, a/k/a Evon Rogers, a/k/a Evon Wellington, Davis Scalise, a/k/a David Baker, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Seeta McKNIGHT, Defendant-Appellant.

Nos. 93-8706, 93-8751.

United States Court of Appeals, Eleventh Circuit.

Nov. 16, 1995.

Stanley M. Baum, Bates & Baum, Atlanta, GA, for Page.

William A. Morrison, Atlanta, GA, for Jackson.

Robert G. Rubin, Rubin, Winter & Rapoport, Atlanta, GA, for Rogers.

John R. Hesmer, Hesmer & Manning, Marietta, GA, for Scalise.

Joe D. Whitley, U.S. Atty., David Candler Nutter, Amy Levin Weil, Asst. U.S. Attys., Atlanta, GA, for U.S.

Stephanie Kearns, Donna L. Morgan, Paul Kish, Asst. Federal Public Defender, Federal Defender Program, Inc., Atlanta, GA, for McKnight.

Appeals from the United States District Court for the Northern District of Georgia.

Before CARNES, Circuit Judge, DYER and GARTH ^*, Senior Circuit Judges.

GARTH Senior Circuit Judge:

Defendants Seeta McKnight, Edsel ("Ed") Page, Mary Jackson, Doris Rogers, and David Scalise were each indicted on a 31-count indictment, charging them with conspiracy to defraud under 18 U.S.C. Sec. 371; twenty-four counts of mail fraud under 18 U.S.C. Secs. 1341, 1342; and six counts of wire fraud under 18 U.S.C. Secs. 1343, 1342. Seeta McKnight pleaded guilty, and the remaining defendants were convicted after a jury trial on all thirty-one counts. On appeal, various defendants challenge their convictions and sentences on a number of different grounds, including "vulnerable victim" enhancement, restitution, admission of similar act evidence, lack of pretrial notice with respect to certain similar act evidence, "minor role," insufficient evidence, and withdrawal from conspiracy.

We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 and 18 U.S.C. Sec. 3742. We will vacate and remand for resentencing, the case against Seeta McKnight, No. 93-8751, as well as the case against the other defendants, No. 93-8706, for implementations of United States v. Jones, 899 F.2d 1097 (11th Cir.1990), cert. denied, 498 U.S. 906, 111 S.Ct. 275, 112 L.Ed.2d 230 (1990), overruled on other grounds, 984 F.2d 1136, 1137 (11th Cir.1993) (en banc) and United States v. Remillong, 55 F.3d 572 (11th Cir.1995). ¹ We will affirm the judgments and sentences imposed by the district court in all other respects.

I.

From September to December of 1991, Seeta McKnight, Ed Page, Mary Jackson In September of 1991, McKnight and her brother-in-law Graham Tomlins ² opened the advance fee loan scheme under the name of Certified Financial, at 290 Hilderbrand Drive, Suite B-11, Atlanta, Georgia. In early October of 1991, McKnight and Paul Brown, whom Seeta McKnight had hired to be the office manager, ³ placed advertisements in newspapers and journals, outside of Georgia, throughout the United States. The advertisements stated:

Doris Rogers, and David Scalise participated in an "advance fee loan scheme" in which they falsely promised loans to customers to collect the customers' advance fees. McKnight was a founder of the scheme. Page, Jackson, Rogers, and Scalise, were telemarketers who worked under her direction.

LOANS AVAILABLE NOW

Program for bad credit.

Job verification required.

(Transcript of Trial at 646). McKnight and Brown hired telemarketers to answer calls responding to the advertisements. Page, Jackson, Rogers, and Scalise were among the telemarketers that they hired.

The telemarketers used aliases in speaking to callers. Ed Page used "Ed Rose," Mary Jackson used "Mary King," Doris Rogers used "Evon Rogers," and David Scalise used "David Baker." The telemarketers followed a script that McKnight had provided. First, they would ask personal information from the callers:

Certified Financial. How may I help you? All right. Let me just ask you a few questions to see if you qualify. Are you over 21 years of age? Have you ever been bankrupt, had repossessions or foreclosures. How much do you want to borrow? Who do you work for? How long have you worked there? ... Does your wife or husband work? What is your combined monthly income? Also I need your Social Security number and I need your address and telephone number.

(Transcript of Trial at 43, 315). Then the telemarketers, again following the script, set out the "terms" of the loan:

All right, our terms are from 1 to 10 years. The interest rate will not be more than 16 per cent and may be as low as 12 per cent. The rate is fixed and there is no early repayment penalty.

Have you been to a bank or anyone else for this loan? Well, you'll be pleased to know that we're not a bank. We work with individual lenders and when we can find one that will handle your kind of request we will require a fee of $250. That's the only fee you will have to pay and only if we find you a lender, naturally. Now, I will need about 1 hour before I have an answer from the lenders. So, could I ask you to call me back? Do you have a pen and paper?

Id. at 44. Telemarketers testified that, contrary to what they told the customers, they did not check for lenders during the hour but instead "approved" the customer for the loan as long as the customer made at least $1,000 per month.

When the customers called back to ask about their loan applications, the telemarketers, again following the script, would say:

Certainly, I'll check on that for you. One moment please. Sorry to keep you holding on. I'll have it in just a minute. Oh, good news. We have been successful and found you a lender for that amount.

(Transcript of Trial at 45-46).

The telemarketers then told the customers that the loan was being held for only seventy-two hours, id. at 46, and that they should send a $250 money order to Certified Financial. They also urged the customers to send the money by Federal Express. Id. at 46-47. Postal Inspector Marcia Fresco testified that perpetrators of advance fee loan schemes often advise their victims to use Federal Express as an attempt to avoid mail fraud liability.

The telemarketers then told the customers that they would receive their loan proceeds within one week or fourteen days, and that their $250 fee would be refunded if they did not get the loan. Page, Rogers, Jackson, and Scalise also departed from the script to tell customers that their loans had been "approved" or "guaranteed," despite being instructed not to do so.

The telemarketers then sent out reservation letters with applications to the customers, using their aliases. The reservations letters stated:

Since our telephone call I have discussed your loan with our senior broker. He agrees that we should push ahead with your application particularly as we have found a lender who is willing to handle your request ....

If you have not already sent your Money Order for $250.00 I strongly suggest that you send it as I cannot hold this reservation much longer.

When you send your papers back to us, please mark them and the Money Order with your Reservation Number to ensure that everything goes smoothly ....

(Transcript of Trial at 69-70). The telemarketers testified that there was no "senior broker" and that they did not even attempt to find lenders for the callers who submitted $250 and completed applications.

Fourteen days after Certified Financial began operation, customers began to call in to ask about their loan proceeds. After three weeks had passed, customers began to call in with complaints. McKnight hired a "customer service representative" to handle complaints full time. The customer service representative sat in the same room as the telemarketers and would take customer's complaints while the telemarketers talked to new customers. Rogers, using a different alias than her telemarketing alias, sometimes handled customer service calls. By November of 1991, a large volume of complaint calls was coming into Certified Financial.

In mid-November, the Postal Inspection Service began receiving complaints from customers about Certified Financial and began an investigation.

At about this time, Page, who had been working at Certified Financial for about six weeks, left to join another advance-fee loan scheme as a telemarketer. Scalise did the same on November 22, 1991, after working at Certified Financial for seven weeks. Neither Page nor Scalise notified the victims or the authorities that Certified Financial was a fraudulent scheme.

On December 5, 1991, McKnight shut down Certified Financial, moved the advance fee loan scheme to 1060 Concord Road in Smyrna, Georgia, and changed the scheme's name to Consumer Funding Services. Later, McKnight again changed the name to Cypress Fidelity Services. Rogers worked at the new location under the alias "Violet Wellington," and Jackson used the alias "Denise Wood." The scheme operated at the new location for approximately one week. Altogether, Rogers worked a total of about ten weeks at the two advance loan schemes. Jackson worked approximately nine weeks.

On December 13, 1991, Paul Brown was arrested as a result of the Postal Inspection Service's investigation. McKnight immediately telephoned her telemarketers who were on duty to abandon the premises.

On December 19, 1991, Postal Inspectors with a search warrant searched the automobile owned by McKnight's husband and seized documents and records pertaining to Certified Financial, Consumer Funding Services, and Cypress Fidelity Services. Among other things, the Postal Inspectors found Federal Express receipts showing that on December 18, 1991, Rogers accepted three Federal Express Packages addressed to Consumer Funding Services.

On December 20, 1991, Postal Inspector Marsha Fresco interviewed Jackson who admitted working at Certified Financial but said that she quit when numerous complaints started coming in. Jackson did not mention working at Consumer...