United States v. Fluker

• Decision Date: 26 October 2012
• Docket Number: 11–3082.,Nos. 11–1013,11–3008,s. 11–1013
• Citation: 698 F.3d 988
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Ronnanita FLUKER, Roy Fluker, III, and Roy Fluker, Jr., Defendants–Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

698 F.3d 988

UNITED STATES of America, Plaintiff–Appellee,

v.Ronnanita FLUKER, Roy Fluker, III, and Roy Fluker, Jr., Defendants–Appellants.

Nos. 11–1013, 11–3008, 11–3082.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 5, 2012.

Decided Oct. 26, 2012.

Stephen L. Heinze (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Christopher W. Carmichael, Andre Fiske (argued), Attorneys, Holland & Knight LLP, John M. Beal (argued), John M. Beal, Attorney at Law, Thomas C. Brandstrader (argued), Attorney, Chicago, IL, for Defendants–Appellants.

Ronnanita Fluker, Alderson, WV, pro se.

Before BAUER, MANION, and TINDER, Circuit Judges.

BAUER, Circuit Judge.

This case proves the old adage, “If something sounds too good to be true, it probably is.” Following a three-week trial, Roy Fluker, Jr. (“Roy Jr.”), Roy Fluker III (“Roy III”), and Ronnanita Fluker (“Ronnanita”), (collectively, the “Appellants”), were found guilty of charges related to their participation in various fraudulent, Ponzi-like schemes that duped victims into investing millions of dollars into programs that were destined to fail. The Appellants were sentenced to prison at separate sentencing hearings. In this consolidated appeal, Roy Jr. and Roy III challenge three of the district court's evidentiary rulings that they believe deprived them of a fair trial. Roy III also contends that the district court erred in calculating his sentence under the United States Sentencing Guidelines (“U.S.S.G.” or “Sentencing Guidelines”). Ronnanita challenges the district court's decision to provide the jury with an “ostrich” instruction, as well as the calculation of her sentence. We affirm all of the convictions and sentences.

I. BACKGROUND

From early 2005 until late 2007, Roy Jr., together with his son Roy III and his daughter Ronnanita, devised and participated in various schemes that defrauded thousands of people. Roy Jr. founded a company All Things in Common, LLC, which did business under the name More Than Enough, Inc. (“MTE”), in May 2005, and later a second company, Locust International, LLC (“Locust”), in January 2006. Using the MTE business, the Appellants created, marketed, and carried out a “Spend and Redeem Program” and a “Housing Program” for roughly eighteen months until the programs collapsed. Roy Jr. generally created and structured the particular program's terms while Roy III and Ronnanita were responsible for overseeing and executing the specific transactions.

The Spend and Redeem Program consisted of two parts. First, participants would “spend” by paying MTE an initial minimum payment of $500, with a maximum of $5,000. Then, in exchange for the participants' initial payments, MTE would provide the participants with certificates that they could “redeem” at the monthly “venue” meetings (to be discussed later) for a monetary payment. The Spend and Redeem Program promised participants that they would receive a twenty-five percent return on their total investment every month for twelve consecutive months—i.e., a guaranteed 200% return after one year. In other words, a $500 initial payment would entitle the participant to receive $1,500 after twelve months; a $5,000 initial payment would yield a $15,000 payment after twelve months. Participants could contribute up to $20,000 per year to the Spend and Redeem Program, plus additional money for children under eighteen. Witnesses testified at trial that the Spend and Redeem Program was just a “hook;” the real money was made from the Housing Program.

The Housing Program was more complex, as MTE offered two options within the program: the “Reverse Mortgage Program” and the “35 Percent Equity Program.” Which program an individual could participate in depended on the individual's credit scores, loan balances, and the amount of equity the individual had in his home.

The Reverse Mortgage Program required the participant to own a minimum of seventy-five percent equity in his home. To participate, the participant would refinance or sell his home and pay MTE from the equity proceeds an amount equal to at least seventy-five percent of the home's value. In return, the Appellants told the participant that the equity money would be used to repay a traditional thirty-year loan in five years and that MTE would be solely responsible for paying the lenders on behalf of the participant-borrowers. The Appellants also promised to make monthly payments to the participants in an amount equal to roughly one percent of the total loan value.

In order to qualify for the 35 Percent Equity Program, participants were required to own a minimum of thirty-five percent equity in their homes. Like the participants in the Reverse Mortgage Program, to join the program, participants needed to pay MTE from the equity proceeds from the sale or refinancing of the home. But under this program, the amount only needed to be thirty-five percent of the home's value. These participants were told that they would not be responsible for making any payments during the first six months after the transaction. After the six-month grace period, the participants would be responsible for making monthly payments to MTE—later Locust—for the next fifty-four months until the loan was paid off. The Appellants claimed these payments would be approximately one-half of the participant's previous mortgage payment. Regardless of which Housing Program subprogram an individual participated in, the Appellants essentially promised that the program would allow the participants to do two things: reduce their monthly mortgage payments and own their homes mortgage-free within five years. The reality is that the Appellants were causing the participants to take out a loan with a high interest rate and a principal balance that was significantly more than the previous balance owed.

In the event an individual was otherwise ineligible to participate in the Housing Program but had a sufficient credit score, MTE would provide an “A–Buyer” to facilitate the individual's participation. A–Buyers were essentially straw purchasers for the various transactions; they were other MTE members who had credit scores that would allow them to qualify for loans. Thus, the A–Buyer would take out a loan to “purchase” the home of a Housing Program participant who was otherwise ineligible for the program, but the seller-participant would continue to live in the home rent free and simply comply with the payment terms of whatever subprogram he was participating in. The terms usually required the seller-participants to make monthly payments to MTE. The Appellants assured the A–Buyers that MTE would accept all responsibility under the loan for paying the lender.

The Appellants, in addition to Hayward Borders and six other individuals who became MTE's Board Members, set out in June 2005, to market and promote the aforementioned programs. Monthly “venue” meetings were held at various churches and hotels throughout the Chicagoland area at which Roy Jr., Roy III, or another MTE employee explained MTE's programs to those in attendance. The Appellants claimed the programs would “develop an economy basically for the African–American community” and would teach individuals about “functional spending.” Each venue had a capacity of one hundred members. When a given venue reached its maximum capacity, the Appellants would open another one. New venues were opened in Wisconsin, Nevada, Florida, Georgia, and Texas before the Appellants' scheme collapsed. Ronnanita's role at the meetings involved assisting Roy Jr. with his presentations, typically by providing information from her computer files, and collecting cash from interested participants.

In response to questions as to how the Appellants could promise such significant returns from the programs, Roy Jr. stated that MTE had invested in the foreign market exchange and had achieved significant returns by buying and selling currencies. Roy Jr. also represented to participants that he had invested in real estate or gold mines in Africa. When pressed for details, Roy Jr. claimed that the investment strategies could not be revealed because they were patented. On one occasion, Roy Jr. compared his refusal to provide details of MTE's investment strategies to KFC's refusal to provide customers with its fried chicken recipe. Roy III made similar misrepresentations regarding MTE's investments and claimed patents. If an active participant had a question about a program or needed something done, he would go to Ronnanita, who was known as being “second in command” to Roy Jr.

As time passed, more investors were enticed into participating in the schemes. Although the earliest Spend and Redeem Program participants were paid back millions of dollars, many of them were induced to reinvest much of their earnings and to encourage other potential participants to join.

Around March 2006—roughly nine months after the scheme began—the Appellants introduced MTE's “Presidential Club,” also known as the “Big Boys Club,” to about thirty of MTE's past Spend and Redeem Program participants. Members of this group were required to invest at least $50,000, but, unlike participants in the original program, they would have to wait two months after their initial investments before they would begin to receive their first twenty-five percent payments.

Each of the Appellants' representations and promises to the participants were false, and the programs had absolutely no chance of succeeding. The money the Appellants received was used for a multitude of expenses, including but not limited to the MTE Board Members' salaries and cars, tropical vacations, and purchasing real estate. Hundreds of thousands of dollars were used for the Appellants' personal expenses and affairs, like payments for Roy III's wedding. More significantly, the money coming in was not kept in separate bank accounts, so the precise amount generated from each program or...