United States v. Jamieson

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 05a0430p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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Nos. 02-3403; 03-4578

v.

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J. RICHARD JAMIESON, -

Defendant-Appellant. -

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Appeal from the United States District Court

for the Northern District of Ohio at Toledo.

No. 02-00707—David A. Katz, District Judge.

Argued: March 15, 2005

Decided and Filed: October 28, 2005

Before: DAUGHTREY and CLAY, Circuit Judges; SCHWARZER, District Judge.*

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COUNSEL

ARGUED: Susan Bogart, LAW OFFICES OF SUSAN BOGART, Chicago, Illinois, for Appellant.

Seth Uram, UNITED STATES ATTORNEY, Toledo, Ohio, for Appellee. ON BRIEF: Susan

Bogart, LAW OFFICES OF SUSAN BOGART, Chicago, Illinois, for Appellant. Seth Uram,

UNITED STATES ATTORNEY, Toledo, Ohio, for Appellee.

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OPINION

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MARTHA CRAIG DAUGHTREY, Circuit Judge. The defendant, Richard Jamieson, was

convicted of two counts of conspiracy and 155 counts of money laundering, as the result of his

ownership and operation of a business that purchased life insurance policies from terminally ill

people and resold them to investors. He now appeals his convictions, contending that the evidence

was insufficient to support the jury’s verdict. He also faults the district court for: failing to recuse

itself; restraining his assets and thereby depriving him of representation by counsel of his choice;

authorizing insufficient funds for investigation and preparation of his defense; failing to grant a

change of venue; permitting introduction of the government’s Rule 1006 summaries into evidence;

and denying his request for additional jury instructions. Jamieson further alleges that the

government was guilty of misconduct in making certain prejudicial statements in closing argument

*

The Honorable William W Schwarzer, United States District Judge for the Northern District of California,

sitting by designation.

1

Nos. 02-3403; 03-4578 United States v. Jamieson Page 2

and, finally, he contends that he is entitled to be re-sentenced under United States v. Booker, 543

U.S. ___, 125 S.Ct. 738 (2005). We find no reversible error in connection with the defendant’s

convictions. The case must be remanded, however, for re-sentencing under Booker.

I. FACTUAL AND PROCEDURAL BACKGROUND

The indictment returned against Jamieson alleged, first, that he had been involved in the

purchase and sale of fraudulently obtained life insurance policies and, second, that he had made

multiple fraudulent statements to investors for the purpose of inducing them to invest in those

insurance policies through his company, Liberte Capital Group, a “viatical settlement company”

located in Toledo, Ohio. According to the record, a viatical settlement company buys life insurance

policies at a discount from terminally-ill persons, referred to as “viators,” and markets the policies

(“viaticals”) for purchase by investors. Between 1996 and 2000, Liberte Capital purchased at least

950 life insurance policies, 95-99 percent of which insured men diagnosed as HIV-positive or with

AIDS. Liberte Capital then sold these policies to approximately 2,250 investors for a sum of over

$92 million.

The marketing of viaticals is legal, but their purchase carries financial risk to the investor.

If a life insurance policy has been fraudulently obtained, the insurance company may rescind the

policy and refuse to make any pay-outs, thus rendering the policy, and any investment in the policy,

worthless. The record establishes that Jamieson was aware of the risk of investing in fraudulent

viatical policies. For example, at a March 1998 meeting with Liberte Capital sales agents, Jamieson

explained how viators could fraudulently obtain policies and the need to avoid such policies. As

Jamieson explained, an individual with AIDS could answer falsely on insurance applications,

indicating that he had no serious illnesses, and thus qualify for the life insurance. He noted that

many insurance companies would issue policies with benefits of less than $100,000 without

requiring blood tests or medical examinations and that viators often obtained multiple fraudulent

policies of this sort.

The government alleges that, during the indictment period, Liberte Capital purchased at least

214 fraudulently-obtained life insurance policies. These 214 policies belonged to a total of 33

viators, each of whom sold at least five different policies to Liberte Capital. Furthermore, in

approximately 61 percent of all the viaticals bought by Liberte Capital, the viator’s date of HIV-

positive or AIDS diagnosis actually preceded the date the policy was issued by the insurance

company, thus indicating a high likelihood of fraud in the filing of the application. At trial, four

viators explained to the jury how they had fraudulently obtained multiple life insurance policies for

themselves and others and sold them to Liberte Capital.

The government presented significant evidence indicating that Jamieson knowingly covered

up evidence of this fraud. Several witnesses testified that, after hearing about a government

investigation into viatical brokers, Jamieson ordered his employees to remove and destroy the policy

applications in every viator’s file. The record also reflects that during a hearing in January 2000,

Jamieson gave testimony under oath to the Ohio Department of Commerce’s Division of Securities

that Liberte Capital never reviewed the policies it purchased to determine whether they were

fraudulent because (contrary to his earlier description of how viators obtain fraudulent policies) he

“was unaware that people were applying for life insurance fraudulently.” At the hearing, Jamieson

further testified that he never informed investors of the possibility that some policies might be

fraudulent and thus subject to rescission by the insurance companies. But beyond merely failing to

warn investors of the risk of fraudulent policies, Jamieson specifically marketed Liberte Capital’s

viatical investments as “a safe purchase” and guaranteed their “security and safety.”

The failure to inform investors of the risk of fraudulent policies was not the only

misrepresentation Jamieson made. Liberte Capital developed marketing material for use by sales

Nos. 02-3403; 03-4578 United States v. Jamieson Page 3

agents in encouraging people to invest in Liberte Capital viaticals. Evidence in the record indicates

that Jamieson, as the head of Liberte Capital, wrote or approved all the marketing materials and the

investor contracts. At least 75 percent of the investor contracts promised that Liberte Capital would

escrow funds sufficient to pay future premiums for twice the remaining life expectancy of each

viator. In actuality, however, Liberte Capital escrowed funds according to the promised formula for

only 2-5 percent of the life insurance policies. At one point, employees of the escrow company

noted that the Liberte Capital escrow account was short by $19 million, but Jamieson and the head

of the escrow company ordered them to complete the purchases of the policies. Liberte Capital also

promised potential investors that none of the policies would be for individuals with life expectancies

exceeding five years. In contrast, the government produced evidence showing that 81 policies,

involving 751 investors, were for individuals with life expectancies in excess of five years. Finally,

and perhaps most importantly, the Liberte Capital sales brochure promised investors that Liberte

Capital would use a “totally independent escrow company,” Viatical Escrow Services, to assure the

safety of their investments. Several sales representatives testified that having an independent escrow

service was of paramount importance to their client investors. Viatical Escrow Services was not,

however, independent from Liberte Capital. Jamieson had an agreement with James Capwill, the

owner of Viatical Escrow Services, that Capwill would invest Jamieson’s profits from Liberte

Capital and take a cut of the profits. Nevertheless, business relations between Capwill and Jamieson

eventually soured, and Jamieson sued Capwill for embezzlement in early 1999.1

In 2002, Jamieson and 16 others were indicted for conspiracy to commit mail fraud.

Jamieson was also charged with money laundering and conspiracy to commit money laundering.

He pleaded not guilty and later went to trial, but 15 of his co-defendants pleaded guilty,2 and many

eventually testified against Jamieson. Immediately following the indictment, the court granted the

government’s ex parte motion to freeze all of Jamieson’s assets. The restraining order was based

on count 158 of the indictment, which charged Jamieson with conspiracy to commit money-

laundering offenses involving over $104 million. Jamieson promptly moved to lift or modify the

restraining order to enable him to retain counsel of his choice. Following a hearing, the district court

denied his motion.

Because Jamieson’s assets had been frozen, the trial court appointed two attorneys to

represent him under the Criminal Justice Act. The district court also granted Jamieson’s motion for

CJA funds for investigation, experts, and analysts, but at a lower amount ($100,000) than Jamieson

had requested ($500,000).

Jamieson filed numerous other pre-trial motions that were denied by the trial court and are

now bases for this appeal. These included a motion for change of venue, another for the district

judge to recuse himself, and objections to the government’s use of Rule 1006 charts that summarized

the data from the records seized from the Liberte Capital office and computers.

Following his conviction, Jamieson was sentenced to 60 months on the charge of conspiracy

to commit mail fraud, 240 months on the charges of money-laundering and conspiracy to commit

money laundering in counts 2-33, 35-100, and 158, and 120 months on those in counts 101-157, all

to run concurrently. The court imposed a special assessment fee of $57,000 and restitution in the

amount of $92,120,491. The district court denied Jamieson’s motion for bail and a stay of forfeiture

pending appeal, and we affirmed that decision. We now have before us the appeal on the conviction

and the sentence imposed by the district court.

1

Capwill was later prosecuted on criminal charges relating to Liberte Capital and was convicted on multiple

counts of fraud and tax violations.

2

The charge against co-defendant Robert Leonberger was dismissed pursuant to Fed. R. Crim. Pro. 48(a) and

by leave of court.

Nos. 02-3403; 03-4578 United States v. Jamieson Page 4

II. DISCUSSION

A. Sufficiency of the Evidence

In reviewing a claim that a conviction is not supported by sufficient evidence, we assess the

proof in the light most favorable to the prosecution and determine whether “any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” United States v.

Daniel, 329 F.3d 480, 485 (6th Cir. 2003) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

However, we may not consider the credibility of witnesses or weigh the evidence. See United States

v. Marshall, 248 F.3d 525, 536 (6th Cir. 2001).

To justify a conviction of conspiracy to commit mail fraud under 18 U.S.C. § 371, the

evidence must show that Jamieson “knowingly and willfully joined in an agreement with at least one

other person to commit an act of mail fraud and that there was at least one overt act in furtherance

of the agreement.” United States v. Cantrell, 278 F.3d 543, 546 (6th Cir. 2001). To establish a

conspiracy, the government need not show an explicit agreement, but merely that the defendant

“knew the object of the conspiracy and ‘voluntarily associated himself with it to further its

objectives.’” United States v. Crossley, 224 F.3d 847, 856 (6th Cir. 2000) (quoting United States

v. Gibbs, 182 F.3d 408, 421 (6th Cir. 1999)). Mail fraud consists of (1) a scheme to defraud, and

(2) use of the mails in furtherance of the scheme. See United States v. Brown, 147 F.3d 477, 483 (6th

Cir. 1998). A scheme to defraud includes any plan or course of action by which someone uses false,

deceptive, or fraudulent pretenses, representations, or promises to deprive someone else of money.

See Daniel, 329 F.3d at 485.

The indictment charged Jamieson with involvement in a multi-pronged conspiracy to defraud

investors and insurance companies by trading in fraudulent life insurance policies and by making

material misrepresentations as to the nature of the policies and the escrow services the investors

would receive. On appeal, Jamieson does not challenge the sufficiency of the evidence regarding

material misrepresentations that he made to investors, evidence that is itself sufficient to support a

finding of fraud. Instead, Jamieson focuses his arguments on the government’s proof as to whether

the policies were fraudulent and whether Jamieson knew about the fraud. But contrary to

Jamieson’s assertions, the government produced more than sufficient evidence to support a finding

that several hundred of the policies were fraudulent.

Five witnesses, including several of the viators, testified that they had sold or brokered the

sales of anywhere from five to 72 fraudulent policies to Liberte Capital. Additionally, the

government produced an expert who testified that, after analyzing a significant portion of the

policies handled by Liberte Capital, she had found 214 she could identify as definitely fraudulent.

A second government analyst testified that, in over 60 percent of the Liberte Capital policies, the

viator’s diagnosis date preceded the date the insurance policy was issued, thus indicating a high

likelihood that the policy was fraudulently obtained.

The government also produced sufficient evidence to show that Jamieson knew that Liberte

Capital was trading in fraudulent policies. One of the viators, Orren Rickets, testified that he had

spoken with Jamieson about obtaining fraudulent policies for his AIDS-infected 12-year-old sister,

in order to sell them to Liberte Capital. Additionally, a Liberte Capital employee admitted writing

a note to Jamieson, on the top of a policy subsequently purchased by Liberte Capital, to the effect

that the policy was fraudulent.

Evidence about Jamieson’s own conduct provides further indication that Jamieson knew

about and participated in the conspiracy to defraud. In a March 1998 meeting with Liberte Capital

sales agents, Jamieson described how viators could obtain fraudulent policies and mentioned that

these fraudulent policies were easy to distinguish. Then, in sworn testimony before the Ohio State

Nos. 02-3403; 03-4578 United States v. Jamieson Page 5

Department of Commerce in January 2000, Jamieson said that Liberte Capital had never attempted

to determine whether the policies they traded were fraudulent because he was “unaware that people

were applying for life insurance fraudulently.” Finally, jurors heard evidence that, after learning

about a federal investigation into fraudulent viatical schemes, Jamieson ordered his employees to

destroy the policy application in each viator’s file. From all of this evidence, a reasonable juror

could conclude that Jamieson knew about and participated in the conspiracy to defraud life insurance

companies and investors by trading in fraudulent viaticals.

Jamieson also alleges that there is insufficient evidence to support his conviction on the 155

counts of money laundering, all of which charged violations of 18 U.S.C. §§ 1956 and 1957, based

on proof of monetary transactions involving the proceeds of unlawful activity. Jamieson does not

dispute that the transactions took place or that their purpose was to promote or conceal but, rather,

contends that the government failed to establish that the allegedly laundered funds were the

“proceeds of some form of unlawful activity.” This argument relates to the same contention that

Jamieson made with regard to his conviction for conspiracy to commit mail fraud. As we noted

above, that conviction was based on both the fraudulent insurance policies and his multiple

misrepresentations to investors. But just as he did with the conspiracy conviction, in challenging

the money-laundering convictions Jamieson ignores the misrepresentation prong and states that

“[o]nly the prong [of the conspiracy] alleging that insurance policies were fraudulently obtained

serves as a predicate to the money laundering counts.” We disagree.

A review of the record indicates that the money-laundering counts do not rely solely on the

fraudulent policies as their predicate. For example, as to counts 2-81 the indictment charged that

the money transactions involved property representing “the proceeds of some form of unlawful

activity.” As to counts 82-157, the indictment alleged that the transactions involved the proceeds

of or property derived from “a specified unlawful activity, that is, mail fraud in violation of [18

U.S.C. § 1341].” Thus, the indictment does not define the predicate crime to the money laundering

as relating specifically to the fraudulent policies or even as the mail fraud conspiracy described in

count one. Because the indictment does not define “unlawful activity” as a certain act or set of acts,

we are not limited in what conduct we may consider to establish the underlying criminal activity.

See United States v. Tencer, 107 F.3d 1120, 1131 (5th Cir. 1997) (where the indictment does not

define the specific mail fraud referred to, the money-laundering count may rely on evidence of any

mail fraud, even if that mail fraud is not mentioned in the indictment).

Jamieson alleges that the evidence is insufficient to support the money-laundering charges

because “the government performed no tracing of investor funds” to specific illegal acts, namely the

214 fraudulent policies. This argument has no merit. Counts 2-100 of the indictment charge

Jamieson with money laundering under § 1956, and the circuits have almost unanimously held that

§ 1956 money-laundering charges do not require the government to trace the monies to specific

unlawful activity. See United States v. Bencs, 28 F.3d 555, 562 (6th Cir. 1994) (§ 1956 does not

require that the government “trace the origin of all funds . . . to determine exactly which funds were

used for what transaction”); see also Tencer, 107 F.3d at 1130-31; United States v. Mankarious, 151

F.3d 694, 701-03 (7th Cir. 1998); United States v. Habhab, 132 F.3d 410, 414 (8th Cir. 1997);

United States v. De La Mata, 266 F.3d 1275, 1292 (11th Cir. 2001). Indeed, several circuits have

upheld a money-laundering conviction even when the underlying mail fraud conviction was

overturned or the defendant was acquitted on the mail fraud count. See, e.g., Mankarious, 151 F.3d

at 703; Tencer, 107 F.3d at 1130-31; United States v. Kennedy, 64 F.3d 1465, 1480 (10th Cir.

1995). Additionally, not all of the money involved in the transactions must be derived from the

unlawful activity. See Habhab, 132 F.3d at 414. When money from illegal sources is co-mingled

with money from unspecified other sources, “all such funds are attributable to the money laundering

scheme.” United States v. Owens, 159 F.3d 221, 229 (6th Cir. 1998).

Nos. 02-3403; 03-4578 United States v. Jamieson Page 6

In the case at hand, the government presented voluminous evidence that Jamieson committed

mail fraud by making material misrepresentations to induce investors to buy policies and by dealing

in fraudulently obtained insurance policies. All the money received from investors was put in an

account with the escrow service and thus co-mingled. The government established that the monies

used in each transaction listed in the indictment were investor funds that came from this tainted

account. Hence, there is sufficient evidence to permit the jury to have found, beyond a reasonable

doubt, that the financial transactions in counts 2-100 involved the proceeds of illegal activities.

Counts 101-157 of the indictment charge Jamieson with money laundering pursuant to 18

U.S.C. § 1957. Unlike with § 1956, there is some disagreement among the circuits about whether

funds must be traced to support a conviction under § 1957. Compare United States v. Richard, 234

F.3d 763, 768 (1st Cir. 2000) (a § 1957 conviction “does not require proof that the defendant

committed the specified predicate offense; it merely requires proof that the monetary transaction

constituted the proceeds of a predicate offense” (internal citation omitted)) with United States v.

Rutgard, 116 F.3d 1270, 1292 (9th Cir. 1997) (declining to follow other circuits which used the

§ 1956 precedent to eliminate any tracing of funds in § 1957 cases). The Sixth Circuit has never

ruled on what the tracing requirements are for § 1957 money laundering, but the outcome of this

case is the same regardless of whether tracing is required, because the government provided proof

that Liberte Capital made material misrepresentations to all of its investors. As a result, the jurors

heard evidence about misrepresentations regarding (1) the amount of money Jamieson would hold

in escrow, (2) the independent nature of the escrow company, (3) the life expectancy of the viators,

and (4) the fact that some of the policies were fraudulently obtained and thus subject to recision.

The evidence pertaining to the breadth of these misrepresentations is sufficient for the jurors to have

found that each and every investor was affected by the fraud and, thus, that all investor funds were

proceeds of the illegal fraud scheme. As noted above, the government adequately proved that all

of the money in the charged transactions came from investor funds. Thus, we conclude, the

government sufficiently traced the money in the transactions to the underlying illegal mail fraud.

As with his conviction for conspiracy to commit mail fraud, Jamison’s § 1956 and § 1957 money-

laundering convictions are adequately supported by the evidence.

B. The Motion to Recuse

Jamieson alleges that the district court erred in denying his motion to recuse, citing 28 U.S.C.

§ 455(b)(1) and claiming that the district judge could not preside over his criminal trial because he

had “personal knowledge of disputed evidentiary facts concerning the proceeding” gained from the

fact that he was also handling a civil case against Jamieson. The civil action involved a

receivership, into which recoveries in the criminal case would be deposited. Jamieson contends that

from this participation in the civil case, the district judge gained “personal knowledge” of relevant

disputed facts in the criminal case.

In order to justify recusal under 28 U.S.C. § 455, the judge’s prejudice or bias must be

personal or extrajudicial. See United States v. Hartsel, 199 F.3d 812, 820 (6th Cir. 1999).

“‘Personal’ bias is prejudice that emanates from some source other than participation in the

proceedings or prior contact with related cases.” Youn v. Track, Inc., 324 F.3d 409, 423 (6th Cir.

2003). Jamieson makes no allegation that the district judge in this case had knowledge resulting

from any extrajudicial activities or exposure; all the information known by the judge came from his

judicial involvement with related cases, not from any extrajudicial or personal sources.

Furthermore, Jamieson does not “point to any specific facts [the district court] obtained from

presiding over [the other cases] which would raise a question about his impartiality.” See Hartsel,

199 F.3d at 820. Nor does Jamieson identify any rulings or actions during the criminal trial that

indicate partiality or the use of “personal knowledge of disputed evidentiary facts” on the part of the

district judge. In short, Jamieson has given us no reason to find that the district court abused its

discretion in denying his motion to recuse.

Nos. 02-3403; 03-4578 United States v. Jamieson Page 7

C. Restraint of Assets

Jamieson next alleges that the district court violated his Sixth Amendment right to counsel

of his choice by freezing his assets immediately following indictment, thereby preventing him from

using his own assets to pay for his defense. On appeal, Jamieson contends that the government

failed to establish probable cause that the restrained assets were traceable to the offenses in the

indictment, because the district court did not hold an adversarial hearing or otherwise require the

government to prove traceability before granting the motion to freeze assets.

Although the Sixth Amendment grants a defendant the right to obtain counsel of his choice,

this right “does not extend beyond the individual’s right to spend his own legitimate, nonforfeitable

assets.” United States v. Farmer, 274 F.3d 800, 802 (4th Cir. 2001) (citing Caplin & Drysdale v.

United States, 491 U.S. 617, 624-33 (1989)). The Supreme Court has held that a defendant’s assets

may be restrained prior to trial as long as they are restrained based on a finding of probable cause

to believe that the assets are subject to forfeiture. See United States v. Monsanto, 491 U.S. 600, 615

(1989). Under 21 U.S.C. § 853(e)(1), a court may enter a restraining order “upon the filing of an

indictment or information charging a violation . . . for which criminal forfeiture may be ordered.”

In this case, the indictment lists approximately $104 million as the amount involved in the

money-laundering scheme and thus subject to forfeiture. The grand jury found probable cause for

all of the allegations listed in the indictment, including count 158, which charged Jamieson with

conspiracy to commit money laundering involving $104 million. The government has therefore

made a basic showing of probable cause justifying restraint of Jamieson’s assets.

On appeal, Jamieson’s principal complaint is that the district court did not go beyond the

allegations in the indictment and hold an adversarial hearing to determine whether there was

probable cause to conclude that the assets were subject to forfeiture. In Monsanto, 491 U.S. at 615,

n. 10, the Supreme Court specifically refrained from ruling on whether due process requires such

a probable cause hearing to support restraint of assets prior to trial or whether the indictment is

sufficient. Although we have never had the occasion to resolve this question in the Sixth Circuit,

various other courts around the country have addressed it, with less than uniform results.3 The

district court in this case followed the lead of the Tenth Circuit in United States v. Jones, 160 F.3d

641 (10th Cir. 1998), in which the court noted that “an adversarial hearing that occurs shortly after

freezing assets would serve to diminish the risk of an erroneous deprivation at a meaningful time”

but held that such a hearing is necessary only when the defendant can (1) “demonstrate to the court’s

satisfaction that she has no assets” and (2) “make a prima facie showing of a bona fide reason to

believe the grand jury erred in determining that the restrained assets ‘constitute or are derived,

directly or indirectly, from gross proceeds traceable to the commission of the offense.’” Id. at 646,

647. When the defendant makes the required showings, the burden then shifts to the prosecution

3

The Ninth Circuit, for example, has held that, prior to restraining assets in a criminal case, the district court

must hold a hearing under Fed. R. Civ. P. 65 to determine whether probable cause exists to issue the restraining order.

See United States v. Roth, 912 F.2d 1131, 1133 (9th Cir. 1990). On the other end of the spectrum, the Eleventh Circuit

never requires such a hearing, but rather has held that the trial itself satisfies all due process concerns regarding pre-trial

seizure of funds. See United States v. Register, 182 F.3d 820, 835 (11th Cir. 1999). Most circuits fall somewhere in

between the Ninth and Eleventh Circuits and require that, in certain situations, the district court must hold a post-restraint

adversarial hearing to determine probable cause to restrain the assets. See United States v. Monsanto, 924 F.2d 1186,

1203 (2nd Cir. 1991) (the Fifth and Sixth Amendments require a post-restraint, pretrial hearing regarding probable cause

to restrain assets which are needed to retain counsel of choice); United States v. Kirschenbaum, 156 F.3d 784, 792 (7th

Cir. 1998) (due process prohibits restraining funds without a hearing if the defendant can show a bona fide need to use

the funds to obtain counsel); United States v. Jones, 160 F.3d 641 (10th Cir. 1998) (due process requires an adversarial

hearing if the defendant can both show she has no other assets with which to pay for counsel and make a prima facie

demonstration of error in the grand jury’s finding of probable cause); United States v. Farmer, 274 F.3d 800, 803 (4th

Cir. 2001) (due process requires an adversarial hearing when defendant can show that he lacks other funds with which

to secure counsel and that a portion of the restrained funds is legitimate).

Nos. 02-3403; 03-4578 United States v. Jamieson Page 8

to establish, by probable cause at an adversarial hearing, that the restrained assets are traceable to

the underlying offense. Id. at 647. Jamieson did not object to or appeal the district court’s decision

to use the Jones framework and has never put forth any arguments that the Jones framework should

not be applied to his case. In fact, Jamieson cites Jones in support of his argument on appeal, thus

implicitly agreeing to its validity as precedent.

We have no quarrel with the district court’s decision to apply Jones, recognizing as we do

that “[a] fundamental requirement of due process is the ‘opportunity to be heard.’” Armstrong v.

Manzo, 380 U.S. 545, 552 (1965), and that the opportunity to be heard is non-existent when a district

court grants a restraining order based only on the indictment. Certainly, due process should be

honored when a defendant’s Sixth Amendment right to counsel of choice is threatened by virtue of

the restraint of his funds. But the claimed violation of due process in this case is belied by the fact

that the district court actually provided the defendant with an adversarial hearing and an opportunity

to be heard.

The record indicates that in response to Jamieson’s motion to dissolve the restraining order

or to hold an adversarial hearing, the district court determined that Jamieson had not properly met

either Jones prong. See United States v. Jamieson, 189 F. Supp. 2d 754, 757-58 (N.D. Ohio 2002).

The district court nevertheless held a hearing for the limited purpose of having Jamieson make both

a further showing of his need for the assets and a prima facie showing that the assets were

erroneously restrained. Although the district court did not explicitly make any findings that

Jamieson had met both Jones prongs after presenting additional evidence at the hearing, the court

instructed the government to present its evidence regarding probable cause to believe the assets were

subject to forfeiture. At the hearing, the government duly presented a witness who established that

Jamieson had very few assets at the beginning of the indictment period and that Jamieson’s profits

from Liberte Capital were his only source of income during the indictment period. Based on this

testimony, the trial court found probable cause “to believe that the restrained assets (i.e. the

‘vacation’ home primarily, although other assets were addressed, as was the restraining order itself)

[were] in fact traceable to the underlying offenses, [were] thus ‘tainted,’ and [had] been properly the

subject of a post-indictment restraining order.”

Thus, the record shows that the district court heard live testimony regarding the restrained

assets and that Jamieson had the chance to cross-examine the government’s witness. On appeal, the

defendant has presented no specific challenge to the sufficiency of the hearing that was held.

Moreover, with regard to the defendant’s claim that he was denied the right to counsel of

choice, any error on the part of the district court with regard to the order restraining assets would

have to be considered harmless error, which has been held to apply to choice of counsel. See

Rodriguez v. Chandler, 382 F.3d 670, 674 (7th Cir. 2004) (“It is hard to see why violations of the

qualified right to counsel of choice should lead to automatic reversal, when deprivation of the

absolute right to a competent attorney leads to relief only if prejudice is demonstrable.”). Not only

has Jamieson failed to allege prejudice, he has not even voiced dissatisfaction with his two trial

attorneys. Indeed, he cannot show that he was deprived of counsel of his own choosing, because

the record indicates that his primary court-appointed attorney was, in fact, his counsel of choice.

D. Failure to Provide Adequate Funds

Jamieson next contends that he was denied the effective assistance of counsel because of

insufficient funding for his defense. An indigent defendant may request monies for investigative,

expert, or other services under the Criminal Justice Act, 18 U.S.C. § 3006A. We have directed the

district courts to authorize services under § 3006A “upon a demonstration that (1) such services are

necessary to mount a plausible defense, and (2) without such authorization, the defendant’s case

Nos. 02-3403; 03-4578 United States v. Jamieson Page 9

would be prejudiced.” United States v. Gilmore, 282 F.3d 398, 406 (6th Cir. 2002). We review a

district court’s denial of authorization for abuse of discretion. Id. at 406.

Shortly after Jamieson was indicted, the trial court appointed two qualified defense attorneys

to represent him. Jamieson alleges, however, that his attorneys did not receive the funds necessary

to investigate the case against him and prepare an adequate defense. According to the district court,

when Jamieson submitted his initial motion for funds, he requested $500,000 “without any budget

or breakdown as to the utilization of those funds.” The district court denied the motion because the

amount was “beyond the scope of reasonably incurred expenses.” At the suggestion of the district

court, Jamieson later submitted a revised proposal, including a budget and an explanation of the

services requested, asking for authorization of a more reasonable sum. Although the revised

proposal was not submitted in a timely manner, the district court nevertheless authorized $100,000

for Jamieson’s use. Through the use of these funds, Jamieson received the services of at least five

experts, three of whom he selected to testify at trial. The district court noted that Jamieson also had

the full-time assistance of a retired FBI special agent both before and during trial. Under these

circumstances, we fail to find that the defendant has demonstrated prejudice arising from the district

court’s decision to limit funds for experts under § 3006A.

Nor do we find an abuse of discretion in the district court’s denial of funds to purchase the

forensic software necessary to access all documents contained on 64 disks produced by the

government. Initially, the government gave Jamieson a set of 42 disks containing all the files lifted

from Liberte Capital’s computers. This first set of disks was readable without any special software.

Later, the government developed a second set of 64 disks that included the materials from the

original disks, plus deleted files and file fragments on the Liberte Capital computers. The only way

to obtain access to the latter material was to use a special forensic program that, once used, rendered

the disks unreadable without the use of extraordinarily expensive software. The district court

worked with both counsel to find additional ways for Jamieson to obtain complete access to these

files, but no solution was reached. The government cooperated with the court’s efforts but, more

importantly, assured the court that it had not relied on the deleted materials to build a case against

the defendant, had not referred to them in drafting documentary exhibits, and would not use them

in any way at trial. Additionally, Jamieson never demonstrated that the information on the disks was

“necessary to a plausible defense” or that the inability to decode the disks would prejudice the case.

Under these circumstances, we cannot conclude that the district court abused its discretion in

denying Jamieson the funds to purchase the computer programs necessary to decode the disks.

E. Admissibility of the Rule 1006 Summaries

Jamieson next challenges the district court’s decision to admit the government’s summary

charts pursuant to Fed. R. Evid. 1006, claiming that introduction of the evidence in summary form

violated his right to confrontation. Rule 1006 provides that:

The contents of voluminous writings, recordings, or photographs which cannot

conveniently be examined in court may be presented in the form of a chart, summary,

or calculation. The originals, or duplicates, shall be made available for examination

or copying, or both, by other parties at [a] reasonable time and place.

We have held that Rule 1006 imposes five requirements for the admission of a

summary: (1) the underlying documents must be so voluminous that they cannot be

conveniently examined in court, (2) the proponent of the summary must have made

the documents available for examination or copying at a reasonable time and place,

(3) the underlying documents must be admissible in evidence, (4) the summary must

be accurate and nonprejudicial, and (5) the summary must be properly introduced

through the testimony of a witness who supervised its preparation.

Nos. 02-3403; 03-4578 United States v. Jamieson Page 10

United States v. Modena, 302 F.3d 626, 633 (6th Cir. 2002) (internal citation omitted). The

admission of summaries into evidence “is a matter within the discretion of the district court, whose

decisions in such matters will be upheld absent an abuse of discretion.” United States v. Bray, 139

F.3d 1104, 1109 (6th Cir. 1998) (quoting United States v. Williams, 952 F.2d 1504 (6th Cir. 1991))

(internal quotations omitted). Jamieson raises challenges to several different Rule 1006 exhibits put

in evidence by the government.4 As to all of them, he alleges that the government failed to establish

the second and third requirements as listed by Modena.5

Jamieson first contends that the government did not provide access to the summary charts

and underlying documents sufficiently in advance of trial. According to Rule 1006, the government

must have “made the documents available for examination or copying at a reasonable time and

place.” Because Rule 1006 operates independently of the discovery rules, the government had a

duty to “‘state when and where’ the documents underlying its summaries could be viewed.”

Modena, 302 F.3d at 633 (quoting Air Safety, Inc. v. Roman Catholic Archbishop of Boston, 94 F.3d

1, 8 (1st Cir. 1996) (“to satisfy the ‘made available’ requirement, a party seeking to use a summary

under Rule 1006 must identify its exhibits as such, provide a list or description of the documents

supporting the exhibit, and state when and where they may be reviewed”)). In Modena, we held that

merely making the records available upon request is insufficient. Modena, 302 F.3d at 633.6 Rule

1006 does not require, however, that the government provide Jamieson with a copy of the actual

summary or send copies of the relevant documents to Jamieson.

Although Jamieson does not dispute that the government provided him with notice about its

intended use of summaries, he argues that the notice was not specific enough because of the large

volume of documents. However, it is precisely because of the large volume that the government

could not be more specific. The summary introduced as government Exhibit 1-8, for example, gave

information regarding the escrow rates used for 969 policies. Information regarding each policy was

relevant to the summary, so there was no way for the government to narrow down which of the 969

policy bid sheets Jamieson should have looked at. Upon examination of the government’s notices

of its use of summaries, we conclude that the government was reasonably specific in identifying the

underlying documents.

Jamieson also argues that the government did not give written notice of the summaries or

provide access to the documents in a timely manner. Our review of the record does not support this

4

For ease of reference, these summaries will be identified by their exhibit numbers. Jamieson raised challenges

to 14 exhibits: 1-3, 1-5, 1-6, 1-7(A), 1-7(B), 1-8(A), 1-9(A), 1-9(B), 1-10(A), 1-10(B), 1-10(C), 1-11, 1-12(A) and 1-

12(B). Exhibits 10(A), (B), and (C), however, are not actually Rule 1006 summaries, but rather simply bound copies

of Liberte Capital records. Thus, 10(A), (B), and (C) do not need to be addressed pursuant to Jamieson’s Rule 1006

complaints.

5

Jamieson argues that the government was able to establish only the first requirement for admission, but he

offers no arguments as to why requirements four and five were not established. All of Jamieson’s arguments go to the

whether he had access to the information in a sufficient amount of time and whether the government adequately

established that the underlying documents were admissible. Due to the complete lack of discussion of the fourth and

fifth requirements, we consider any objection based on those issues to be waived and will not address those issues. See

McPherson v. Kelsey, 125 F.3d 989, 995 (6th Cir. 1997).

6

Jamieson interprets Modena as requiring that the documents be made available after the summary has been

provided. But Modena does not appear to support this reading, because it does not indicate when the actual summary

must be provided to the opposing party. 302 F.3d at 632-34. Indeed, a party may not finish creating the summaries until

near the start of trial, so limiting an opponent’s access to the underlying records to the time after the summary is provided

is illogical.

Nos. 02-3403; 03-4578 United States v. Jamieson Page 11

contention.7 Moreover, the purpose of requiring that the proponent of the summaries make the

documents available is to “provide the opposing party . . . with an opportunity to prepare for cross-

examination, or to offer exhibits of its own as rebuttal evidence.” Bray, 139 F.3d at 1109. Jamieson

conducted extensive cross-examination of the government’s witnesses who prepared the summaries,

and the record contains no indication that defense counsel was unable to challenge the validity of

the summaries. Furthermore, at least one of the defense experts who testified against the summaries

stated that, in forming his opinion, he had been able to review all the material that he thought was

important. Jamieson has produced nothing more than mere speculation to support his allegation that

he was prejudiced by not gaining earlier access to the documents underlying the summaries.

In addition to challenging the timeliness of his access to the documents, Jamieson argues that

the documents underlying the summaries were hearsay and thus violated his Sixth Amendment right

of confrontation. The district court found that the disputed evidence was admissible under the Rule

807 residual hearsay exception. When evidence is not admissible under Rules 803 and 804, it may

still be admitted pursuant to Rule 807 if the evidence (1) has equivalent circumstantial guarantees

of trustworthiness as evidence admitted under Rules 803 and 804; (2) goes to a material fact; and

(3) is more probative than any other evidence that reasonably could have been procured. Finally,

(4) the admission of the evidence must support the general purposes of the Rules of Evidence and

the interests of justice. Fed. R. Evid. 807; see also United States v. Darwich, 337 F.3d 645, 658-59

(6th Cir. 2003). Jamieson argues that evidence admitted under Rule 807 cannot be used to support

Rule 1006 summaries because Rule 807 is not a “firmly rooted” hearsay exception. We have held

that all documents underlying a Rule 1006 summary must be admissible into evidence, but we have

placed no further restrictions on the admissibility of the underlying documents. See Martin v.

Funtime, Inc., 964 F.2d 110, 116 (6th Cir. 1992). Thus, if evidence is admissible under Rule 807,

it should also be appropriate material for a Rule 1006 summary. Jamieson has cited no authority

suggesting that Rule 1006 documents must be limited to evidence admissible as non-hearsay or

under “firmly rooted” hearsay exceptions.

In order to admit evidence under Rule 807, the district court must “consider the ‘independent

restrictions’ on the admission of certain evidence contained in the Confrontation Clause of the Sixth

Amendment”. Darwich, 337 F.3d at 659. Hence, if underlying documents supporting a summary

violate the Confrontation Clause, they are not properly admitted under Rule 807. Here, the Rule 807

evidence relied on by the government consisted of business records seized from Liberte Capital, files

7

Summary 1-3 consists of information regarding the policies of all viators who sold over five policies to Liberte

Capital. In addition to the summary, the underlying documents themselves, i.e., the files of the 32 viators, were also

introduced into evidence as government Exhibits 1-1001 through 1-1033. On February 18, 2003, three months before

trial began on May 21, 2003, the government filed its first Rule 1006 and Rule 807 notices, informing Jamieson of its

intent to create a summary based on the 32 viator files. The notices state that “since May 2002, each individual document

the government intends to introduce about each of these 32 viator-conspirators has been available for review in

essentially trial ready form in eight boxes at the U.S. Attorney’s Office.” In the same February 18 notices, the

government informed Jamieson of its intent to create a summary of the number of policies “with life expectancies beyond

what Jamieson promised his investors” and identified the files to be used. This summary was eventually introduced as

Exhibits 1-9(A) and (B).

Summaries 1-7 and 1-8, with all their sub-parts, show the premium escrow formula promised for each investor

contract and the escrow formula that was actually used. On February 18, 2003, the government gave Jamieson notice

that it would be summarizing policy bid sheets and stating that the bid sheets were available in both hard copy and

electronic format. On March 27, 2003, the government updated its February notice with regard to 1-7 and 1-8 by

specifically stating what information from the bid sheets would be used and adding a few additional sources for the

information. The March 27 notice also gave Jamieson forewarning about Summary 1-12 and gave him access to the

underlying documents. Summary 1-5 lists all of the policies for viators diagnosed with HIV or AIDS and compares the

diagnosis date with the policy issuance date. On March 28, 2003, Jamieson received notice of this summary and a

description of the underlying documents. The last summary the government notified Jamieson about was exhibit 1-11,

a one-page summary of all documented payments Liberte Capital made with investor funds. Jamieson received the

notification of Summary 1-11 on April 16, 2003, over a month before trial began.

Nos. 02-3403; 03-4578 United States v. Jamieson Page 12

taken from Liberte Capital’s computers, viators’ insurance policies and applications,8 and medical

records of the viators. In its recent opinion Crawford v. Washington, 541 U.S. 36, 51-52 (2004), the

Supreme Court noted that testimonial hearsay is the primary object of the Confrontation Clause.

The Court further noted that testimony consists of “a solemn declaration or affirmation made for the

purpose of establishing or proving some fact,” and that “[a]n accuser who makes a formal statement

to government officers bears testimony in a sense that a person who makes a casual remark” does

not. Id. at 51. All of the Rule 807 evidence at issue here appears to be, essentially, in the form of

business records. The evidence does not resemble the “formal statement” or “solemn declaration”

identified as testimony by the Supreme Court.

Although Jamieson may have wished for more time to review the government’s summaries

and more specificity with regard to the underlying documents, he has identified no actual error. The

district court therefore did not abuse its discretion in admitting the government’s Rule 1006

summaries into evidence.

F. Motion to Change Venue

Jamieson next alleges that, in light of the pretrial publicity, the district court’s refusal to

transfer the trial to another district deprived him of a fair trial. Jamieson made repeated motions to

change the venue, all of which were denied by the district court. When the defendant makes such

a motion, the trial court must transfer the case if “the court is satisfied that so great a prejudice

against the defendant exists in the transferring district that the defendant cannot obtain a fair and

impartial trial there.” Fed. R. Crim. P. 21(a). We review the lower court’s refusal to change the

venue for abuse of discretion. See United States v. Chambers, 944 F.2d 1253, 1262 (6th Cir. 1991)

(superseded on other grounds by statute).

Unsurprisingly, given the amount of money and number of investors involved, there appears

to have been significant media coverage of this case. The record reveals multiple newspaper articles

published by the Toledo Blade and other regional newspapers. Most of the articles were published

prior to May 2002, well over a year before Jamieson’s trial began in June 2003. A few additional

articles appeared shortly before jury selection, including one on the day of jury selection, entitled

“Trial to Open for Local Man Charged in $105M Fraud.” The majority of the articles mention the

charges against Jamieson and his co-defendants, predominantly James Capwill, and discuss the

plight of the many investors who lost the money they invested through Liberte Capital. Many of the

articles also state that Jamieson pleaded not guilty and describe his lawyers vigorously defending

him. After examining the articles in the record, we agree with the district court’s conclusion that,

although some of the articles were “unflattering” to Jamieson, they presented a fair and balanced

portrayal of events.

Jamieson also argues that he was denied a fair trial because “many of the prospective jurors”

had been exposed to pretrial publicity. To satisfy due process concerns, however, it is not necessary

for the jury to be totally ignorant of the case or to be wholly free from any exposure to pretrial

publicity. See Irvin v. Dowd, 366 U.S. 717, 722 (1961). A juror’s exposure to pretrial publicity

“does not presumptively establish that the defendant was denied a fair trial.” Chambers, 944 F.2d

at 1262. The Supreme Court has found that “[i]t is sufficient if the juror can lay aside his impression

or opinion and render a verdict based on the evidence presented in court.” Irvin, 366 U.S. at 723.

The trial judge conducted extensive individual voir dire to establish that the sitting jurors could

render an unbiased verdict, and he imposed no time limits upon counsels’ examination of the panel.

Indeed, Jamieson has made no allegations that any actual prejudice occurred and has not identified

8

The government was forced to obtain the viators’ insurance policies and applications from the insurance

companies because Liberte Capital had destroyed their own copies of the viators’ applications.

Nos. 02-3403; 03-4578 United States v. Jamieson Page 13

any jurors who should not have been on the jury. We have held that “any party who claims to have

suffered injustice must sustain that claim not as a matter of speculation, but as a demonstrable

reality.” Kelly v. Withrow, 25 F.3d 363, 368 (6th Cir. 1994) (quotations omitted) (finding no abuse

of discretion in the district court’s denial of change of venue). Jamieson has failed to show actual

prejudice resulting from the district court’s denial of his motion to change venue.

In some cases, the pretrial publicity is so great that prejudice is presumed. See Chambers,

944 F.2d at 1262 (citing Rideau v. Louisiana, 373 U.S. 723 (1963)). The Supreme Court has found

publicity inherently prejudicial when “the influence of the news media . . . pervaded the

proceedings” to the point that the trial was “conducted in a circus atmosphere.” Murphy v. Florida,

421 U.S. 794, 798-99 (1975) (referring to Rideau, 373 U.S. 723 (1963); Sheppard v. Maxwell, 384

U.S. 333 (1966); and Estes v. Texas, 381 U.S. 532 (1965)). The publicity surrounding Jamieson’s

case does not rise to the level of a “circus” atmosphere. First of all, the publicity was not pervasive;

less than one-third of the prospective jurors admitted any exposure to the pretrial publicity.

Secondly, the media’s treatment of the case was not unduly one-sided or unfair. The district court

correctly determined that the articles were “not of such an inflammatory nature as to elevate them

to the level of presumed prejudice.” We conclude that the trial court did not abuse its discretion in

refusing to transfer the case or that Jamieson’s right to a fair trial was infringed upon by denial of

his motion to transfer.

G. Prosecutorial Misconduct

Jamieson alleges multiple incidences of prosecutorial misconduct in the government’s

closing argument, contending that the prosecutor inappropriately denigrated defense counsel and

argued several matters that were not in evidence. We use a two-part test when reviewing a claim

of prosecutorial misconduct. First, we must determine whether the remarks were indeed improper

and, second, if the remarks were improper, whether they were flagrant enough to warrant reversal.

See United States v. Galloway, 316 F.3d 624, 632 (6th Cir. 2003). Even if the improper remarks are

not considered flagrant, we will reverse a conviction upon a finding that “1) the proof of the

defendant’s guilt is not overwhelming; 2) the defense counsel objected; and 3) the trial court failed

to cure the impropriety by failing to admonish the jury.” United States v. Francis, 170 F.3d 546,

550 (6th Cir. 1999) (citing United States v. Bess, 593 F.2d 749, 757 (6th Cir. 1979)).

Jamieson first argues that the prosecutor mischaracterized the testimony of Orren Ricketts.

However, our review of Ricketts’s testimony indicates that the government accurately summarized

his statements. The fact that Jamieson did not find Ricketts’s testimony convincing does not mean

that the government may not utilize the testimony in closing argument. Similarly, Jamieson

maintains that there was no evidence in the record to support the government’s statements indicating

that the majority of the investors were elderly or retired. But jurors heard at least two sales agent

testify that all of their investment customers were either retired or over 65. A third salesman and

investment advisor testified that the Liberte Capital viaticals were particularly appropriate for elderly

investors because of the guarantees in the contract and brochure.

Jamieson next alleges that the government made improper references to investor losses

during the closing argument, because the defense had not been “permitted to inquire into investor

losses during cross examination nor address it during the course of the trial.” On the contrary,

defense counsel had the opportunity to cross-examine five government witnesses regarding loss

caused by insurance companies’ recision of policies. In addition, two defense witnesses discussed

the recisions. Given the minimal and unspecific nature of the government’s references to loss in its

closing statement and the fact that loss was alluded to throughout the trial, we cannot agree that the

government’s statements were improper.

Nos. 02-3403; 03-4578 United States v. Jamieson Page 14

Finally, Jamieson claims that the prosecutor personally attacked defense counsel’s integrity.

Of course, a prosecutor should not directly or implicitly impugn the integrity or institutional role of

defense counsel. See United States v. Bennett, 75 F.3d 40, 46 (1st Cir. 1996). In challenging the

credibility of one of Jamieson’s expert witness, the government attorney stated:

The only evidence that’s contrary to any of this . . . comes from . . . Mr. Thullen, the

witness that [defense counsel] had used in three earlier cases, although she didn’t

want you to know that. He didn’t want you to know that.

The government’s statement referred to the fact that neither defense counsel nor the witness brought

up the fact that the witness had previously testified for defense counsel. In evaluating whether a

statement rises to the level of misconduct, “it is necessary to view the conduct at issue within the

context of the trial as a whole.” United States v. Beverly, 369 F.3d 516, 543 (6th Cir. 2004). The

statement at issue in this case was made in the context of a list of reasons why the witness was not

credible. Although the prosecutor’s reference to defense counsel may reflect poor judgment, it was

an isolated incident and was buried within legitimate and supported attacks on the witness’s

credibility. Moreover, because defense counsel did not object to the government’s statement, seek

an admonition from the court, or request a mistrial, we cannot reverse based on misconduct unless

the statement was flagrantly improper. See Francis, 170 F.3d at 549-50. Certainly, it did not rise

to that level in this case.

H. Jury Instructions

Jamieson next appeals based on two instructions the district court refused to deliver to the

jury. “Trial courts have broad discretion in drafting jury instructions,” and thus we will review the

instructions only for abuse of discretion. United States v. Prince, 214 F.3d 740, 761 (6th Cir. 2000).

Moreover, rather than examining a single instruction in isolation, we are required to examine the

instructions in their entirety to determine whether “the charge, taken as a whole, fairly and

adequately submits the issues and applicable law to the jury.” United States v. Pensyl, 387 F.3d 456,

458 (6th Cir. 2004) (quotations omitted). “This court may reverse a judgment based on an improper

jury instruction only if the instructions, viewed as a whole, were confusing, misleading, or

prejudicial.” United States v. Harrod, 168 F.3d 887, 892 (6th Cir. 1999) (quotations omitted). We

have also held that a district court’s refusal to deliver a specific instruction warrants reversal only

if “that instruction is (1) a correct statement of the law, (2) not substantially covered by the charge

actually delivered to the jury, and (3) concerns a point so important in the trial that the failure to give

it substantially impairs the defendant’s defense.” Daniel, 329 F.3d at 489-90 (quotations omitted).

Furthermore, “an omitted or incomplete instruction is . . . less likely to justify reversal [than an

improper instruction], since such an instruction is not as prejudicial as a misstatement of the law.”

United States v. Hook, 781 F.2d 1166, 1173 (6th Cir. 1986) (citing Henderson v. Kibbe, 431 U.S.

145, 155 (1977)).

Jamieson claims that the trial court should have charged the jury that he “owed no duty of

disclosure to the individual investors . . . except to the extent that the government has proven beyond

a reasonable doubt that the defendant had a relationship of trust and confidence with an investors

[sic].” Arguing that the duty to disclose is relevant where the fraudulent misrepresentation was by

omission rather than by an affirmative statement, Jamieson argues that the government established

only misrepresentation by omission. The trial court instructed the jury that “[a] statement may also

be false or fraudulent when it constitutes a half truth, or when it effectively conceals a material fact,

with intent to defraud.” We conclude that this instruction adequately guards against the jury finding

that a simple omission, independent of any other statements encouraging trust and confidence in the

defendant, can constitute fraud.

Nos. 02-3403; 03-4578 United States v. Jamieson Page 15

Even if the trial court’s refusal to give the “duty to disclose” instruction was error, the error

must be considered harmless. Contrary to Jamieson’s assertion, the government presented

significant evidence that the defendant made affirmative material misrepresentations. As discussed

in above, the government established that Jamieson made affirmative misrepresentations regarding

the nature of the insurance policies, the amount of money to be held in escrow, and the independent

nature of the escrow service. The jury could have convicted Jamieson even without finding any

fraudulent omissions, and thus any possible error in the instructions regarding fraudulent omissions

cannot be considered prejudicial.

Jamieson also argues that the district court erred in failing to give an instruction that a mail

fraud scheme must be “reasonably calculated to deceive persons of average prudence.” It is well-

established in this circuit that a scheme to defraud, as prohibited by the mail fraud statute, “must

involve misrepresentations or omissions reasonably calculated to deceive persons of ordinary

prudence and comprehension.” Berent v. Kemper Corp., 973 F.2d 1291, 1294 (6th Cir. 1992)

(quoting Walters v. First Tennessee Bank, 855 F.2d 267, 273 (6th Cir. 1988)). The government

argues that the “ordinary prudence and comprehension” modifier is necessary only to prevent

criminalization of mere sales puffery. In support of its argument, the government cites Neder v.

United States, 527 U.S. 1, 24-25 (1999), in which the Supreme Court noted that “[t]he common law

requirements of ‘justifiable reliance’ and ‘damages’ . . . plainly have no place in the federal fraud

statutes.” The Supreme Court’s rejection of “justifiable reliance” focused, however, on actual

reliance, not whether the scheme is worthy of reliance, as reflected by the Court’s citation to a Tenth

Circuit holding that the government need not prove “actual reliance.” Id. at 25 (citing United States

v. Stewart, 872 F.2d 957, 960 (10th Cir. 1989)). Furthermore, in explaining its rationale for not

requiring “justifiable reliance,” the Court stated, “By prohibiting the ‘scheme to defraud,’ rather than

the completed fraud, the elements of reliance and damage would clearly be inconsistent with the

statutes Congress enacted.” Neder, 527 U.S. at 25. A plain reading of Neder thus indicates that the

Supreme Court did not intend to remove the requirement that misrepresentations be worthy of

reliance or credence. See Daniel, 329 F.3d at 486 (interpreting the relevant statement in Neder as

an explicit rejection of “the argument that a materiality requirement included a reliance

requirement”); see also United States v. Welch, 327 F.3d 1081, 1106 (10th Cir. 2003) (requiring that

a scheme be reasonably calculated to deceive persons of ordinary prudence or comprehension is not

inconsistent with Neder’s rejection of the “justified reliance” element). We do not read Neder to

indicate that we must change the requirement in this circuit that a mail fraud scheme be credible

enough to “deceive persons of ordinary prudence and comprehension.” Thus, the better practice

would have been to include a relevant instruction in the jury charge in this case.

The district court’s refusal to instruct the jury on reasonable reliance does not warrant

reversal of Jamieson’s case, however, because the omission, when taken in context of the entire jury

charge, was not confusing, misleading, or prejudicial. See Harrod, 168 F.3d at 892. In addition,

the reasonable reliance charge was “substantially covered by the charge actually delivered to the

jury.” Daniel, 329 F.3d at 489 (quoting United States v. Mack, 159 F.3d 208, 218 (6th Cir. 1998)).

In instructing the jury on the materiality requirement, the district court explained that the

misrepresentation must have “had the potential or capability” to influence the action of or be relied

upon by the investors. As the Eleventh Circuit has noted, “the elements of reasonable reliance and

materiality analytically overlap [in that] both concern the expected effectiveness of the

misrepresentations.” United States v. Yeager, 331 F.3d 1216, 1221 (11th Cir. 2003). By explaining

that the scheme must have had the potential to cause reliance, the trial court substantially covered

the purpose of the “prudence and comprehension” requirement: to ensure that the scheme was at

least minimally credible.

Furthermore, any error on the part of the trial court with regard to the “prudence and

comprehension” instruction was, at most, harmless error. The government produced extensive and

compelling evidence that Jamieson made material misrepresentations regarding relevant aspects of

Nos. 02-3403; 03-4578 United States v. Jamieson Page 16

Liberte Capital’s business, such as the nature of the policies and Jamieson’s relationship with the

escrow group, for which an average investor would not have been able to check the validity or

accuracy. In addition, the fact that more than 2,000 investors believed Jamieson’s

misrepresentations and invested with Liberte Capital indicates that Jamieson’s scheme was effective

enough to “deceive persons of ordinary prudence and comprehension.” We find it totally

improbable that the trial court’s refusal to instruct the jury on “prudence and comprehension”

materially affected the verdict. Additionally, Jamieson’s defense rested on the argument that he did

not make misrepresentations, not that the misrepresentations were not credible. As such, we

conclude that the lack of a jury instruction regarding the reasonableness of reliance did not prejudice

Jamieson’s ability to present his defense. See Yeager, 331 F.3d at 1223-24 (failure of the district

court to inform the jury of the reasonable reliance element was harmless error where the error did

not prejudice defendant’s ability to present his defense).

I. The Sentence under Booker

In accordance with the Sentencing Guidelines, the district court sentenced Jamieson to 240

months of incarceration. In addition to receiving a prison sentence, Jamieson was ordered to pay

restitution in the amount of $92,120,491. The defendant now appeals both his sentence of

incarceration and the order of restitution.

Regarding the length of incarceration, Jamieson alleges that the trial court improperly

applied several enhancements under the Sentencing Guidelines. Jamieson’s base offense level was

increased by 18 points due to the court’s finding that he caused a loss of approximately $92 million.

The trial court further increased his base offense level by two points due to the high number of

victims, four points because the victims were especially vulnerable, four points because Jamieson

played a leadership roll in the conspiracy, and two points for obstruction of justice. Jamieson now

appeals all the enhancements.

Over a year after Jamieson was sentenced, the Supreme Court issued its opinion in United

States v. Booker, 125 S. Ct. 738 (2005), which held that sentence enhancements based on “judge-

found facts” were unconstitutional. The opinion also rendered the Sentencing Guidelines advisory

rather than mandatory. In light of Booker, we conclude that Jamieson was sentenced in violation

of the Sixth Amendment and vacate his sentence, remanding his case to the district court for re-

sentencing in a manner consistent with Booker. As the Booker court explained, however, the district

court must take the recommended guidelines into account when re-sentencing Jamieson. See United

States v. Hazelwood, 398 F.3d 792, 800-01 (6th Cir. 2005). Thus, it is proper for us to take this

opportunity briefly to address the interpretation of the guidelines as applicable to the issues raised

by the defendant. See United States v. Barnett, 398 F.3d 516, 529 (6th Cir. 2005).

The district court applied an 18-level increase to Jamieson’s base offense level as a result

of the amount of loss caused by Jamieson’s crime pursuant to U.S.S.G. § 2F1.1(b)(1)(S).9 The

presentence report found that Jamieson caused approximately $92,120,491.00 worth of loss through

his conspiracy to commit mail fraud. The defendant argues that the government never made a

calculation of “losses” and, thus, that there is insufficient evidence to support the district court’s

finding. The government’s witness admitted that he had never calculated actual losses, but

explained that he calculated all payments Liberte Capital made, other than to investors, which came

from investor funds. Jamieson asserts that this amount is not the equivalent of losses because the

government’s calculations did not include an account of the funds that were eventually returned to

investors.

9

U.S.S.G. § 2F1.1 has since been removed from the Guidelines, but Jamieson’s sentence is based on the

November 1, 1998 version of the Guidelines. (JA 5781)

Nos. 02-3403; 03-4578 United States v. Jamieson Page 17

The funds returned to investors, however, are relevant for a calculation of actual losses, not

intended losses. U.S.S.G. § 2F1.1 applies to loss that is either actual or intended. See United States

v. Wade, 266 F.3d 574, 586 (6th Cir. 2001). Thus, the fact that the government’s calculations do

not represent a formal loss calculation does not preclude the district court’s finding of $92 million

in intended loss.

Jamieson also argues that, in his forfeiture hearing, the jury rendered a special verdict

finding, by a preponderance of the evidence, that only $28 million was traceable to Jamieson’s

money laundering crimes. The forfeiture hearing, however, related only to the money-laundering

charges, and not the charge of conspiracy to commit mail fraud. Thus, while the district court may

choose to take the forfeiture verdict into account as evidence of loss from the conspiracy charge, it

is not required to do so.

Jamieson next challenges the district court’s applications of enhancements for the number

of victims involved, the vulnerable nature of the victims, and the defendant’s leadership role in the

conspiracy. Jamieson’s objections to each of these enhancements, however, rest on the district

court’s findings of fact, not the court’s interpretation of the guidelines or other issues of law. Thus,

the proper course for us to follow regarding these enhancements is to “allow the parties to argue for

the exercise of the district court’s discretion as authorized by Booker.” United States v. Hines, 398

F.3d 713, 722 (6th Cir. 2005).

Jamieson raises an issue of law with his challenge to the district court’s two-point

enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1. He alleges that the district

court improperly based the enhancement on conduct that is outside the temporal scope of § 3C1.1.

The district court applied the § 3C1.1 enhancement after crediting the government’s evidence that

Jamieson shredded all the insurance policies in Liberte Capital’s files after he learned that another

viatical broker was being investigated. As Jamieson argues, the enhancement should not be applied

unless the obstructive behavior occurred either during or shortly preceding the investigation. An

enhancement is warranted under § 3C1.1 when the defendant willfully obstructs “the administration

of justice during the course of the investigation, prosecution, or sentencing of the instant offense of

conviction.” U.S.S.G. § 3C1.1 (emphasis added). The Application Notes for § 3C1.1, which give

guidance on how to apply the enhancement, give as an example of obstructing justice, “shredding

a document or destroying ledgers upon learning that an official investigation has commenced or is

about to commence.” Application Note 4(d) (emphasis added). Jamieson’s destruction of the

documents in this case occurred sometime in 1998 or early 1999, but the government’s evidence

does not establish a firm date. A federal agent informed Jamieson that he was under investigation

in May of 1999. Based on the language of the guidelines, it is not enough for the district court to

find that Jamieson destroyed the documents in anticipation of a possible future investigation;

Jamieson must have known about his imminent investigation. The government’s evidence does not

establish a date of the destruction with any specificity, and the government does not allege that

Jamieson knew about the investigation into Liberte Capital until May 1999 or that the investigation

was ongoing at the time the documents were destroyed. Because the evidence does not indicate that

Jamieson knew about his imminent investigation when he destroyed the documents, the destruction

cannot be considered an obstruction of justice for the purposes of § 3C1.1.

Finally, Jamieson argues that the district court erred in ordering him to pay restitution in the

amount of $92,120,491.00 pursuant to the Mandatory Victim Restitution Act, 18 U.S.C. § 3663A.

Jamieson’s crime of conspiracy to commit mail fraud falls under the Act, and thus the district court

is required to order restitution. The “loss caused by the conduct underlying the offense of conviction

establishes the outer limits of a restitution order.” Hughey v. United States, 495 U.S. 411, 420

(1990). Section 3663A(a)(2) specifically provides that Jamieson can only be ordered to pay

restitution to victims “directly harmed by [his] criminal conduct in the course of the . . . conspiracy.”

Nos. 02-3403; 03-4578 United States v. Jamieson Page 18

In addition to arguing that there was insufficient evidence to support a finding of $92 million

in losses, Jamieson alleges that the amount is not properly tied to Jamieson’s actions in furtherance

of the conspiracy. This claim is without merit because, as discussed above, the government

presented evidence indicating that Jamieson was associated with every aspect of the conspiracy and

that substantially all of the investors were subjected to Jamieson’s fraudulent misrepresentations.

Because the Sixth Circuit has recently concluded “that Booker does not apply to restitution,” this

portion of Jamieson’s sentence is affirmed. United States v. Sosebee, 419 F.3d 451, 461 (6th Cir.

2005).

III. CONCLUSION

For the reasons set out above, we AFFIRM Jamieson’s conviction on all 157 counts but

VACATE the district court’s sentencing order and REMAND the case for re-sentencing in

accordance with Booker.