United States v. Mornan

Opinions of the United

2005 Decisions States Court of Appeals

for the Third Circuit

6-30-2005

USA v. Mornan

Precedential or Non-Precedential: Precedential

Docket No. 04-1319

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

Recommended Citation

"USA v. Mornan" (2005). 2005 Decisions. Paper 904.

http://digitalcommons.law.villanova.edu/thirdcircuit_2005/904

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

NO. 04-1319

____________

UNITED STATES OF AMERICA

v.

CHRISTOPHER MORNAN,

Appellant

____________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Criminal No. 02-cr-00242)

District Judge: The Honorable Sylvia H. Rambo

Argued June 9, 2005

BEFORE: AMBRO, VAN ANTWERPEN and TASHIMA * ,

Circuit Judges,

*

The Honorable A. Wallace Tashima, Senior United States Circuit

Judge for the Ninth Circuit, sitting by designation.

(Filed: June 30, 2005)

Dennis E. Boyle (Argued)

1525 Cedar Cliff Drive

Camp Hill, PA 17011

Counsel for Appellant

Thomas A. Marino

United States Attorney

Theodore B. Smith, III (Argued)

Assistant U.S. Attorney

Federal Building

228 Walnut Street

Harrisburg, PA 17108

Counsel for Appellee

OPINION

VAN ANTWERPEN, Circuit Judge

Appellant Christopher Mornan was charged in an 18-

count indictment with mail fraud, wire fraud, and conspiracy

arising from an alleged telemarketing scheme. A jury found

Mornan guilty of 15 of the 18 counts, and he was sentenced in

accordance with the United States Sentencing Guidelines.

Mornan now challenges various evidentiary rulings made by

the District Court during his trial. He also appeals his

sentence in light of the Supreme Court’s decision in United

States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005). For the

2

reasons set forth below, we will affirm the District Court’s

evidentiary rulings and the conviction, vacate the sentence,

and remand for re-sentencing.

I. FACTUAL AND PROCEDURAL HISTORY

A. Background

Mornan’s wire and mail fraud indictment alleged that

he was involved in a “cross-border advance fee scheme,”

whereby he and his co-conspirators, operating out of Canada,

placed newspaper advertisements in the United States offering

loans to high-risk borrowers. The advertisements provided a

toll-free number to call for details. When a customer called

the number, he or she reached one of many telephone sales

rooms located in Canada. A telephone sales representative

would instruct the customer to complete and return a loan

application. Once the application was completed, another

individual – a “closer” – would call the customer and

represent that the loan had been approved. The customer was

then told that he or she would have to purchase a life or

disability insurance policy to secure the loan. In many

instances, the “closer” would tell the customer that the

insurance premiums would be returned upon full repayment

of the loan amount.

The customers who sent money orders for the

“insurance premiums” never actually received any loans, and

their payments were never returned. Mornan was an assistant

manager at one of the telephone sales rooms, and he also

worked as a “closer,” often using the alias “Richard Harding.”

3

The Government further alleged that Mornan eventually

became a “higher level manager” and had a leadership role in

the scheme.

The telephone representatives would tell customers

that they worked on behalf of a number of loan brokerage

companies, one of which was Sun Corp. Financial Services

(“Sun Corp.”). On June 23, 1998, Canadian law enforcement

authorities conducted a search of the Sun Corp. offices in

Ontario. The police found Mornan and his alleged co-

conspirator, Leslie Card, in one of the offices. The police

confiscated a list of loan applicants, a list of United States

newspapers, and some Sun Corp. loan applications from the

desk Mornan was using.1

The Canadian authorities also interviewed Mornan,

who stated that he was an “[a]ssistant manager/closer” and

that he and Card shared the role of office manager. (App. at

1110.) He also stated that his job was to answer phones, take

customers’ information, and tell them that their loan

application had been accepted. (Id. at 1112.) When asked

whether he believed that his company was actually providing

loans to customers, Mornan responded, “No. To my

knowledge it’s a referral agency.” (Id. at 1111.) When asked

who actually contacts lenders to arrange loans, Mornan

responded, “I don’t know, there is no lender.” (Id. at 1110.)

1

An office diagram indicated that the desk belonged to

Richard Harding, and Mornan admitted to the police that he was

working under that name.

4

B. Trial and Sentencing

At Mornan’s trial, conducted from April 8 to April 11,

2003, the Government presented the testimony of multiple

law enforcement officials who were involved in a “strategic

partnership” between the United States and Canada set up to

investigate “cross-border frauds.” The Government also

presented the testimony of 12 individuals who claimed to be

victims of the telemarketing scheme. In addition, the jury was

shown videotape depositions of Jeffrey Peters, the lessor of a

Toronto property that Mornan rented for use as a telephone

sales room, and Michelle Fulfit, one of the telephone

salespersons who fielded calls in Ontario.

Also relevant to this appeal was the testimony of

Althea Burton, the cousin of Michael Willams, who owned

and operated Icon Cheque Cashing Services, Inc. (“Icon”) in

Ontario. Burton worked for her cousin at Icon from May

2000 to January 2001, and the Government attempted to

establish through her testimony that Mornan used Icon to cash

money orders that had been made out to various “insurance

companies.” The Government was permitted to show the jury

Burton’s testimony in the form of a videotape deposition that

she gave in Canada. During that testimony, Burton indicated

that she could no longer remember the particulars of her

employment at Icon.

Faced with her purported memory lapse, the

Government directed Burton’s attention to a statement she

made to the prosecutor and United States Postal Inspector

Michael Hartman on September 12, 2001, wherein she

5

identified Mornan as the individual who routinely cashed

money orders at Icon that were made out to several “insurance

companies.” However, Burton stated that she did not

remember the particulars of the September 2001 statement

either. She attributed her memory loss to back and neck

injuries suffered during an August 19, 2002, automobile

accident.

The Government then attempted to offer the substance

of the September 2001 statement into evidence as a past

recollection recorded under Fed. R. Evid. 803(5). The

District Court initially ruled that the statement did not qualify

under Rule 803(5). The Government alternatively argued that

the statement was admissible as a prior inconsistent statement

under Fed. R. Evid. 801(d)(1)(A), but the court also rejected

that argument. However, after reviewing Burton’s videotape

testimony, the District Court changed its ruling and admitted

the statement, over the defense’s objection, as a prior

inconsistent statement under Rule 801(d)(1)(A). The court

reasoned that “it can’t be concluded that the memory loss is

solely due to the accident as opposed to her own volition. . . .”

(App. at 383.)

The final piece of evidence that is relevant to this

appeal is the testimony of Kirsten Jackson, a forensic

document examiner with the United States Postal Inspection

Service National Forensic Laboratory. The Government

called Jackson as a handwriting expert to give her opinion

regarding whether a signature on a lease, some handwritten

notes, and signatures on money orders were authored by

Mornan. Jackson testified as to her qualifications as a

6

document examiner, and the District Court permitted her to

testify “as an expert in the area of forensic document

examination.” (Id. at 399.) Defense counsel did not object at

trial to her testimony and expressly waived the opportunity to

conduct a voir dire of Jackson’s qualifications. (Id.)

Jackson explained that she formed her opinions by

comparing the questioned documents with an example of

Mornan’s handwriting. She testified that her ability to form

an expert opinion regarding the author of a specific writing

falls along a “continuum,” depending on degrees of

similarities and differences between the questioned document

and the handwriting sample. She then went through a very

detailed presentation explaining the factors that contributed to

her conclusions in this case. Of 21 exhibits (or pages of

exhibits) examined, Jackson concluded that Mornan definitely

wrote four of them and “probably” wrote two others.

However, she could not reach a definitive conclusion as to 15

of the exhibits, testifying that she was only able to note

similarities between these documents and Mornan’s

handwriting, but not enough to conclude that he was

definitely, or even probably, the author. When asked on

cross-examination whether her opinions were rendered

“within a reasonable degree of scientific certainty,” she

responded, “I think they are.” (Id. at 455.) Again, although

defense counsel cross-examined Jackson regarding her degree

of certainty, the defense made no objection to her

qualifications as an expert or to the admissibility of her

testimony.

At the close of the evidence, the jury found Mornan

7

guilty on 11 counts of mail fraud, three counts of wire fraud,

and one count of conspiracy to commit mail fraud and wire

fraud. The jury found Mornan not guilty on two counts of

mail fraud and one count of wire fraud. The jury’s verdict

was entered on April 15, 2003. The Probation Office

compiled a Presentence Investigation Report (“PSR”) in

preparation for sentencing. The PSR alleged that Mornan

worked with nine co-conspirators, that the crime involved

sophisticated means, that Mornan was an organizer or leader

of a crime involving five or more participants, and that he was

responsible for $557,305.00 in losses to 752 victims. Defense

counsel filed timely objections to these allegations.

The District Court held a sentencing hearing on

January 29, 2004, and found that the factual allegations in the

PSR were established by a preponderance of the evidence. In

accordance with the United States Sentencing Guidelines, the

District Court applied a 24-level increase to Mornan’s base

offense level of 6. This raised his Guidelines sentencing

range from 0-6 months to 97-121 months. The District Court

sentenced Mornan to a prison term of 120 months, to be

followed by three years of supervised release. The court also

ordered Mornan to pay $145,464.90 in restitution and

imposed a special assessment of $1,500.00.

II. JURISDICTION

Pursuant to 18 U.S.C. § 3231, the District Court

properly exercised subject matter jurisdiction over the federal

criminal charges arising under 18 U.S.C. §§ 371, 1341, and

1343. Mornan filed a timely Notice of Appeal on February 6,

8

2004, and this Court has jurisdiction over the appeal pursuant

to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

III. ANALYSIS

Mornan raises four issues on appeal: the admissibility

of Althea Burton’s prior statement; the admissibility of

Kirsten Jackson’s expert testimony; the sufficiency of

evidence adduced at trial to sustain a judgment of conviction;

and the propriety of his sentence under the Sixth

Amendment.2 We will address each of these issues in turn.

A. Admissibility of Burton’s Prior Statement

1. Standard of Review

“To the extent that our review of the District Court’s

determination implicates its interpretation of the Federal

Rules of Evidence, our review is plenary, but where the

District Court’s ruling was ‘based on a permissible

interpretation of a rule,’ we review only for an abuse of

2

In his initial brief to this Court, Mornan raised a fifth issue,

claiming that the Government’s trial exhibits were never

properly admitted into evidence and thus should not have been

shown to the jury. However, the Government submitted a

Supplemental Appendix including portions of the trial transcript

wherein the court properly admitted the Government’s exhibits

into evidence without objection. Accordingly, Mornan

expressly abandoned this issue in his Reply Brief.

9

discretion.” United States v. Peppers, 302 F.3d 120, 137 (3d

Cir. 2002) (quoting United States v. Console, 13 F.3d 641,

656 (3d Cir. 1993)).

2. Discussion

Although the District Court admitted Burton’s

September 2001 statement as a prior inconsistent statement

under Rule 801(d)(1)(A), both parties seem to agree that Rule

803(5) “is the better of the two proffered grounds for

admissibility.” (Brief for Appellee at 33, n.7.) The parties

therefore focus their arguments on the statement’s

admissibility as a past recollection recorded, and we will

address that issue first.

a. Analysis under Fed. R. Evid. 803(5)

We agree with Mornan that Burton’s prior statement

did not meet the requirements of Rule 803(5) because Burton

neither adopted nor reviewed the statement prior to her

purported memory loss. The hearsay exception under Rule

803(5) provides:

Recorded recollection. A memorandum or record

concerning a matter about which a witness once had

knowledge but now has insufficient recollection to

enable the witness to testify fully and accurately,

shown to have been made or adopted by the witness

when the matter was fresh in the witness’ memory and

to reflect that knowledge correctly. If admitted, the

memorandum or record may be read into evidence but

10

may not itself be received as an exhibit unless offered

by an adverse party.

Fed. R. Evid. 803 (emphasis added). This rule requires the

witness to have either made the record herself, or to have

reviewed and adopted the statement, at a time when the matter

it concerned was fresh in her memory. See 5-803 Weinstein’s

Federal Evidence § 803.07[d] (“A memorandum written by

another is admissible as the witness’s recorded recollection if

the witness can testify (1) that the witness checked the

memorandum when the matter it concerned was fresh in his or

her memory, and (2) that the witness then knew it to be

correct.”). Where, as here, the statement was recorded by

someone other than the declarant, accuracy may be

established through the testimony of the person who recorded

the statement. United States v. Booz, 751 F.2d 719, 725 (3d

Cir. 1971).

In this case, the recording was made by a typist and

attested to by an “official examiner” in Canada, and the

Government did not show that Burton either reviewed or

adopted the examiner’s recording. She testified that she could

not remember if she reviewed the statement, and the writing

does not bear Burton’s signature to indicate that she reviewed

it and attested to its accuracy at the time the record was made.

Burton also could not attest to the accuracy of her statement

during her current testimony. Although she remembered

being placed under oath before giving the September 2001

statement, when asked whether the recording was accurate,

Burton replied, “I don't know that for certain, but I would

hope so.” (App. at 805.) Moreover, the Government did not

11

call the official examiner as a witness to establish that the

recording accurately reflected Burton’s oral statement.

The Government attempts to establish accuracy in this

case by pointing to various indicia of reliability, such as the

fact that Burton was under oath and was promised that the

statement would not be used against her. The Government

relies on the Sixth Circuit’s decision in United States v.

Porter, 986 F.2d 1014 (6th Cir. 1993), and the Second

Circuit’s decision in Parker v. Reda, 327 F.3d 211 (2d Cir.

2003), for the proposition that “Rule 803(5) does not specify

any particular method of establishing the knowledge of the

declarant nor the accuracy of the statement.” Porter, 986 F.2d

at 1017; see also Parker, 327 F.3d at 214. However, Porter

and Parker are distinguishable from this case because the

Government did not show that Burton made, reviewed, or

adopted the statement at issue here. In Porter, the witness

reviewed and signed the written statement at issue on each

page, 986 F.2d at 1017, and in Parker, the witness wrote and

signed the statement himself, 327 F.3d at 213.

The indicia of reliability to which the Government

points may support the position that Burton spoke truthfully in

September 2001, but the Government has not established –

through Burton’s current testimony, the testimony of the

“official examiner,” or Burton’s signature on the writing –

that the written recording read to the jury was either made or

adopted by Burton, as is expressly required by Rule 803(5).

The District Court therefore correctly held that Rule 803(5)

does not apply to Burton’s September 2001 statement.

12

b. Analysis under Fed. R. Evid.

801(d)(1)(A)

Although we will not rely on Rule 803(5) to affirm the

District Court’s admission of Burton’s prior statement, we

will affirm the court’s decision to admit the statement under

Fed. R. Evid. 801(d)(1)(A). That rule provides that a

witness’s prior statement is not considered hearsay where:

The declarant testifies at the trial or hearing and is

subject to cross-examination concerning the statement,

and the statement is (A) inconsistent with the

declarant’s testimony, and was given under oath

subject to the penalty of perjury at a trial, hearing, or

other proceeding, or in a deposition. . . .

Fed. R. Evid. 801(d)(1). That Burton’s September 2001

statement was given under oath at a prior deposition and that

she was subject to cross-examination during her current

testimony is not in dispute. Mornan argues on appeal,

however, that the prior statement was not actually inconsistent

with Burton’s current testimony. See United States v.

Palumbo, 639 F.2d 123, 128 n.6 (3d Cir. 1981) (“lack of

memory as to the substance of a prior statement may not be

inconsistent in certain circumstances with the prior

statement.”).

We agree with Mornan that a witness’s lack of memory

regarding a prior statement is not diametrically opposed to the

substance of that statement. However, inconsistency under

Rule 801(d)(1)(A) is not limited to diametrically opposed

13

statements. See 5-801 Weinstein's Federal Evidence §

801.21[2][b] (“A witness’s statement that he or she has no

recollection of the subject may be treated as ‘inconsistent’

with a former statement concerning the now-forgotten

matter.”). Although this Court noted in Palumbo, 639 F.2d at

128 n.6, that a prior statement should not be admitted if the

witness’s current memory loss regarding that statement is

genuine, we join several other circuits in holding that a prior

statement may be admitted under Rule 801(d)(1)(A) where the

witness’s memory loss is not genuine. See, e.g., United States

v. Bigham, 812 F.2d 943, 946-47 (5th Cir. 1987) (prior grand

jury testimony is admissible where the witness “was

obviously an evasive and reluctant witness, and the trial judge

reasonably could have concluded that his loss of memory was

feigned”); United States v. Williams, 737 F.2d 594, 608 (7th

Cir. 1984) (in the context of a recalcitrant witness, lack of

memory is inconsistent with detailed grand jury testimony);

United States v. Thompson, 708 F.2d 1294, 1302 (8th Cir.

1983) (“The district court should have considerable discretion

to determine whether evasive answers are inconsistent with

statements previously given.”); see also United States v.

Owens, 484 U.S. 554, 565 (1988) (“It would seem strange . . .

to assert that a witness can avoid introduction of testimony

from a prior proceeding . . . by simply asserting lack of

memory of the facts to which the prior testimony related.”).

In this case, the District Court acted within its

discretion when it found that Burton’s purported lack of

memory was not genuine. (See App. at 383.) Burton claimed

that her memory loss was caused by a relatively minor

automobile accident that occurred in August 2002. After the

14

accident, she was not hospitalized, and she was never treated

for memory loss. She was never given any medication

stronger than Tylenol 3 for her head and neck injuries.

Moreover, Burton testified that she was aware that her cousin,

Michael Williams, had been indicted for his alleged role in

the fraud, that she is close to her cousin, and that she had a

“family meeting of sorts” with Williams’ sister the night

before giving her videotaped testimony. (App. at 801.) Given

the circumstances surrounding Burton’s testimony, “[t]he

district court reasonably could have concluded that this

selective memory loss was more convenient than actual.”

Bigham, 812 F.2d at 947. We therefore find no abuse of

discretion in the admission of Burton’s September 2001

statement as a prior inconsistent statement under Rule

801(d)(1)(A).

B. Admissibility of Jackson’s Expert Testimony

1. Standard of Review

Where a defendant fails to object to the admission of

evidence (including expert testimony) during trial, this Court

reviews the decision to admit that evidence for plain error.

United States v. Adams, 252 F.3d 276, 278-79 (3d Cir. 2001)

(citing Johnson v. United States, 520 U.S. 461 (1997));

United States v. Watson, 260 F.3d 301, 306 (3d Cir. 2001);

see also Fed. R. Crim. P. 52(b). This Court recently explained

our role in exercising plain error review:

Under plain error review, we may grant relief if (1) the

District Court committed an “error,” (2) it was “plain,”

15

and (3) it affected “substantial rights” of the defendant.

United States v. Olano, 507 U.S. 725, 732 (1993). “A

deviation from a legal rule is [an] ‘error.’” United

States v. Russell, 134 F.3d 171, 180 (3d Cir. 1998)

(citation omitted). It is “plain” when “‘clear’ or

‘obvious.’” Id. (citation omitted). In order for an error

to affect “substantial rights,” it must have been

“prejudicial”; in other words, “it must have affected

the outcome of the district court proceedings.” Olano,

507 U.S. at 734. If these requirements are satisfied, we

should exercise our discretion to grant relief if the error

“‘seriously affects the fairness, integrity or public

reputation of judicial proceedings.’” Id. at 736

(citation omitted); see also Adams, 252 F.3d at 284-85.

United States v. Plotts, 359 F.3d 247, 249 (3d Cir. 2004).

2. Discussion

An expert witness may be permitted to testify

regarding “scientific, technical, or other specialized

knowledge” if it “will assist the trier of fact to understand the

evidence or to determine a fact in issue.” Fed. R. Evid. 702.

In order to qualify as expert testimony under the Federal

Rules, the following three requirements must be satisfied: (1)

the testimony must be “based upon sufficient facts or data”;

(2) the testimony must be “the product of reliable principles

and methods”; and (3) the witness must have “applied the

principles and methods reliably to the facts of the case.” Id.

This Court has previously held that handwriting analysis in

general is sufficiently technical in nature to be the subject of

16

expert testimony under Rule 702 and the standard articulated

by the Supreme Court in Daubert v. Merrell Dow Pharm.,

Inc., 509 U.S. 579 (1993). United States v. Velasquez, 64

F.3d 844, 850-51 (3d Cir. 1995). The issue here is thus

whether Jackson’s testimony in particular was sufficiently

detailed and reliable to be helpful to the jury.

We are mindful that “whether Daubert’s specific

factors are, or are not, reasonable measures of reliability in a

particular case is a matter that the law grants the trial judge

broad latitude to determine. ” Kumho Tire Co. v. Carmichael,

526 U.S. 137, 152 (1999). Deference to the trial judge is

particularly warranted where the defendant does not object to

the admissibility of the expert’s testimony. Under Rule 702

and the Supreme Court’s ruling in Daubert, the District Court

has an obligation to evaluate the reliability of expert

testimony “where such testimony’s factual basis, data,

principles, methods, or their application are called sufficiently

into question,” Kumho Tire, 526 U.S. at 149. However,

where the opposing party does not sufficiently call these

issues into question, we will not find plain error merely

because the District Court did not conduct an extensive

Daubert analysis on the record. See Macsenti v. Becker, 237

F.3d 1223, 1231-32 (10th Cir.2001) (“Daubert does not

mandate an inquiry questioning and challenging the scientific

proffer absent a timely request by an objecting party.”); Hoult

v. Hoult, 57 F.3d 1, 4-5 (1st Cir.1995) (“We do not think,

however, that district courts are required, sua sponte, to make

explicit on-the-record rulings regarding the admissibility of

expert testimony.”); see also United States v. Evans, 272 F.3d

1069,1094 (8th Cir.2001) (“There is no requirement that the

17

District Court always hold a Daubert hearing prior to

qualifying an expert witness. . . .”).

In this case, Jackson explained her qualifications, her

methodology, the bases for her conclusions, and the degrees

of certainty with which she was able to reach her conclusions.

Mornan nevertheless challenges the admissibility of her

testimony based on the answer to one question on cross-

examination. When the defense attorney asked Jackson

whether her opinions were rendered to a “reasonable degree

of scientific certainty,” she replied, “I think they are.” (App.

at 455.) As the Government has pointed out, however, “there

is nothing magical about the phrase, ‘to a reasonable degree

of scientific certainty.’” (Brief for Appellee at 52.) It is not

derived from the language of Rule 702 itself, and this Court

has been unable to find any authority to support the position

that questions regarding the expert’s “degree of scientific

certainty” categorically renders expert testimony inadmissible.

Handwriting experts often give their opinions in terms

of probabilities rather than certainties. See, e.g., United

States v. Rosario, 118 F.3d 160, 163 (3d Cir. 1997)

(considering a handwriting expert’s testimony that the

defendant “probably” authored a forged check in affirming a

forgery conviction); United States v. McGlory, 968 F.2d 309,

346 (3d Cir. 1992) (handwriting testimony is admissible

“even if the handwriting expert is not absolutely certain that

the handwriting is that of the defendant.”); United States v.

Galvin, 394 F.2d 228, 229 n.1 (3d Cir. 1968) (handwriting

testimony is not rendered inadmissible merely “because it

18

expresses a probability”). Indeed, Jackson testified that

rendering “less-than-certain” opinions is an accepted practice

in her field.3 We therefore find no error (let alone a plain

error) in the District Court’s decision to allow Jackson’s

testimony and to allow the jury to determine what weight to

give her “less-than-certain” conclusions. See McGlory, 968

F.2d at 346 (“Any issue regarding the certainty of [the

handwriting expert’s] testimony goes to the weight given that

testimony and could be tested by cross-examination.”);

3

Jackson’s practice of giving opinions along a “continuum,”

is very similar to the practice commonly implemented by

document examiners, as described by this Court in Rosario:

“Probable” is a term of art used by Secret Service

document examiners. The “probable” category falls

exactly in the middle of the six-point spectrum between

“positive identification” and “positive elimination.”

Thus, handwriting experts will use the term “probable”

to describe times when the evidence falls considerably

short of the “virtually certain” category and yet still

points rather strongly toward the suspect, i.e., there are

several significant similarities present between the

questioned and known writings, but there are also a

number of irreconcilable differences and the examiner

suspects that they are due to some factor but cannot

safely attribute the lack of agreement to the effect of that

factor.

118 F.3d at 163

19

Galvin, 394 F.2d at 229 n.1 (“reservations in the expressed

opinion . . . go to the weight of the evidence and are a

determination for the jury or fact-finder to make. . . .”).

C. Sufficiency of the Evidence

1. Standard of Review

Where, as here, a defendant does not preserve the issue

of sufficiency of the evidence by making a timely motion for

judgment of acquittal at the close of the evidence, this Court

reviews the sufficiency of the evidence for plain error. United

States v. Wolfe, 245 F.3d 257, 260-61 (3d Cir. 2001); United

States v. Gaydos, 108 F.3d 505, 509 (3d Cir. 1997); see also

Fed. R. Crim. P. 52(b). In conducting plain error review, we

“view the evidence in the light most favorable to the

government and must sustain a jury’s verdict if ‘a reasonable

jury believing the government’s evidence could find beyond a

reasonable doubt that the government proved all the elements

of the offenses.’” Rosario, 188 F.3d at 163 (quoting United

States v. Salmon, 944 F.2d 1106, 1113 (3d Cir. 1991)). This

places a “very heavy burden” on the appellant. Id. (quoting

United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir. 1995)).

2. Discussion

In this appeal, Mornan challenges the sufficiency of

the evidence to sustain his conspiracy conviction, essentially

claiming that the evidence offered at trial revealed “that

Mornan was merely an employee in this scheme” rather than a

willing participant in a conspiracy to defraud. (Brief for

20

Appellant at 40.) However, viewing the evidence adduced at

trial in the light most favorable to the Government, that

evidence suggested that Mornan was much more than an

employee.

First, Mornan himself admitted to the police that he

was an office manager at the Sun Corp. offices in 1998.

Second, the police found a list of United States newspapers on

Mornan’s desk at Sun Corp., from which a jury could infer

that he had at least some responsibility for placing the

misleading advertisements that were at the heart of this

scheme. Finally, the Government produced evidence and

testimony tending to show that Mornan himself leased office

space, rented mailboxes, received mail, and cashed money

orders on behalf of the sham companies that were set up to

carry out the scheme. A reasonable jury believing this

evidence could certainly find beyond a reasonable doubt that

Mornan was guilty of wire fraud, mail fraud, and conspiracy.

We will therefore affirm his conviction.

D. Mornan’s Sentencing Challenge

As noted, Mornan received substantial enhancements

to his sentence based on facts not alleged in the indictment,

proven to the jury beyond a reasonable doubt, or admitted by

the defendant. Under a mandatory Guidelines system, this

would clearly constitute a violation of Mornan’s rights under

the Sixth Amendment as interpreted by the Supreme Court in

Booker, 543 U.S. __, 125 S. Ct. 738. Therefore, having

concluded that sentencing issues that arise in light of the

Booker decision are best determined by the District Court in

21

the first instance, United States v. Davis, 407 F.3d 162, 165-

66 (3d Cir. 2005) (en banc), we will vacate the sentence and

remand for re-sentencing.

22