United States v. Brown

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 92-7707

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JACKIE V. BROWN,

Defendant-Appellant.

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Appeal from the United States District Court for the

Northern District of Mississippi

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(November 10, 1993)

Before GARWOOD, DAVIS and SMITH, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Jackie Brown (Brown) participated in a

money order scam operating out of Parchman State Penitentiary in

Mississippi. A jury found him guilty of conspiracy to alter and

pass altered postal money orders and aiding and abetting mail

fraud. The district court imposed concurrent sentences of 15

months' imprisonment and 3 years' supervised release on each count,

and ordered Brown to pay $1,092 in restitution. Brown appeals the

district court's application of the Sentencing Guidelines and

certain evidentiary rulings. We affirm.

Facts and Proceedings Below

In January 1992, Evelyn Lomoriello (Lomoriello), a sixty-five-

year-old Florida retiree, began corresponding through a "lonely

hearts pen-pal club" with Richard Sims (Sims), an inmate at

Parchman State Penitentiary in Mississippi. In April 1992,

Lomoriello began accepting collect calls from Sims. In their

conversations, Sims informed her that he planned to receive several

money orders from Johnny Clark, whom he represented as his case

worker. Telling Lomoriello that he needed the money to pay his

fines, Sims asked her to deposit the money orders in her bank

account and to send $5,000 of the money to a man identified as

Jackie Brown in Cleveland, Mississippi.

On April 3, 1992, Lomoriello received 8 $700 money orders,

totalling $5,600. Pursuant to Sims's instructions, she deposited

them in her account, sent $5,000 to Brown in Cleveland by wire

transfer, paid $200 to Western Union, and kept $400 for herself to

pay for the collect calls. When Lomoriello's bank discovered the

money orders had been altered to reflect $700 instead of their true

$1 face values, the bank charged the $5,600 back to her account.

Two weeks later, Lomoriello received a second set of altered money

orders from Clark. By this time, however, police had warned her of

the scam, and she turned the altered money orders over to postal

authorities.

On April 6, 1992, Brown, a contract food manager at Parchman,

received three Western Union drafts (one in the amount of $1,000

and two $2,000 drafts), and attempted to cash them the following

day. The Western Union agent cashed only the $1,000 draft and then

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called the police to inform them that Brown, using Parchman prison

identification, had received the money from a woman in Florida.

After learning from Lomoriello that she had been corresponding with

a Parchman inmate, Detective Serio of the Cleveland Police

Department attempted to contact Brown. On April 8, 1992, Brown

came to the police station and turned over the two uncashed $2,000

drafts and $500 of the draft that he had cashed. The following

day, Brown voluntarily returned to the police station and gave

Inspector Collins a handwritten statement admitting that he had

picked up the money orders at the direction of Parchman inmate

Ronnie Franklin. At trial, Brown admitted he was to receive $500

for smuggling the money into Parchman.

Josephine Fortner (Fortner), a Michigan retiree, testified

that she had also been corresponding with an inmate at Parchman

named Richard Sims. Fortner received $3,500 in altered money

orders from Johnny Blackman, who claimed to be Sims's case worker.

Following Sims's instructions, she cashed the money orders, kept

$500 for herself, and sent $3,000 via Express Mail to Jackie Brown

at 900 White Street, Apartment 10-D, Cleveland, Mississippi. Upon

discovery of the alterations, her bank charged the $3,500 to her

account.

Brown was indicted and found guilty on charges of conspiracy

to alter and pass altered postal money orders in violation of 18

U.S.C. § 371 (count one), and aiding and abetting mail fraud in

violation of 18 U.S.C. §§ 2 and 1343 (count two). Over his

objections to the presentence report (PSI), the district court

imposed concurrent sentences of 15 months' imprisonment and 3

3

years' supervised release on each count, and ordered Brown to pay

$1,092 in restitution to Lomoriello. Brown now appeals, arguing

that the district court erred by (1) misapplying the Sentencing

Guidelines, (2) refusing to dismiss count two as duplicitous, (3)

admitting evidence of other money orders sent to Lomoriello and

cash sent to Brown's address, and (4) refusing to admit a

handwriting report. Brown's brief also makes a passing assertion

that the district court erred by admitting Brown's written

statement. We find no reversible error, and accordingly we affirm.

Discussion

I. Application of the Sentencing Guidelines

The base offense level for fraud and deceit is six. U.S.S.G.

§ 2F1.1(a). The district court, in sentencing Brown, added a total

of eight additional offense levels. We review the district court's

application of the Sentencing Guidelines de novo, and we review its

findings of fact under a clearly erroneous standard. United States

v. Wimbish, 980 F.2d 312, 313 (5th Cir. 1992), cert. denied, 113

S.Ct. 2365 (1993). A factual finding is not clearly erroneous as

long as the finding "is plausible in light of the record as a

whole." Id.

A. Amount of Loss

The Sentencing Guidelines provide for a 2-offense level

enhancement if the loss resulting from a fraud or deceit offense

exceeds $5,000. U.S.S.G. § 2F1.1(b)(1)(C). Since the district

court's calculation of the amount of loss is a factual finding, we

review this determination for clear error. Wimbish, 980 F.2d at

313; United States v. Sowels, 998 F.2d 249, 251 (5th Cir. 1993).

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Brown argues that since he returned the 2 uncashed money orders and

$500 in cash, the actual loss caused by his actions was only $700

($500 he spent and $200 charged by Western Union). Section 2F1.1,

however, states that if the "intended loss that the defendant was

attempting to inflict can be determined, this figure will be used

if it is greater than the actual loss." U.S.S.G. § 2F1.1, comment.

(n. 7). Where a defendant attempts to pass altered or forged

checks, the face value of the checks reflects the intended loss,

even if the money is recovered or returned.1 Wimbish, 980 F.2d at

316; see also Sowels, 998 F.2d at 252 (combined credit limit of

stolen credit cards totalling $351,600 represented intended loss

regardless of the actual charges made); United States v. Lghodaro,

967 F.2d 1028, 1031 (5th Cir. 1992) (full value of fraudulently

filed insurance claim even though defendant only received a portion

of the claim). In the present case, the defendant clearly intended

Lomoriello to suffer a loss exceeding $5,000. He should not be

rewarded simply because law enforcement officials thwarted his

plans.

1

The Application Notes to section 2F1.1 state that "if the

fraud consisted of selling or attempting to sell $40,000 in

worthless securities, or representing that a forged check for

$40,000 was genuine, the loss would be $40,000." U.S.S.G. §

2F1.1, comment. (n. 7). The district court calculated the

intended loss at $9,100 based on the face value of both sets of

money orders sent to Lomoriello. Arguably, the intended loss

should be confined to the first set of Lomoriello money orders

and reduced by the $400 Lomoriello was to keep since the

conspirators never intended her to lose that portion of the

money. However, at a minimum, they intended her to lose the

$5,000 she wired to Brown and what she would have to pay to

Western Union to send the funds to Brown ($200, as it turned

out). Since the resulting intended loss still exceeds $5,000,

the sentence enhancement would still apply.

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B. More Than Minimal Planning

The Sentencing Guidelines provide for an enhancement of two

offense levels "[i]f the offense involved (A) more than minimal

planning, or (B) a scheme to defraud more than one victim."

U.S.S.G. § 2F1.1 (b)(2). The Guidelines define "more than minimal

planning" as "more planning than is typical for commission of the

offense in a simple form," or "[taking] affirmative steps . . . to

conceal the offense." U.S.S.G. § 1B1.1, comment. (n. 1 (f)). The

determination as to whether the "defendant engages in more than

minimal planning is a fact question reviewed under the clearly

erroneous standard." United States v. Barndt, 913 F.2d 201, 204

(5th Cir. 1990).

The PSI indicates the criminal conspiracy in which Brown

participated was an elaborate scheme involving significant planning

to obtain and alter United States Postal Service money orders, to

target and manipulate specific victims, to conceal the offense, and

to smuggle the proceeds into the penitentiary. The scam required

coordination and cooperation among at least one prison inmate, the

alleged "case worker" who sent the altered drafts to Lomoriello,

and Brown. Brown's role alone, which involved picking up the

drafts, cashing them, and smuggling the money back into Parchman,

took more than minimal planning to accomplish.

Brown argues that the scam involved no more planning than a

typical prison money order scam. The Guidelines, however, do not

require the government to prove that the instant offense was

somehow more elaborate than comparably elaborate offenses, but

rather that it involved more planning than a "simple form" offense.

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To commit a money order scam in its "simple form," a defendant

would merely obtain money orders, alter the amounts, and cash them.

Since the planning required for the instant offense greatly exceeds

this model, we conclude the district court did not clearly err in

assessing the enhancement.2

C. Vulnerable Victims

The district court imposed a two-point enhancement after

finding that Lomoriello was an unusually vulnerable victim to this

sort of fraud. The Guidelines permit this enhancement if the

defendant knew or should have known that a victim of the offense

was unusually vulnerable due to age, physical or mental condition,

or that a victim was otherwise particularly susceptible to the

criminal conduct. U.S.S.G. § 3A1.1. The determination of

"vulnerability is a complex fact dependent upon a number of

characteristics which a trial court could not possibly articulate

completely," and is certainly "not reducible to a calculation of

the victim's age or to a diagnosis of the victim's disease." United

States v. Mejia-Orosco, 868 F.2d 807, 809 (5th Cir.), cert. denied,

109 S.Ct. 3257 (1989). We give due deference to the district

court's determination of vulnerability and of what the defendant

2

Brown also argues that he should have received a reduction

in his offense level because he played a minimal or minor role in

the conspiracy. This is an issue on which Brown had the burden

of proof. The PSI found "no evidence to suggest that [he] was

less culpable than any of the persons involved in the

conspiracy." Addendum to PSI at 7. In particular, the report

pointed out that his "official position was an integral factor

which facilitated the commission of the offense; . . . therefore,

his role could not be described as minor." Id. The district

court adopted the PSI. Brown has not demonstrated that the

district court's adoption of this aspect of the PSI was clearly

erroneous or the product of legal error.

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knew or should have known in this respect. United States v. Rocha,

916 F.2d 219, 244-45 (5th Cir. 1990), cert. denied, 111 S.Ct. 2057

(1991). The PSI indicates that the Parchman scam primarily targets

older women who are basically alone in life, in that they are

usually widowed, elderly and have no family close at hand.

Lomoriello and Fortner each fit the description of a lonely,

elderly widow seeking attention and companionship through a lonely

hearts pen-pal magazine; and thus, particularly susceptible to the

conspirators' manipulation and deceit.

Brown contends that the enhancement should not apply because

he did not know the actual victims of the scam were unusually

vulnerable. He cites United States v. Sutherland, 955 F.2d 25 (7th

Cir. 1992), for the position that a defendant must know the

specific victim was unusually vulnerable rather than merely knowing

that the scam targeted a particular group. This assertion

misstates Sutherland. In Sutherland, the Seventh Circuit ruled

that the enhancement was not warranted where the defendant

conducted a mail fraud scam targeting war veterans as a group. Id.

at 27 & n.1. The Court found that neither the victims' ages nor

their status as war veterans made them unusually vulnerable because

the scam targeted young Vietnam veterans as well as older veterans

of World War II, and there was no indication that, as a group, war

veterans are any more susceptible to fraud than the general public.

Id. The instant case presents the exact opposite situation. Not

only were the victims of the Parchman scam specifically chosen for

their age, loneliness, and gullibility, but the district court

could have reasonably concluded that lonely, elderly widows, as a

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group, are more susceptible than the general public to this type of

fraud.3 We conclude the district court did not err in finding the

women targeted by the scam were "vulnerable victims" under section

3A1.1. Furthermore, we have no reason to doubt that Brown, as a

worker at Parchman, knew or should have known that the scam

targeted this type of victim.

D. Abuse of Position of Public Trust

Section 3B1.3 provides an enhancement of two offense levels

"[i]f the defendant abused a position of public or private trust,

or used a special skill, in a manner that significantly facilitated

the commission . . . of the offense." U.S.S.G. § 3B1.3. Because

the application of section 3B1.1 involves a sophisticated factual

determination, we must affirm the district court's conclusion

unless it is clearly erroneous. United States v. Brown, 941 F.2d

1300, 1304 (5th Cir.), cert. denied 112 S.Ct. 648 (1991). It is

axiomatic that the public places tremendous trust in prison

employees that they will not conspire with inmates to violate the

law. Id. at 1305. The fact that Brown's employer was a private

entity that contracted its work to the prison is relevant but not

3

Brown's claim that vulnerability can not be based on a

targeted group contradicts the intent of section 3A1.1. The

commentary indicates the adjustment for vulnerable victims would

apply "in a fraud case where the defendant marketed an

ineffective cancer cure [to cancer patients]." § 3A1.1, comment.

(n. 1). Nowhere in this example does it state that any

individual victim purchasing such a cure must be unusually

vulnerable beyond the fact that he has cancer and is seeking a

cure. In other words, the Guidelines deem cancer patients, as a

group, to be unusually vulnerable vis a vis the general public to

snake oil salesmen promising cancer cures. Similarly, as a

group, lonely, elderly widows could legitimately be considered

unusually susceptible to frauds that prey on the companionship

they miss and desire.

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determinative. The district court found that Brown's employment

inside the prison as a food service manager afforded him the unique

opportunity to interact with inmates without being scrutinized by

prison officials. Since he, unlike members of the general public,

had access in and out of the penitentiary without being searched,

he could easily deliver the money to the inmates in furtherance of

the crime.

Brown argues that he did not occupy a position of trust

because his employment at Parchman merely provided an opportunity

to commit the offense. The Application Notes explain that "[t]he

position of trust must have contributed in some substantial way to

facilitating the crime and not merely have provided an opportunity

that could as easily have been afforded to other persons."

U.S.S.G. § 3B1.1, comment. (n. 1). As an example, the adjustment

"would not apply to an embezzlement by an ordinary bank teller."4

Id. Unlike teller embezzlement, a position of trust is not already

implicit in charges of mail fraud and money order alteration

against a prison worker (see note 4). Moreover, Brown's position

is in other respects not wholly analogous to an embezzling bank

teller. As the Ninth Circuit has stated:

"[T]he primary trait that distinguishes a person in a

position of trust from one who is not is the extent to

which the position provides the freedom to commit a

difficult-to-detect wrong." United States v. Hill, 915

4

We have observed in some decisions a reluctance to broadly

analogize from the so-called "bank teller exception," either

limiting the scope of its application or suggesting that a

teller's position of trust is already implicit in the charge of

embezzlement, and thus already included in the offense level.

Brown, 941 F.2d at 1305 n.6 (citing United States v. Drabeck, 905

F.2d 1304, 1306-07 (9th Cir. 1990)).

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F.2d 502, 506 (9th Cir. 1990).

It has been stated that the rationale underlying the "bank teller

exception" is that although the teller's position provides an

opportunity to embezzle money, reasonably diligent supervisors

could easily detect the wrongdoing after it has occurred. United

States v. Helton, 953 F.2d 867, 870 (4th Cir. 1992) ("lax

supervision alone does not convert one's job into a 'position of

trust' under § 3B1.3."). Where the wrongdoing is smuggling money

into a prison, however, there is no analogous supervision capable

of detecting the completed crime. Brown's employment provided

prison admittance without being searched and unsupervised access to

inmatesSQfactors which were indispensable for the commission of the

crime and which were unique to his employment.5 We ultimately

5

Brown argues that if his employment as a food service

manager is deemed a position of public trust then all prison

employees would automatically be subject to a similar sentence

enhancement solely on the basis of their employment. This

assertion does not accurately reflect section 3B1.3. The

enhancement only applies if the district court finds the

defendant (1) occupies a position of trust, and (2) has abused

his position in a manner that significantly facilitated the

commission or concealment of the offense. In reviewing another

scheme involving Parchman employees smuggling contraband to

inmates, we stated:

"[T]he question here is not whether any other Parchman

employee could have committed the offense, but rather

whether Brown occupied a superior positionSQrelative to

all people in a position to possess with intent to

distribute heroin (i.e., the general public)SQas a

result of his counselor role." Brown, 941 F.2d at

1305.

The 1993 amendments to section 3B1.3 further support this

presumption. The amended commentary declares that "because of

the special nature of the United States mail an adjustment for an

abuse of a position of trust will apply to any employee of the

U.S. Postal Service who engages in the theft or destruction of

undelivered United States mail." U.S.S.G. § 3B1.3, comment.

11

conclude that the district court did not clearly err in finding

that Brown occupied a position of public trust and that he abused

that position in a manner that substantially facilitated the

offense.

E. Acceptance of Responsibility

Brown argues that the district court should have reduced his

offense level by two points for acceptance of responsibility

pursuant to section 3E1.1.(a). Factors used to determine whether

the defendant has accepted responsibility include his "voluntary

surrender to authorities promptly after commission of the offense

[and] assistance to authorities in the recovery of the fruits . .

. of the offense." U.S.S.G. § 3E1.1, comment. (n.1(d),(e)). Brown

argues that the district court should have granted a reduction for

acceptance of responsibility because he voluntarily appeared at the

police station, returned the uncashed money orders, and confessed

his participation in the conspiracy. However, because the district

court "is in a unique position to evaluate a defendant's acceptance

of responsibility. . . . the determination of the sentencing judge

is entitled to great deference on review." U.S.S.G. § 3E1.1,

comment. (n.5). Therefore, we review the district court's decision

under a standard even more deferential than a pure clear error

standard. United States v. Watson, 988 F.2d 544, 551 (5th Cir.

1993), petition for cert. filed, (July 29, 1993) (No. 93-5407).

The adjustment for acceptance of responsibility "is not

intended to apply to a defendant who puts the government to its

(n.1) (effective Nov. 1, 1993) (emphasis added).

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burden of proof at trial by denying the essential factual elements

of guilt." U.S.S.G. § 3E1.1, comment. (n.2). The commentary

provides an exception for "rare situations" where:

"[A] defendant may clearly demonstrate an acceptance of

responsibility for his criminal conduct even though he

exercises his constitutional right to a trial . . . to

assert and preserve issues that do not relate to factual

guilt (e.g., to make a constitutional challenge to a

statute or a challenge to the applicability of a statute

to his conduct)." Id.

This case plainly does not present one of those rare situations.

The district court did not clearly err in denying a reduction for

acceptance of responsibility.

II. Refusal to Dismiss Count Two

Brown asserts that the district court erred in refusing to

dismiss count two (aiding and abetting mail fraud) because it

required proof of the same set of operative facts as count one

(conspiracy). The courts have consistently ruled that the

commission of a substantive crime and a conspiracy to commit that

crime are separate and distinct offenses. Pinkerton v. United

States, 328 U.S. 640, 643, 66 S.Ct 1180, 1182 (1946). Wharton's

Rule,6 however, prohibits conviction for both the substantive

offense and conspiracy to commit that offense if the substantive

offense necessarily requires the participation and cooperation of

more than one person. United States v. Payan, 992 F.2d 1387, 1389

6

Wharton's Rule states that "[a]n agreement by two persons to

commit a particular crime cannot be prosecuted as a conspiracy

when the crime is of such a nature as to necessarily require the

participation of two persons for its commission." 1 R. Anderson,

Wharton's Criminal Law and Procedure, § 89, at 191 (1957); see

generally Iannelli v. United States, 95 S.Ct. 1284, 1288 & n.5

(1975).

13

(5th Cir. 1993). A conviction based solely on aider and abetter

liability would appear to require the involvement of at least two

persons since one cannot aid and abet oneself. Nevertheless, we

have recently held that Wharton's Rule does not bar separate

convictions for aiding and abetting an offense and conspiring to

commit that offense. Id. The aiding and abetting statute, 18

U.S.C. § 2, does not define an offense, but simply provides that

one who aids or abets the commission of a substantive offense is

punishable as a principal. Id. at 1390. In applying Wharton's

Rule, we consider whether "it is impossible under any circumstances

to commit the substantive offense without cooperative action." Id.

Clearly, a single individual acting alone is capable of committing

mail fraud as defined by 18 U.S.C. § 1343. Thus, the district

court properly refused to dismiss count two.

III. Admission of Evidence: Other Money Orders and Cash

Over the defendant's objection, the district court allowed the

government to introduce evidence of other money orders sent to

Lomoriello and cash mailed to Brown's address. We review such an

evidentiary ruling under an abuse of discretion standard. United

States v. Vasquez, 953 F.2d 176, 182 (5th Cir.), cert. denied, 112

S.Ct. 2288 (1992). First, Lomoriello testified that she received

a second set of money orders from Johnny Clark, again representing

himself as Sims's case worker. This time, however, Sims instructed

her to transfer the money to Wanda Newman in Oxford, Mississippi,

rather than to Jackie Brown. The district court admitted the

second set of money orders to show how the postal authorities were

alerted to the scheme and to show that Sims wanted to continue to

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do business with Lomoriello. The court did not elaborate further,

however, on the basis for its determination. The government argues

that these money orders were properly admitted under Fed.R.Evid

404(b) as evidence of other crimes, wrongs or acts used to show a

common scheme initiated by the same conspirator, Sims, and directed

at the same victim, Lomoriello. Essentially, the government

contends Brown represented one of several "spokes" emanating from

the same hub of a single conspiracy. Fortunately, our review of

this matter does not require us to resolve the merits of the

government's position. Were we to find the district court abused

its discretion by admitting this extrinsic evidence, we would still

conclude that the admission of this evidence was harmless. There

is no risk that it could have improperly been used to prove Brown

acted in conformity with such bad acts because Brown has already

confessed his involvement in the scam. The evidence against Brown

was overwhelming. His own brief states that "he immediately went

to the police station and confessed to Officer Serio and then, two

days later, again went voluntarily to the police station and again

confessed to the postal inspector and acknowledged his

participation on the witness stand . . ." and that he "confessed

his guilt to Postal Inspector Collins."

The district court also permitted Josephine Fortner to testify

that she had cashed money orders sent to her by Sims and had

forwarded the money to Jackie Brown at an address in Cleveland,

Mississippi. Brown denied ever receiving any cash from Fortner,

but admitted that he lived at the Cleveland address and that he was

the only Jackie Brown at that particular address. The court

15

instructed the jury that Fortner's testimony was admissible only as

proof of Brown's intent, state of mind, absence of mistake, and

motive or opportunity to commit the offense charged. We find that,

with these instructions, the district court acted within its

discretion in admitting Fortner's testimony.

IV. Refusal to Admit Handwriting Report

Brown contends the district court erred in refusing to admit

a handwriting report prepared by the government's analyst that

stated Brown "could not be identified or eliminated as the writer"

of the "Jackie Brown" signature on the Express Mail package receipt

sent to Brown's address by Fortner. The report stated that the

signature "evidence[d] features and characteristics consistent with

disguised writing and was possibly written with the writer's

unaccustomed (awkward) writing hand." Once again, we review the

district court's evidentiary ruling for abuse of discretion.

Vasquez, 953 F.2d at 182. In this case the analyst did not testify

and the government only presented evidence that Fortner was

instructed to (and did) send the cash to a person by the name of

Jackie Brown at an address later confirmed to be Brown's home

address. The government did not attempt to prove that the

signature on the receipt was genuine. Therefore, the information

contained in the handwriting report was not exculpatory, and, as

previously noted, the proof against Brown was overwhelming.

Accordingly, any error in this respect was harmless.

V. Admission of Brown's Written Statement

Finally, Brown asserts in passing the district court's

admission of his written statement given to Inspector Collins was

16

improper because Collins failed to give him his Miranda warnings.

This contention has not been properly raised in Brown's brief.

Even it if had been, it is wholly without merit. The law is well

settled that Miranda warnings are required only in instances of

custodial interrogation by law enforcement officials. Miranda v.

Arizona, 384 U.S. 436, 477-78 (1966). In this case, Brown was not

in custody when he gave the statement. Brown voluntarily appeared

at the police station, gave the statement, and left the station of

his own accord. The absence of custodial interrogation made

Miranda warnings unnecessary; thus, the district court properly

admitted the statement.

Conclusion

Brown has failed to show the district court below committed

any reversible error. Accordingly, his conviction and sentence are

AFFIRMED.

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