United States v. Elsesser

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4147
KEITH A. ELSESSER,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Lyle E. Strom, Senior District Judge.
(CR-01-79-V)

Submitted: January 30, 2004

Decided: March 12, 2004

Before WILKINSON, NIEMEYER, and GREGORY,
Circuit Judges.

Affirmed by unpublished per curiam opinion.

COUNSEL

Robert D. Jacobs, Richmond, Virginia, for Appellant. Robert J. Con-
rad, Jr., United States Attorney, Kenneth M. Smith, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. ELSESSER
OPINION

PER CURIAM:

Keith A. Elsesser appeals his convictions for conspiracy to commit
wire fraud and mail fraud, 18 U.S.C. § 371 (2000), aiding and abet-
ting wire fraud, 18 U.S.C. §§ 2, 1343 (2000), conspiracy to commit
money laundering, 18 U.S.C. § 1956(h) (2000), and four counts of
aiding and abetting engaging in monetary transactions in property
derived from unlawful activity, 18 U.S.C. §§ 2, 1957 (2000). On
appeal, Elsesser asserts that the district court improperly instructed
the jury regarding co-conspirator testimony. Elsesser also argues that
the district court erred in applying sentencing enhancements for role
in the offense, U.S. Sentencing Guidelines Manual § 3B1.1(c) (2002),
and abuse of position of trust, USSG § 3B1.3. Finding no error, we
affirm.

Elsesser first contends that the district court erred by not instructing
the jury that the testimony of a co-conspirator who pled guilty was to
be reviewed with great caution and viewed with grave suspicion. In
general, the decision to give, or not to give, a jury instruction and the
content of that instruction are reviewed for an abuse of discretion.
United States v. Burgos, 55 F.3d 933, 935 (4th Cir. 1995). Jury
instructions are to be read as a whole. See United States v. Morrison,
991 F.2d 112, 116 (4th Cir. 1993). "If [the instruction] fairly summa-
rizes the law, it is not grounds for reversal." Id. Upon our review of
the record, we conclude the district court did not err in failing to
instruct the jury that the co-conspirator’s testimony must be viewed
with grave suspicion.

Second, Elsesser asserts the district court erred in applying two
enhancements. Elsesser’s sentencing was enhanced for his role in the
offense as a supervisor of at least one other person. The district court
found that Elsesser took responsibility for one area of the fraud and
acted as a leader and supervisor. A district court’s determination of
the defendant’s role in the offense is reviewed for clear error. United
States v. Sayles, 296 F.3d 219, 224 (4th Cir. 2002). A two-level
enhancement is appropriate where the defendant directed the activities
of one other person. United States v. Harriott, 976 F.2d 198, 200 (4th
 UNITED STATES v. ELSESSER 3
Cir. 1992). The district court did not clearly err in the application of
the enhancement for Elsesser’s role in the offense.

Elsesser also challenges the application of an enhancement for his
abuse of a position of trust. Elsesser asserts the transactions
undertaken with the victims of the fraud were ordinary commercial
transactions that are not sufficient to invoke the abuse of trust
enhancement. See United States v. Moore, 29 F.3d 175 (4th Cir.
1994). Whether the defendant occupied a position of trust must be
viewed from the perspective of the victim. Moore, 29 F.3d at 179-80.
The enhancement applies to "a defendant who . . . perpetuates a finan-
cial fraud by leading an investor to believe the defendant is a legiti-
mate investment broker. § 3B1.3, comment. (n.2). The district court’s
determination that this adjustment applies is a factual question
reviewed for clear error. United States v. Akinkoye, 185 F.3d 192, 203
(4th Cir. 1999). Knowingly advising clients to invest in fraudulent
schemes may constitute abuse of a position of trust. United States v.
Godwin, 272 F.3d 659, 663-65 (4th Cir. 2001). We find the district
court did not clearly err in finding that Elsesser abused his position
of trust with the investors he defrauded.

Accordingly, we affirm Elsesser’s convictions and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid in the decisional process.

AFFIRMED