UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-11193
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NORMAN DAVID EADS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(4:95-CR-15-A)
September 13, 1996
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Norman David Eads appeals his convictions for conspiracy to
commit mail and wire fraud and three counts of wire fraud,
including aiding and abetting. We affirm.
Eads contends first that the evidence was not sufficient to
support his convictions for conspiracy and wire fraud. Viewing the
evidence in the light most favorable to the government, a rational
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
jury could have concluded that Eads entered into a conspiracy to
defraud customers and that he and his co-conspirators employed the
mail and telephone wires in carrying out that scheme. The evidence
was sufficient. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Eads asserts next that the district court erred in refusing to
give his requested instruction on “good faith” and in giving the
Government’s instruction on “deliberate ignorance”. As for the
former, the charge included a detailed instruction on the meaning
of specific intent, and Eads, through closing argument, presented
his “good faith” defense to the jury. Therefore, the district
court did not abuse its discretion in refusing to give the
instruction. See United States v. Rochester, 898 F.2d 971, 978-79
(5th Cir. 1990). The instruction on “deliberate ignorance” was
proper, because the evidence supported an inference that Eads was
subjectively aware of the wrongdoing and that his alleged ignorance
was contrived. See United States v. Daniel, 957 F.2d 162, 169-70
(5th Cir. 1992).
Eads maintains that the district court plainly erred in
failing to instruct the jury on the meaning of “material facts” in
violation of United States v. Gaudin, 115 S. Ct. 2310 (1995).
Because it is not settled that a materiality instruction is
required for either wire fraud or conspiracy to commit mail and
wire fraud, any error was not “plain”. See United States v.
Calverley, 37 F.3d 160, 162-63 (5th Cir. 1994) (en banc), cert.
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denied, 115 S. Ct. 1266 (1995). In the alternative, Eads’
substantial rights were not affected because the district court
effectively submitted materiality to the jury by instructing them
to determine whether Eads’s misrepresentations were material. Id.
at 164.
Eads’ next contention is that the district court clearly erred
in enhancing his base offense level under the Sentencing Guidelines
for obstruction of justice based on his perjured trial testimony.
The record reflects that Eads made material and false statements
under oath at his trial. Therefore, the enhancement was proper.
See United States v. Storm, 36 F.3d 1289, 1295 (5th Cir. 1994),
cert. denied, 115 S. Ct. 1798 (1995); United States v. Laury, 985
F.2d 1293, 1308-09 (5th Cir. 1993).
Finally, Eads asserts that, for sentencing purposes, the
district court erred in determining the amount of intended loss
involved in the offense. The court’s determination that Eads
intended for the buyers to lose the amount of their purchases is
supported by the record and therefore is not clearly erroneous.
See United States v. Wimbish, 980 F.2d 312, 313 (5th Cir. 1992),
cert. denied, 508 U.S. 919 (1993). In addition, the district
court’s decision to hold Eads accountable for all of the company’s
sales was not clearly erroneous because Eads was engaged in joint
criminal activity with the officers and managers of the company,
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and the sales of the company were reasonably foreseeable to him.
See U.S.S.G. § 1B1.3(a)(1)(B).
AFFIRMED
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