UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-10456
Summary Calendar
United States of America,
Plaintiff-Appellee,
VERSUS
Keith Gene Winterowd,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
(3:95-CR-062-T)
May 12, 1997
Before WISDOM, JOLLY, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Kenneth Gene Winterowd appeals his conviction and sentence for
mail fraud in violation of 18 U.S.C. § 1341 and for presenting
false statements to a government agency in violation of 18 U.S.C.
§ 287. Winterowd argues that the district court committed plain
error in failing to submit the question of materiality to the jury
*
Pursuant to Local Rule 47.5, the court has determined t hat this opinion should not be
published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.
on both counts. He further maintains that, under U.S.S.G. §
3B1.1(a), the court erred by increasing his base offense level four
steps for his role as a leader or organizer in the crime, and that
the court erred in denying his motion for a mistrial.
Winterowd’s argument that the district court erred in
submitting the question of materiality to the jury on the § 287
offense is foreclosed by this court’s precedent. See United States
v. Upton, 91 F.3d 677, 684-85 (5th Cir. 1996)(holding that
materiality is not an element of a § 287 offense).
Winterowd also asserts that the district court failed to
instruct the jury on materiality regarding his § 1341 offense, and
that this failure was in contravention of United States v. Gaudin,
115 S.Ct. 2310 (1995). We find, however, that the court instructed
the jury to determine whether the misrepresentations made by
Winterowd were material. Under Gaudin, therefore, the court’s
instruction was not plainly erroneous. See United States v.
Calverly, 37 F.3d 160, 162-64 (5th Cir. 1994)(en banc), cert.
denied 115 S.Ct. 1266 (1995).
The district court’s finding that Winterowd was a leader and
organizer of five or more participants was also not clearly
erroneous because the employees involved were criminally
responsible participants. See United States v. Musquiz, 45 F.3d
927, 932-33 (5th Cir.), cert denied, 116 S.Ct. 54 (1995).
The district court’s order denying the defendant’s motion for
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a mistrial was not an abuse of discretion. The basis for
Winterowd’s motion was improper testimony elicited by the
government. The testimony did not have a substantial impact upon
the jury verdict, however, and any error was cured by the court’s
subsequent cautionary instruction. See United States v. Limones,
8 F.3d 1004, 1007 (5th Cir. 1993); see also United States v. Neal,
27 F.3d 1035, 1051 (5th Cir. 1994).
AFFIRMED.
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