UNITED STATES COURT OF APPEALS
Filed 3/6/96
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 95-1128
v. D. Colorado
JEFFREY DETTLOFF, also known as (D.C. No. 94-CR-74-N)
John Dettloff,
Defendant - Appellant.
ORDER AND JUDGMENT*
Before ANDERSON, BARRETT, and LOGAN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. This cause is therefore ordered
submitted without oral argument.
Jeffrey Dettloff appeals the district court’s decision to adjust his offense level
upward under §3B1.1(b) of the Sentencing Guidelines for his aggravating role in a
counterfeit check cashing scheme. Dettloff argues that the district court erred in finding
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of the 10th Cir. R. 36.3.
he was a manager or supervisor in criminal activity that involved five or more participants
or that was otherwise extensive. We affirm.
BACKGROUND
On November 3, 1994, a federal jury in the District of Colorado found Jeffrey
Dettloff guilty of one count of conspiracy, nine counts of bank fraud and aiding and
abetting, and twelve counts of counterfeit check fraud and aiding and abetting. The
convictions stemmed from Dettloff’s involvement in a counterfeit check cashing scheme
originating in Southern California. The second superseding indictment on which he was
tried charged that Dettloff, along with Vu Bui, Jerry O’Neal, and Leyondo Watson,
possessed and uttered counterfeit securities at banks in the Denver, Colorado, area with
intent to defraud. Dettloff does not appeal his convictions.
Evidence at trial established that Dettloff, Bui, O’Neal, and Watson flew from Los
Angeles to Denver with the sole purpose of cashing counterfeit payroll checks. R. Vol. 8
at 9-11. Dettloff and O’Neal traveled together, with Dettloff controlling their airline
tickets. Id. at 10-11. Once in Colorado, the conspirators rented a car and drove to the
Department of Motor Vehicles to obtain Colorado identification for O’Neal and Watson
using fictitious residence addresses. Id. at 11-13. They then drove to various banks in the
Denver metropolitan area to cash counterfeit checks. Id. at 14.
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At the banks, O’Neal and Watson acted as “facemen” -- the parties who actually
entered and cashed the checks. R. Vol. 7 at 104; R. Vol. 8 at 14-15, 22. Dettloff and Bui
were “drivers” -- they obtained and drove the cars, held and distributed the checks,
collected the proceeds, and divided up the profits. R. Vol. 7 at 104-05; R. Vol. 8 at 14,
19-23, 37. The drivers “call[ed] the shots” and were in “command of the trip.” R. Vol. 8
at 37. The conspirators worked in teams, even when they traveled together. Id. at 51.
Dettloff disbursed the checks to and collected the money from O’Neal; Bui did the same
with Watson. Id. at 50-51. At the end of the day, Dettloff paid O’Neal a percentage of
the proceeds. Id. at 48-49.
After two days of cashing counterfeit checks, the conspirators rented a second car.
R. Vol. 7 at 84-85. Dettloff drove O’Neal in this car with the intent of cashing additional
checks. R. Vol. 8 at 25-26. Before reaching the first bank, Dettloff noticed they were
being followed. Id. at 26. Dettloff was able to elude the trailing car, which was in fact a
Secret Service vehicle, and stopped to page Bui to warn him about the surveillance. Id. at
27-29. During this time, Dettloff handed an envelope full of counterfeit checks to O’Neal
and ordered him to destroy the checks. Id. at 30.
After Dettloff evaded the Secret Service, he and O’Neal checked into a new hotel.
Id. at 31. Dettloff telephoned California for a new plan. Id. Shortly afterward, Dettloff
left and O’Neal answered a telephone call from a party who indicated that airline
reservations had been made for Dettloff and O’Neal to return to California. Id. at 32.
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Dettloff’s ticket had already been paid for; O’Neal’s had not. Id. at 33. When Dettloff
returned to the hotel, he telephoned California. Id. at 34. The two then flew back to
California. Id. at 35-36. Dettloff was subsequently arrested in Boise, Idaho, on a similar
counterfeit check cashing trip. R. Vol. 5 at 10, 17-18.1
Additional facts submitted in the Presentence Report and adopted by the district
court further elucidated Dettloff’s role in the underlying counterfeiting scheme.
See Mem. of Sentencing H’rg and Report of Statement of Reasons at 3 ¶ 9, R. Supp. Vol.
1. The uncontested facts showed that a Vietnamese organized-crime operation ran the
scheme from Southern California. Presentence Investigation and Report at 2, R. Supp.
Vol. 1. The organization paid individuals for the use of their legitimate paychecks for 24
hours. Id. The checks were then duplicated using a sophisticated process that produced a
high quality counterfeit. Id. Dettloff then used a typewriter to type his faceman’s name
on the checks. Id. The printer of the checks and those in the higher echelons of the
organization received fifty-five percent of the proceeds from the checks; the drivers and
facemen split the remaining forty-five percent. Id. at 3. The low level facemen were
recruited specifically to pass the checks, thereby insulating the higher echelon of the
organization from direct contact with the banks. Id.
Bui and Watson were arrested in Denver by Secret Service agents. R. Vol. 7 at
1
35-36.
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The uncontested facts further showed that, in addition to the Denver trip, Dettloff
was involved in the scheme on trips to Salt Lake City, Utah, and Boise, Idaho. Id. at 4-7.
The parties agree that the total loss to financial institutions from these three trips was no
less than $75,482.13. See Mem. of Sentencing Hr’g and Report of Statement of Reasons
at 2 ¶ 5, R. Supp. Vol. 1.
Based on the evidence at trial and the supporting facts in the Presentence Report,
the district court determined that Dettloff had played an aggravating role in the offense.
The court found Dettloff’s role as a driver qualified him as a “manager or supervisor”
under USSG §3B1.1(b). The court found no need to decide whether there were five or
more “participants” involved in the criminal activity because it determined that such
activity was “otherwise extensive” under the same provision. Consequently, the court
adjusted Dettloff’s offense level upward three levels pursuant to §3B1.1(b). Dettloff’s
adjusted offense level of 17, combined with his criminal history category of 1, put his
sentencing range at 24 to 30 months imprisonment. The court then sentenced him to 27
months in prison and 3 years supervised release. See R. Vol. 9 at 12-14. He appeals.
ANALYSIS
We review the district court’s findings under §3B1.1 for clear error. United States
v. Bernaugh, 969 F.2d 858, 862 (10th Cir. 1992). Upward adjustments of the offense
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level must be supported by a preponderance of the evidence. United States v. Pelliere, 57
F.3d 936, 938 (10th Cir. 1995).
The relevant sentencing guideline provides for a three-level increase “[i]f the
defendant was a manager or a supervisor . . . and the criminal activity involved five or
more participants or was otherwise extensive.” USSG §3B1.1(b).
To qualify for an adjustment under this section, the defendant must have been the
. . . manager[] or supervisor of one or more other participants. An upward
departure may be warranted, however, in the case of a defendant who did not . . .
manage[] or supervise another participant, but who nevertheless exercised
management responsibility over the property, assets, or activities of a criminal
organization.
Id. comment. (n.2); see also United States v. Johnson, 4 F.3d 904, 917-18 (10th Cir.
1993) (government only required to show that defendant was responsible for managing or
supervising one of the criminal participants), cert. denied, 114 S. Ct. 1081 (1994).
The evidence supports the finding that Dettloff managed or supervised O’Neal, as
well as exercised management responsibility over property, assets, and activities, on the
Denver trip. He controlled O’Neal’s airline ticket, drove O’Neal in the rented car, typed
his faceman’s name on the counterfeit checks, held and distributed the checks, collected
the money from O’Neal, and gave O’Neal his share of the proceeds. He ordered O’Neal
to destroy checks when being pursued by the Secret Service, and he communicated with
contacts in California regarding a revision in their plans. In short, he “called the shots.”
We cannot say that the district court’s finding on Dettloff’s supervisory role was clearly
erroneous.
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The Guidelines next address how to determine the extent of the criminal activity.
“In assessing whether an organization is ‘otherwise extensive,’ all persons involved
during the course of the entire offense are to be considered. Thus, a fraud that involved
only three participants but used the unknowing services of many outsiders could be
considered extensive.” USSG §3B1.1 comment. (n.3). Furthermore, the sentencing court
may “consider the underlying scheme, as opposed to merely the offense of conviction, in
determining role in the offense adjustments.” United States v. Saucedo, 950 F.2d 1508,
1513 (10th Cir. 1991); see USSG Ch.3, Pt.B, intro. comment.; USSG §1B1.3(a).
Once again, the uncontested facts support the district court’s finding that the
criminal activity in which Dettloff took part was “otherwise extensive.” The scheme
involved those who obtained legitimate checks for copying, those who lent the
organization their checks, those who printed counterfeit checks (which Dettloff admits
was someone other than himself), and those who recruited facemen. The scheme
operated in at least four states. The individual trips themselves involved unwitting
employees at the various state motor vehicle departments and at the financial institutions.
The Denver trip alone involved cashing checks at eleven different banks. The evidence
also supports the existence of unnamed and unknown “higher-ups,” who telephoned
instructions to Dettloff in Denver, arranged for and purchased his airplane tickets, and
received a percentage of the proceeds.
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We conclude that the district court did not clearly err in giving Dettloff a three-
level adjustment for his aggravating role in the offense. Accordingly, we AFFIRM. The
mandate shall issue forthwith.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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