F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 4 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-3378
MICHAEL K. FRIERSON, (D.C. No. 99-CR-10009-2)
(D.Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before EBEL and BRISCOE, Circuit Judges, and COOK , District Judge. **
Michael Frierson appeals his convictions and sentences on two counts of
interstate transportation of counterfeit securities, in violation of 18 U.S.C.
§§ 2314 and 2. We exercise jurisdiction under 28 U.S.C. § 1291, affirm in part,
reverse in part, and remand with directions to vacate.
*
This order and judgment is not binding precedent, except under the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 10th Cir. R. 36.3.
**
The Honorable H. Dale Cook, Senior District Judge, Northern District
of Oklahoma, sitting by designation.
I.
On January 26, 1999, Frierson was indicted on two counts of interstate
transportation of counterfeit securities. The charges stemmed from two checks
that were mailed from San Leandro, California, to Wichita, Kansas, in February
1998. At trial, Jad Wolf testified that in February 1998 Frierson told him
arrangements were being made for fraudulent checks to be sent to Wichita. Wolf
was to deposit the checks, withdraw the cash, and give the cash to Frierson and
his brother, Brian Frierson. Gerald Farha, who ran Farha Enterprises Used Cars
in Goddard, Kansas, testified he received a Federal Express package with two
$400,000 checks in February 1998. The package had been shipped by Avery
Jackson, Parkridge Financial, 256 Suffolk Drive, San Leandro, California, which
was Frierson’s mailing address.
Farha gave the envelope with the checks to Wolf, and Wolf then gave them
to Randy Wolverton, special agent for the Federal Bureau of Investigation in
Wichita. The checks were dated February 12, 1998, and were each in the amount
of $400,000. They were drawn on the account of “Dean Witter Reynolds Inc.” at
the Bank of America in Walnut Creek, California, and were payable to Farha
Used Cars. Phyllis Werneke, operations manager at Dean Witter in Wichita,
testified the checks did not conform to Dean Witter standards, the information on
the checks was incorrect, and to her knowledge the checks were not authorized
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by Dean Witter. Werneke also testified she had seen a third Dean Witter check
for $600,000.
The government introduced audiotape recordings of monitored telephone
conversations in April 1998 between David Miller and Frierson. Frierson called
Miller and asked him to find out about the two checks. Firerson stated Farha and
Wolf had the checks and he wanted the money or the checks.
There was also testimony at trial concerning a $1.5 million check. Miller
testified that in November or December 1997, Frierson asked him whether he
knew anyone who would cash a large check. Miller agreed to participate and had
the $1.5 million check sent to Las Vegas, where Farha and Wolf were to cash it.
Frierson told Miller that someone at Dean Witter was obtaining the check.
Wolverton testified that in January 1998 someone attempted to pass a $1.5
million check at a casino in Las Vegas. Wolf testified that in January 1998, he
went to Las Vegas and picked up the check made out to a fictitious name, along
with false identification. Farha accompanied Wolf when he tried to cash the
check at two casinos in Las Vegas. According to Wolf, Frierson’s brother came
to his hotel room and picked up the check after Wolf was unable to cash it. In a
recorded conversation between Frierson and Miller in April 1998, Frierson said
he had the Las Vegas check.
The district court denied Frierson’s motion for judgment of acquittal and
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the jury convicted him on both charges. The district court sentenced Frierson to
37 months in prison for each count, to run concurrently; 3 years supervised
release for each count, to run concurrently; and a $100 special assessment on
each count.
II.
Frierson’s Sentences
The district curt determined Frierson had a criminal history category of 2
based on a prior conviction. Frierson argues his prior sentence was to a work
program, which was not a “sentence of imprisonment” under U.S.S.G. §
4A1.1(b). Frierson did not raise this objection in the district court, which would
normally preclude review by this court. See United States v. Nelson , 36 F.3d
1001, 1003 (10th Cir. 1994). However, we recognize a narrow exception for
plain error when the error is “particularly egregious.” Id.
The presentence report stated Frierson had a 1995 California conviction for
vehicle theft and two counts of fraudulent use of an access device that resulted in
“3 years probation; 180 days custody in work release.” ROA Vol. X at 7.
Frierson’s attorney objected to the presentence report, stating:
. . . I have a strong belief that Mr. Frierson’s criminal history
significantly overrepresents his true criminal nature. He is in
Category II based solely on a single misdemeanor conviction 4 years
ago. The only reason he received 2 rather than 1 point is due to the
fact that he was incarcerated in work release for part of the sentence.
He did not have counsel, which he waived, and I feel this may have
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affected the outcome of that case. In most situations, a first offender
for such a minor offense would have received a straight probation
with no jail which would have resulted in 1 criminal history point.
ROA Vol. X at 18. At the sentencing hearing, Frierson’s attorney stated
[Frierson] also couldn’t remember that he had actually served any
jail time . . . because the work release was the type where he [] drove
to the place, checked in and they told him he needed to go to be
assigned to work. Wasn’t really a confinement setting, from my
understanding, based on what I talked to Mr. Frierson about, at all,
and although I technically agree that it qualified , . . . it just was very
unusual under the circumstances.
ROA Vol. IV at 223-24 (emphasis added). Frierson’s counsel then stated that
it was simply one crime, but for the nature of the sentence imposed
could have been in criminal history category 1 as opposed to 2. To
me that takes it out of the heartland of those individuals who would
typically be considered in a criminal history category 2. I ask the
Court to consider . . . the appropriate departure under those
circumstances, and that would be to drop one level to criminal
history category 1 and impose the sentence in that range based on
that.
Id. at 224. The district court concluded Frierson’s criminal history was not
overrepresented and overruled Frierson’s objection.
U.S.S.G. § 4A1.1(b) provides that in calculating a defendant’s criminal
history category the district court is to “[a]dd 2 points for each prior sentence of
imprisonment of at least sixty days,” and less than one year and one month. The
guidelines define “sentence of imprisonment” as “a sentence of incarceration and
refer[] to the maximum sentence imposed.” U.S.S.G. § 4A1.2(b)(1). Frierson
did not object, and in fact agreed, to the district court’s determination that his
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previous sentence qualified as a term of imprisonment under § 4A1.2(b)(1).
The application notes to § 4A1.2(b)(1) state that “[t]o qualify as a sentence
of imprisonment, the defendant must have actually served a period of
imprisonment on such sentence.” U.S.S.G. § 4A1.2, comment. (n.2). This court
has noted that the phrase “sentence of incarceration” in § 4A1.2(b) “suggests that
physical confinement is a key distinction between sentences of imprisonment and
other types of sentences.” United States v. Vanderlaan , 921 F.2d 257, 259 (10th
Cir. 1990). The burden is on the government to prove by a preponderance of the
evidence whatever facts are necessary to justify adding criminal history points.
United States v. Torres , 182 F.3d 1156, 1162 (10th Cir. 1999). We conclude the
government met this burden. The presentence investigation report listed
Frierson’s prior sentence as “180 days custody in work release” and Frierson’s
attorney admitted this sentence qualified as a prior term of imprisonment under
§ 4A1.2(b)(1). Failure to object to a fact in a presentence report, or failure to
object at the sentencing hearing, acts as an admission of fact. United States v.
Deninno , 29 F.3d 572, 580 (10th Cir. 1994). The district court’s determination
of Frierson’s criminal history was not plain error.
Frierson argues the district court erred in determining that the $1.5 million
Las Vegas check was relevant conduct for offense level purposes. We review
“the district court’s legal interpretation and application of the sentencing
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guidelines de novo and review the court’s factual findings for clear error, giving
due deference to the district court’s application of the guidelines to the facts.”
United States v. Henry , 164 F.3d 1304, 1310 (10th Cir.), cert. denied , 527 U.S.
1029 (1999). The district court concluded the Las Vegas check was relevant
conduct and increased Frierson’s base offense level by 12 levels because the loss
exceeded $1,500,000. See U.S.S.G. § 2F1.1(b)(1)(M) (detailing offense levels).
U.S.S.G. § 1B1.3(a) provides for the determination of a defendant’s
offense level when the guidelines specify more than one base offense level.
Section 3D1.2(d) requires grouping “[w]hen the offense level is determined
largely on the basis of the total amount of harm or loss,” as is the case here.
U.S.S.G. § 3D1.2(d); see U.S.S.G. § 2F1.1(b)(1). There are three requirements
for conduct to be relevant under § 1B1.3(a)(2): (1) “the offense in question
involved conduct described in §§ 1B1.3(a)(1)(A) and (B),” (2) “the offense must
be the type of offense that, if the defendant had been convicted of both offenses,
would require grouping with the offense of conviction for sentencing purposes
under U.S.S.G. § 3D1.2(d),” and (3) “the offense must have been ‘part of the
same course of conduct or common scheme or plan.’” United States v. Taylor , 97
F.3d 1360, 1363 (10th Cir. 1996) (quoting U.S.S.G. § 1B1.3(a)(2)). Frierson
argues the government did not prove the offense was part of the same course of
conduct or common scheme or plan.
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“To determine whether a prior offense is conduct related to the instant
offense, courts generally examine several factors, including the similarity,
temporal proximity, and regularity of the instant offense and the prior sentence.”
United States v. Torres , 182 F.3d 1156, 1160 (10th Cir. 1999). The government
must prove the facts of relevant conduct by a preponderance of the evidence.
United States v. Fortier , 180 F.3d 1217, 1225 (10th Cir. 1999).
Here, the evidence showed Frierson was involved in a conspiracy to cash
fraudulent checks. The charged Wichita checks involved Frierson, his brother,
Farha, Miller, and Wolf. The Las Vegas check involved the same parties. The
check-cashing schemes were similar, if not in fact a continuation of the same
scheme. The Las Vegas check and the Wichita checks were sent less than a
month apart. The recorded conversations between Frierson and Miller show the
continuing nature of the scheme. We conclude the district court did not err in
considering the Las Vegas check as relevant conduct.
Frierson’s convictions
Frierson argues there was insufficient evidence to convict him of interstate
transportation of counterfeit securities. In reviewing the sufficiency of evidence,
we review “the evidence to determine whether, if taken in the light most
favorable to the prosecution, it is sufficient for a reasonable jury to find the
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defendant[] guilty beyond a reasonable doubt.” United States v. Mounkes , 204
F.3d 1024, 1027 (10th Cir.), cert. denied , 120 S. Ct. 2661 (2000). “The evidence
supporting the conviction must be substantial and do more than raise a suspicion
of guilt.” Id. (citation omitted). To convict Frierson of interstate transportation
of counterfeit securities the government must prove (1) Frierson “caused the
securities to be transported in interstate commerce,” (2) at the time Frierson
caused “the transportation of the securities, the securities were altered,” (3)
Frierson “knew, at the time he caused the securities to be transported interstate,
that the securities were altered,” and (4) Frierson “acted with unlawful or
fraudulent intent.” United States v. Yusufu , 63 F.3d 505, 509-10 (7th Cir. 1995).
Frierson argues the witnesses were so incredible that a jury could not
convict him based on their testimony. Judging the credibility of witnesses is a
function of the jury, which this court will not second-guess on appeal. See
United States v. Guidry , 199 F.3d 1150, 1156 (10th Cir. 1999). In any event,
Frierson’s credibility arguments were presented to the jury. While testifying,
Miller admitted the government had filed a motion to reduce his sentence based
on his cooperation in testifying and that he had a prior conviction for cocaine
possession. Frierson’s attorney stressed the credibility of witnesses in closing
argument. Frierson also presented the jury with his argument about the reliability
of the FedEx package.
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After examining the record, we conclude there was sufficient evidence for
the jury to convict Frierson of interstate transportation of counterfeit securities.
Frierson was charged both as a principal and an aider and abettor. Wolf testified
Frierson said he was arranging for fraudulent checks to be sent to Wichita and
Frierson stated the checks were to be cashed at casinos. The audiotapes of
Frierson’s conversations with Miller show Frierson’s knowledge of, and
participation in, the scheme. The evidence showed that Frierson either sent the
checks from California to Wichita or was involved in having them sent, that
Frierson knew the checks were not legitimate before they were sent, and that
Frierson had the intent to defraud.
Frierson contends the district court erred in admitting testimony about the
$1.5 million Las Vegas check and the $600,000 check. Frierson did not object to
the evidence at trial. This court generally reviews the district court’s evidentiary
rulings for abuse of discretion. United States v. Brown , 200 F.3d 700, 708 (10th
Cir. 1999), cert. denied , 120 S. Ct. 1213 (2000), cert. denied sub nom., Dixon v.
United States , 120 S. Ct. 1706 (2000). However, when the defendant does not
object to the admission of the testimony, we review the admission only for plain
error. United States v. McSwain , 197 F.3d 472, 482 (10th Cir. 1999), cert.
denied , 120 S. Ct. 2024 (2000). “Plain error is that which is obvious, or which
seriously affects the fairness or integrity of the trial.” United States v. Deters ,
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184 F.3d 1253, 1258 (10th Cir. 1999) (citation omitted).
Federal Rule of Evidence 404(b) provides in relevant part:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
The questioning concerning the $1.5 million Las Vegas check focused on the
witnesses’ participation in that situation rather than on Frierson’s participation.
The evidence of this check showed the intent to pass fraudulent checks, which is
one of the stated bases for admitting prior crimes evidence under Rule 404(b).
Further, the record does not indicate that admission of the testimony seriously
affected the fairness of the trial.
Evidence concerning the $600,000 check came in through Frierson’s cross-
examination of Werneke. During direct examination, Werneke stated she was
given copies of three different checks. She did not testify further concerning the
third check. During cross-examination, Frierson’s attorney asked Werneke
specific questions about the $600,000 check and moved for admission of the
check into evidence. Under the invited error doctrine, Frierson cannot now
contend that admission of the $600,000 check into evidence was erroneous. See
United States v. Johnson , 183 F.3d 1175, 1179 n.2 (10th Cir. 1999) (stating that
“[t]he invited error doctrine prevents a party from inducing action by a court and
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later seeking reversal on the ground that the requested action was error”).
Frierson also argues the district court erred in not sua sponte giving the
jury a limiting instruction on its consideration of uncharged misconduct evidence.
Frierson did not request such an instruction at trial. “[W]e review a court’s
failure to instruct a jury for plain error if the defendant fails to raise the
contention at trial.” United States v. Smith , 13 F.3d 1421, 1424 (10th Cir. 1994).
“Plain error, in this context, is error that affects the defendant’s right to a fair and
impartial trial.” Id. To constitute plain error, the district court’s error must have
been both obvious and substantial. Id. The failure of the district court to give a
limiting instruction was not plain error. As discussed above, there was sufficient
evidence without the $1.5 million check to convict Frierson of the charged
offenses.
Frierson also contends this court should vacate his conviction and sentence
on the second count of interstate transportation of counterfeit securities because
both the first and second counts stem from the same “unit of prosecution.” The
government agrees. In United States v. Lovett , this court accepted the
defendant’s argument that “the appropriate unit of prosecution for a violation of
18 U.S.C. § 2314 is the number of transportations across state lines, not the
number of financial transactions with each financial institution.” 964 F.2d 1029,
1040-41 (10th Cir. 1992). Frierson was charged with two counts of interstate
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transportation of counterfeit securities for one transportation across state lines.
Therefore, we remand this case to the district court for the limited purpose of
vacating Frierson’s conviction, sentence, and special assessment on count two.
III.
We AFFIRM Frierson’s conviction, sentence, and special assessment on
count one, and REMAND this case to the district court with directions to
VACATE Frierson’s conviction, sentence, and special assessment on count two.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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