United States v. Powers

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________________

No. 98-10118

________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOHN BRIAN POWERS,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

_________________________________________________________________

February 25, 1999

Before EMILIO M. GARZA, BENAVIDES, and DENNIS Circuit Judges.

BENAVIDES, Circuit Judge:

John Brian Powers (“Powers”) appeals from his October 14,

1997 conviction and January 22, 1998 sentence for mail fraud,

wire fraud, and money laundering. Powers contends that the

evidence at his trial was insufficient to support his

convictions; that the district court abused its discretion in

admitting evidence of extrinsic transactions in addition to a
witness’s prior consistent statements; that the district court

erred in imposing a breach of position of trust enhancement as

well as an obstruction of justice enhancement; and that the

district court erred in imposing his sentence subject to the

money laundering guidelines. For the reasons set forth below, we

AFFIRM.

I. BACKGROUND

On May 20, 1997, Powers was indicted by a grand jury in the

Northern District of Texas. He was charged in Count 1 with a

conspiracy to violate the mail and wire fraud laws, in violation

of 18 U.S.C. § 371. Counts 2 through 7 charged him with

executing his scheme by various mailings, in violation of 18

U.S.C. § 1341. Counts 8 through 15 charged him with executing

the same scheme by use of the wires, i.e., telephone calls, in

violation of 18 U.S.C. § 1343. Counts 16 through 20 charged him

with money laundering to hide the proceeds of his fraud, in

violation of 18 U.S.C. § 1956(a)(1)(B)(I).

Trial by jury commenced before United States District Judge

Maloney on October 6, 1997. Powers moved for judgment of

acquittal at the close of the Government's case and renewed this

motion following the trial. On October 14, 1997, the jury

returned verdicts of guilty on all counts submitted to it (counts

1 through 15 and 17 through 20; count 16 had been dismissed at

the request of the attorney for the United States). Powers was

sentenced on January 22, 1998, to 57 months imprisonment, a

three-year term of supervised release, restitution of $27,437,

and a mandatory special assessment of $950. Pending the outcome
of his appeal, Powers was released on bond.

Powers’ criminal convictions stem from abuses of his

position at Oryx Gas Marketing, a wholly-owned subsidiary of Oryx

Energy Company (“Oryx”). Employed as a gas marketer, his job was

to find markets and get the best value for Oryx's natural gas.

In order to maximize profits, Oryx strongly discouraged its sales

staff from selling to marketing companies, preferring to sell its

gas directly to the end-user.1

One of Oryx's major customers was ISP, which bought natural

gas for its plant at Texas City, Texas. ISP and Oryx had an

ongoing gas sales contract in 1992 and 1993. George Matzke and

Chuck Nuckolls were purchasing agents at ISP. Matzke was

Nuckolls' supervisor. Powers handled ISP's account at Oryx.

In November, 1990, Powers and Matzke formed Long Valley

Energy (“Long Valley”), using Powers' home address in Plano,

Texas as the registered agent address.2 The company never held

any assets. In early 1992, Powers and Matzke discussed having

Long Valley buy gas from Oryx which it would then resell to a

third party, Cowboy Pipeline, at a profit. ISP, in turn, would

buy from Cowboy Pipeline all the gas that Cowboy had purchased

1
Oryx had a policy against conflicts of interest. Oryx
managers and sales staff were asked to sign quarterly disclosure
statements verifying that they understood the policy and had no
such conflicts. Powers signed such a statement in February,
1991. Powers at no time revealed to his employer that he was
operating under any such conflict.
2
Powers disputes the “partnership” characterization of the
Long Valley venture. According to him, Long Valley was Matzke’s
corporation, and Powers allowed him to use his home address only
so that Matzke, who lived in New Jersey, would have the necessary
Texas agent.
from Long Valley.3

Normally, a company like Long Valley -- without any credit

history or assets -- would have difficulty buying gas from Oryx

on credit. Oryx, however, never requested credit approval for

Long Valley. Such a request for credit approval would have come

from the salesperson making the deal which in this case was

Powers.

Powers was also the Long Valley contact for Elise Wogan, the

gas seller/buyer at Cowboy Pipeline. Wogan talked to Powers

every month and provided him with the gas volume requirements for

ISP for the coming month. Wogan asked Powers more than once if

Cowboy could buy directly from Oryx. Powers did not respond to

these inquiries.

Monthly sales between Oryx and Long Valley continued until

January of 1993. During this time, Long Valley always paid a

lower price to Oryx than Cowboy paid to Long Valley. The profits

Long Valley earned by being inserted as a middleman were

generally split equally between Matzke and Powers. Powers

deposited the funds he received into the account of another

corporation, ITEX, which he and his wife formed in 1992. Mrs.

Powers would then write checks made payable to herself on the

ITEX account and deposit these checks into the joint account she

shared with her husband.

3
In February 1992, ISP first bought gas from Cowboy Pipeline
under this arrangement. ISP was not, however, satisfying all its
Texas City plant gas needs through Cowboy; it simultaneously
bought gas directly from Oryx. ISP always paid a higher price to
Cowboy than it did to Oryx. ISP would have bought all its gas
from Oryx, but for Matzke's instructions to Nuckolls, that 1000
units a day be purchased from Cowboy.
 In addition to the sales to Cowboy Pipeline, Long Valley

also sold gas to two other companies: American Central Gas

Marketing (“American Central”)4 and Yuma Gas Corporation

(“Yuma”).5 Powers orchestrated the sales by Long Valley, and

simply told Matzke to expect confirmation of them. Matzke never

talked to anyone at either American Central or Yuma. Once again,

the profits to Long Valley from these deals were split equally

between Powers and Matzke.

II. SUFFICIENCY OF EVIDENCE

Powers challenges the sufficiency of the evidence to support

his convictions for wire fraud, mail fraud, and money laundering.

The standard of review for sufficiency of the evidence is high.

See United States v. Truesdale, 152 F.3d 443, 446 (5th Cir.

1998). In evaluating the sufficiency of the evidence on appeal,

the reviewing court must consider the evidence in the light most

favorable to the Government, drawing all reasonable inferences in

support of the jury's verdict. See id. The evidence is

sufficient if a rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. See

4
There were two sales from Long Valley to American Central,
represented by invoices from May, 1992 and December, 1992. The
purchaser at American Central testified that his company and Oryx
did business together, and that Powers was his contact at Oryx.
He also believed that there was a connection between Powers and
Long Valley.
5
Yuma had an ongoing contract to buy gas from Oryx, but
Powers called the company in June, 1992, and instructed Mark
Keller, a Yuma vice president, to change the name of the seller
from Oryx to Long Valley. Powers said the name change had
something to do with a joint venture. Yuma paid Long Valley the
same $1.61 per unit it would have paid to Oryx. Long Valley,
however, paid Oryx only $1.50 per unit.
United States v. Gaytan, 74 F.3d 545, 555 (5th Cir. 1996). A

review of the sufficiency of the evidence, however, does not

include a review of the weight of the evidence or of the

credibility of the witnesses. See United States v. Myers, 104

F.3d 76, 78-79 (5th Cir. 1997).

A. Wire Fraud Counts

Counts 8 through 15 of the indictment charged Powers with

executing a scheme to defraud by use of the wires, i.e.,

telephone calls, in violation of 18 U.S.C. § 1343, “[o]n or

about” June 16, 1992, July 23, 1992, August 21, 1992, September

8, 1992, October 21, 1992, November 17, 1992, December 15, 1992,

and January 6, 1993, respectively. In order to establish wire

fraud, the Government must prove that a defendant knowingly

participated in a scheme to defraud, that interstate wire

communications were used to further the scheme, and that the

defendants intended that some harm result from the fraud. See

United States v. St. Gelais, 952 F.2d 90, 95 (5th Cir. 1992). An

intent to defraud for the purpose of personal gain satisfies the

"harm" requirement of the wire fraud statute. See id.

The evidence presented at trial establishes that Powers and

Matzke devised a scheme to defraud Oryx. Their intent was to

insert Long Valley as a middleman between Oryx and ISP to obtain

for their own personal gain a portion of Oryx’s monthly profits

on the sale of gas. To implement the scheme, Powers, who lived

in Texas and Matzke who lived in New Jersey, of necessity

communicated by telephone. The evidence showed that Matzke and

Powers spoke on the telephone several times a month, including on
the dates listed as individual counts in the indictment, and that

“some of the calls involved the [Long Valley] transactions.”

The Government, however, failed to prove at trial that the

telephone conversations which took place on the dates alleged in

the indictment included discussion of the fraudulent scheme.

Powers argues that the Government’s evidence was

insufficient to prove wire fraud because it did not demonstrate

that the specific telephone calls alleged in the indictment were

made in furtherance of the fraud. Relying on United States v.

Galvan, 693 F.2d 417 (5th Cir. 1982), Powers asserts that the

Government must not only prove that the calls alleged in the

indictment were made between Matzke and Powers, but also that, in

those particular conversations, Powers and Matzke discussed the

unlawful activity.

The Government correctly disputes Powers’ legal conclusion.

It is well established in this Circuit that the alleged time of

the offense is not an essential element of the offense charged in

the indictment. See United States v. Bowman, 783 F.2d 1192, 1197

(5th Cir. 1986) (finding nine month variance between the mailing

date alleged in the indictment and the date to which witness

testified at trial not fatal). The prosecution is “not required

to prove the exact date [alleged in the indictment]; it suffices

if a date reasonably near is established.” United States v.

Grapp, 653 F.2d 189, 195 (5th Cir. 1981); see id. (affirming

conviction where evidence showed the mailing in “the middle of

1977" and indictment alleged mailing “on or about May 27, 1977").

Furthermore, Appellant’s reliance on United States v. Galvan, 693
F.2d 417 (5th Cir. 1982), is misplaced. In Galvan, the

Government attempted to prove a conspiracy by introducing phone

records that indicated telephone calls between residences of the

alleged conspirators. See id. We held that evidence showing

mere telephone calls between alleged conspirators, absent proof

of the subject matter of their conversations, was insufficient.

See id. Unlike Galvan, the instant case is not one in which the

jury had to infer that the conspirators actually talked about the

scheme on the telephone. Matzke, himself, testified that he and

Powers spoke on the telephone several times a month and that, at

least once a month, the discussions concerned the Long Valley

deals. Thus, we find the evidence sufficient to support Powers’

convictions as to wire fraud.

B. Mail Fraud Counts

Counts 2 through 7 of the indictment charged Powers with

executing a scheme to defraud by use of the mail, i.e., mailing

of gas invoices from Oryx to Long Valley, in violation of 18

U.S.C. § 1341. In order to establish a violation of § 1341, the

Government must prove: (1) a scheme to defraud, (2) which

involves the use of the mails, (3) for the purpose of executing

the scheme. See United States v. Gray, 96 F.3d 769, 773 (5th

Cir. 1996). We have explained that the mailing in a federal mail

fraud prosecution “need not be sent by the defendant or his co-

conspirator. It may be sent by a victim of the plot or an

innocent third party, so long as the mailing is ‘incident to an

essential part of the scheme . . . or a step in the plot.’”

United States v. Manges, 110 F.3d 1162, 1169 (5th Cir. 1997)
(quoting Schmuck v. United States, 489 U.S. 705, 710-711, 109

S.Ct. 1443, 1448 (1989)).

Powers claims that the evidence is insufficient to prove

that the mailings of the invoices by Oryx were in furtherance of

the scheme to defraud. He relies upon three Supreme Court cases

and one Fifth Circuit case: Kann v. United States, 323 U.S. 88,

65 S.Ct. 148 (1944); Parr v. United States, 363 U.S. 370, 80

S.Ct. 1171 (1960); United States v. Maze, 414 U.S. 395, 94 S.Ct.

645 (1974); and United States v. Vonsteen, 872 F.2d 626 (5th Cir.

1989), superseded on other grounds, 950 F.2d 1086 (5th Cir. 1992)

(en banc). In each of those cases, the mailings were found not

to be in furtherance of fraudulent schemes because the mailings

occurred after the fraud had been completed. In Powers’ view,

his and Matzke’s alleged gas-profits scheme reached fruition at

the point that Oryx and Long Valley had made sales agreements

such that, “by the time the invoices were mailed, the price,

quantity, and other terms were already decided.” Thus, Powers

concludes that the mailings “involved little more than post-fraud

accounting.” Vonsteen, 872 F.2d at 629.

This argument, however, ignores the purpose, goal, and

motive of Powers’ ongoing scheme to defraud Oryx--money. For

this reason, we find that the cases cited by Appellant are

inapposite. Powers’ and Matzke’s scheme was to sell gas to Long

Valley month after month, and resell it at a profit to

themselves, month after month. Here, the success of the alleged

fraud depended upon Long Valley having the funds to pay Oryx for

the gas Long Valley would purchase. Because Long Valley did not
hold any money or assets, Long Valley could not pay Oryx until

Long Valley was first paid by Cowboy. The evidence at trial

showed that Long Valley’s receipt via the mails of the natural

gas invoices from Oryx prompted Long Valley to send similar bills

to Cowboy, triggering payment from Cowboy to Long Valley. We

therefore find that the mailing of the invoices by Oryx satisfied

the mailing requirement in the instant case. See Schmuck, 489

U.S. at 711-12, 109 S.Ct. at 1448 (holding that duped used-car

retailers submitting title applications to state motor vehicles

bureau satisfied mailing requirement where the success of the

ongoing fraudulent venture “depended on Schmuck’s continued

harmonious relations with, and good reputation among, retail

dealers, which in turn required the smooth flow of cars from

dealers” to customers).

Thus, we hold that the evidence presented at trial is

sufficient to support a finding that the mailings were in

furtherance of the scheme.

C. Money Laundering Counts

Counts 17 through 20 of the indictment charged Powers with

laundering the proceeds of specified unlawful activity, i.e.,

mail and wire fraud, in violation of 18 U.S.C.

§ 1956(a)(1)(B)(i). Under the money laundering statute, the

government must prove that the specific transactions in question

were designed, at least in part, to launder money. See 18 U.S.C.

§ 1956(a)(1)(B)(i); United States v. Dobbs, 63 F.3d 391, 397 (5th

Cir. 1995). Additionally, it must show that the defendant

desired to create the appearance of legitimate wealth or
otherwise to conceal the nature of funds so that the money could

enter the economy as legitimate funds. See id. (citing United

States v. Dimeck, 24 F.3d 1239, 1245 (10th Cir. 1994)). The

“purpose of the money laundering statute is to reach commercial

transactions intended (at least in part) to disguise the

relationship of the item purchased with the person providing the

proceeds and that the proceeds used to make the purchase were

obtained from illegal activities.” Id. (citing United States v.

Sanders, 929 F.2d 1466, 1472 (10th Cir. 1981)). Accordingly, a

“scheme that conceals only the source of the funds falls within

the purview” of 18 U.S.C. § 1956(a)(1)(B)(i). United States v.

Tencer, 107 F.3d 1120, 1129 (5th Cir. 1997) (citations omitted);

see also United States v. Alford, 999 F.2d 818, 824 (5th Cir.

1993) (finding evidence sufficient to show a purpose to disguise

fraudulent proceeds where the defendant and coconspirator agreed

to split the proceeds, and defendant had proceeds mailed to a

corporate account bearing his own surname).

Powers challenges the sufficiency of the Government’s proof,

specifically questioning the evidence of his intent to conceal

the source of the laundered funds. In doing so, he relies on

United States v. Dobbs, 63 F.3d 391 (5th Cir. 1995), in which we

reversed a money laundering conviction because the transactions

at issue were “open and notorious-–at least as much as typical

bank transactions can be.” Id. at 397. In Dobbs, a cattle

rancher was charged with money laundering because he deposited

some of the proceeds from the illegal sale of his cattle into his

wife’s bank account. See id. We determined that the deposit of
the cattle sale funds into the wife’s account from which ordinary

household and ranch expenses were paid did not support a money

laundering conviction. See id.

The Government correctly points out that the facts in the

present case are not like those in Dobbs. In Dobbs, the

transactions were not disguised by the use of third parties. See

id. Here, the deposit of checks made payable to ITEX from Long

Valley were disguised by the use of a third party, namely ITEX.

The checks from Long Valley to ITEX did not reveal on their faces

that Powers (or even his wife) was involved in the transactions.

Powers’ connection to ITEX could be discovered only by accessing

the bank records of ITEX, finding out that Mrs. Powers had an

interest in the account, and then tracing the funds from the ITEX

account to the couple’s personal account. Thus, Powers’ use of

ITEX evidences sufficient intent to conceal the source of the

illegal funds.

Powers’ money laundering convictions stand.

III. EVIDENTIARY CLAIMS

A district court's evidentiary rulings are reviewed for an

abuse of discretion. See United States v. Parks, 68 F.3d 860,

867 (5th Cir.1995). If an abuse of discretion is found, the

harmless error doctrine is applied. See United States v.

Skipper, 74 F.3d 608, 612 (5th Cir. 1996). Consequently, we

affirm evidentiary rulings unless the district court abused its

discretion and a substantial right of the complaining party was

affected. See United States v. Asibor, 109 F.3d 1023, 1032 (5th

Cir. 1997).
 A. Other Acts

Powers claims that evidence regarding (1) sales to Yuma and

American Central and (2) transactions among F.W. Chemical, Long

Valley, and ITEX should have been excluded pursuant to Rules

404(b) and 403. The Government responds that the first category

of evidence was properly admitted because it was not extrinsic in

that it went to prove the existence of the charged conspiracy.

As to the second category, the Government asserts that the

evidence was properly admitted under Rule 404(b) but that, in any

event, the limiting instruction given to the jury cured any

resultant prejudice to Powers.

The admission of extrinsic evidence is governed by Rule

404(b) of the Federal Rules of Evidence which states:

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, provided that upon request by the
accused, the prosecution in a criminal case
shall provide reasonable notice in advance of
trial, or during trial if the court excuses
pretrial notice on good cause shown, of the
general nature of any such evidence it
intends to introduce at trial.

Fed.R.Evid. 404(b). We admit evidence of extraneous acts under

Rule 404(b) only if: (1) it is relevant to an issue other than

the defendant’s character, and (2) the evidence’s probative value

is not substantially outweighed by its undue prejudice. See

United States v. Leahy, 82 F.3d 624, 636 (5th Cir. 1996); United

States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978), cert.

denied, 440 U.S. 920 (1979). That being said, evidence which is
intrinsic to the crime charged does not implicate Rule 404(b) and

“consideration of its admissibility pursuant to Rule 404(b) [is]

unnecessary.” United States v. Garcia, 27 F.3d 1009, 1014 (5th

Cir. 1994).

1. American Central and Yuma Transactions

One of the main evidentiary disputes during the course of

litigation was the characterization of the transactions involving

American Central and Yuma as extrinsic or intrinsic acts. The

Government contended that both sets of transactions were

intrinsic acts which were inextricably intertwined with the

conspiracy; Powers characterized the transactions as extrinsic

evidence.

The district court does not appear to have resolved

this evidentiary dispute. However, even if review of the record

were to reveal that Judge Maloney, in fact, considered the

American Central and Yuma evidence to be extrinsic, our precedent

requires the contrary conclusion.

We consider evidence “'intrinsic' when the evidence of the

other act and evidence of the crime charged are 'inextricably

intertwined' or both acts are part of a 'single criminal episode'

or the other acts were 'necessary preliminaries' to the crime

charged." United States v. Williams, 900 F.2d 823, 825 (5th Cir.

1990). We have held that, where a conspiracy is charged, acts

that are not alleged in the indictment may be admissible as part

of the Government’s proof. See, e.g., United States v. Coleman,

78 F.3d 154, 156 (5th Cir. 1996) (ruling that trial court

properly admitted, as intrinsic evidence, defendant's
participation in non-plead carjacking-related acts); United

States v. Quesada, 512 F.2d 1043, 1046 (5th Cir. 1975)

(explaining that the Government, in proving a conspiracy, is not

limited to overt acts alleged in the indictment and that the

prosecution “may show other acts of the conspirators occurring

during the life of the conspiracy”); United States v. Bullock,

451 F.2d 884, 889 (5th Cir. 1971) (finding no error where the

trial court admitted evidence of five stolen money orders that

were not mentioned specifically in the indictment for conspiracy

to transport money orders). Thus, because the non-plead American

Central and Yuma transactions tend to show the conspiratorial

relationship between Powers and Matzke, during the life of the

conspiracy, we find that such “other acts” are intrinsic to the

Government’s proof and not subject to Rule 404(b).

Having determined that the American Central and Yuma

transactions are intrinsic acts, we now consider Powers’

alternative claim that admission of those transactions violated

Federal Rule of Evidence 403. The standard provided in Rule 403

is whether the probative value is “substantially outweighed” by

the danger of unfair prejudice. See Fed. R. Evid. 403. We have

explained that all probative evidence is by its very nature

prejudicial. See United States v. Bermea, 30 F.3d 1539, 1562

(5th Cir. 1994). Evidence therefore should be excluded

“sparingly” and only in those circumstances where the prejudicial

effect substantially outweighs the probative value. See United

States v. Leahy, 82 F.3d 624, 637 (5th Cir. 1996).

We find that the district court properly admitted the
challenged evidence despite its prejudicial effect. First, the

American Central and Yuma evidence is highly probative. The

evidence showed that Powers used Long Valley the same way for

these sales as he used Long Valley in sales to Cowboy, i.e., as a

middleman to divert profit. Additionally, the evidence went to

prove the conspiratorial relationship between Powers and Matzke.

Second, the prejudicial effect is minimal. We do not find

compelling Powers’ lone complaint that the Government used the

American Central and Yuma transactions to mislead the jury and to

bolster his allegedly illegal acts.

Accordingly, we find that the district court did not commit

error in admitting the American Central and Yuma evidence.

2. F.W. Chemical Transactions

The Government introduced evidence that Powers and Matzke

shared profits from deals with another company F.W. Chemical.6

The Government contended that this evidence was admissible under

Rule 404(b) in relation to the charges of money laundering.

Powers objected each time these transactions were discussed at

trial.

Although not admissible as intrinsic to the acts charged in

the indictment, the transactions involving F.W. Chemical are

admissible under Rule 404(b) which allows extrinsic acts to be

6
F.W. Chemical has bought waste chemicals from ISP since
about 1989. In 1992, F.W. Chemical paid $48,000 to ITEX on
instructions from George Matzke in order to ensure that F.W.
Chemical was able to continue to buy chemicals from ISP. It
appears that Matzke had some influence over who got to buy the
chemicals. Powers and Matzke had an agreement that Powers could
keep half of the funds deposited by ITEX and send Long Valley a
check for the remaining portion.
admitted if they show inter alia intent or knowledge. Here, the

F.W. Chemical evidence was relevant to Powers’ intent to launder

money. No evidence was presented at trial tending to show that

F.W. Chemical and ITEX had any business relationship that would

warrant the payment of money from one company to the other.

Yet, money from F.W. Chemical was paid to ITEX (presumably so

that F.W. Chemical could continue to enjoy the right to buy waste

chemicals from Matzke’s employer ISP), and from there, half of

the money was forwarded to Long Valley. Because the Government

had charged Powers with laundering the profits of his Long Valley

deals through his ITEX account, the F.W. Chemical evidence is

probative of that intent. See United States v. Dillman, 15 F.3d

384, 391 (5th Cir. 1994) (finding that a non-plead transaction

was intertwined with the overall criminal scheme, and that a

specific account was a main laundering vehicle for funds).

With regard to any undue prejudicial effect attaching to the

admission of the F.W. Chemical testimony, we find Power’s

argument to be unpersuasive. Whatever undue prejudice resulted

from the admission of the F.W. Chemical evidence, we find that

the court’s “limiting instruction to the jury regarding the proof

of other criminal conduct” mitigated and cured it. United States

v. Route, 104 F.3d 59, 63 (5th Cir.), cert. denied, ___ U.S. ___

, 117 S.Ct. 2491 (1997).

B. Prior Consistent Statements

Generally, a prior consistent statement is admissible, and

not considered to be hearsay, if it “is consistent with the

declarant’s testimony and is offered to rebut an express or
implied charge against the declarant of recent fabrication or

improper influence or motive.” Fed. R. Evid. 801(d)(1)(B).

Although Rule 801(d)(1)(B) does not mention a time limitation,

the Supreme Court has stated that prior consistent statements are

only admissible to rebut a charge of fabrication if the

statements were made prior to the time that the declarant’s

motivation to fabricate arose. See Tome v. Unites States, 513

U.S. 150, 160, 115 S.Ct. 696, 705 (1995). Consequently,

admitting statements under Rule 801(d)(1)(B) that were made after

the time the motivation to fabricate arose constitutes error.

See United States v. Riddle, 103 F.3d 423, 432 (5th Cir. 1997)

(holding that the trial court erred in admitting a statement and

letter provided to the Government by a witness who was attempting

to trade information for a reduction in prison term).

Here, on cross-examination, Powers attempted to impugn

Matzke’s credibility by suggesting that Matzke had fabricated his

story in exchange for a promise of a plea bargain and that

Matzke’s testimony before the jury was motivated by his desire to

please the Government thereby fulfilling the requirements of his

plea agreement. Matzke denied Powers’ suggestion that his

testimony was improperly motivated. In doing so, he commented

that he previously had told to the FBI a story consistent with

his direct trial testimony. The Government, on redirect and over

objection, elicited testimony from Matzke confirming that he had

indeed talked to the FBI during the course of their investigation

and had told them a story consistent with his trial testimony.
 Although we are dubious that Rule 801(d)(1)(B) would

prohibit the Government, on redirect, to elicit testimony

regarding the same prior consistent statement that was already

presented to the jury on cross-examination by the same declarant,

we need not make such a determination in resolving Powers’ claim

as any error here would be harmless. See Riddle, 103 F.3d at 434

(noting that the trial court’s error in admitting prior

consistent statements is subject to a harmless-error analysis).

Matzke, on redirect, did not testify regarding the details of his

conversations with the FBI but only made the summary

representation that his direct testimony at trial was consistent

with what he had told the FBI in 1996. Because that same

information had already been elicited on cross-examination by

counsel for Powers, we find that no substantial right of Powers

was adversely affected by the admission of Matzke’s testimony

regarding his prior meeting with the FBI.

IV. SENTENCING ISSUES

A. Position of Trust Enhancement

Powers argues that the district court improperly enhanced

his offense level two points for a breach of a position of trust,

pursuant to U.S. Sentencing Guideline § 3B1.3.7 Powers asserts

two alternative grounds for error. First, Powers contends that

7
§ 3B1.3 provides in part:
If the defendant abused a position of public
or private trust, or used a special skill, in
a manner that significantly facilitated the
commission or concealment of the offense,
increase by 2 levels. This adjustment may not
be employed if an abuse of trust or skill is
included in the base offense level or
specific offense characteristic.
application of the § 3B1.3 enhancement amounted to double

counting because his offense level was in part based upon

depriving Oryx of his honest services--conduct which Powers

attempts to equate with abusing a position of trust.8 Second,

Powers claims that any breach of a position of trust by him did

not significantly facilitate the commission of the offense.

When confronted with convictions on multiple counts,

sentencing judges determine the offense level to be applied in

accordance with U.S. Sentencing Guidelines §§ 3D1.1 , 3D1.2,

3D1.3, and 3D1.4. See U.S. Sentencing Guidelines Manual § 3D1.1

(1997). Powers was sentenced under the money laundering

guidelines, § 2S1.1, because those guidelines produced the

highest offense level when compared to the mail fraud or wire

fraud guidelines, § 2F1.1. See id. § 3D1.3(b). Assumably, at

the point that the court compared the applicable offense levels

for the purposes of § 3D1.3, the money laundering guideline had

not yet been enhanced for an abuse of a position of trust,

§ 3B1.3. The reason is that the money laundering conduct for

which Powers had been convicted did not, itself, include any

abuse of trust (the transactions that served as the basis for the

money laundering convictions were Powers’ deposit of Long Valley

checks into the ITEX account).

Once the sentencing court determined that the money

laundering guidelines produced the highest offense level,

8
The indictment alleged and the jury was charged that Powers
could have committed fraud under either of two theories:
(1) depriving Oryx of property, i.e., money, and (2) depriving
Oryx of the right to honest services.
however, the court then considered “whether . . . adjustments

from Chapter Three, Parts A, B, and C appl[ied] based upon the

combined offense behavior taken as a whole.” Id. § 3D1.3,

Application n.3. In doing so, Judge Maloney properly applied the

§ 3B1.3 enhancement. Appellant’s offense level was enhanced

because the court believed that Powers’ scheme to defraud Oryx

was “significantly facilitated” by an abuse of a position of

private trust. We note that the § 3B1.3 upward adjustment was

applied to Powers’ base offense level for money laundering and

not to a base offense level for mail/wire fraud. Powers fails to

appreciate this distinction. Thus, Appellant’s argument that he

was twice punished for an abuse of a position trust, i.e.,

through the application of the § 3B1.3 enhancement and an offense

level that was in part based upon depriving Oryx of his honest

services, lacks merit.

The question that remains is whether Judge Maloney’s factual

determination--that (1) Powers abused a position of trust and (2)

such an abuse “significantly facilitated” Powers’ scheme to

defraud Oryx–-constitutes clear error. See United States v.

Brown, 7 F.3d 1155, 1161 (5th Cir. 1993) (explaining that the

application of § 3B1.3 “involves a sophisticated factual

determination,” and is subject to review for clear error only).

Application Note 1 of § 3B1.3 provides in part: “For this

enhancement to apply, the position of trust must have contributed

in some significant way to facilitating the commission or

concealment of the offense.” We have explained that “to

determine whether the position of trust ‘significantly
facilitated’ the commission of the offense, [a] court must decide

whether the defendant occupied a superior position relative to

all people in a position to commit the offense, as a result of

[his] job.” United States v. Fisher, 7 F.3d 69, 70-71 (5th Cir.

1993). In United States v. Scurlock, 52 F.3d 531 (5th Cir.

1995), we further noted that the appropriate comparison is

between the defendant and the “public at large.” Id. at 541.

Here, the proper inquiry is not whether Powers’ occupied a

position superior to his co-workers (as suggested by Appellant),

but whether his position afforded him an opportunity not enjoyed

by the general public. See Brown, 941 F.2d at 1305. Based upon

the record, the sentencing court could have easily determined

that Powers’ opportunity to defraud Oryx was created by his

position as gas marketer at Oryx. The evidence presented at

trial indicated that Powers used his position to circumvent

Oryx’s policy to sell gas only to end-users with approved credit.

Additionally, Powers used his position to approve some of his own

deals with Long Valley. In light of these facts, we find that

the district court’s factual determination that Powers’ breach of

a position of trust significantly facilitated his scheme to

defraud his employer, Oryx, does not constitute clear error.

Therefore, the two level § 3B1.3 enhancement stands.

B. Obstruction of Justice Enhancement

The Sentencing Guidelines authorize a two level increase in

offense level for obstruction of justice "when a defendant

engages in conduct which 'obstructed or impeded, or attempted to

obstruct or impede, the administration of justice during the
investigation, prosecution, or sentencing of the instant

offense.'" United States v. Lowder, 148 F.3d 548, 552 (5th Cir.

1998) (quoting § 3C1.1). Powers argues that the obstruction of

justice adjustment was improperly imposed because the government

failed to prove by a preponderance of the evidence that Powers

provided the Government and produced in court “false” exhibits.

See United States v. Lombardi, 138 F.3d 559, 562 (5th Cir.1998)

(“This Circuit has firmly established that the burden of proof at

sentencing is usually by a ‘preponderance of the evidence.’”).

In particular, Powers asserts without citation to relevant

authority that (1) Matzke was an incredible witness upon which

the district court could not reasonably have relied and (2) the

Government’s proof lacked the benefit of a documentary

investigation.

We review a district court’s finding of obstruction of

justice for clear error. See United States v. Pofahl, 990 F.2d

1456, 1481 (5th Cir. 1993). “A factual finding is not clearly

erroneous as long as it is plausible in the light of the record

as a whole.” United States v. Cluck, 143 F.3d 174, 180 (5th Cir.

1998); see also United States v. Dixon, 132 F.3d 192, 201 (5th

Cir. 1997). This is particularly true where a sentencing court’s

imposition of a § 3C1.1 enhancement is based, at least in part,

upon an evaluation of a witness’ credibility. See Johnson v.

Collins, 964 F.2d 1527, 1532 (5th Cir. 1992) (stating that

appellate court must show even more deference, when findings of

fact are based on credibility determinations). After a

considered review of the record, we find that the district court
did not commit clear error in imposing a § 3C1.1 enhancement for

obstruction of justice.

C. Use of Money Laundering Guidelines

Powers also contends that the district court erred in

sentencing him under the money laundering guidelines instead of

the fraud guidelines. The crux of Powers' argument is that a

substantial disparity exists between the guideline range he would

have confronted under the fraud guidelines in § 2F1.1 and the

sentence he actually received under the money laundering

guidelines in § 2S1.1. We find no merit to this argument.

The district court was required to “group” together Powers’

fraud and money laundering offenses because those crimes involved

the same victim and involved multiple acts that were linked by a

common illegal objective or part of a common scheme. See United

States v. Leonard, 61 F.3d 1181, 1185 (5th Cir. 1995) (noting

that § 3D1.2(d) explicitly provides for grouping of offenses

covered by the fraud and money laundering guidelines). Once

grouped, the district court properly determined that money

laundering produced the higher offense level and properly imposed

sentence under that guideline, § 2S1.1. See Leonard, 61 F.3d at

1185 (explaining that because of the Guideline's grouping rules,

where money laundering and fraud offenses can be properly

grouped, the imposition of the higher base offense level attached

to money laundering was required).

Powers next argues that the sentencing court should have

departed downward in light of the severity of his sentence

imposed under the money laundering guideline. Although a court
can choose to depart downward where the particular conduct falls

outside the “heartland” of offenses considered by the Sentencing

Commission, a court’s refusal to grant a downward departure from

the Guidelines may only be reviewed “if the refusal was based on

a violation of the law.” United States v. Palmer, 122 F.3d 215,

222 (5th Cir. 1997) (explaining that an appellate court has

jurisdiction to review a trial court's refusal to grant a

downward departure from the Sentencing Guidelines only if the

district court's refusal to depart downward is premised upon the

court's mistaken conclusion that the Guidelines do not permit

such a departure); Leonard, 61 F.3d at 1185 (noting that failure

to grant discretionary “heartland” departure is not subject to

appellate review). Because our review of the record reveals no

basis from which we could conclude that Judge Maloney erroneously

believed that he lacked the authority to depart, his decision to

not grant a downward departure is unreviewable on appeal.

V. HONEST SERVICES THEORY

The indictment alleged, and the jury was instructed that

Powers could have committed fraud under either of two theories.

The first theory was that Powers obtained money or property

through fraudulent means, in violation of 18 U.S.C. § 1341 (use

of mail) and 18 U.S.C. § 1343 (use of wire). The second was that

Powers deprived Oryx of its right to his honest services, in

violation of 18 U.S.C. §§ 1341, 1343, and 1346. Because the jury

convicted Appellant by a general verdict, we are unable to

determine whether the jury embraced the first theory, the second,

or both.
 Nonetheless, Powers argues that his fraud convictions are

invalid because the honest services theory does not apply to his

conduct. Specifically, he contends that there was no proof that

he intended to deprive Oryx of his honest services or that Oryx

suffered any tangible harm. We note that Powers’ attack on the

applicability of the honest services theory, when stripped down

to its essentials, is nothing more than an attack on the

sufficiency of the evidence.

We need not, however, address this sufficiency question. As

already mentioned, the case was submitted to the jury on two

alternative, legally valid theories. If either theory was

supported by sufficient evidence, we are bound to affirm. See

Griffin v. United States, 502 U.S. 46, 56-60, 112 S.Ct. 466, 472-

74 (1991); United States v. Manges, 110 F.3d 1162, 1172 (5th Cir.

1997). Because we have already found that Powers’ mail fraud and

wire fraud convictions are supported by sufficient evidence on

the theory that he schemed to obtain money through false means,

our inquiry ends here.

VI. CUMULATIVE ERROR

Powers’ final claim is that the cumulative effect of

multiple errors throughout his trial resulted in a violation of

his due process rights. Because the foregoing analysis has

revealed no error, Powers has nothing to cumulate. See United

States v. $ 9,041,598.68, 163 F.3d 238, 250 (1998) (discussing

cumulative error analysis in the context of a forfeiture

proceeding). We, therefore, deny Powers relief on his cumulative

due process claim.
 VII. CONCLUSION

For the above-stated reasons, we affirm both Powers’

conviction and sentence.

AFFIRMED.