United States v. Deppe

United States Court of Appeals
For the First Circuit

No. 07-1048

UNITED STATES OF AMERICA,

Appellee,

v.

MICHAEL R. DEPPE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor IV, U.S. District Judge]

Before

Boudin, Chief Judge,
Selya and Stahl, Senior Circuit Judges.

Arza Feldman, Steven A. Feldman, and Feldman and Feldman on
brief for appellant.
Adam J. Bookbinder, Assistant United States Attorney, and
Michael J. Sullivan, United States Attorney, on brief for appellee.

December 11, 2007
 SELYA, Senior Circuit Judge. The circus impresario, P.T.

Barnum, is famously reputed to have said that "there's a sucker

born every minute." That droll commentary on the human condition,

whether or not fairly attributed to Barnum,1 appears to be as

insightful in cyber-commerce as in face-to-face business

transactions. This conclusion is borne out by the case at hand,

which involves an Internet fraud.

In the appeal proper, we are asked to consider

allegations of instructional and sentencing error. The overarching

themes are those of chicanery and greed. Thoroughly assured by a

careful canvass of the record, we affirm the judgment below.

I. BACKGROUND

Beginning in March of 2003, defendant-appellant Michael

R. Deppe commenced a series of transactions in which he offered

Rolex watches over the Internet in exchange for funds wire-

transferred directly to his bank account. By December of 2003, he

had engaged in twenty-seven such transactions and had snared

roughly $115,000 in payments. But there was a catch: not a single

customer had received a watch.

An investigation uncovered the following scenario. Upon

receipt of wire-transferred funds in the stipulated amount, the

1
Although this statement was attributed to Barnum in the Fort
Wayne Weekly Sentinel of January 17, 1894, Barnum is said to have
doubted that he had uttered these precise words. He conceded,
however, that he may have said: "The people like to be humbugged."

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appellant would ship a package. The customer would receive

tracking information for the shipment. In fact, however, the

package would deliberately be sent to an incorrect address within

the customer's zip code. This artifice worked because the tracking

information only indicated to the customer that a package had been

sent to his zip code; it did not reveal the intended destination

with any greater specificity. When and if the package caught up

with the customer, it invariably proved to contain only crumpled

newspaper or worthless baseball cards.

By March of 2004, the Rolex scheme had been laid waste,

and a state prosecutor had charged the appellant with nineteen

counts of larceny. He was not detained, though, on the condition

that he no longer conduct business through the instrumentality of

a computer.

The fall of 2004 saw the appellant contravene the state

court bail order. He teamed up with William Englehart and entered

a new line of business. Their fledgling firm, called Aceprosports,

aspired to sell sports merchandise through well-known Internet

intermediaries like eBay and PayPal.

Initially, each sale went off without a hitch, and

Aceprosports garnered "power seller" honors from eBay. In early

2005 — some two weeks before the Super Bowl — the dénouement began.

At that juncture, the company started selling nonexistent tickets

to the game. The Super Bowl scheme netted nearly $263,000 for

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tickets that the partners never possessed. While Englehart made a

few refunds, the vast majority of customers lost their deposits.

On February 23, 2005, a federal grand jury indicted the

appellant on eight counts of wire fraud, 18 U.S.C. § 1343, and two

counts of mail fraud, id. § 1341, all related to the Rolex swindle.

Exactly five weeks later, the grand jury handed up a superseding

indictment that added four counts of wire fraud and two counts of

mail fraud growing out of the Super Bowl scheme.

The appellant initially maintained his total innocence.

Then, on March 6, 2006, he pleaded guilty to the ten counts that

implicated the Rolex fraud. The six Super Bowl counts remained

pending.

A seven-day jury trial ensued. The trial evidence

featured finger-pointing by the two erstwhile partners. The

government's theory of the case was that the appellant had falsely

assured Englehart that he (the appellant) had found a legitimate

source of Super Bowl tickets and had bilked Englehart out of the

money paid by prospective purchasers. For his part, the appellant

sought to erase this portrait of Englehart as "the perfect dupe."

He asserted that Englehart helped with many of the sales himself,

controlled the company's bank account and cash flow, and forged

receipts to make it appear that the appellant had siphoned off the

proceeds of the scheme.

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 The government dropped one of the six remaining counts

mid-trial. As to the rest, the jury apparently accepted the

government's version of the relevant events; on May 2, 2006, it

convicted the appellant on each of the five submitted counts.

The conceded counts and the tried counts were grouped for

purposes of sentencing. Without objection, the district court

fixed the appellant's adjusted offense level at 27. The court then

declined to grant the appellant a two-level reduction for

acceptance of responsibility, see USSG §3E1.1(a); placed him in

criminal history category I; arrived at a guideline sentencing

range (GSR) of 70-87 months; and imposed a mid-range 78-month

incarcerative term. The court also fined the appellant, levied a

special assessment, ordered restitution in the amount of

$520,375.84, and set a period of supervised release. This timely

appeal followed.

II. DISCUSSION

We begin our substantive analysis with the appellant's

claim of instructional error. We then proceed to consider his twin

claims of sentencing error.

A. Jury Instructions.

The appellant's complaint about the jury instructions has

its genesis in an original instruction given to the jury after both

sides had rested and counsel had delivered their summations. The

court stated:

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 The defendant contends that another person was
responsible for any wrongful acts that may
have occurred in this case. The fact that
someone else may have had the requisite intent
to commit mail or wire fraud does not, by
itself, constitute a defense or an excuse for
Mr. Deppe. However, you may consider evidence
of the intent and conduct of other parties to
the extent that such evidence bears on the
issue of whether Mr. Deppe himself had the
requisite intent and committed the crimes
charged.

The appellant seasonably objected to this instruction, asserting

that whatever the indictment might say, the government had

presented its case as one in which Englehart had been duped, yet

the instruction invited the jurors to convict even if they found

that Englehart had co-engineered the fraud. Deeming this objection

well-taken, the district court gave the following supplementary

instruction before the start of deliberations:

The indictment charges . . . a scheme to
defraud, both in the form of mail fraud and
wire fraud, and it charges it in a particular
way, and the way it charges it is that Mr.
Deppe is criminally culpable, and no other
person is criminally culpable, and that is
what you are to decide, whether the government
has proved beyond a reasonable doubt the
particular scheme charged in the indictment.

Thus instructed, the jury retired to deliberate.

Shortly thereafter, the jurors requested clarification of

the supplementary instruction. The court brought them back into

the courtroom, candidly acknowledged that its supplementary

instruction might have been "a little bit looser" than it should

have been, and bade the jurors to focus on whether the government

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had proven the fraudulent scheme substantially as charged in the

relevant counts of the indictment. It repeated no fewer than five

times words to the effect that "the Government must prove that

there was a scheme to defraud, substantially as charged in the

indictment." Relatedly, the court reminded the jurors of the

burden of proof.

At this point, a juror asked a somewhat garbled question

anent the district court's earlier instruction:

It sounds to me as though if Mr. Deppe isn't
completely solely responsible, that there's no
one else culpable then — then we decide that
he's guilty. If we decide that — that someone
was in on this with him, then he's not guilty?

By way of response, the court reiterated that the jury should focus

on whether or not the scheme charged in the indictment had been

proved. In search of certitude, the court repeated that admonition

at least three times after the juror interposed his query. The

court refused to editorialize about the scheme or otherwise to

elaborate on the jury's duty. Despite requests by both sides, the

court also declined to reduce any of its supplementary instructions

to writing.

Thus instructed, the jury repaired to the jury room and

resumed its deliberations. It returned with a guilty verdict on

all five of the pending counts.

The appellant's challenge to these instructions is

quixotic. His brief makes no claim that any of the instructions

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were incorrect as a matter of law. Rather, he asserts that the

instructions must have confused the jury, as evidenced by one

juror's expression of puzzlement (expressed in the question quoted

above).

Objections to allegedly confusing jury instructions, when

preserved for appeal, engender review for abuse of discretion. See

United States v. Nascimento, 491 F.3d 25, 33-34 (1st Cir. 2007).

If such objections have not been preserved, plain-error review

applies. See Fed. R. Crim. P. 30(d), 52(b); see also United States

v. Vega Molina, 407 F.3d 511, 529 (1st Cir. 2005). In this

instance, the record is murky as to whether the claim of

instructional error was or was not preserved.

The relevant facts are as follows. When the district

court held a sidebar conference to discuss its further

instructions, the appellant injected himself into the conversation,

bypassing his counsel and explaining how he thought the

instructions should be worded. The court then asked defense

counsel whether the appellant's objection was counsel's objection.

Counsel equivocated; he disavowed the objection but then

enigmatically observed that, whatever he (counsel) happened to

think, "it's [Deppe's] life."

In the end, we find it unnecessary to resolve whether the

claim of institutional error was preserved for appellate review.

Instead we assume, favorably to the appellant, that it was. On

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that assumption, we proceed to assay the challenged instructions

for abuse of discretion. We discern none.

The most pertinent consideration is that none of the

instructions harmed or prejudiced the appellant in any way. In

point of fact, the only problematic instruction given to the jury

— the district court's first supplementary instruction — favored

the appellant.2 We explain briefly.

The district court at that point instructed the jury that

the indictment required proof that the appellant "is criminally

culpable, and no other person is criminally culpable." But the

government's burden was not so onerous: the indictment itself

included charges of aiding and abetting and left ample room for

scenarios in which the appellant and one or more collaborators

could be held criminally responsible. When the putative error in

a criminal jury instruction is such that it tends to narrow the

indictment or to elevate the government's burden of proof, the

defendant cannot be heard to complain about prejudice. See United

States v. Lizardo, 445 F.3d 73, 86 (1st Cir. 2006).

Viewed against this backdrop, the somewhat inarticulate

question posed by the inquisitive juror fails to supply any

meaningful evidence of prejudicial jury confusion. The appellant

asks us to interpret this question as an indication that all the

2
This is the instruction that the district court itself, on
reflection, fretted had "set some sort of land speed record . . .
in confusing a jury."

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jurors believed that, if they found that no one else was guilty of

the fraud, they could convict the appellant on that basis alone.

This is too much of a stretch: the question was ambiguous and, in

all events, reflected only the tentative thought processes of one

juror. It would be pure speculation to infer a mistaken view of

the law from an ambiguous question posed by a single juror. Cf.

Ayers v. Belmontes, 127 S. Ct. 469, 479 (2006) (holding that

individual juror questions regarding instructions, susceptible of

differing interpretations, did not justify grant of habeas relief).

Here, moreover, the query was interposed before the court

completed its instructions. Even if some modicum of juror

confusion persisted at that preliminary stage — an assumption that

we view as dubious — there is no reason to think that the district

court's subsequent clarification did not dispel it. See Howard D.

Jury, Inc. v. R & G Sloane Mfg. Co., 666 F.2d 1348, 1351 (10th Cir.

1981) (explaining that the critical question is "whether the

confusion in the jurors' minds was eliminated before the verdicts

were returned, not whether the jurors were confused prior to that

time"). This clarification, which took the form of several plainly

worded repetitions of the correct rule of law, was more than

adequate to eliminate any vestige of confusion that previously

might have crept into the case. See, e.g., United States v.

Nishnianidze, 342 F.3d 6, 16 (1st Cir. 2003); United States v.

Murray, 618 F.2d 892, 904 (2d Cir. 1980); see also Bollenbach v.

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United States, 326 U.S. 607, 612 (1946) (Frankfurter, J.)

("Particularly in a criminal trial, the judge's last word is apt to

be the decisive word.").

In sum, we adhere to the sensible principle that a "jury

instruction cannot be read in a vacuum, but, rather, must be taken

in light of the charge as a whole." Ellis v. United States, 313

F.3d 636, 645 (1st Cir. 2002). Applying that rule, we find little

or no evidence of jury confusion here. We are, moreover, confident

that any possible risk of confusion was abated by the lower court's

curative instructions. We therefore detect no abuse of discretion

in the instructions as a whole.

B. Acceptance of Responsibility.

We turn next to the appellant's primary claim of

sentencing error: his entreaty that the district court

improvidently refused to shrink his offense level for acceptance of

responsibility. We discern no error.

Under the applicable guideline, USSG §3E1.1(a), a

defendant may receive a two-level downward adjustment if he

seasonably accepts responsibility for the crime(s) of conviction.

The burden of proving that he accepted responsibility rests

squarely with the defendant. See United States v. Franky-Ortiz,

230 F.3d 405, 408 (1st Cir. 2000); United States v. Royer, 895 F.2d

28, 29-30 (1st Cir. 1990).

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 Acceptance of responsibility entails more than merely

mouthing the vocabulary of contrition. Pleading guilty in advance

of trial and truthfully disclosing the details of all relevant

conduct usually will constitute substantial evidence that a

defendant has accepted responsibility. See USSG §3E1.1, cmt.

(n.3). But not every pretrial guilty plea guarantees the defendant

the two-level reduction. See, e.g., United States v. McLaughlin,

378 F.3d 35, 38-39 (1st Cir. 2004); Royer, 895 F.2d at 30.

When a defendant proceeds to trial and puts the

government to its proof, a credit for acceptance of responsibility

normally will not be available. See, e.g., United States v.

Sánchez-Berríos, 424 F.3d 65, 79 (1st Cir. 2005); United States v.

Rosario-Peralta, 199 F.3d 552, 570 (1st Cir. 1999). Even so,

proceeding to trial does no more than create a rebuttable

presumption of non-availability. A defendant in that position

still may receive credit for acceptance of responsibility in "rare

situations." USSG §3E1.1, cmt. (n.2); see, e.g., United States v.

Kowal, ___ F. Supp. 2d ___, ___ (N.D. Iowa 2007) [No. 06-CR-133,

2007 WL 2903194, at *9] (allowing downward adjustment where

defendant stipulated to facts and proceeded to trial solely to test

applicability of statute to his conduct).

The standard of review for acceptance-of-responsibility

determinations is familiar. Recognizing the special difficulty of

discerning, on a cold record, whether a defendant's expressions of

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remorse were in earnest, we review a sentencing court's judgments

about acceptance of responsibility for clear error. See United

States v. Dethlefs, 123 F.3d 39, 43 (1st Cir. 1997); Royer, 895

F.2d at 29; see also USSG §3E1.1, cmt. (n.5) (explaining that "the

determination of the sentencing judge is entitled to great

deference on review"). We nonetheless maintain plenary review over

related legal questions, including the interpretation of the scope

that a sentencing guideline affords. See, e.g., United States v.

Talladino, 38 F.3d 1255, 1263 (1st Cir. 1994).

In this case, we confront the hybrid situation in which

a defendant has admitted guilt in advance of trial as to some of

the counts in a multi-count indictment, yet proceeded to trial on

other counts.3 The appellant argues, in effect, that the district

court gave too short shrift to the fact that he had pleaded to

several of the charges and erroneously applied what amounted to a

conclusive presumption that the reduction should not be awarded.

Several of our sister circuits have held that acceptance of

responsibility is an all or nothing proposition and that a

rebuttable presumption of non-availability (that is, a presumption

subject to the "rare situation" exception) applies where a

3
For purposes of this analysis, we ignore the count that the
government voluntarily dismissed, as a defendant need not plead
guilty to charges the government itself has relinquished in order
to receive the basic reduction for acceptance of responsibility.
See United States v. Perez-Franco, 873 F.2d 455, 459 (1st Cir.
1989).

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defendant pleads guilty to some but not all of the crimes charged

in a multi-count indictment. See, e.g., United States v. Thomas,

242 F.3d 1028, 1034 (11th Cir. 2001); United States v. Chambers,

195 F.3d 274, 277-79 (6th Cir. 1999); United States v. Ginn, 87

F.3d 367, 371 (9th Cir. 1996); United States v. Kleinebreil, 966

F.2d 945, 954 (5th Cir. 1992); United States v. McDowell, 888 F.2d

285, 293 (3d Cir. 1989). But see United States v. Wattree, 431

F.3d 618, 622 (8th Cir. 2005) ("To the extent the Third Circuit [in

McDowell] adopts a per se rule that grouping overrides all other

circumstances, this court does not follow the Third Circuit.").

This court has not answered the question — and, as we explain

below, we have no occasion to do so today.

The fact of the matter is that the district court —

contrary to the appellant's implication — did not automatically

deny an acceptance-of-responsibility credit on account of his

decision to go to trial on some of the charged counts. Rather, in

its statements at the disposition hearing, the court referred

repeatedly to an application note, which provides in pertinent

part:

In determining whether a defendant qualifies
[for an acceptance of responsibility
reduction], appropriate considerations include
. . . truthfully admitting the conduct
comprising the offense(s) of conviction, and
truthfully admitting or not falsely denying
any additional relevant conduct.

USSG §3E1.1, cmt. (n.1(a)). The court concluded:

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 The defendant did not truthfully admit the
conduct of the offensive conviction and did
not truthfully admit and has falsely denied
other relevant conduct . . . .

* * *

He has sought to shift blame to others, and
otherwise engaged in — engaged in denials and
other conduct suggesting that he had not
accepted responsibility. . . .

* * *

I don't think [the two-level reduction is]
appropriate under the circumstances, so that
objection is overruled.

These comments evince a particularized consideration of

the appellant's actions at the trial. That focus is thoroughly

incompatible with the appellant's suggestion that the court made a

rote rejection of his request for an acceptance-of-responsibility

adjustment merely because he had pleaded to fewer than all of the

charged counts.

In denying a section 3E1.1(a) discount, the district

court need not articulate a tight matrix of factual findings, in

light of which its denial seems all but ineluctable. See United

States v. Saxena, 229 F.3d 1, 10 (1st Cir. 2000). Here, the court

made pellucid its conclusion that the appellant's downplaying of

his role in the Super Bowl ticket fraud and his attempts to shift

the blame to Englehart were antithetic to a finding that he had

accepted responsibility for his criminality. No more was exigible;

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given the district court's findings, this was surely not one of the

"rare situations" that would have warranted special largesse.

C. Reasonableness of the Sentence.

In a parting shot, the appellant tries to impugn the

length of his 78-month sentence. For this limited purpose, he

concedes the correctness of the district court's guideline

computations and acknowledges that the sentence falls within the

compass of the GSR. He nonetheless claims that factors to which

the court attached insufficient weight dictated a more benign

result. This argument is wide of the mark.

In the aftermath of the Supreme Court's landmark decision

in United States v. Booker, 543 U.S. 220, 261 (2005), we review

durational challenges to criminal sentences for reasonableness.

That standard governs regardless of whether the sentence imposed

falls within or without the confines of the GSR. United States v.

Jiménez-Beltre, 440 F.3d 514, 517 (1st Cir. 2006) (en banc).

Withal, the challenger's burden is particularly heavy where, as

here, he strives to brand as unreasonable a within-the-range

sentence. See United States v. Smith, 445 F.3d 1, 4 (1st Cir.

2006); cf. Rita v. United States, 127 S. Ct. 2456, 2463-68 (2007)

(discussing the presumption of reasonableness that attaches to

within-the-range sentences). In the last analysis, this standard

of review is fairly deferential. As long as we discern "a

plausible explanation" for the sentence and a "defensible overall

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result," we will not second-guess the district court's informed

judgment. Jiménez-Beltre, 440 F.3d at 519.

In the instant case, the appellant posits that, in

considering the sentencing factors enumerated in 18 U.S.C.

§3553(a),4 the district court undervalued four relevant factors:

the appellant's lack of a prior criminal record, his youth (twenty-

one years old at the time of the Rolex fraud), the non-violent

nature of the crimes of conviction, and his psychological frailties

(specifically, an obsessive-compulsive disorder and a gambling

addiction). This argument comprises more cry than wool.

The record makes manifest that the district court was

well aware of each of these factors when it pronounced sentence.

Indeed, three of them — the absence of a criminal record, the

character of the offenses, and the appellant's addictive behavior

— were explicitly mentioned by the court during its statement of

reasons for configuring the sentence. The court also spoke about

4
These factors include:

(1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the
need for the sentence imposed (A) to reflect the
seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense; (B)
to afford adequate deterrence to criminal conduct; (C) to
protect the public from further crimes of the defendant;
and . . . (6) the need to avoid unwarranted sentence
disparities among defendants with similar records . . .;
and (7) the need to provide restitution to any victims of
the offense.

18 U.S.C. § 3553(a).

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the appellant's failure to accept full responsibility, the need for

deterrence, and the unfortunate hallmarks of the appellant's crimes

(cynicism, brazenness, greed, and deliberateness). It is readily

apparent that the court elected to focus on certain important

aspects of the offenses of conviction and to give less weight to

other allegedly mitigating factors. So viewed, the court's

weighing of the relevant factors entailed a choice of emphasis, not

a sin of omission. That is not a basis for a founded claim of

sentencing error. See United States v. Dixon, 449 F.3d 194, 205

(1st Cir. 2006) ("While a sentencing court must consider all of the

applicable section 3553(a) factors, it is not required to address

those factors, one by one, in some sort of rote incantation when

explicating its sentencing decision.").

The short of it is that the sentencing court provided a

logical explanation for the 78-month sentence and — given the

nature of the crimes committed and the characteristics of the

criminal — that sentence represents a sensible punishment. That is

all that an appellate court can expect. See Jiménez-Beltre, 440

F.3d at 519; see also United States v. Turbides-Leonardo, 468 F.3d

34, 40 (1st Cir. 2006) (explaining that a sentencing court's

explanation of the sentence need not "be precise to the point of

pedantry").

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III. CONCLUSION

We need go no further. For the reasons elucidated above,

we find the appellant's conviction and sentence to be unimpugnable.

Affirmed.

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