United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1366
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United States of America, *
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Appellee, *
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v. *
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Larry P. Goodyke, *
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Appellant. *
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Appeals from the United States
No. 10-1367 District Court for the
___________ Western District of Missouri.
United States of America, *
*
Appellee, *
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v. *
*
David L. Robinson, *
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Appellant. *
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Submitted: December 17, 2010
Filed: April 25, 2011
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Before RILEY, Chief Judge, BEAM and BENTON, Circuit Judges.
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BEAM, Circuit Judge.
Larry Goodyke and David Robinson appeal their convictions and sentences for
conspiracy to produce fraudulent diplomatic identification cards and for wrongfully
using the Department of State seal, in violation of 18 U.S.C. §§ 2, 371 and 1017. We
affirm.
I. BACKGROUND
Goodyke, Robinson, and others who are not involved in this appeal
(collectively, "defendants") participated in a scheme whereby they marketed and sold
fraudulent "diplomatic immunity" cards. Defendants represented to potential buyers
that obtaining the cards would enable purchasers to avoid paying taxes, and would
entitle them to immunity from being detained or arrested by law enforcement officers.
The cards themselves contained an "apostille" number. An apostille is a document
issued by a state government that certifies the legitimacy of a notary stamp on a
document and is intended for use in foreign transactions. Defendants obtained most
of their apostille numbers from the Kansas Secretary of State's office. The cards bore
the seal of the United States Department of State in the lower left corner, said "State
of Kansas" on the top, and bore the seal and signature for the Kansas Secretary of
State's office. Defendants misrepresented to the buyers that the apostille number gave
them authorization to use the United States Department of State seal on the cards.
The scheme was discovered when one of the defendants sold such a card to an
undercover police officer. At trial, this officer, several other card purchasers, and a
co-defendant who pleaded guilty, all testified about the details of the scheme.
Evidence at trial indicated that purchasers spent anywhere from $450 to several
thousands of dollars on the cards and affiliated products (license plates, metal badges,
etc.). The jury returned guilty verdicts on all counts.
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At sentencing, as relevant, the district court1 found that there should be an
eight-level enhancement because the loss was greater than $70,000, and a four-level
enhancement because there were more than fifty victims. The court also applied a
two-level enhancement because defendants misrepresented that they were acting on
behalf of a government agency, and applied a two-level obstruction of justice
enhancement to Robinson. Robinson was sentenced to seventy-five months'
imprisonment and Goodyke to sixty months' imprisonment.
On appeal, Goodyke challenges the sufficiency of the evidence, and both
defendants challenge the district court's sentencing findings with regard to amount
of loss, number of victims and official agency misrepresentation. Robinson also
challenges the district court's imposition of the obstruction of justice enhancement.
II. DISCUSSION
A. Goodyke's Sufficiency Challenge
We review a challenge to the sufficiency of the evidence deferentially, viewing
the evidence in the light most favorable to the jury's verdict, and affirm if any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. United States v. Inman, 558 F.3d 742, 747 (8th Cir. 2009).
To prove a violation of § 1017, the government must prove that Goodyke (1)
procured or sold a document; (2) knowing the seal of the United States Department
of State had been fraudulently affixed to the document; and (3) did both of the
foregoing with fraudulent intent. 18 U.S.C. § 1017. To show a conspiracy, the
government must prove an agreement to perform an illegal act, that Goodyke knew
1
The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
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of the agreement and took steps to become a part of the agreement. United States v.
Jenkins-Watts, 574 F.3d 950, 959 (8th Cir. 2009), cert. denied, 130 S. Ct. 1915
(2010).
Viewed in the light most favorable to the jury verdict, there was sufficient
evidence on all of the elements of the crimes to support Goodyke's convictions. The
jury heard myriad witnesses and viewed numerous emails detailing the scheme, the
theory behind the scheme, and the scope of the fraud and the connections between the
defendants acting in concert. The jury heard that Goodyke created a copy of the
Department of State seal to place on the cards and continually modified the seal and
the cards to make them look more legitimate. And, though Goodyke received notice
that wrongfully obtaining an apostille and misusing the seal was illegal, he continued
to market and sell the cards. Finally, there was evidence that Goodyke drafted
documents to explain to potential customers why it was legal for him to use the
Department of State seal on the cards. Accordingly, Goodyke cannot establish there
was insufficient evidence that he acted with fraudulent intent. Furthermore, there was
sufficient evidence that Goodyke entered into an agreement with numerous of his co-
defendants to commit this crime. The evidence showed that after receiving his own
diplomatic immunity cards and materials in October 2006, Goodyke offered his
services to defendants and represented that he had the talent and resources to improve
upon the quality of the cards and related products. Numerous communications
ensued between Goodyke and the other defendants following his October 2006
entrance into the conspiracy. The voluminous trial transcript is replete with sufficient
evidence to support Goodyke's conviction on all counts.
B. Sentencing
Goodyke and Robinson both challenge the district court's sentencing findings
with regard to amount of loss and number of victims, as well as the district court's
decision to increase their base offense level because they misrepresented themselves
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to be official government agents. We review the district court's application of the
Guidelines for clear error, giving deference to the determination based upon the
district court's unique position to assess the evidence. United States v. Jenkins, 578
F.3d 745, 749 (8th Cir. 2009), cert. denied, 130 S. Ct. 1550 (2010).
United States Sentencing Guidelines Manual § 2B1.1(b) instructs the district
court to increase the base offense level incrementally based upon the amount of loss.
A loss of greater than $70,000 increases the base offense by eight levels. U.S.S.G.
§ 2B1.1(b)(1)(E). The Guidelines further provide that when the number of victims
is fifty or more, the court should increase the base offense by four levels. Id. §
2B1.1(b)(2)(B). The district court based its calculations upon the testimony of the
purchasers about how much they paid for the cards as well as a spreadsheet seized
from Goodyke's computer indicating that at least 100 people had purchased the cards.
The same spreadsheet showed that the venture had generated at least $65,000. The
government presented additional evidence at both trial and sentencing that individuals
not accounted for on Goodyke's spreadsheet sent $9,000 to Goodyke (and then never
actually received any cards, according to testimony at trial), placing the loss, for
Guidelines purposes, in excess of $70,000.
Defendants focus their appellate arguments on the idea that the purchasers were
not "victims" because they either should have known the cards were fraudulent, or,
alternatively, that they were happy with the fraudulent cards–in essence, they got
what they paid for. Upon review of the trial transcript, this argument is well taken.
However, it cannot overcome the district court's factual findings, not clearly
erroneous based upon the evidence presented at trial, that there were at least fifty
victims and over $70,000 in loss. The people that bought the cards were told that the
cards had legal significance that the cards did not, in fact, have. And, one person
testified that though he paid Goodyke $9,000, he never did receive any cards. Many
of these purchasers were predisposed to the same manner of thinking as Goodyke and
Robinson regarding an individual's ability to "opt out" of the federal system. But the
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purchasers' predispositions are immaterial to the issue of whether they were also
victims of Goodyke and Robinson's scheme to sell fraudulent diplomatic immunity
cards. Arguably, the fact that many of the card purchasers honestly believed that they
had some sort of immunity by purchasing the cards makes them more compelling
"victims," not less.
Defendants next argue the district court erred in applying a two-level
enhancement for misrepresenting themselves as government agents. See U.S.S.G. §
2B1.1(b)(8) (providing for a two-level enhancement if the offense involved a
misrepresentation that the defendant was acting on behalf of a government agency).
Defendants argue that the purchasers knew they were not really government actors,
and therefore the enhancement should not apply. However, the district court did not
clearly err in applying the enhancement because the result of the scheme was that
defendants sold hundreds of cards bearing the seal of the United States Department
of State, as well as the seal and signature of the Kansas Secretary of State. Though
some of the purchasers knew that defendants were not part of the current United
States government, which defendants and their like-minded followers do not believe
is legitimate, defendants represented to the purchasers that they symbolized the true
sovereign government envisioned by the Founding Fathers of the United States. This
is enough evidence to support the enhancement. E.g., United States v. Achiekwelu,
112 F.3d 747, 755 (4th Cir. 1997) (holding that district court properly applied
predecessor enhancement to § 2B1.1(b)(8) to a defendant who misrepresented that he
was working for the Nigerian Finance Ministry because the guideline "extends to all
government agencies, domestic and foreign"). Accordingly, this contention is
without merit.
C. Robinson's Obstruction Enhancement
Robinson challenges the application of a two-level enhancement under
U.S.S.G. § 3C1.1 for obstruction of justice imposed because he allegedly took
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retaliatory actions against officials investigating the scheme. Robinson argues that
the facts underlying the enhancement were not presented at trial, he objected to the
inclusion of these facts in the Presentence Investigation Report (PSR), and the
government did not adequately prove up the objected to facts at the sentencing
hearing. See United States v. Hammer, 3 F.3d 266, 272-73 (8th Cir. 1993) (holding
that when a defendant challenges a PSR finding, the government must put on further
evidence at the sentencing hearing to prove the basis for the finding). The
government first responds that Robinson withdrew his objection to the PSR at the
sentencing hearing by not renewing it. Further, the government argues that Robinson
obstructed justice during and after trial by filing numerous pro se documents in
violation of a district court order. Finally, the government contends that any error in
imposing the enhancement was harmless, because the seventy-five-month sentence
would still have been within the Guidelines range without the enhancement, and that
the district court evinced an intent to impose this sentence, regardless of the base
offense level. See, e.g., United States v. Staples, 410 F.3d 484, 492 (8th Cir. 2005)
("An error is harmless if it is clear from the record that the district court would have
given the defendant the same sentence regardless of which guidelines range
applied.").
In the PSR, there were two factual bases given to support the obstruction
enhancement: that some members of the sovereign citizen movement killed the pet
of a law enforcement officer in an attempt to intimidate and retaliate against the
officer for participation in this case; and that Robinson sent numerous pro se
documents to officials prior to trial in an attempt to intimidate or retaliate against the
officials. Robinson made a written objection to the factual assertions regarding the
killed pet, arguing that there was no evidence that he took such actions. With regard
to the filings, Robinson's written objection took issue with labeling the documents as
pro se, and instead characterized the filings as follows: "defendant, through his agent,
submitted or attempted to submit certain documents to the U.S. Attorney's Office and
the U.S. Marshal's Office in a misguided effort to put those entities on notice of
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certain actions and consequences that cannot legally be put into effect." (emphasis
in original). Robinson went on to challenge the legal application of the obstruction
Guideline to those facts, arguing that submitting these documents was not the kind
of conduct that is covered by U.S.S.G. § 3C1.1.
We agree with Robinson that the district court could not have based the
obstruction enhancement on the conduct involving the law enforcement official's pet.
Robinson objected to this PSR fact, and despite the government's arguments, we find
that Robinson, having properly raised the objections in writing, did not waive them
at the sentencing hearing. The government did not put on any evidence to support
these factual allegations at the sentencing hearing, and therefore, the allegations were
not a proper basis for the obstruction enhancement. United States v. Replogle, 628
F.3d 1026, 1029 (8th Cir. 2011). However, Robinson did not object to the factual
allegations regarding the documents submitted to the United States Attorney and
Marshal, and in fact admitted doing so. Robinson merely objected "to the PSR's
application of the guidelines to the facts." Id. Under those circumstances, the district
court could properly consider those facts when applying the enhancement. And we
agree that this pretrial conduct meets the requirement for application of the
obstruction enhancement. See United States v. James, 328 F.3d 953, 956-57 (7th Cir.
2003) (obstruction-of-justice enhancement authorized where defendant made
unsuccessful attempt to intimidate judge, prosecutor, witnesses, and court personnel
by mailing copies of "contracts" requiring them to pay $500,000 for use of his name);
cf. United States v. Beale, 620 F.3d 856, 865 (8th Cir. 2010) (holding there was
sufficient evidence to support convictions on the substantive offense for obstruction
of justice by improperly influencing an officer of the court under 18 U.S.C. § 1503
where defendants served subpoenas and "arrest warrants" on, and "liens" against, a
federal district court judge involved in the defendant's tax evasion case), cert. denied,
131 S. Ct. 1023 (2011).
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Furthermore, we agree with the government that even if the district court did
commit a procedural error in applying the obstruction enhancement, such error was
harmless in this case. That the district court wanted to get to a seventy-five-month
sentence is fairly obvious from the transcript. Despite the advisory Guidelines range
of 97 to 121 months, the government recommended a sentence of sixty months. The
district court, after noting the Guidelines range, initially sentenced Robinson to
seventy-five months on count I, concurrent with sixty-month sentences on all of the
remaining counts. When advised by the government that the statutory maximum for
each count was sixty months, the court decided to make two of the sixty-month
sentences consecutive, for a total sentence of 120 months. When the defense objected
to the substantial increase from the court's initial sentencing decision, the district
court relented and sentenced Robinson to sixty months on Count 1, consecutive to a
fifteen-month sentence on Count III. In other words, it appears from the record that
regardless of the Guidelines range and the recommendations of the parties, seventy-
five months was the sentence that the district court was going to impose. Under these
circumstances, we find any procedural error committed by the district court to be
harmless error. United States v. Ortiz, No. 10-1101, 2011 WL 1345098 at *6 (8th
Cir. April 11, 2011) ("Under the circumstances of this case, there is no doubt the
district court would have imposed the same sentence, and for the same reasons,
regardless of any procedural error it may have made . . . .").
III. CONCLUSION
We affirm the district court.
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