REVISED - March 13, 2001
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20187
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GARY G. SCOTT; CHRISTOPHER M. BURKS,
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of Texas
(H-96-CR-158-12)
February 12, 2001
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Defendants-Appellants Gary G. Scott and Christopher M. Burks
appeal their convictions for one count of conspiracy, five counts
of mail fraud and one count of money laundering pursuant to 18
U.S.C. §§ 371, 1341, and 1956(a)(1)(A)(i), respectively. Scott and
*
Pursuant to 5th Cir. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. Rule 47.5.4.
Burks were employed as telemarketers for American Land Liquidators,
Inc. (“ALL”), a company that purported to advertise hard-to-sell
properties and match owners of such property with potential buyers
in return for a fee. In reality, ALL was little more than an
extensive telemarketing fraud scheme. Scott and Burks appeal these
convictions on several grounds.
First, they contend that the indictments against them were
fatally flawed because the five counts of mail fraud, predicates to
the conspiracy and money laundering counts, failed to include
expressly the element of materiality1 as to the scheme or artifice
to defraud. Even though the magic word “materiality” was not
present in the indictments, an “indictment is not fatally
insufficient for its failure to allege materiality in haec verba”;2
it is sufficient when, as here, the indictment specifically alleges
the facts of the criminal acts in which the misrepresentations made
are clearly material.3
Second, Scott and Burks challenge the sufficiency of the
evidence supporting their convictions, arguing that the government
failed to adduce enough evidence to prove that the telemarketing
scheme was a scheme to defraud within the meaning of the mail fraud
statute, 18 U.S.C. § 1341. We disagree. As we held previously in
1
In Neder v. United States, 527 U.S. 1, 25 (1999), the
Supreme Court held that materiality is an element of the offense of
mail fraud.
2
United States v. McGough, 510 F.2d 598, 602 (5th Cir. 1975).
3
See id. at 602-603.
affirming the convictions of the supervisors of this same
telemarketing scheme for, inter alia, mail fraud, a reasonable jury
“could certainly look at the evidence presented by the government
and conclude that ALL was a sham and that the defendants used it to
perpetrate [a] fraudulent telemarketing scheme.”4
Scott and Burks next contend that the district court erred in
giving the jury a deliberate ignorance instruction. “[W]hen the
defendant claims he lacks the requisite guilty knowledge, such an
instruction is appropriate if the trial evidence raises two
inferences: ‘(1) the defendant was subjectively aware of a high
probability of the existence of the illegal conduct; and (2) the
defendant purposely contrived to avoid learning of the illegal
conduct.’"5 As we are satisfied that the evidence so demonstrated,
we conclude that the district court acted properly in instructing
the jury on deliberate ignorance.
Finally, Burks asserts that the district court abused its
discretion in allowing the government to cross-examine him
regarding a prior conviction for the sale of a simulated drug. We
are satisfied that the district court did not abuse its discretion
in admitting evidence of Burks’s prior conviction through his
answers on cross-examination, pursuant to Federal Rule of Evidence
4
United States v. Reissig, 186 F.3d 617, 619 (5th Cir. 1999)
(per curiam).
5
United States v. Gray, 105 F.3d 956, 967 (5th Cor. 1997)
(quoting United States v. Lara-Velasquez, 919 F.2d 946, 951 (5th
Cir. 1990)).
609(a)(2). Not only did he “open the door” to discussion of this
crime of dishonesty when he testified that he “would not have
deceived somebody to get money,”6 the similarity between the deceit
at issue here and that in his prior crime of conviction ——
representations that a fake drug was real when attempting to
distribute it —— complies with the strictures of that rule and
comports with Federal Rule of Evidence 403 as well.
We conclude that each of these contentions is without merit,
and therefore affirm the convictions of Scott and Burks.
AFFIRMED.
6
“For the purpose of attacking the credibility of a witness,
. . . evidence that any witness has been convicted of a crime shall
be admitted if it involved dishonesty or false statement.” Fed. R.
Evid. 609(a)(2).