In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-4305
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARK P. HEATH,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 04-CR-44-C-01—Barbara B. Crabb, Chief Judge.
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ARGUED JANUARY 13, 2006—DECIDED MAY 15, 2006
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Before RIPPLE, KANNE, and ROVNER, Circuit Judges.
KANNE, Circuit Judge. Mark Heath was convicted of
various charges relating to a scheme to defraud by using
counterfeit checks to purchase automobiles from individual
sellers; Heath got the vehicles and the sellers got worthless
pieces of paper. Heath now raises several issues regarding
his conviction, none of which are meritorious, and we
therefore affirm as to his conviction. His sentence (given
during the period between the Supreme Court’s decisions in
Blakely and Booker), however, is more troublesome. It is
vacated and we remand for resentencing.
2 No. 04-4305
I. HISTORY
Heath owned a used car business in Eau Claire, Wiscon-
sin. During the summer of 1999 Heath started to create
counterfeit checks using as a template a legitimate bank
check given to him as payment for a used car. In July 1999,
Jerry Wendt purchased a car from Heath and eventually
began doing odd jobs for Heath as well. The relationship
between the two further blossomed when they began a
short-lived conspiracy to defraud by purchasing cars with
Heath’s worthless counterfeit checks.
One of Wendt’s early duties was to write out a note,
dictated by Heath, and signed with the alias “Bob Meyer,”
which might be described as a handbook for potential
members of the conspiracy.1 This note was created in mid-
September 1999 and within a matter of days it was discov-
ered, along with thirty counterfeit checks, at the home of
Heath’s brother.
Over the course of three days in late September 1999,
Heath and Wendt fraudulently purchased three vehicles
and a trailer. The victims were discovered through newspa-
per advertisements and then contacted by phone. Wendt
was the front man. Posing as Bob Meyer, he passed the
counterfeit checks. Heath was never too far away from the
sale (though he never personally met the sellers), and on
1
The note read as follows: “Just a reminder, 20-25 units for sure,
10 more if you can. As I had mentioned you will receive a 100.00
bonus for over 20 units. Please deliver to old Menard’s parking lot
at the west end (on 9-19-99). Use the check that fits best. The
purchase price get them as cheap as possible and please remem-
ber they can write you a check for the difference. Also, please
make sure to cash these check and put the cash and titles in an
envelope and put under drivers seat. I will need keys under the
seat also but please, not in envelope. I will see you next week.
Sincerely, Bob Meyer.”
No. 04-4305 3
one occasion when Wendt was completing a transaction at a
gas station Heath was caught on tape by the station’s
surveillance camera. After the purchases were completed,
the vehicles were driven back to Heath’s used car lot.
The last vehicle purchased was an all-terrain vehicle
(“ATV”). This sale netted Heath and Wendt not only the
ATV, but also a personal check in the amount of $2,050
made out to Bob Meyer, which the trusting seller agreed to
give Wendt to cover the difference between the counter-
feit check tendered as payment for the ATV ($4,750) and
the asking price ($2,700). Wendt drove the ATV to Heath’s
used car business and parked it.
The scheme unraveled as quickly as the counterfeit
checks began to bounce. The seller of the ATV learned from
his local bank that the check he had received was no good.
That bank then took the prudent measure of informing its
employees to be on the lookout for anyone trying to cash the
seller’s personal check. Two days after the sale of the ATV,
Wendt and Heath pulled into the bank’s drive-up window
attempting to do just that. A quick-thinking teller immedi-
ately recognized the check and notified her supervisor.
While the teller stalled, the president of the bank grabbed
a cell phone and headed for his car to keep an eye on the
suspected thieves. The teller refused to cash the check
without proper identification, and Wendt and Heath drove
away. The bank president followed while calling 911.
After being stopped by the police, Wendt first attempted
to evade arrest by providing an alias, and then went weak
at the knees and fell to the ground. Having little appetite
for prison, Heath tried to eat the counterfeit checks he
had on his person. Both suspects were arrested. A search of
Heath uncovered a number of counterfeit checks, including
one in the amount of $4,500 that had been partially eaten.
At Heath’s home and used car business, officers found
more evidence of the scheme: counterfeit checks, a check
4 No. 04-4305
printing machine, newspapers with the victim’s advertise-
ments highlighted, and a handwritten note that was nearly
identical to the note transcribed by Wendt earlier.2 The
officers also discovered the ATV and the two other trucks
which had been fraudulently obtained.
Wendt cut a deal requiring him to testify against
Heath at trial. Chief Judge Crabb allowed Heath to im-
peach Wendt as to nine convictions Wendt had from the
previous ten years, but refused to allow reference to several
other convictions that occurred outside the ten-year win-
dow. Over Heath’s objection, the government was allowed
to introduce the counterfeit checks and note found at
Heath’s brother’s home. Heath was convicted on all counts
but one.
Heath was sentenced on December 17, 2004. A
Presentence Investigation Report (“PSR”) computed two
alternative guideline calculations: one that assumed the
judge must base the sentence solely on facts found by the
jury; and one that assumed the judge was still allowed to
make factual findings, which in this case related to a loss
amount greater than that found by the jury and obstruction.
If the judge were able to make factual findings (and made
findings consistent with the PSR’s recommendation), the
resultant guideline range was 41 to 51 months’ imprison-
ment. If the judge were bound solely by the jury’s factual
2
The handwritten note stated: “Just a Reminder. 20 United for
Sure. 10 More If You Can Find the Time. 100.00 Bonus for Each
Car over the 20. Deliver to the Old Menard’s Parking Lot at the
West End. Use the Check That Best Fits the Purchase Price
Get Them as Cheap as Possible and Remember They Can Write
You a Check for the Difference. And Make Sure to Cash These
Check and Put the Cash and Titles in an Envelope and Put
under Drivers Seat. And Put Keys Under Seat Also Don’t Put
Keys in the Envelope. See You next Week.”
No. 04-4305 5
determinations, the PSR computed a range of 27 to 33
months.
Attempting to deal with the fallout from the Supreme
Court’s decision in Blakely v. Washington, 542 U.S. 296
(2004), Judge Crabb, based upon her opinion that the
Guidelines were unconstitutional and not severable, decided
not to apply a sentence under the Guidelines because the
jury was not asked to find facts pertaining to all possible
sentencing adjustments. Instead, the judge quite presciently
chose to use the Guidelines “as suggestive, but not binding”
and fashion a sentence that took “into consideration the
purpose of sentencing as set out in” 18 U.S.C. § 3553(a). The
judge then noted that under the “applicable guidelines”
Heath’s sentencing range would have been 41 to 51 months,
but never formally adopted the PSR or made any other
factual findings. Considering his prior criminal record and
the relevant aspects of his instant offense, Judge Crabb
concluded that a term of 48 months’ imprisonment was
sufficient to punish Heath and to reflect the seriousness of
his crime.
II. ANALYSIS
Heath’s appeal requires us to resolve the following four
issues: whether it was error to exclude under Federal
Rule of Evidence 609(b) reference to any of Wendt’s con-
victions that were more than ten years old; whether it
was error under Rule 404(b) to allow into evidence the
note and counterfeit checks found at Heath’s brother’s home
as evidence “inextricably related” to the charged crime;
whether a jury instruction was plain error; and, whether
resentencing is required.
We need not linger long on Heath’s two challenges to
evidentiary rulings, which we review for an abuse of
discretion. United States v. Gray, 410 F.3d 338, 344 (7th
Cir. 2005) (citation omitted); United States v. Lane, 323
6 No. 04-4305
F.3d 568, 585 (7th Cir. 2003) (citation omitted). As to
Wendt’s stale convictions, Heath starts off on the wrong foot
by relying on the standard set forth in Rule 609(a) to argue
that the convictions should have been admitted because
their probative value outweighed any prejudice. The rule
that applies is 609(b), and it requires more: a conviction
older than ten years is only admissible if its probative value
“supported by specific facts and circumstances substantially
outweighs its prejudicial effect.” Fed. R. Evid. 609(b)
(emphasis added). Heath points to no specific facts and
circumstances regarding the stale convictions except to
generally describe them as pertaining to theft. What Heath
ignores is that Wendt had several convictions of that type
(theft and passing bad checks) within the ten-year win-
dow—all of which Heath used for impeachment. It is hard
to see what probative value a few additional theft convic-
tions would have when the jury was already presented with
extensive evidence that Wendt was a thief and a cheat. In
any event, it was not an abuse of discretion for the judge to
rule that the probative value of those stale convictions did
not substantially outweigh the prejudicial effect of present-
ing cumulative evidence. See Gray, 410 F.3d at 346 (finding
no abuse of discretion for excluding stale perjury conviction
where other serious felony convictions less than ten-years
old existed).
Heath’s second argument, brought under 404(b), attack-
ing the admission of the evidence found at his brother’s
home, fares no better. That rule prohibits admission of other
acts used to show propensity, but it does not prohibit
“[e]vidence of acts that are joined with the crime itself.”
United States v. Senffner, 280 F.3d 755, 764 (7th Cir. 2002).
The “inextricably intertwined doctrine” is used to distin-
guish between “other acts” and those acts which are part of
the crime. Id. Acts are sufficiently connected to the charged
crime to be admitted under that doctrine when, among
other circumstances, “they are so blended or connected that
No. 04-4305 7
they incidentally involve, explain the circumstances
surrounding, or tend to prove any element of, the charged
crime.” Id. The counterfeit checks and the note found at
Heath’s brother’s home fit this criteria as they tend to prove
an element of the charged crime—that Heath possessed
counterfeit checks and engaged in a scheme to defraud by
using those checks to purchase vehicles. The checks found
at the brother’s home, the ones possessed (and eaten) by
Heath, and the ones used by Wendt as payment were all
made from the same template. The note was also nearly
identical to the one dictated by Heath to Wendt. And both
the checks and note are closely connected temporally to the
charged crimes as they were discovered within the same
month of the criminal activity for which Heath was con-
victed. This evidence was properly admitted.
As to the third issue, Heath argues for the first time on
appeal, after making no objection below, that there was
error in a jury instruction. We review for plain error. United
States v. Castillo, 406 F.3d 806, 819-20 (7th Cir. 2005)
(citations omitted). The district court provided the following
instruction, which tracks Seventh Circuit Pattern Jury
Instruction 3.13, Witnesses Requiring Special Caution:
You have heard testimony from Jerry Wendt who
states that he was involved in the commission of
the alleged crimes charged against the defendant
and has pleaded guilty to a crime arising out of the
same charges. You may give the testimony of this
witness such weight as you think it deserves,
keeping in mind that it must be considered with
great caution and great care. Moreover, the guilty
plea of this witness cannot be considered as evi-
dence against the defendant.
Heath finds error in the district court’s decision to omit
from this instruction subsection (b) of 3.13, which, if
included, would have told the jury that Wendt “received
8 No. 04-4305
benefits from the government with this case” and allowed
the judge to specifically describe the benefits. Pattern Crim.
Fed. Jury Instructions for the Seventh Cir. 3.13 (1998). The
judge apparently thought subsection (b) inapplicable
because Wendt merely expected to receive assistance from
the government but had not actually received it at the time
of trial. That reasoning may not be correct, as the point of
this particular instruction is to caution the jury as to an
informant’s incentive to lie, and that incentive may be even
greater for a witness who is hoping to curry favor with a
prosecutor than for a witness who has already received a
benefit. See Comm. Comment to Instruction 3.13 (“[T]he use
of informers ‘may raise serious questions of credibility. To
the extent that they do, a defendant is entitled to . . . have
the issues submitted to the jury with careful instructions.’”
(quoting On Lee v. United States, 343 U.S. 747, 757 (1952))).
But, in any event, instructions specifically noting an
informant’s credibility problems are not required. United
States v. Cook, 102 F.3d 249, 253 (7th Cir. 1996) (“Given the
pervasiveness of reliability problems, we think it adequate,
in the main, to give a general credibility instruction refer-
ring to the possibility of bias, which coupled with cross-
examination and closing argument by counsel will put the
subject before the jury for decision.”).3 Whether to give such
an instruction is left to the discretion of the district court,
id. at 252, and reversal on the basis of an erroneous jury
instruction only occurs if the defendant can show prejudice,
United States v. Reed, 227 F.3d 763, 771 (7th Cir. 2000)
(citing United States v. Smith, 131 F.3d 685, 688 (7th Cir.
1997)). Heath cannot show prejudice, much less plain error,
even assuming the instruction was erroneous. Both he and
the government made the jury well aware of the benefits
Wendt hoped to receive by testifying: the government raised
Wendt’s deal on direct and in closing; and defense counsel
had the opportunity, which he used, to attack Wendt’s
3
A general credibility instruction was given to Heath’s jury.
No. 04-4305 9
credibility on this basis during cross-examination and
closing argument. Under these circumstances, reversal is
not appropriate. See Reed, 227 F.3d at 771; United States v.
Braxton, 877 F.2d 556, 565 (7th Cir. 1989).
Finally, we come to Heath’s sentence. While Judge Crabb
did a remarkable job of predicting the eventual outcome
of United States v. Booker, 543 U.S. 220 (2005), she did
not adopt the PSR or make any other factual findings. After
oral argument in this case occurred, we found plain error
and remanded for resentencing in a different case where
this same sentencing procedure was applied. United States
v. Hawk, 434 F.3d 959 (7th Cir. 2006) (finding plain error
and remanding for resentencing where the judge treated the
Guidelines as advisory but failed to adopt the PSR or make
any findings of fact). In that case, we explained that “[e]ven
in the post-Booker era, the first step in imposing a sentence
is properly to calculate a Guidelines range,” and that
findings of fact about relevant conduct are reviewed for
clear error. Id. at 962 (citations omitted). As in Hawk, we
have no findings—not even an adoption of the
PSR—concerning the loss amount or obstruction apparently
attributed to Heath, and, therefore, “we cannot evaluate
whether [the district court’s] decision was proper or consti-
tuted clear error.” Id.4
4
Pursuant to Federal Rule of Appellate Procedure 28(j) the
government submitted United States v. Cunningham, 429 F.3d
673 (7th Cir. 2005) in support of its position that no error occurred
in sentencing, but we find it inapposite. Cunnigham dealt with the
extent to which a district court is required to provide explanation
for rejecting arguments brought under § 3553(a) that a properly
computed Guidelines sentence is unreasonable, see id. at 676,
whereas here the issue is the proper computation of the underly-
ing Guidelines sentence.
10 No. 04-4305
III. Conclusion
For the foregoing reasons, we AFFIRM Heath’s conviction
and VACATE his sentence and REMAND for resentencing.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-15-06