United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-1006
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Lynn Tran DeRosier, *
*
Appellant. *
___________
Submitted: May 15, 2007
Filed: September 13, 2007
___________
Before BYE and SMITH, Circuit Judges, and NANGLE,1 District Judge.
___________
NANGLE, District Judge.
After a jury trial, Defendant-Appellant Lynn Tran DeRosier was convicted of
three counts of wire fraud affecting a financial institution in violation of 18 U.S.C. §
1343.2 Appellant DeRosier’s conviction stems from borrowing money under false
1
The Honorable John F. Nangle, United States District Judge for the Eastern
District of Missouri, sitting by designation.
2
18 U.S.C. § 1343 provides, in pertinent:
Whoever, having devised or intending to devise any
scheme or artifice to defraud, or for obtaining money or property
pretenses from acquaintances she came to be familiar with through her job at TierOne
Bank in Red Oak, Iowa. At sentencing, the district court3 imposed an eight-level
enhancement for the loss amount being greater than $70,000, but less than $120,000,
and sentenced Defendant DeRosier to fifteen months of imprisonment, with each
count to be served concurrently. The court further ordered Appellant to pay
$79,353.42 in restitution, which included the losses stemming from borrowing money
from the victims, half of the employee costs incurred by TierOne Bank, and the
attorney fees for the attorneys in Iowa.4
Lynn Tran DeRosier appeals her conviction, sentence, and the amount of
restitution ordered, raising four points of error. Appellant alleges the court erred in:
(1) denying her proposed jury instruction on “intent to defraud”; (2) determining the
loss amount and restitution at sentencing; and, (3) denying her motion to strike
surplusage from the indictment. Lastly, Appellant contends that her conviction
violates Apprendi v. New Jersey, 530 U.S. 466 (2000). We affirm.
by means of false or fraudulent pretenses, representations, or
promises . . . shall be fined under this title or imprisoned not more
than 20 years, or both. If the violation affects a financial
institution, such person shall be fined not more than $1,000,000
or imprisoned not more than 30 years, or both.
3
The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.
4
The court ordered restitution in the amount of $42,249.65 to TierOne Bank;
$15,000 to Vera Bullington; $2,500 to Ronald Ballinger; and $19,603.77 to Jack
Tudor.
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I. BACKGROUND
Appellant was a gambling addict. She solicited personal loans from people she
knew, some of whom she became familiar with because they were customers of her
employer, TierOne Bank. DeRosier did not solicit the loans on the premises of the
bank, imply that the bank approved the loans, or take any money from the bank
unlawfully. Instead, DeRosier contacted these acquaintances at home, explaining to
them that she needed to borrow money to help her family. In return for the loan,
DeRosier agreed to pay back the loans with interest within short periods of time, and
she formalized the agreements by handwriting loan contracts.
DeRosier did not use the borrowed money for the purposes she claimed to her
creditors. Rather, DeRosier gambled the money away, intending to win at the casino
and use the proceeds toward paying back her loans. In sum, DeRosier borrowed
money from acquaintances so she could support her gambling habit. While Appellant
may have intended to abide by her promise to repay her victims, she planned to fund
these payments with winnings from the casino, a plan which, true to odds, never came
to fruition.
When TierOne was alerted to DeRosier’s suspicious activity, it initiated an
investigation. TierOne decided to voluntarily give back some money to a few of its
customers who made loans to DeRosier. TierOne then pursued a civil judgment
against DeRosier in California to recoup the amounts refunded to her creditors.
DeRosier agreed to settle the claim in the amount of $25,123.88.
Thereafter, on August 23, 2005, DeRosier was criminally charged with a
number of counts arising out of her fraudulent borrowing practices. The indictment
was amended twice, and the second superseding indictment was returned on May 9,
2006. DeRosier pled not guilty to each charge, and the case went to trial. Ultimately,
at trial the government only pursued four of the five counts in the indictment—at the
government’s request Count 4, misapplication of bank funds, was dismissed. At trial,
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an expert, Dr. Suzanne Pike, testified for the defense, diagnosing DeRosier as
suffering from a pathological gambling disorder.
The defense made a few objections at trial that are now on appeal. First, the
defense challenged the language in the indictment, arguing that the use of the phrase
“in reckless disregard of the interests” instead of “with intent to defraud” in the
indictment was surplusage. Appellant’s objection was overruled. Before the case was
submitted to the jury, DeRosier submitted a proposed jury instruction on the issue of
intent. The proposed instruction explained DeRosier’s theory of defense–that if
DeRosier intended to pay back her creditors, then she could not be found to have the
requisite intent necessary to commit the crime. The court denied the proposed
instruction, and instead gave its own instruction.
After a two-day trial, the jury returned a verdict of guilty as to the three counts
of wire fraud affecting a financial institution, and a verdict of not guilty on the charge
of false entry of bank records. At sentencing, DeRosier objected to the government’s
calculation of loss and restitution, and for the first time raised the issue that the wire
fraud jury instructions omitted the element “affecting a financial institution.” At the
conclusion of the hearing, the district court sentenced DeRosier to fifteen months of
imprisonment, with each count to be served concurrently. The court further ordered
Appellant to pay $79,353.42 in restitution.
II. DISCUSSION
A. Jury Instruction
Appellant alleges that the trial court committed reversible error in its
instructions to the jury regarding the definition of “intent.” We review jury
instructions for abuse of discretion, and “[i]n so doing, we do not consider portions
of a jury instruction in isolation, but rather consider the instructions as a whole to
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determine if they fairly and adequately reflect the law applicable to the case.” United
States v. Turner, 189 F.3d 712, 721 (8th Cir. 1999).
Appellant concedes that she did not ask for the stock instruction on good faith,
which is a complete defense to charges requiring fraudulent intent. See United States
v. Casperson, 773 F.2d 216, 222 (8th Cir. 1985); United States v. Ammons, 464 F.2d
414 (8th Cir. 1972).5 Rather, DeRosier submitted a proposed jury instruction that set
forth her theory of defense and definition of intent to defraud. Specifically, the
proposed jury instruction read:
The government has alleged that the defendant intended to defraud her
personal creditors. Because intent to defraud is an element of the wire
fraud offenses in counts I, II, and III, the government must prove it
beyond a reasonable doubt for each count. The defendant has asserted
that she did not intend to defraud her creditors because she intended to
pay them back the money she borrowed with interest after she won
money at the casino. At the time she borrowed the money, the defendant
asserts that she was suffering from a mental disorder called pathological
gambling which caused her to believe she would eventually win back the
money she owed and be able to pay her debts. If you find that
[defendant] intended to pay back her creditors and did not intend to
defraud them, you must find her not guilty of Counts I, II and III.
5
In light of the language of the good faith instruction, it is apparent why
Defendant did not seek such an instruction: “Good faith constitutes a complete
defense to one charged with an offense of which fraudulent intent is an essential
element. One who acts with honest intention is not chargeable with fraudulent intent.
One who expresses an opinion honestly held by him, or a belief honestly entertained
by him, is not chargeable with fraudulent intent even though such opinion is erroneous
and such belief is a mistaken belief. Evidence which establishes only that a person
made a mistake in judgment or an error in management, or was careless, does not
establish fraudulent intent.” Ammons, 464 F.2d at 417.
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The court rejected the proposed instruction, and instructed the jury as follows:
One of the issues in this case is whether the defendant suffered from a
mental disorder called pathological gambling disorder at the time the acts
charged in the indictment were committed. Being under the influence of
a mental disorder can provide a legal excuse for the commission of a
crime only if the effect of the mental disorder makes it impossible for the
defendant to have formed the intent to defraud . . . Evidence that the
defendant acted while under the influence of the pathological gambling
disorder may be considered by you, together with all the other evidence,
in determining whether or not she did in fact have the intent to defraud
customers of the bank or the bank.
Final Jury Instructions, Instruction No. 21. The court’s instruction did not include a
discussion of Appellant’s intention to repay the loans. Appellant asserts that by failing
to include DeRosier’s theory of defense the court committed prejudicial error requiring
reversal of her conviction because the intent to repay negates the intent to defraud. We
disagree.
This Circuit has held that defendants are entitled to a theory of defense
instruction at trial “if a timely request is made, the evidence supports the proffered
instruction and the instruction correctly states the law.” United States v. Casperson,
773 F.2d 216, 223 (8th Cir. 1985). However, as a corollary to the rule, defendants are
“not entitled to a particularly worded instruction when the instructions actually given
by the trial court adequately and correctly cover the substance of the requested
instruction.” Id.
Relying on United States v. Parsons, 646 F.2d 1275 (8th Cir. 1981), Appellant
contends that her case merited an instruction explaining to the jury that if Appellant
had the intent to repay her loans, then she did not have the requisite intent to defraud.
We find that the district court properly rejected Appellant’s proffered instruction
because, under the circumstances of this case, such an instruction is not supported by
our case law. Appellant misapplies the proposition for which Parsons stands.
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In Parsons, the defendant was a credit union treasurer involved in a quasi-money
laundering scheme whereby he would pay a small fee to someone who would apply for
a loan from the credit union and turn over the loan proceeds to defendant. Id. at 1276-
77. In all but two of the sham loan transactions, defendant was the one who received
the proceeds of the loan. Id. at 1280. With respect to the two loan transactions where
the defendant was not the ultimate recipient of the money, we approved of an
instruction that explained in order to find the defendant guilty of bank fraud, the
government must prove beyond a reasonable doubt that the debtors of the loan did not
have the ability or intent to pay back the loan. Id. at 1279-80. We approved of this
instruction in a limited circumstance, only when the loan proceeds were received by
someone other than the defendant. Id. In the instant situation, every loan transaction
was for DeRosier’s benefit, no one other than DeRosier received the loan proceeds,
therefore Parsons is distinguishable and inapplicable to the case at bar.
In Casperson, we reversed defendant’s conviction and remanded for a new trial
when the district court failed to charge the jury with a good faith and theory of defense
instruction. Casperson, 773 F.2d at 222. In Casperson, the proposed theory of defense
instruction was an accurate statement of the law–if the defendant made representations
that he thought to be true, then he cannot be found to have the requisite intent to
defraud. Id. at 222-24. Unlike Casperson, in this case, DeRosier made representations
that she knew to be false so she could fund her gambling addiction. Her theory of
defense was that at all times she had the intention to repay the loans. We have found
no Eighth Circuit case law that supports Appellant’s contention that having the intent
to repay a loan negates the intent to defraud when the loans are acquired through false
representations and the defendant is the recipient of the loan proceeds. Therefore, we
find the district court properly refused DeRosier’s proposed instruction because it did
not contain a proper statement of the law. See United States v. McQuarry, 726 F.2d 401
(8th Cir. 1984) (affirming the district court’s rejection of the proposed instruction
because the instruction was unsupported by case law).
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B. Loss Amount
Appellant argues that the district court erred in calculating the amount of loss and
restitution.6 The district court ordered an eight-level enhancement for the loss amount
being greater than $70,000 but less than $120,000–the court determined the loss was
$79,353.42. We review findings of facts underlying its calculation of the guidelines for
clear error. United States v. Scott, 448 F.3d 1040, 1043 (8th Cir. 2006). We conduct
a de novo review of the district court’s application of the guidelines to the facts. Id. at
1043.
Appellant alleges four points of error in calculating loss: (1) the amount for
TierOne’s attorney fees, legal fees, and other employee costs related to the investigation
of DeRosier were inappropriately included;7 (2) Jane Peterson’s waiver of bank loan
fees in the amount of $623.88 are not substantially related to the counts in the
indictment, and the fees constitute lost profits, not true loss;8 (3) the $19,100.00 loan
from Jack Tudor should not have been considered because no evidence was presented
6
DeRosier appeals both the loss amount and restitution orders, but because the
two numbers are identical, she consolidates her argument on appeal.
7
The district court ordered the loss amount and restitution to TierOne Bank in
the amount of $42,249.65. This amount included the fees in dispute–$14,947.00 in
attorneys’ fees and $12,115.12 in employee investigative costs. TierOne hired
attorneys from California and Des Moines to pursue the civil lawsuit against
DeRosier. The court allowed the Des Moines legal fees to be included in its
calculation because most of these fees were incurred in connection with the bank’s
investigation of DeRosier. Similarly, the court allowed one-half of the requested
employee costs that were incurred from investigating DeRosier.
8
Appellant also argues that Jane Peterson’s waiver of bank loan fees in the
amount of $623.88 should not be included in the loss calculation. The bank
experienced a loss of $623.88 in loan processing fees because it reimbursed Jane
Peterson who had taken out the loan pursuant to DeRosier’s solicitation. This amount
alone, or in conjunction with the other loss amounts, does not alter the range of loss,
therefore we find this argument is moot.
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on this loan, and it was not substantially connected to DeRosier’s convicted conduct;9
and, (4) the $10,000 loss amount related to the dismissed Vera Bullington charge should
be excluded.
Critical to the calculation of Appellant’s sentence in this case is the calculation
of loss. See U.S.S.G §2B1.1. We recognize that “[t]he district court need make only
a reasonable estimate of the loss, and we accord particular deference to the loss
determination because of the district court’s unique ability to assess the evidence and
estimate the loss.” Scott, 448 F.3d at 1044.
Appellant argues that she should not be accountable for the bank’s legal and
employee fees associated with the investigation of her conduct because they are
consequential and U.S.S.G § 2B1.1 specifically prohibits their inclusion in the
calculation of loss.10 Consequential damages are defined as losses that do not flow
directly and immediately from an injurious act, but that result indirectly from the act.
Black's Law Dictionary 394 (7th ed. 1990).
We find that the costs incurred by the bank for investigating DeRosier are not
consequential because the investigation was in immediate response to DeRosier’s
fraudulent conduct. DeRosier was an employee of the bank and her loans were obtained
from those she knew through the bank—it was reasonable and foreseeable that
TierOne’s internal audit team would investigate one of their employees who was
involved in acquiring loans from bank customers. See United States v. Piggie, 303 F.3d
9
Appellant also appeals the inclusion of Jack Tudor’s attorneys fees in the
amount of $503.77 because such costs are indirectly related to the convicted conduct.
This amount alone, or in conjunction with the other loss amount, does not alter the
range of loss, therefore we find this argument is moot.
10
In calculating loss in cases of fraud, Section 2B1.1, Application Note 3(D)
provides for certain exclusions from loss: “(ii) Costs to the government of, and costs
incurred by victims primarily to aid the government in, the prosecution and criminal
investigation of an offense” are excluded.
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923 (8th Cir. 2002) (holding the actions of the defendant and his fraudulent scheme
caused the actual losses, which included costly investigative fees, and thus were
appropriately included in calculating loss).
TierOne’s investigation was prompted prior to any criminal charges being brought
against DeRosier, and, therefore, these costs were not incurred to primarily aid the
government, rather, the investigation was prompted for the bank’s own benefit.11 On
March 15, 2002, three days after DeRosier resigned from the Bank and left town,
TierOne began to receive complaints from its customers about DeRosier. The bank’s
“in-house” Nebraska attorneys, Woods Aitken, assisted TierOne in its investigation of
DeRosier’s activities. This included helping TierOne review and collect documents,
prepare affidavit statements from some of the victims, and prepare other related legal
documents. Notably, at sentencing, DeRosier’s counsel recognized that the inclusion
of attorneys’ fees is not banned under our case law. (Sentencing Tr. 29.)
Second, Appellant contends that Mr. Tudor’s loan was not specifically detailed
in the indictment and not proven at trial, and thus those amounts should be excluded
from the loss calculation. However, we take a broad view of what conduct and related
loss amounts can be included in calculating loss. United States v. Berendt, 86 F.3d 803,
811 (8th Cir. 1996) (holding that if the “offense of conviction is mail fraud, the resulting
loss from a related conspiracy may be included in the calculation if it involves the same
course of conduct or common scheme or plan”) (citation omitted). In this case, Mr.
Tudor submitted a victim impact statement for the losses he suffered after making a loan
to DeRosier, and DeRosier does not contest that she did indeed borrow money from Mr.
Tudor. Mr. Tudor also submitted a copy of the handwritten loan contract signed by
DeRosier, similar to the loan contracts entered into with other victims. Therefore, we
11
We realize that TierOne had a responsibility as a financial institution to
report suspicious activity to law enforcement, and as such provided the results of its
own internal investigation to the FBI. However, to reiterate, TierOne’s investigation
was motivated by its own business interests, and its investigation commenced well
before an indictment was brought against DeRosier.
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find the district court did not commit clear error in finding that Mr. Tudor’s loan was
part of DeRosier’s scheme. Finally, DeRosier argues that the $10,000 loss amount
related to the dismissed Vera Bullington count should be excluded. However, we have
held that courts may consider conduct in dismissed counts in calculating loss. Id.
For the reasons stated above, we affirm the district court’s calculation of loss.
C. Restitution
We review the decision to order restitution for an abuse of discretion. United
States v. Pierce, 479 F.3d 546, 553 (8th Cir. 2007). The district court’s factual
determinations underlying an order for restitution are reviewed for clear error. United
States v. Oslund, 453 F.3d 1048, 1062 (8th Cir. 2006). The burden is on the
government to prove the amount of restitution based on a preponderance of the evidence.
Id.12 To satisfy the preponderance of the evidence standard “simply requires the trier of
fact to believe that the existence of a fact is more probable than its nonexistence.” In re
Winship, 397 U.S. 358, 371(1970) (citation omitted).
Appellant contends that the district court erred in ordering restitution for the identical
reasons it allegedly erred in calculating the loss amount, and Appellant makes no new
arguments with respect to the order of restitution. DeRosier contends that restitution
cannot include damages such as attorneys’ fees or TierOne’s employee costs, or the
waiver of bank loan fees for a customer who was a victim of DeRosier’s fraud.
12
We have determined that the evidentiary standard in restitution cases is
unchanged by United States v. Booker, 543 U.S. 220 (2005). United States v. Miller,
419 F.3d 791, 792 (8th Cir. 2005).
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The order of restitution is governed by the Mandatory Victims Restitution Act, 18
U.S.C. § 3663A(a)(1).13 Restitution may only be awarded “for the loss caused by the
specific conduct that is the basis of the offense of the conviction.” Hughey v. United
States, 495 U.S. 411, 413 (1990).
The attorneys’ fees, the employee costs of investigating DeRosier’s conduct, and
the waiver of the bank fees all stem from DeRosier’s fraudulent conduct for which
DeRosier was found guilty. See United States v. Akbani, 151 F.3d 774, 780 (8th Cir.
1998) (holding that according to the Victim and Witness Protection Act, there is is no
blanket prohibition on the inclusion of attorneys’ fees in restitution awards for offenses
that do not result in damage to or the loss of property). Our case law has specifically
approved of the inclusion of attorney’s fees and investigative costs in a restitution award
when these losses were caused by the fraudulent conduct. Id.; United States v. Piggie,
303 F.3d 923, 928 (8th Cir. 2002) (affirming the court’s inclusion of investigative costs
in a restitution award because these losses were incurred as a result of “the specific
conduct that is the basis for the offense”).
With respect to Appellant’s claim that the loans from Jack Tudor and Vera
Bullington were incorrectly included in determining restitution, we find the district court
did not err. This Circuit has held that “[t]he district court has wide discretion in
ordering restitution.” United States v. Ross, 210 F.3d 916, 924 (8th Cir. 2000); United
States v. Manzer, 69 F.3d 222, 229 (8th Cir. 1995). We have consistently held that
restitution may be ordered for criminal conduct that is part of a broad scheme to defraud,
even if the defendant is not convicted for each fraudulent act in the scheme. United
States v. Ross, 210 F.3d 916 (8th Cir. 2000). “So long as the indictment details a broad
scheme encompassing transactions beyond those alleged in the counts of conviction, the
district court may order restitution to victims who suffered from defendant’s criminal
13
Section 3663A(a)(1) requires that a court order restitution when a defendant
has been convicted of an offense against property, including an offense committed by
fraud or deceit. 18 U.S.C. §§ 3663A(a)(1), (c)(1)(A)(ii).
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activity beyond what was described with particularity in the indictment.” United States
v. Liner, 435 F.3d 920, 926 (8th Cir. 2006). We affirm the district court’s restitution
award because the indictment alleged a broad scheme that involved several TierOne
customers who suffered as a result of Appellant’s fraudulent conduct.
D. Motion to Strike Surplusage
Appellant contends that the trial court erred when it denied Appellant’s motion to
strike surplusage in the indictment. See Fed. R. Crim. P. 7(d).14 In each count of wire
fraud, instead of including the phrase, “with intent to defraud,” the indictment read, “in
reckless disregard of the interests of.” DeRosier argues that the inclusion of the phrase
“in reckless disregard of the interests of” was prejudicial and did not reflect an accurate
statement of the law. We find Appellant’s argument unavailing.15
A motion to strike surplusage from an indictment is a matter within the court’s
discretion. United States v. Figueroa, 900 F.2d 1211, 1218 (8th Cir. 1990). This Court
has cautioned that such a motion “should be granted only where it is clear from the
allegations contained therein are not relevant to the charge made or contain inflammatory
and prejudicial matter.” Dranow v. United States, 307 F.2d 545, 558 (8th Cir. 1962).
We find that the district court did not abuse its discretion in denying Appellant’s
motion. In United States v. Willis, 87 F.3d 1004 (8th Cir. 1996), we approved of a jury
14
Rule 7(d) provides: “Upon the defendant’s motion, the court may strike
surplusage from the indictment or information.”
15
Appellant cites to no law in support of her contention that the phraseology in
the indictment is not an accurate statement of the law.
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instruction16 which explained that the jury may find that the defendant possessed the
requisite intent to defraud if the defendant acted in reckless disregard of the interests of
the bank. Id. at 1007 (stating that “[a] majority of circuits that have addressed the
question whether reckless disregard of the interests of the bank is sufficient to prove
intent to defraud have answered in the affirmative”). Likewise, we find that the district
court did not commit reversible error when it did not strike the language in the
indictment that described DeRosier as acting “in reckless disregard of the interests of ”
in lieu of stating that DeRosier had the intent to defraud her creditors. Because the
“reckless disregard” standard is an acceptable specification of the term “intent to
defraud”, the language does not constitute surplusage. We affirm the district court’s
ruling.
E. Apprendi
Finally, Appellant asserts that her sentence violates Apprendi v. New Jersey, 530
U.S. 466 (2000) because she was found guilty on three counts of wire fraud affecting a
financial institution, yet the jury instructions only included the elements of basic wire
fraud and did not include the elements that would constitute “affecting a financial
institution.”17 Apprendi claims which have been raised at the district court level are
reviewed de novo. United States v. Ross, 279 F.3d 600, 608 (8th Cir. 2002).
Appellant admits that each relevant jury instruction included the header “Wire
Fraud Affecting A Financial Institution.” She further concedes that her own proposed
16
The instruction stated, in part, that a “[r]eckless disregard of the interests of
the bank is equivalent of intent to defraud.” Id. at 1007.
17
In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to the jury.” Apprendi, 530 U.S. at 489 (citing
Jones v. United States, 526 U.S. 227 (1999)).
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jury instructions did not include the element “affecting a financial institution.” She also
recognizes that she did not object to the jury instructions as given at trial before the jury
retired to deliberate, and raised this issue for the first time in her sentencing
memorandum.18 Because DeRosier failed to timely object to the instructions at trial, we
review the jury instructions for plain error.19 Jones v. United States, 527 U.S. 373, 388
(1999) (failure to object to jury instructions before jury retired rendered objection
untimely and subject to plain error review). See also Federal R. Crim. P. 30(d).20 In
order for a plain error to be reversible, the error must have affected DeRosier’s
substantial rights. United States v. Barth, 424 F.3d 752, 764 (8th Cir. 2005); See also
United States v. Pinque, 234 F.3d 374, 377 (8th Cir. 2000). We find that Appellant has
failed to establish the error affected her substantial rights.
18
The government contends that DeRosier waived her right to raise this issue
on appeal because at trial she proposed a similar instruction to which she now objects.
The Government notes that DeRosier objects to the final jury instructions because the
wire fraud instructions omitted the element “affecting a financial institution.”
However, DeRosier’s own proposed jury instructions, likewise, failed to include the
“affecting a financial instruction” element of the crime. We find that because it is
readily apparent that Appellant’s claim fails under the plain error standard, we dispose
of her challenge pursuant to the plain error doctrine, and decline to delve into the
nuances of whether DeRosier waived her objection or forfeited it.
19
Fed. R. Crim. P. 52(b) provides that “[a] plain error that affects substantial
rights may be considered even though it was not brought to the court’s attention.”
The standard of review for plain error requires “that (1) there was an error; (2) the
error was plain; and (3) that error affected substantial rights.” United States v. Barth,
424 F.3d 752, 764 (8th Cir. 2005). Further, the Court of Appeals should correct the
plain error “affecting substantial rights if the error ‘seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.’” United States v. Olano, 507
U.S. 725, 736 (1993) (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)).
20
Federal R. Crim. P. 30(d) provides, in relevant part: “A party who objects to
any portion of the instructions . . . must inform the court of the specific objection and
the grounds for the objections before the jury retires to deliberate . . .Failure to object
in accordance with this rule precludes appellate review, except as permitted under
Rule 52(b).”
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Critically, DeRosier bears the burden of persuasion with respect to proving her
rights were prejudiced, and this requirement is normally met by showing that the alleged
error affected the case’s outcome. United States v. Rice, 449 F.3d 887, 894 (8th Cir.
2006). We are unpersuaded that the district court committed plain error requiring the
Court to vacate DeRosier’s sentence. First, it was uncontroverted at trial that the bank
was a financial institution that was “affected” by Appellant’s fraudulent conduct.
DeRosier came into contact with the victims through her position at the bank, in fact,
DeRosier stipulated to the fact that she had “received the funds from customers of
TierOne Bank,” (Trial Tr., 123-25), and as a result of her scheme, the bank not only
expended time and money to investigate the loans and Appellant’s conduct, but it also
lost good will in the community. It was not truly disputed whether DeRosier’s criminal
actions affected TierOne Bank. See United States v. Rice, 449 F.3d 887, 896 (8th Cir.
2006) (holding that the evidence of defendant’s guilt was overwhelming, thus “the
failure to separately define ‘intent to defraud’ cannot be said to have affected his
substantial rights”). Moreover, looking at the jury instructions as a whole, Final Jury
Instruction No. 9 explained DeRosier’s alleged scheme, stating that TierOne Bank
constituted a financial institution as defined by 18 U.S.C § 20, and that DeRosier
solicited the loans from bank customers. (Final Jury Instr. No. 9.) In light of DeRosier’s
own stipulations, the evidence at trial, and taking into account the jury instructions as a
whole, we find that no reasonable fact-finder would have found that DeRosier’s conduct
did not “affect” TierOne Bank.
Furthermore, the court did not sentence DeRosier to a higher sentence than
authorized by the lesser-included offense of wire fraud; DeRosier’s sentence of fifteen
months of imprisonment does not come close to the statutory maximum for the lesser-
included offense of wire fraud. DeRosier concedes that the effect of this error will only
come to fruition in the unlikely event she violates her supervised release.21 Therefore,
21
The offense of wire fraud affecting a financial institution is a Class B felony,
whereas the offense of wire fraud is a Class C felony. See 18 U.S.C. § 1343; 18
U.S.C. §§ 3559(a)(2), (3). Based on these classifications, if DeRosier violates her
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by Appellant’s own admission, this error may never impact her period of incarceration,
and revocation of her supervised release is a possibility that Appellant contends will
unlikely occur. Accordingly, we find that any error in the jury instructions does not
meet the plain error standard and does not seriously affect the fairness, integrity or public
reputation of the judicial proceedings. See United States v. Cotton, 535 U.S. 625, 633-
34 (2002) (holding that Apprendi errors may not be addressed unless the forfeited claim
is sufficiently serious to affect the fairness, integrity, or public reputation of the judicial
proceedings). We affirm Appellant’s sentence.
The judgment is affirmed.
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supervised release, then she can be required to serve up to three years in prison on that
revocation because she was found guilty of a Class B felony. However, if she was
sentenced based on the lesser included offense of wire fraud, she would only be
required to serve up to two years for having violated her supervised release.
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