United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 12, 2006
Charles R. Fulbruge III
Clerk
No. 04-10705
Summary Calendar
UNTIED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD ALLEN WILSON, JR.,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CR-182-ALL-H
--------------------
Before JOLLY, DAVIS and OWEN, Circuit Judges.
PER CURIAM:*
Richard Allen Wilson, Jr., appeals from his jury trial
convictions for two counts of mail fraud, in violation of 18
U.S.C. § 1341. He first contends that the evidence was
insufficient to support his convictions. Blue brief, 19-24.
Specifically, Wilson argues that the mailings of the checks
underlying his convictions occurred both two years apart and
after he received property for personal use. Wilson asserts that
*
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this opinion should not be published and is not precedent except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. R. 47.5.4.
No. 04-10705
-2-
these facts fail to satisfy the requirement that the mailings
were used to advance the scheme to defraud. We disagree.
The evidence adduced at trial revealed that Wilson’s scheme
to defraud was ongoing, running between March 1998 and February
2002. The success of Wilson’s scheme depended on preventing
discovery of his illicit purchases by the Dallas Police
Patrolman’s Union (DPPU) so that the DPPU would continue to pay
for them. To that end, Wilson’s criminal conduct required the
mailing of payments to American Express to conceal his fraudulent
purchases. Under these circumstances, there was sufficient
evidence to satisfy the element of Wilson’s mail fraud
convictions requiring the use of the mails to execute the scheme
to defraud. See Schmuck v. United States, 489 U.S. 705, 711-12
(1988).
Wilson next argues that the district court abused its
discretion in refusing to instruct the jury concerning a good
faith defense and that he was entitled to the instruction because
there was some evidence that he acted in good faith.
Specifically, Wilson asserts that the evidence adduced at trial
revealed that he was authorized to “use the union’s American
Express card for personal purchases because the union could not
pay Wilson’s full salary and Wilson had expenses he needed to
take care of.” Wilson concludes that his personal purchases fell
“within the scope of what the board authorized.”
No. 04-10705
-3-
The record reveals that the district court instructed the
jury that the Government was required to prove that Wilson acted
with “specific intent.” A detailed definition of that term was
also given to the jury. Moreover, defense counsel conveyed the
essence of a good faith argument to the jury during closing
argument. Under these circumstances, the district court did not
abuse its discretion by refusing to give a good faith jury
instruction. See United States v. Tomblin, 46 F.3d 1369, 1378
(5th Cir. 1995); United States v. St. Gelais, 952 F.2d 90, 93
(5th Cir. 1992). Because Wilson has shown no error in connection
with his convictions, those convictions are AFFIRMED.
Wilson argues that his sentence must be vacated in light of
United States v. Booker, 125 S. Ct. 738 (2005). When, as here, a
Booker claim is preserved, we will ordinarily vacate and remand
unless the Government can show beyond a reasonable doubt that the
error was harmless. See United States v. Pineiro, 410 F.3d 282,
285 (5th Cir. 2005).
The district court’s imposition of a sentence based on facts
exceeding those contained in the judgment of conviction was
erroneous. See id. Further, the Government concedes that the
error was not harmless, and the record is silent with respect to
whether the district court would have imposed the same sentences
under an advisory guidelines scheme. See id. Accordingly,
Wilson’s sentences are VACATED and this matter is REMANDED for
resentencing.