United States v. Lashovia Grier

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 3, 2007
No. 06-13796 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 05-00089-CR-ODE-4-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LASHOVIA GRIER, a.k.a. Lashovia Corvette Grier,
PERTHENIA JORDAN,
a.k.a. Perthenia Renee Jordan,
a.k.a. Perthenia Renne Jordan,

Defendants-Appellants.

________________________

Appeals from the United States District Court
for the Northern District of Georgia
_________________________

(August 3, 2007)

Before PRYOR, KRAVITCH and ALARCÓN,* Circuit Judges.

*
Honorable Arthur L. Alarcün, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
ALARCÓN, Circuit Judge:

Perthenia Jordan has appealed from the judgment of conviction for

conspiracy to obtain money by defrauding several banks in violation of 18 U.S.C.

§ 1349, and seven counts of bank fraud in violation of 18 U.S.C. §§ 1344 and 2.

She contends that the District Court violated her Sixth Amendment right to

counsel. She also maintains that it erred in concluding that the evidence was

sufficient to support her conviction for conspiracy to commit bank fraud and bank

fraud, in denying her motion for a mistrial, in admitting evidence of extrinsic acts

contrary to Rule 404(b) of the Federal Rules of Evidence, and in enhancing her

sentence because of her role as a supervisor. She also argues that the District Court

erred in concluding that the Sentencing Guidelines are mandatory.

In her notice of appeal, Lashovia Grier asserted that she was appealing

“from the Sentence only.” In her opening brief, however, Ms. Grier has challenged

the sufficiency of the evidence to support her conviction for conspiracy to commit

bank fraud and bank fraud, and the District Court’s admission of extrinsic

evidence. She did not claim that the District Court erred in its sentencing decision.

We affirm because we conclude that the District Court did not violate

Perthenia Jordan’s Sixth Amendment right to counsel of her choice. We also hold

that the evidence was sufficient to persuade a trier of fact that each of the

2
Appellants was guilty beyond a reasonable doubt. In addition, we are persuaded

that the District Court did not abuse its discretion in its evidentiary rulings, and that

its application of the Sentencing Guidelines was not unreasonable.

I

A

The evidence, viewed in the light most favorable to the Government as the

prevailing party, demonstrates that from August 1, 2001 to October 25, 2004,

Perthenia Jordan conspired with Lashovia Grier, Cynthia Starr and others to

defraud Wachovia Bank, Washington Mutual Bank, the Georgia Telco Credit

Union, and the Atlanta Postal Credit Union of their money. The conspirators

deposited counterfeit and stolen checks, as well as checks drawn on closed

accounts, into accounts opened at these financial institutions and then withdrew

funds from these accounts.

Three co-conspirators testified at trial that under the direction of Perthenia

Jordan they defrauded the four financial institutions named in the indictment.

Debbie Jordan, Perthenia Jordan’s cousin, testified that Perthenia Jordan instructed

her to open an account, obtain a debit card, and deposit checks in the account that

Perthenia Jordan would furnish. Debbie Jordan was directed to buy postal money

orders using a debit card for the account. Perthenia Jordan explained to Debbie

3
Jordan that once the fraud was discovered, she should file a police report falsely

claiming that her identification and debit card had been stolen.

Following Perthenia Jordan’s instructions, Debbie Jordan opened an account

at Wachovia Bank. She gave the debit card for the bank account to Perthenia

Jordan. After counterfeit checks were deposited into the account, money orders

were purchased with the debit card. Perthenia Jordan paid Debbie Jordan $1,500

for her participation in this scheme.

Takeyla Hollie, Debbie Jordan’s sister-in-law, testified that she was told by

Debbie Jordan that if she wanted to make money, she should contact Perthenia

Jordan. Debbie Jordan drove Ms. Hollie to Perthenia Jordan’s residence.

Perthenia Jordan told Ms. Hollie that she would be paid to allow fraudulent checks

to be deposited in her checking account. She instructed Ms. Hollie that she should

withdraw funds after the fraudulent checks were deposited. She was also told to

report to the police that her debit card and personal identification number had been

stolen as soon as she withdrew the funds in the checking account.

Perthenia Jordan introduced Ms. Hollie to Lashovia Grier and provided Ms.

Hollie with forged payroll checks. She instructed Ms. Hollie to take Ms. Grier to

Columbus, Georgia to cash the checks. Ms. Hollie did so six times a month. Ms.

Hollie and Ms. Grier were not employed at the firms on whose accounts the checks

4
were drawn. Perthenia Jordan paid Ms. Hollie and Ms. Grier $200 for each

counterfeit check they cashed.

Perthenia Jordan also recruited Justin Johnson to open checking accounts.

Mr. Johnson agreed to work for Perthenia Jordan and he asked her for counterfeit

identification. She instructed him to obtain a passport photograph. After he did so,

she gave him a Georgia driver’s license in the name of Orondo Johnson.

Mr. Johnson opened an account at the Washington Mutual Bank. Perthenia

Jordan gave him a check for $4,800 and another in the amount of $3,650 to deposit

in the account. He was instructed to use the debit card to make cash withdrawals at

ATMs, and to purchase postal money orders. He did so and split the proceeds with

Perthenia Jordan.

Perthenia Jordan drove Mr. Johnson and Artis Williams to Macon, Georgia

to cash counterfeit checks. Mr. Johnson and Mr. Williams were arrested when they

attempted to cash those checks. Perthenia Jordan remained in the car while Mr.

Johnson and Mr. Williams entered the bank. A Macon Police Department officer

encountered Perthenia Jordan outside the bank.

The Government presented the following evidence regarding the substantive

offenses charged in Counts Two, Three, Four, Five, Six, Nine and Ten. On April

24, 2001, Perthenia Jordan opened an account at the Wachovia Bank in the name

5
of “Your Best Friend Cleaning Service.” She requested that a debit ATM card be

issued for the account. On August 13, 2001, the balance in the account was $1.17.

Two days later a check for $24,000, drawn on an account held by Honda and

Suzuki of Rome, was deposited into her account at an ATM. The next day $300

was withdrawn from the account. Thereafter, the debit card was used to purchase

postal money orders. A few days later a check for $12,000, drawn on the same

Honda and Suzuki account, was deposited into Perthenia Jordan’s account. Both

of the Honda and Suzuki checks were fraudulent. After the second deposit, more

withdrawals from ATMs occurred, and debit card purchases of money orders were

made.

The Wachovia Bank’s surveillance camera photographed the deposit of the

$24,000 check purportedly drawn on the Honda and Suzuki of Rome account.

Debbie Jordan identified the person depicted in the surveillance photographs as

Kenyatta Bostic. Debbie Jordan testified that Ms. Bostic was acquainted with

Perthenia Jordan. On September 7, 2001, Perthenia Jordan reported to the police

that her “work pouch [was] lost with: wallet containing SS cards (4), checkcard,

checkbook, VISA credit card, birth certificate, work ID and BellSouth cell phone.”

The Government presented the following evidence in support of Counts

Three, Four, and Five. On November 19, 2001, Perthenia Jordan drove Debbie

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Jordan and another person to the Atlanta Postal Credit Union to open accounts.

Accounts were opened in the name of Perthenia Jordan, Debbie Jordan, and Marcia

Johnson. On the same date, an account was opened at the Wachovia Bank in the

name of Ms. Johnson.

In December 2001, Perthenia Jordan gave Debbie Jordan a fraudulent check

and requested that she deposit it at the Atlanta Postal Credit Union. The next day,

Perthenia Jordan took Debbie Jordan to two different banks. Perthenia Jordan told

her to purchase a cashier’s check at each bank using her debit card. After these

purchases, Perthenia Jordan drove Debbie Jordan to two branches of the Sun Trust

Bank to cash the cashier’s checks. Debbie Johnson was paid approximately $1,800

for these transactions.

On December 12, 2001, a counterfeit check was deposited into the Marcia

Johnson account at the Atlanta Postal Credit Union. A $500 withdrawal was made

from the account.

The record pertaining to the allegations in Count Six shows that an account

in the name of Quartarrio Hill was opened at the Wachovia Bank in the same way

described above, i.e., a minimal deposit made to open the Quartarrio Hill account.

On April 25, 2002, a check drawn on a closed account was deposited into the

account at an ATM. At trial, Debbie Jordan and Ms. Hollie identified Perthenia

7
Jordan as the person depicted in the ATM surveillance photograph at the time this

fraudulent deposit was made.

Justin Johnson’s testimony set forth above demonstrated that Perthenia

Jordan participated in defrauding the Washington Mutual Bank, as alleged in

Count Nine. The record also shows that one of the money orders purchased with

the Orondo Johnson account debit card had Perthenia Jordan’s fingerprints on it.

In Count Ten, the superseding indictment alleges that Ms. Grier, Perthenia

Jordan, and Ms. Starr aided and abetted each other in defrauding the Georgia Telco

Credit Union. Lynnisha Jeffries opened a checking account at the Georgia Telco

Credit Union on August 6, 2004. A debit card was issued for the account. On

September 11, 2004, debit card transactions put the accounts in a negative balance.

On September 14, 2004, deposits were made into the account. Ms. Hollie

identified Ms. Grier as the person who made these deposits. On September 15,

2004, a counterfeit check was deposited into the account. On September 21, 2004,

and September 22, 2004, cash withdrawals were made at ATMs. Ms. Hollie

identified Ms. Grier as the person depicted in the surveillance photographs making

the debit card withdrawals. Her finger prints were on four of the money orders

purchased with the debit card issued on the Jeffries account. Three of the money

orders were made payable to Ms. Grier. Perthenia Jordan’s right thumb print was

8
on one of the money orders.

After the Government rested its case-in-chief, Perthenia Jordan and Ms.

Grier each moved for a judgment of acquittal under Rule 29 of the Federal Rules of

Criminal Procedure. The District Court denied the motions.

B

Perthenia Jordan and Ms. Grier did not testify on their own behalf.

Perthenia Jordan presented four witnesses. Laytika Jordan, Perthenia Jordan’s

cousin, testified that she “would not” believe Debbie Jordan’s testimony under

oath. She testified that Debbie Jordan had a reputation in the community for “[n]ot

telling the truth.” She also testified that she and Debbie Jordan “did marijuana . . .

[and] crack cocaine” together. Jeffery Jordan, Debbie Jordan’s husband, was

separated from his wife at the time of trial. He testified that Debbie Jordan’s

testimony should not be believed because “[s]he’s a liar.” He further testified that

he also would not believe Ms. Hollie’s testimony under oath because “[s]he’s a

liar.” Otis Jordan, Perthenia Jordan’s father, testified that during the first part of

July 2001, her grandmother was hospitalized which caused his daughter to appear

to be distraught. Johnnie Herrington testified that he worked for Perthenia

Jordan’s company between 2001 and 2002. His job involved cleaning libraries and

police stations. He generally worked a few hours a night and three to four nights a

9
week. Perthenia Jordan paid Mr. Herrington $150, in cash, every two weeks.

Ms. Grier called Inspector Carmen Reese of the United States Postal

Service as a defense witness pursuant to Rule 611(c) of the Federal Rules of

Evidence. Inspector Reese testified that no handwriting exemplar was taken from

Ms. Grier.

The jury found Perthenia Jordan guilty of Counts One, Two, Three, Four,

Five, Six, Nine and Ten. Ms. Grier was found guilty as charged in Count One and

Count Ten 1.

C

A probation officer prepared a Presentence Investigation Report (“PSR”) for

each defendant. The PSR recommended a four-level enhancement for Perthenia

Jordan’s leadership role in the offense. The resulting total adjusted offense level

was 23. Her criminal history category was I. These calculations resulted in a

Sentencing Guidelines range of 46 to 57 months of imprisonment.

During the sentencing proceedings, Perthenia Jordan asserted that the PSR’s

proposed enhancement for a leadership role was not supported by the evidence.

She also contended that she was entitled to an adjustment for acceptance of

1
The grand jury returned a superseding indictment on October 26, 2006. It charged Perthenia
Jordan with conspiracy to commit bank fraud in Count One, and bank fraud in Count Two through
Ten. Ms. Grier was charged as a co-defendant in Count One and Count Ten. At the Government’s
request, the District Court dismissed Count Seven and Count Eight.

10
responsibility. The District Court rejected each of these contentions.

The District Court sentenced Perthenia Jordan to serve fifty-two months of

imprisonment. This sentence was within the Sentencing Guidelines range. The

District Court also ordered restitution in the amount of $119,832.51. Ms. Grier has

not raised any issue concerning her sentence.

II

A

Perthenia Jordan and Ms. Grier have filed timely notices of appeal. We have

appellate jurisdiction over Perthenia Jordan’s appeal from the judgment of

conviction pursuant to 28 U.S.C. § 1291, and we are empowered by 18 U.S.C. §

3742(a)(1)-(2) to review her claim that the District Court erred in its sentencing

decision.

In her notice of appeal, Ms. Grier did not appeal from the final judgment of

conviction under 28 U.S.C. § 1291. Instead, she stated that “Defendant above-

named, hereby appeals to the United States Court of Appeals for the Eleventh

Circuit from the Sentencing only (18 U.S.C. § 3742) (Sentence imposed 18

months) entered in this proceeding on the 28th day of June, 2006.” In the opening

brief she filed in this Court, however, she did not challenge the District Court’s

sentencing decision. The two issues raised in her brief deal with alleged errors

11
relating solely to the judgment of conviction.

To resolve this jurisdictional paradox, this Court directed the parties to file

letter briefs addressing the question whether “this Court has jurisdiction over the

appeal of Lashovia Grier in light of her Notice of Appeal dated June 28, 2006,

which references only her sentence, and the arguments made in her opening brief

on appeal, which do not reference her sentence.”

In a commendable response to this Court’s question, the Government stated

that under this Circuit’s precedent “the Court should find that Grier’s notice of

appeal of her sentence is sufficient to confer jurisdiction on the Court to consider

the enumerations of trial error raised in Grier’s opening brief.”

The Government first notes that Ms. Grier stated in her notice of appeal that

“a transcript of all pretrial, trial, and sentencing proceedings is required to

prosecute this appeal.” The Government reasons that “Grier demonstrated her

intention to appeal her conviction by stating in her notice of appeal that all pretrial

and trial transcripts were necessary to prosecute her appeal, by ordering the trial

transcript and by raising trial error in her opening brief.”

In its brief, the Government responded to each of the issues raised in Ms.

Grier’s opening brief. It conceded that it would not be prejudiced if this Court

reviews the merits of the issues raised in Ms. Grier’s opening brief.

12
 Ms. Grier’s counsel also maintains that under this Circuit’s precedent, we

have jurisdiction over this appeal. We agree. In Comfort Trane Air Conditioning

Co. v. Trane Co., 592 F.2d 1373 (5th Cir. 1979), the Court rejected the appellees’

contention that the appellants could not raise an issue on appeal because the notice

of appeal did not specify the district court’s order relating to the question presented

in the opening brief. Id. at 1390 n.15. The Court held that it is “entirely contrary

to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to

be avoided on the basis of such mere technicalities.” Id. The Court also noted that

the appellees could show no prejudice because “[b]oth sides also briefed the issue

before this court.” Id.2 In C. A. May Marine Supply Co. v. Brunswick Corp., 649

F.2d 1049 (5th Cir. 1981), the Court stated: “The party who makes a simple

mistake in designating the judgment appealed from does not forfeit his right of

appeal where the intent to pursue it is clear.” Id. at 1056.

In United States v. Rothseiden, 680 F.2d 96 (11th Cir. 1982), this Court held

that where the notice of appeal does not mislead or cause prejudice, it would

overlook any failure to designate properly the order appealed. Id. at 97.

In a more recent case with strikingly similar facts, the Fifth Circuit held that

2
In Bonner v. City of Prichard, ALA., 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this
Court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down
prior to October 1, 1981.

13
a notice of appeal that stated that the appeal was from the “sentence entered in this

matter” was sufficient to allow the defendant to appeal both his conviction and

sentence where the defendant demonstrated an intent to appeal his conviction in his

brief, and the Government was not misled or prejudiced by the notice of appeal.

United States v. Knowles, 29 F.3d 947, 948-50 (5th Cir. 1994).

Because of the Government’s forthright concession that it has not been

prejudiced by the misleading notice of appeal, we are persuaded that we have

jurisdiction over Ms. Grier’s appeal.

B

Perthenia Jordan contends that she was deprived of her Sixth Amendment

right to be represented by counsel of her choice. She argues that under the

Supreme Court’s decision in United States v. Gonzales-Lopez, 126 S. Ct. 2557

(2006), we must reverse.

The facts on which Perthenia Jordan bases her Sixth Amendment claim are

that, in an ex parte conference in chambers on the morning set for trial, she

requested permission from the District Court to allow her “to hire another attorney

with Mr. Citronberg to proceed with my case.” The District Court denied her

request to hire another attorney because it would take him or her “weeks and most

often months to get a case ready for trial.”

14
 The issue presented in Gonzalez-Lopez is readily distinguishable from the

question we must decide in this matter. In Gonzalez-Lopez, the defendant, in a

criminal matter filed in the Eastern District of Missouri, retained a California

lawyer to represent him. 126 S. Ct. at 2560. His retained counsel filed an

application for admission pro hac vice. Id. The District Court denied the

application without comment. Id. Gonzalez-Lopez then retained local counsel and

the case proceeded to trial. Id. Gonzalez-Lopez appealed from his conviction. Id.

at 2561. The Eighth Circuit vacated the conviction, holding that the District Court

had violated the defendant’s right to paid counsel of his choosing. United States v.

Gonzalez-Lopez, 399 F.3d 924, 926 (8th Cir. 2005). It also held that this violation

was not subject to harmless-error review. Id. at 932-35. The Supreme Court

affirmed the judgment of the Court of Appeals. 126 S. Ct. at 2566. It held:

We have recognized a trial court’s wide latitude in
balancing the right to counsel of choice against the needs
of fairness, and against the demands of its calendar. The
court has, moreover, an independent interest in ensuring
that criminal trials are conducted within the ethical
standards of the profession and that legal proceedings
appear fair to all who observe them. None of these
limitations on the right to choose one’s counsel is
relevant here. This is not a case about a court's power to
enforce rules or adhere to practices that determine which
attorneys may appear before it, or to make scheduling
and other decisions that effectively exclude a defendant's
first choice of counsel. However broad a court’s
discretion may be, the Government has conceded that the

15
 District Court here erred when it denied respondent his
choice of counsel. Accepting that premise, we hold that
the error violated respondent's Sixth Amendment right to
counsel of choice and that this violation is not subject to
harmless-error analysis.

Id. at 2565-66 (internal citations and quotation marks omitted).

The Supreme Court instructed in Morris v. Slappy, 461 U.S. 1 (1983), that

Trial judges necessarily require a great deal of latitude in
scheduling trials. Not the least of their problems is that of
assembling the witnesses, lawyers, and jurors at the same
place at the same time, and this burden counsels against
continuances except for compelling reasons.
Consequently, broad discretion must be granted trial
courts on matters of continuances; only an unreasoning
and arbitrary “insistence upon expeditiousness in the face
of a justifiable request for delay” violates the right to the
assistance of counsel.

Id. at 11-12 (quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964)).

Here, the District Court denied the motion to permit Perthenia Jordan to hire

additional counsel because it would inconvenience the prospective jurors who had

been summoned to the courtroom. The District court also noted that the

Government and the co-defendant were ready to proceed with the trial on that day.

We conclude that the District Court did not err in denying the request to appoint

additional counsel because it would have required a continuance to permit such

counsel to prepare for trial. Perthenia Jordan was represented at trial by the

counsel she had initially selected. The denial of her untimely request to retain

16
additional counsel did not deprive her of the protection provided by the Sixth

Amendment because granting it would have disrupted the District Court’s

calendar.

C

Perthenia Jordan and Ms. Grier contend that the evidence was insufficient to

convict them of conspiracy to defraud financial institutions or of fraud in obtaining

money orders from them.

“Whether the record contains sufficient evidence to support the jury’s

verdict is a question of law subject to de novo review.” United States v. To, 144

F.3d 737, 743 (11th Cir. 1998). “When conducting the review of the record, [this

Court] view[s] the evidence in the light most favorable to the government and

resolve[s] all reasonable inferences and credibility evaluations in favor of the

jury’s verdict.” Id. (internal quotation marks omitted). “[T]he jury’s verdict

[should be upheld] whenever a reasonable factfinder could conclude that the

evidence establishes guilt beyond a reasonable doubt.” Id. at 743-44.

In this case, the jury was presented with direct evidence of Perthenia

Jordan’s involvement in the bank fraud conspiracy charged in Count One, and the

substantive bank fraud offenses charged in counts Two through Six and Nine and

Ten through the testimony of cooperating co-conspirators Debbie Jordan, Mr.

17
Johnson, and Ms. Hollie. The Government also presented bank surveillance

photographs showing Perthenia Jordan depositing a counterfeit check, and money

orders purchased with fraudulently obtained funds containing her fingerprints.

The record also shows that Ms. Grier was involved in the bank fraud

conspiracy charged in Count One and the substantive bank fraud offense charged

in Count Ten. The Government introduced into evidence surveillance photographs

showing Ms. Grier making fraudulent deposits into an account that was used by

Perthenia Jordan to perpetrate bank fraud, and money orders purchased with

fraudulently obtained funds containing Ms. Grier’s fingerprints.

Perthenia Jordan and Ms. Grier contend that the Government failed to show

that an agreement existed between the co-conspirators to form the alleged

conspiracy. This Court has held that the Government could prove a conspiracy by

“show[ing] an agreement on an overall objective.” To, 144 F.3d at 744. However,

“the government does not have to establish that each conspirator explicitly agreed

with every other conspirator to commit the substantive [] crime described in the

indictment, or knew his fellow conspirators, or was aware of all the details of the

conspiracy.” Id. Here, testimony from the defendants’ co-conspirators clearly

satisfies the Government’s burden of proof on this issue.

Ms. Grier cites Kotteakos v. United States, 328 U.S. 750 (1946), and its

18
progeny to suggest that this was a “hub and spoke” conspiracy, thus she should not

be charged with conspiring with the other spokes. This Court has held that when

“there was no connection whatsoever between the various spokes [co-conspirators]

of [the] scheme,” the entire scheme could not be charged as a single conspiracy.

United States v. Chandler, 388 F.3d 796, 808 (11th Cir. 2004). Here, however, the

evidence shows that Ms. Grier and Perthenia Jordan entered in an agreement with

other persons to defraud financial institutions.

D

Perthenia Jordan also contends that the District Court erred by failing to

grant her motion for a mistrial after Mr. Johnson testified that he saw Perthenia

Jordan in custody at the bank after he and Mr. Williams were arrested in Macon.

“The district court’s evidentiary rulings are not subject to disturbance on appeal

absent a clear abuse of discretion.” United States v. Mendez, 117 F.3d 480, 484

(11th Cir. 1997) (internal quotation marks omitted). “Moreover, [t]he decision to

grant a mistrial lies within the sound discretion of the trial judge since he [or she]

is in the best position to evaluate the prejudicial effect of a statement or evidence

on the jury.” Id. (alteration in original) (internal quotation marks omitted). “When

a court gives a direct and explicit curative instruction regarding improper

testimony, it supports the court’s decision not to grant a mistrial by decreasing the

19
possibility of undue prejudice.” United States v. Perez, 30 F.3d 1407, 1411 (11th

Cir. 1994). Finally, “prejudicial testimony will not mandate a mistrial when there

is other significant evidence of guilt which reduces the likelihood that the

otherwise improper testimony had a substantial impact on the verdict of the jury.”

United States v. Saget, 991 F.2d 702, 708 (11th Cir. 1993) (internal quotation

marks omitted).

Immediately following Mr. Johnson’s challenged testimony, the District

Court struck it from the record and gave an explicit curative instruction. The Court

informed the jury that Perthenia Jordan being in custody in Macon was “not

relevant” and “direct[ed] [the jury] to disregard that.” The Court further indicated

to the jury that “there is no evidence that [Perthenia Jordan] was convicted of

anything relating to the Macon situation,” and that “the charge was dismissed in

Macon.” These admonitions went beyond a standard curative instruction. By

informing the jury of the dismissal of the charges at Macon, the District Court

erased any possible undue prejudice that may have occurred. The District Court

did not err by refusing to grant Perthenia Jordan’s motion for a mistrial.

E

Perthenia Jordan and Ms. Grier both contend that the District Court erred in

permitting Ms. Hollie to testify about their involvement in other crimes not

20
charged in the indictment. They argue that the Government violated the Magistrate

Judge’s order requiring pretrial disclosure of such testimony to be completed

twenty-one days prior to trial. “This court reviews the decision to admit extrinsic

act evidence under Fed. R. Evid. 404(b) for clear abuse of discretion.” United

States v. Paradies, 98 F.3d 1266, 1291 (11th Cir. 1996) (internal quotation marks

omitted).

Rule 404(b) of the Federal Rules of Evidence provides as follows:

Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident, provided that
upon request by the accused, the prosecution in a
criminal case shall provide reasonable notice in advance
of trial, or during trial if the court excuses pretrial notice
on good cause shown, of the general nature of any such
evidence it intends to introduce at trial.

In United States v. Miller, 959 F.2d 1535 (11th Cir. 1992), this Court

concluded that a three-part test should be used to evaluate the admissibility of Rule

404(b) evidence. Id. at 1538. “First, the evidence must be relevant to an issue

other than the defendant’s character.” Id. “Second, as part of the relevance

analysis, there must be sufficient proof so that a jury could find that the defendant

committed the extrinsic act.” Id. “Third, the evidence must possess probative

21
value that is not substantially outweighed by its undue prejudice, and the evidence

must meet the other requirements of Rule 403.” Id. Whether the probative value is

not substantially outweighed by undue prejudice is a “determination [that] lies

within the discretion of the district court and calls for a common sense assessment

of all the circumstances surrounding the extrinsic offense, including prosecutorial

need, overall similarity between the extrinsic act and the charged offense, as well

as temporal remoteness.” United States v. Perez, 443 F.3d 772, 780 (11th Cir.

2006) (internal citation and quotation marks omitted).

Ms. Hollie testified regarding Perthenia Jordan’s and Ms. Grier’s prior

involvement in intentionally defrauding other banks. The prior crimes in question

were very similar to the bank fraud scheme involved in this case. Since Perthenia

Jordan and Ms. Grier pled not guilty to the bank fraud charges at issue, proof of

similar prior crimes was relevant to show that Perthenia Jordan and Ms. Grier

intentionally participated in defrauding the banks named in the superseding

indictment. See United States v. Matthews, 431 F.3d 1296, 1311-12 (11th Cir.

2005) (similar crime committed eight years prior could be introduced at trial to

show intent to commit the current charged crime). Ms. Hollie, as a co-conspirator,

offered first-hand accounts of the prior crimes, thus providing sufficient proof that

Perthenia Jordan and Ms. Grier committed the extrinsic acts.

22
 The balancing test further supports the District Court’s conclusion. As

discussed above, the intent element of the bank fraud charges for each defendant

was contested at trial. Thus, evidence of the other crimes was admissible to prove

the intent element beyond a reasonable doubt. Additionally, the prior crimes are

factually similar to the charged offenses, and they are not temporally remote as the

time span difference is only a matter of a few years. Finally, the District Court

gave a limiting instruction informing the jury that the evidence of other crimes

could only be considered for a “limited purpose,” and that those crimes “are not

themselves charged as crimes in the indictment.” Thus, the totality of the

circumstances suggests that the District Court was well within its discretion in

permitting such prior crimes testimony.

Perthenia Jordan and Ms. Grier further maintain that the Government’s

violation of the Magistrate Judge’s twenty-one-day rule constitutes reversible

error. As the District Court properly held, however, Appellants failed to

demonstrate that they were prejudiced as a result of the Government’s disclosure of

Ms. Hollie’s testimony seven days prior to trial. The District Court did not abuse

its discretion in permitting Ms. Hollie to testify about Perthenia Jordan’s and Ms.

Grier’s involvement in other crimes not charged in the indictment.

III

23
 A

Perthenia Jordan next argues that the District Court erred by enhancing her

sentence based on a leadership role because there was no evidence that she

managed others or that she supervised at least five people. “A district court’s

upward adjustment of a defendant’s Guidelines offense level due to his status as a

leader or organizer under U.S.S.G. § 3B1.1 is a finding of fact reviewed only for

clear error.” United States v. Phillips, 287 F.3d 1053, 1055 (11th Cir. 2002). “The

government bears the burden of proving by a preponderance of the evidence that

the defendant had [such] an aggravating role in the offense.” United States v.

Yeager, 331 F.3d 1216, 1226 (11th Cir. 2003).

The Sentencing Guidelines provide for a four-level increase in the

Guidelines range if the defendant “was an organizer or leader of a criminal activity

that involved five or more participants.” U.S.S.G. § 3B1.1(a). In making the

aggravating-role determination, the District Court should consider several factors,

including “the exercise of decision making authority, the nature of participation in

the commission of the offense, the recruitment of accomplices, the claimed right to

a larger share of the fruits of the crime, the degree of participation in planning or

organizing the offense, the nature and scope of the illegal activity, and the degree

of control and authority exercised over others.” U.S.S.G. § 3B1.1, Application

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Note 4. Section 3B1.1 defines a participant to be “a person who is criminally

responsible for the commission of the offense, but need not have been convicted.”

U.S.S.G. § 3B1.1, Application Note 1. An enhancement under 3B1.1 “requires the

exercise of some authority in the organization, the exertion of some degree of

control, influence, or leadership.” United States v. Yates, 990 F.2d 1179, 1182

(11th Cir. 1993).

Here, the evidence established that Perthenia Jordan recruited and

supervised at least five people. The testimony at trial and the PSR identified

twelve people involved in the scheme that lasted over three years.3 Perthenia

Jordan obtained counterfeit checks on closed accounts and directed others to

deposit them in checking accounts, and to withdraw funds or purchase money

orders. She kept a portion of the money obtained by her recruits. As the District

Court noted, the group would not have existed without Perthenia Jordan’s

organizing skills. Accordingly, the District Court’s application of the enhancement

was not clear error.

B

Perthenia Jordan argues that the District Court erred by refusing to apply a

3
Perthenia Jordan’s co-conspirators identified at trial and in the PSR of Perthenia Jordan and
the PSR of Lashovia Grier include Justin Johnson, Alecia Gillins, Debbie Jordan, Vernon Thorne,
Corlis Gail Smith, John Smith, Latyka Jordan, Takeyla Davis, Lashovia Grier, Carl Johnson, and
Cynthia Starr.

25
reduction for acceptance of responsibility because, even though she proceeded to

trial, she provided a statement of remorse and apologized. “We review the district

court's determination of acceptance of responsibility only for clear error.” United

States v. Singh, 291 F.3d 756, 764 (11th Cir. 2002) (internal quotation marks

omitted). “A district court's determination that a defendant is not entitled to

acceptance of responsibility will not be set aside unless the facts in the record

clearly establish that a defendant has accepted personal responsibility.” Id.

Under U.S.S.G. § 3E1.1(a), a defendant may receive a two-level reduction in

his offense level “[i]f the defendant clearly demonstrates acceptance of

responsibility for his offense.” Application Note 2 to § 3E1.1 explains that

This adjustment is not intended to apply to a defendant
who puts the government to its burden of proof at trial by
denying the essential factual elements of guilt, is
convicted, and only then admits guilt and expresses
remorse. Conviction by trial, however, does not
automatically preclude a defendant from consideration
for such a reduction. In rare situations a defendant may
clearly demonstrate an acceptance of responsibility for
his criminal conduct even though he exercises his
constitutional right to a trial. This may occur, for
example, where a defendant goes to trial to assert and
preserve issues that do not relate to factual guilt (e.g., to
make a constitutional challenge to a statute or a challenge
to the applicability of a statute to his conduct). In each
such instance, however, a determination that a defendant
has accepted responsibility will be based primarily upon
pre-trial statements and conduct.

26
 Perthenia Jordan made the following brief written statement to the probation

officer: “This advises that I am remorseful for the events that led to my conviction.

I apologize to the Court, to the Government, and to my family.” During the

sentencing proceedings, she again apologized to the Court, the Government, and

her family for “everything that . . . led up to [her] conviction.” The District Court

concluded that Perthenia Jordan had not affirmatively accepted responsibility. The

Court explained that “with respect to acceptance of responsibility, under the

Guidelines there must be some affirmative indication in the evidence of acceptance

of responsibility. And that simply does not exist in this case.”

The District Court did not clearly err in this decision. Perthenia Jordan went

to trial to contest her guilt and not to preserve a challenge to the statute or the

applicability of the statute to her conduct. Rather, she only made a statement of

remorse after her conviction and only apologized for the “events that led to” the

conviction. Because she went to trial on issues relating to her factual guilt, she

failed to “clearly demonstrate[] acceptance of responsibility.”

C

Finally, Perthenia Jordan argues that the District Court improperly applied

the Guidelines in a mandatory fashion by stating, during her sentencing

proceeding, that: “So I think the court is required to impose a prison sentence and

27
I think it has to be a guideline sentence because of the evidence that came in at

trial.” When a defendant fails to object to an error before the District Court, this

Court reviews the argument for plain error. United States v. Hall, 314 F.3d 565,

566 (11th Cir. 2002). “Plain error occurs where (1) there is an error; (2) that is

plain or obvious; (3) affecting the defendant's substantial rights in that it was

prejudicial and not harmless; and (4) that seriously affects the fairness, integrity, or

public reputation of the judicial proceedings.” Id.

Perthenia Jordan did not object to the imposition of her sentence under a

mandatory Sentencing Guidelines scheme. Thus, we review Perthenia Jordan’s

contention that the District Court improperly applied the Guidelines in a mandatory

fashion for plain error.

In United States v. Dowd, 451 F.3d 1244 (11th Cir. 2006), this Court held

that the “district court, in determining a reasonable sentence, must consider the

correctly calculated sentencing range under the advisory guidelines and the factors

set forth in 18 U.S.C. § 3553(a).” Id. at 1256. “[N]othing in Booker or elsewhere

requires the district court to state on the record that it has explicitly considered

each of the § 3553(a) factors or to discuss each of the § 3553(a) factors.” United

States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).

Here, the District Court did not err because it did not impose a sentence

28
under a mandatory Guidelines scheme. During sentencing, the District Court

correctly indicated that “of course, we all know that the Guidelines are no longer

binding in Federal Court.” The Court further indicated that “the Court is required

in this Circuit . . . to determine the Guideline range as a beginning point for the

analysis.” The Court also noted that in determining a “reasonable sentence,” it

would “take into account all of the [submitted] evidence . . . and . . . presentation

made by counsel.” The Court ultimately concluded that facts of the case made a

sentence within the Guidelines range appropriate and necessary.

AFFIRMED.

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