[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 8, 2008
No. 07-14281 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00086-CR-002-CAR-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERETTA NELSON,
OZEE ROGERS, SR.,
Defendants-Appellants,
JOSEPH JORDAN, SR.,
HEWIS CROSS,
Defendants.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(December 8, 2008)
Before TJOFLAT, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
In a 31-count indictment, Eretta Nelson and Ozee Rogers, Sr. were charged
with five co-defendants, Joseph Jordan, Sr., Hewis Cross, Ernest Butts, Calvin
McCaskill and Lola Brokemond with conspiracy to file false claims with the
Internal Revenue Service (“IRS”), in violation of 18 U.S.C. § 286, Nelson was
charged in nine counts with filing false claims with the IRS, in violation of 18
U.S.C. § 287, and Rogers was charged with the same offense in 15 counts.
The charges against the defendants arose out of a scheme to recruit taxpayers
to file false amended income tax returns and related forms with the IRS for the
purpose of obtaining tax refunds to which they were not entitled. The recruiters,
including Nelson and Rogers or their operatives, told the taxpayers that the money
they paid the IRS was placed in interest bearing accounts in their names, and that
they could obtain the interest earned on the accounts by filing claims with the IRS.
The existence of these accounts were known to the recruiters – because they had
inside information, some having been IRS employees – but not the public at large.
The taxpayers were therefore advised not to seek advice from a lawyer, an
accountant, or the IRS because that might cause the IRS to close the loophole and
bar future claims. As proof that the claims would be paid, taxpayers were shown
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copies of refund checks the recruiters had obtained for the interest their tax
payments had earned. The taxpayers who submitted claims agreed to pay a fee for
the preparation of their claims and a percentage of the refunds they received.
Eighty four taxpayers filed 95 false claims for refunds during the course of
the conspiracy. Defendant Jordan prepared the claims; they ranged from $33,318
to $89,612 and totaled in excess of $5.6 million. In all, the IRS paid the taxpayers
$530,633 in refunds. Nelson and Rogers and the other defendants, having
recruited the taxpayers, received a percentage of the refunds.
The defendants entered pleas of not guilty and stood trial before a jury.
Nelson, Rogers, Jordan, and Cross were found guilty as charged; co-defendants
Butts, McCaskill, and Brokemond were acquitted. Nelson and Rogers now appeal,
challenging their conspiracy convictions. Rogers challenges his sentences. We
address first the conspiracy conviction, then the sentences.
I.
Appellants argue that the evidence at trial established the existence of three
separate and distinct conspiracies rather than the single conspiracy charged in the
indictment. They contend that the conspiracy was a “hub and spoke” conspiracy in
which Jordan formed the hub and they and the others involved in the activity
formed three spokes, (1) Nelson and Butts; (2) Rogers, Cross and McCaskill, and
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(3) Jordan and Brokemond, and that there was no interdependence among the
spokes and thus, no rim. Appellants point to evidence showing that the three
groups operated independently, and play down as insignificant the fact that the
three groups used the same sales pitch. Because the three conspiracies were tried
together, evidence was introduced that would have been inadmissible had their
groups been tried separately and thereby caused a material variance that warrants
the vacation of their conspiracy convictions and a new trial.
“The standard of review for whether there is a material variance between the
allegations in the indictment and the facts established at trial is twofold: first,
whether a material variance did occur, and, second, whether the defendant suffered
substantial prejudice as a result.” United States v. Chastain, 198 F.3d 1338, 1349
(11th Cir. 1999). “A material variance between an indictment and the
government’s proof at trial occurs if the government proves multiple conspiracies
under an indictment alleging only a single conspiracy.” United States v. Alred, 144
F.3d 1405, 1414 (11th Cir. 1998) (quotation omitted). Because it is the jury’s
function to determine whether the evidence establishes a single conspiracy, the
conceivable existence of multiple conspiracies will not constitute a material
variance if a reasonable trier of fact could have found the existence of a single
conspiracy beyond a reasonable doubt. Id.
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In determining whether a jury could have found a single conspiracy, three
factors are considered: (1) whether a common goal existed; (2) the nature of the
underlying scheme; and (3) the overlap of participants. Chastain, 198 F.3d at 1349.
“[T]o prove a single, unified conspiracy as opposed to a series of smaller,
uncoordinated conspiracies, the government must show an interdependence among
the alleged co-conspirators.” United States v. Chandler, 388 F.3d 796, 811 (11th
Cir. 2004). Separate transactions do not constitute separate conspiracies “so long
as the conspirators act in concert to further a common goal.” Id. (emphasis
omitted). “If a defendant’s actions facilitated the endeavors of other
co[-]conspirators or facilitated the venture as a whole, then a single conspiracy is
shown.” Id.
A “hub-and-spoke” conspiracy is a conspiracy in which one conspirator or
group of conspirators recruits separate groups of co-conspirators to carry out
various functions of the illegal enterprise. Id. at 807. “[W]here the ‘spokes’ of a
conspiracy have no knowledge of or connection with any other, dealing
independently with the hub conspirator, there is not a single conspiracy, but rather
as many conspiracies as there are spokes.” Id. at 808. The jury may find a single
conspiracy, however, “where there is a ‘key man’ who directs the illegal activities,
while various combinations of other people exert individual efforts towards the
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common goal.” United States v. Taylor, 17 F.3d 333, 337 (11th Cir. 1994)
(quotation omitted). Moreover, “there is no requirement that each conspirator
participated in every transaction, knew the other conspirators, or knew the details
of each venture making up the conspiracy.” Id.
A material variance does not require the reversal of a conviction unless the
variance substantially prejudiced the defendant. Alred, 144 F.3d at 1414. To
establish prejudice, the defendant should demonstrate (1) how the proof at trial
differed greatly from the charge in the indictment, such that the defendant was
unfairly surprised or was unable to prepare an adequate defense, or (2) there were
so many separate conspiracies or defendants before the jury that there was a
substantial likelihood that the jury transferred proof of one conspiracy to the
defendant involved in another. Id. at 1415. We have indicated that it is unlikely
that a defense at trial would have varied if, in either event, the underlying crimes
charged and the elements of proof would be identical. United States v. Calderon,
127 F.3d 1314, 1328 (11th Cir.1997), modified on other grounds by United States
v. Toler, 144 F.3d 1423, 1427 (11th Cir. 1998). Further, a jury’s verdict shows that
the jury was not confused by the evidence and was able to assign conspiratorial
liability on an individual basis in cases where some of the defendants charged were
not found guilty of the conspiracy alleged against them. Id.
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In this case, the jury reasonably could find a single conspiracy because: (1)
all the conspirators shared a common goal to encourage taxpayers to file false
claims so they could gain fees and obtain a percentage of any refunds; (2) the
nature of the conspiracy was such that it would be reasonable to expect that Jordan,
its leader, was recruiting others to recruit taxpayers to file false claims; and (3)
there was some overlap because members of each group worked with each other,
and all groups worked with Jordan. To the extent this was a “hub and spoke”
conspiracy, there was a connection between the spokes because the
Rogers/Cross/McCaskill group used copies of U.S. Treasury refund checks from
Brokemond and a recruit of the Nelson/Butts group to induce a taxpayer to file a
false claim. Additionally, appellants did not show they were prejudiced by any
material variance because they have not explained how they were unfairly surprised
or whether they were unable to prepare a defense, and the fact that the jury’s
verdict acquitted three of the defendants of the conspiracy charge indicates that it
was able to assign conspiratorial liability on an individual basis.
II.
A.
Rogers argues that the district court deprived him of his Sixth Amendment
right to counsel when it granted his request to represent himself at sentencing;
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although he waived his right to counsel, he did not do so knowingly or
intelligently, nor did he unequivocally assert his right to represent himself. His
waiver was deficient, he says, because the court failed to advise him of the
potential sentence he might face or that, if he could not afford counsel, the court
would appoint one or offer the assistance of standby counsel. He therefore argues
that the court left him with two choices: (1) continue with his attorney whom he
felt was unqualified, or (2) represent himself. He chose to represent himself.
Rogers argues that, under the circumstances present here, we should presume
prejudice. We refuse to do so and thus address his alternative argument, that
prejudice occurred because the court incorrectly calculated the Guidelines
sentencing range, failed to discuss the sentencing factors of 18 U.S.C. § 3553(a),
and failed to determine whether he knew what those factors were.
A defendant has a constitutional right to proceed without counsel when he
knowingly, voluntarily, and intelligently elects to do so. Faretta v. California, 422
U.S. 806, 833-36, 95 S.Ct. 2525, 2540-42, 45 L.Ed.2d 562 (1975). “Whether a
waiver of counsel is knowing and intelligent is a mixed question of law and fact
which we review de novo.” United States v. Cash, 47 F.3d 1083, 1088 (11th Cir.
1995). A defendant also should be informed of the dangers and disadvantages of
self-representation, ideally at a hearing. United States v. Garey, 540 F.3d 1253,
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1266-67 (11th Cir. 2008) (en banc). The court should engage the defendant in a
colloquy to elicit information regarding his background, his understanding of the
charges, and his knowledge of the court’s rules and procedures he must follow. Id.
at 1266. It is enough that the court is assured that the defendant “(1) understands
the choices before him, (2) knows the potential dangers of proceeding pro se, and
(3) has rejected the lawyer to whom he is constitutionally entitled.” Id. Factors
relevant in assessing the defendant’s understanding include: (1) the defendant’s
age, educational background, and physical and mental health; (2) the extent of the
defendant’s contact with lawyers, prior to trial; (3) the defendant’s knowledge of
the charges, possible defenses, and potential penalties; (4) the defendant’s
understanding of procedure and evidence rules; (5) the defendant’s experience in
similar proceedings; (6) whether standby counsel was appointed; and (7) any
mistreatment or coercion of the defendant. Cash, 47 F.3d at 1088-89.
The record indicates that Rogers expressly stated that he wanted to represent
himself, indicated he read the presentence investigation report (“PSI”) which
informed him of the potential penalties he was facing, and was informed of the
dangers of self-representation and the sentencing process. Accordingly, he did not
suffer the deprivation of his right to counsel.
B.
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Rogers argues that, in determining the Guidelines sentence range, the district
court inappropriately applied the abuse-of-trust enhancement pursuant to U.S.S.G.
§ 3B1.3, because he did not maintain a position of trust with respect to the IRS, the
victim of his offense. Rogers did not present this argument to the district court at
the sentencing hearing; hence, we consider the argument under the plain error
standard of review.1 United States v. Bennett, 472 F.3d 825, 831 (11th Cir. 2006).
Rogers must show the court committed error, that the error was plain, and that the
error affected his substantial rights. Id. at 831. A defendant shows that his
substantial rights were affected if he can show that there is a reasonable probability
that there would have been a different result had there been no error. Id. at 831-32.
If those conditions are met, then we may exercise our discretion to notice the error,
only if the error “seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. at 832.
Section 3B1.3 of the Guidelines provides for a two-level enhancement “[i]f
the defendant abused a position of public or private trust, or used a special skill, in
a manner that significantly facilitated the commission or concealment of the
1
All that Rogers said to the court at sentencing was that there was no evidence showing
that he told any of the taxpayers that Jordan was an attorney. He was wrong. A taxpayer witness
at trial testified, however, that Rogers informed her that “Joe” was an attorney. Given the other
evidence in the record, it was more likely than not the “Joe” Rogers referred to was Jordan.
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offense.” U.S.S.G. § 3B1.3. The Guidelines application notes provide that
“‘Public or private trust’ refers to a position of public or private trust characterized
by professional or managerial discretion.” Id., comment. (n.1). The enhancement
applies to “a case in which the defendant provides sufficient indicia to the victim
that the defendant legitimately holds a position of private or public trust when, in
fact, the defendant does not.” Id., comment. (n.3). The defendant must, himself,
hold a position of trust. United States v. Morris, 286 F.3d 1291, 1297 (11th Cir.
2002). “The relationship between the defendant and the victim must be more
significant than that of an arm’s-length business transaction.” United States v.
Harness, 180 F.3d 1232, 1236 (11th Cir. 1999). The evidence must show that the
defendant had a special, close, or personal attachment, or fiduciary relationship
with the victim. Morris, 286 F.3d at 1299. The enhancement only applies if: (1)
the defendant abused a position of trust with respect to the victim of the crime; and
(2) the position of trust contributed in a significant way to facilitating the offense.
Harness, 180 F.3d at 1236.
Rogers fails to satisfy the plain error test. He has not demonstrated a
reasonable probability that the district court would have imposed different
sentences had it not employed the abuse-of-trust enhancement. The sentences
Rogers received at the bottom of his Guidelines sentencing range, were within the
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sentencing range the court would have used had it not made the enhancement, and
the court gave no indication that it would have been inclined to give lower
sentences. Cf United States v. Wood, 430 F.3d 1323, 1326 (11th Cir. 2005)
(holding, in Booker2 error case, where defendant was sentenced at low-end of
guideline range, that defendant did not establish a reasonable probability of a
different result where court expressed no desire to impose a lower sentence);
United States v. Fields, 408 F.3d 1356, 1361 (11th Cir. 2005) (holding that the fact
that the defendant was sentenced to the bottom of the mandatory guidelines range,
without more, was insufficient to satisfy the third prong’s requirement that the
defendant show a reasonable probability of a lesser sentence under an advisory
guideline system).
C.
Rogers argues that the court erred in enhancing his base offense level for
having played an aggravating-role in the criminal enterprise. See U.S.S.G. §
3B1.1(a). The court erred, he submits, because the evidence did not show that he
recruited numerous individuals, had personal contact with numerous taxpayers, or
profited more than Jordan. He says that the persons that he contacted were not
2
United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621
(2005).
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participants; although Cross and Jordan were participants, Jordan was the leader
who devised the plan, and the Government failed to prove that he was a leader of
five participants or more. That he may have profited more than Jordan is, he
contends, irrelevant to his role. Rogers did not present this argument to the district
court; he therefore must establish plain error.
Section 3B1.1(a) provides for a four-level increase “[i]f the defendant was an
organizer or leader of a criminal activity that involved five or more participants or
was otherwise extensive” U.S.S.G. § 3B1.1(a) (emphasis added). The Guideline’s
application notes provide that, when considering whether an organization is
“otherwise extensive,” the district court should consider all persons involved
during the course of the entire offense.” Id., comment. (n.3). In distinguishing a
leadership role, the district court should consider
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.
Id., comment, (n.4). More than one person can be a leader or organizer of a
conspiracy. Id. The § 3B1.1(a) enhancement may apply even in situations where
the activity involves less than five participants, so long as the defendant plays a
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leadership role and the criminal activity was otherwise extensive. United States v.
Holland, 22 F.3d 1040, 1045 (11th Cir. 1994).
Because the evidence established that (1) Rogers utilized his business Rio
Marketing, Inc. to collect payments from participants and to make payments to
recruiters and Jordan, (2) recruited Cross into the scheme to recruit additional
participants, (3) was involved in most of the false claims introduced at trial, and (4)
quit sharing some of the payments from participants with Jordan, ultimately
making more than Jordan, the court properly applied the section 3B.1.1(a)
enhancement. In a word, there is no plain error here.
D.
Rogers argues that the district court’s factual finding as to the amount of the
intended loss has no evidentiary support. He argues that the court simply adopted
the Government’s position as to that amount. Although he concedes that the tax
returns, which related to the loss calculation, were admitted into evidence, he
contends that there was no testimony regarding the returns or specific evidence
linking them to him.
We are unpersuaded. Our review of the record indicates that the evidence
introduced at trial plainly supported the Government’s intended loss calculation.
Given this evidentiary support, the court did not err in adopting that calculation.
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E.
Relying on the Supreme Court’s decision in United States v. Booker, 543
U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Rogers argues that his sentences
were based on facts not found by the jury or admitted by him, in violation of the
Sixth Amendment. His argument assumes that the court treated the Guidelines as
mandatory, and it is frivolous. Not only did he fail to present it to the district court,
it is clear from the record that the court, in fashioning his sentences, did not treat
the Guidelines as mandatory; it treated them as advisory.
Appellants’ conspiracy convictions and Rogers’s sentences are
AFFIRMED.
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