United States v. Page

United States Court of Appeals,

Eleventh Circuit.

Nos. 93-8706, 93-8751.

UNITED STATES of America, Plaintiff-Appellee,

v.

Ed PAGE, a/k/a Ed Rose, Mary M. Jackson, a/k/a Mary King, a/k/a
Denise Wood, a/k/a India Bullock, Doris Y. Rogers, a/k/a Evon
Rogers, a/k/a Evon Wellington, Davis Scalise, a/k/a David Baker,
Defendants-Appellants,

UNITED STATES of America, Plaintiff-Appellee,

v.

Seeta McKNIGHT, Defendant-Appellant.

Nov. 16, 1995.

Appeals from the United States District Court for the Northern
District of Georgia. (Nos. 1:92-cr-111-1, 1:92-cr-111-8), Harold L.
Murphy, Judge.

Before CARNES, Circuit Judge, DYER and GARTH*, Senior Circuit
Judges.

GARTH, Senior Circuit Judge:

Defendants Seeta McKnight, Edsel ("Ed") Page, Mary Jackson,

Doris Rogers, and David Scalise were each indicted on a 31-count

indictment, charging them with conspiracy to defraud under 18

U.S.C. § 371; 24 counts of mail fraud under 18 U.S.C. §§ 1341,

1342; and six counts of wire fraud under 18 U.S.C. §§ 1343, 1342.

Seeta McKnight pleaded guilty, and the remaining defendants were

convicted after a jury trial on all 31 counts. On appeal, various

*
Honorable Leonard I. Garth, Senior U.S. Circuit Judge for
the Third Circuit, sitting by designation.
defendants challenge their convictions and sentences on a number of

different grounds, including "vulnerable victim" enhancement,

restitution, admission of similar act evidence, lack of pretrial

notice with respect to certain similar act evidence, "minor role,"

insufficient evidence, and withdrawal from conspiracy.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3742. We will vacate and remand for resentencing, the

case against Seeta McKnight, No. 93-8751, as well as the case

against the other defendants, No. 93-8706, for implementations of

United States v. Jones, 899 F.2d 1097 (11th Cir.1990), cert.

denied, 498 U.S. 906, 111 S.Ct. 275, 112 L.Ed.2d 230 (1990),

overruled on other grounds, 984 F.2d 1136, 1137 (11th Cir.1993) (en

banc) and United States v. Remillong, 55 F.3d 572 (11th Cir.1995).1

We will affirm the judgments and sentences imposed by the district

court in all other respects.

I.

From September to December of 1991, Seeta McKnight, Ed Page,

Mary Jackson, Doris Rogers, and David Scalise participated in an

"advance fee loan scheme" in which they falsely promised loans to

customers to collect the customers' advance fees. McKnight was a

founder of the scheme. Page, Jackson, Rogers, and Scalise, were

telemarketers who worked under her direction.

In September of 1991, McKnight and her brother-in-law Graham

1
See our discussion, infra, Part IV, concerning the impact
on all of the defendants of the district court's joint and
several restitution order.
Tomlins2 opened the advance fee loan scheme under the name of

Certified Financial, at 290 Hilderbrand Drive, Suite B-11, Atlanta,

Georgia. In early October of 1991, McKnight and Paul Brown, whom

Seeta McKnight had hired to be the office manager,3 placed

advertisements in newspapers and journals, outside of Georgia,

throughout the United States. The advertisements stated:

LOANS AVAILABLE NOW
Program for bad credit.
Job verification required.

(Transcript of Trial at 646). McKnight and Brown hired

telemarketers to answer calls responding to the advertisements.

Page, Jackson, Rogers, and Scalise were among the telemarketers

that they hired.

The telemarketers used aliases in speaking to callers. Ed

Page used "Ed Rose," Mary Jackson used "Mary King," Doris Rogers

used "Evon Rogers," and David Scalise used "David Baker." The

telemarketers followed a script that McKnight had provided. First,

they would ask personal information from the callers:

Certified Financial. How may I help you? All right. Let me
just ask you a few questions to see if you qualify. Are you
over 21 years of age? Have you ever been bankrupt, had
repossessions or foreclosures. How much do you want to
borrow? Who do you work for? How long have you worked there?
... Does your wife or husband work? What is your combined
monthly income? Also I need your Social Security number and
I need your address and telephone number.

(Transcript of Trial at 43, 315). Then the telemarketers, again

following the script, set out the "terms" of the loan:

2
Tomlins was indicted separately on September 8, 1993. He
is not a party to this appeal.
3
Brown pleaded guilty to five counts of the superseding
indictment and testified in the government's case.
 All right, our terms are from 1 to 10 years. The
interest rate will not be more than 16 per cent and may be as
low as 12 per cent. The rate is fixed and there is no early
repayment penalty.

Have you been to a bank or anyone else for this loan?
Well, you'll be pleased to know that we're not a bank. We
work with individual lenders and when we can find one that
will handle your kind of request we will require a fee of
$250. That's the only fee you will have to pay and only if we
find you a lender, naturally. Now, I will need about 1 hour
before I have an answer from the lenders. So, could I ask you
to call me back? Do you have a pen and paper?

Id. at 44. Telemarketers testified that, contrary to what they

told the customers, they did not check for lenders during the hour

but instead "approved" the customer for the loan as long as the

customer made at least $1,000 per month.

When the customers called back to ask about their loan

applications, the telemarketers, again following the script, would

say:

Certainly, I'll check on that for you. One moment please.
Sorry to keep you holding on. I'll have it in just a minute.
Oh, good news. We have been successful and found you a lender
for that amount.

(Transcript of Trial at 45-46).

The telemarketers then told the customers that the loan was

being held for only 72 hours, id. at 46, and that they should send

a $250 money order to Certified Financial. They also urged the

customers to send the money by Federal Express. Id. at 46-47.

Postal Inspector Marcia Fresco testified that perpetrators of

advance fee loan schemes often advise their victims to use Federal

Express as an attempt to avoid mail fraud liability.

The telemarketers then told the customers that they would

receive their loan proceeds within one week or 14 days, and that

their $250 fee would be refunded if they did not get the loan.
Page, Rogers, Jackson, and Scalise also departed from the script to

tell customers that their loans had been "approved" or

"guaranteed," despite being instructed not to do so.

The telemarketers then sent out reservation letters with

applications to the customers, using their aliases. The

reservations letters stated:

Since our telephone call I have discussed your loan with
our senior broker. He agrees that we should push ahead with
your application particularly as we have found a lender who is
willing to handle your request ...

If you have not already sent your Money Order for $250.00
I strongly suggest that you send it as I cannot hold this
reservation much longer.

When you send your papers back to us, please mark them
and the Money Order with your Reservation Number to ensure
that everything goes smoothly....

(Transcript of Trial at 69-70). The telemarketers testified that

there was no "senior broker" and that they did not even attempt to

find lenders for the callers who submitted $250 and completed

applications.

Fourteen days after Certified Financial began operation,

customers began to call in to ask about their loan proceeds. After

three weeks had passed, customers began to call in with complaints.

McKnight hired a "customer service representative" to handle

complaints full time. The customer service representative sat in

the same room as the telemarketers and would take customer's

complaints while the telemarketers talked to new customers.

Rogers, using a different alias than her telemarketing alias,

sometimes handled customer service calls. By November of 1991, a

large volume of complaint calls was coming into Certified

Financial.
 In mid-November, the Postal Inspection Service began receiving

complaints from customers about Certified Financial and began an

investigation.

At about this time, Page, who had been working at Certified

Financial for about six weeks, left to join another advance-fee

loan scheme as a telemarketer. Scalise did the same on November

22, 1991, after working at Certified Financial for seven weeks.

Neither Page nor Scalise notified the victims or the authorities

that Certified Financial was a fraudulent scheme.

On December 5, 1991, McKnight shut down Certified Financial,

moved the advance fee loan scheme to 1060 Concord Road in Smyrna,

Georgia and changed the scheme's name to Consumer Funding Services.

Later, McKnight again changed the name to Cypress Fidelity

Services. Rogers worked at the new location under the alias

"Violet Wellington," and Jackson used the alias "Denise Wood." The

scheme operated at the new location for approximately one week.

Altogether, Rogers worked a total of about 10 weeks at the two

advance loan schemes. Jackson worked approximately 9 weeks.

On December 13, 1991, Paul Brown was arrested as a result of

the Postal Inspection Service's investigation. McKnight

immediately telephoned her telemarketers those on duty to abandon

the premises.

On December 19, 1991, Postal Inspectors with a search warrant

searched the automobile owned by McKnight's husband and seized

documents and records pertaining to Certified Financial, Consumer

Funding Services, and Cypress Fidelity Services. Among other

things, the Postal Inspectors found Federal Express receipts
showing that on December 18, 1991, Rogers accepted three Federal

Express Packages addressed to Consumer Funding Services.

On December 20, 1991, Postal Inspector Marsha Fresco

interviewed Jackson who admitted working at Certified Financial but

said that she quit when numerous complaints started coming in.

Jackson did not mention working at Consumer Funding or Cypress

Fidelity.

On the same day, Postal Inspector Gary Cantley interviewed

Scalise by telephone. Scalise denied ever working as a salesperson

or telemarketer at Certified Financial and said that he only worked

there as a carpenter/repair person during off hours.

The inspection later revealed that on December 20, 1991,

Rogers opened a check cashing account at Check-X-Change and cashed

two money orders in the amount of $250 payable to Consumer Funding

Service.

On January 3, 1992, Postal Inspectors with a search warrant

searched the office of Consumer Funding/Cypress Financial and

seized documents relating to that entity.

Over the course of its investigation, the Postal Inspection

Service found that approximately 424 victims who had sent in $250

fees to the advance fee loan scheme. (Transcript of Trial at 66).

Not one of the approximately 100 customers interviewed ever

received the promised loan.

All five defendants were charged, in the Superseding

Indictment, with conspiracy to defraud under 18 U.S.C. § 371; 24

counts of mail fraud under 18 U.S.C. §§ 1341, 1342, and six counts

of wire fraud under 18 U.S.C. §§ 1343, 1342.
 On September 1, 1992, six months before trial, the government

sent defendants a letter notifying them of its intention to present

evidence at trial, pursuant to Fed.R.Evid. 404(b), showing that the

defendants had worked at other advance fee telemarketing schemes

before and after working at Certified Financial and Consumer

Funding/Cypress Fidelity.

On the morning of the first day of trial, McKnight pleaded

guilty to all 31 counts of the Superseding Indictment and later

testified for the government at trial. The remaining defendants,

Page, Rogers, Jackson, and Scalise were tried together in a

multi-defendant jury trial, which was held from March 1, 1993 to

March 11, 1993. Page, Rogers, Jackson, and Scalise sought to prove

that they did not know that Certified Financial and Consumer

Funding/Cypress Fidelity were not actually arranging loans, and

that they therefore lacked the requisite intent to defraud.

At trial, over the defendants' objections, the district court

admitted evidence that Page, Rogers, Jackson and Scalise had each

been employed in other advance fee loan schemes shortly before

and/or shortly after working at Certified Financial. The district

court gave the jury limiting instructions regarding this similar

act evidence.

Page, Rogers, Jackson and Scalise were each convicted on all

31 counts of the Superseding Indictment. In sentencing each of

these defendants and McKnight, the district court enhanced the

offense level of each defendant for specifically targeting persons

with credit and financial problems pursuant to U.S.S.G. § 3A1.1.

The district court denied the requests of Page, Rogers, Jackson,
and Scalise to reduce their offense levels pursuant to U.S.S.G. §

3B1.2 for being minor participants in the scheme.

By Judgments entered May 20, 1993, Seeta McKnight was

sentenced to 36 months of incarceration on each count, to be served

concurrently; Page was sentenced to 21 months of incarceration on

each count, to be served concurrently; and Jackson was sentenced

to 24 months of incarceration on each count, to be served

concurrently. By Judgment entered July 7, 1993, Rogers was

sentenced to 24 months of incarceration on each count, to be served

concurrently. By Judgment entered July 27, 1993, Scalise was

sentenced to 24 months of incarceration on each count, to be served

concurrently. Each of the five defendants was also sentenced to

three years of supervised release following their terms of

imprisonment; joint and several restitution of $106,000; and a

special assessment of $1,550. No objection was made to the

sentence of restitution at that time. The district court denied

Page's motion for acquittal.

Each of the defendants separately appealed. Their appeals

have been consolidated for disposition before this Court.

II.

A.

All five defendants challenge their sentences, arguing among

other things that the district court erred in increasing each of

their offense levels under U.S.S.G. § 3A1.1 for targeting victims

with "bad credit."4 " "The district court's application of § 3A1.1

4
By the time this matter was orally argued before us on
September 13, 1995, four of the five defendants had finished
serving their prison terms; and the fifth was in a halfway
presents a mixed question of law and fact, which we review de

novo.' " United States v. Thomas, 62 F.3d 1332, 1344 (11th

Cir.1995) (quoting United States v. Davis, 967 F.2d 516, 523 (11th

Cir.1992), rehearing on other grounds, 30 F.3d 108 (11th

Cir.1994)). We have recognized, however, that the district court's

determination of a victim's "vulnerability" is essentially a

factual finding to which we should give due deference. See United

States v. Salemi, 26 F.3d 1084, 1087 (11th Cir.1994) ("The

determination of vulnerability is a factual finding which is

entitled to due deference on review") (citation omitted), cert.

denied, --- U.S. ----, 115 S.Ct. 612, 130 L.Ed.2d 521 (1994); 18

U.S.C. § 3742(e) ("The court of appeals ... shall give due

deference to the district court's application of the guidelines to

the facts.").5 Further, the district court's findings of

house, according to defense counsel. Thus whether this appeal
was moot was a potential issue, though not one raised by the
government. We hold that this appeal is not moot.

First, the Supreme Court has recognized that " "the
possibility of a criminal defendant's suffering "collateral
legal consequences' from a sentence already served'
precludes a finding of mootness." Minnesota v. Dickerson, -
-- U.S. ----, ---- n. 2, 113 S.Ct. 2130, 2134 n. 2, 124
L.Ed.2d 334 (1993) (citations omitted). Because "[a] number
of disabilities may attach to a convicted defendant even
after he has left prison," a defendant who has finished
serving his sentence still has standing to challenge the
legality of his conviction. North Carolina v. Rice, 404
U.S. 244, 247, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971).

Second, all of the defendants are at least still
serving their terms of supervised release, which involve
restrictions on their liberty. Only success in this appeal
could alter the supervised release portion of their
sentences. See Dawson v. Scott, 50 F.3d 884, 886 n. 2 (11th
Cir.1995).
5
The "due deference" standard in 18 U.S.C. § 3742 "serves as
an additional caution against overly intense judicial review."
historical fact cannot be reversed unless clearly erroneous.

United States v. Davis, 967 F.2d 516, 523 (11th Cir.1992),

rehearing on other grounds, 30 F.3d 108 (11th Cir.1994).

B.

Section 3A1.1 of the Sentencing Guidelines provides for a

two-level upward adjustment to the defendant's offense level:

If the defendant knew or should have known that a victim of
the offense was unusually vulnerable due to age, physical or
mental condition, or that a victim was otherwise particularly
susceptible to the criminal conduct.

U.S.S.G. § 3A1.1. The commentary to section 3A1.1 provides that

sentence enhancement is warranted with respect to "offenses where

an unusually vulnerable victim is made a target of criminal

activity by the defendant." (Application Note 1 to U.S.S.G. §

3A1.1). (emphases added). For example, the adjustment would

apply:

in a fraud case where the defendant marketed an ineffective
cancer cure or in a robbery where the defendant selected a
handicapped victim. But it would not apply in a case where
the defendant sold fraudulent securities by mail to the
general public and one of the victims happened to be senile.
Similarly, for example, a bank teller is not an unusually
vulnerable victim solely by virtue of the teller's position in
a bank.

(Application Note 1 to U.S.S.G. § 3A1.1).

This court has clearly recognized that the "vulnerable

United States v. Mejia-Orosco, 868 F.2d 807, 808 (5th Cir.1989),
cert. denied, 492 U.S. 924, 109 S.Ct. 3257, 106 L.Ed.2d 602
(1989). The "purported purpose" of the "due deference" clause of
§ 3742 is " "to give the court of appeals flexibility in
reviewing the application of a guideline standard that involves
some subjectivity.' " Id. at 809 (citing Congressional Record at
H11257 (1988)). As we stated in United States v. Long, 935 F.2d
1207 (11th Cir.1991), "[w]e review the factual findings
underlying the district judge's decision for "clear error,' but
we review his application of the sentencing guidelines to those
facts with only "due deference.' " Id. at 1211.
victim" adjustment "focuses chiefly on the conduct of the

defendant" and should be applied only where "the defendant selects

the victim " due to the victim's perceived vulnerability to the

offense. Long, 935 F.3d at 1210. We stated that:

[T]he applicability of section 3A1.1 turns on the defendant's
decision to target the victim. The section does not authorize
sentence enhancement based upon the severity of the victim's
suffering. A victim's testimony can be relevant to the
sentencing court's determination of "vulnerability," but only
to the extent that the victim discusses facts that might have
been known to defendants and motivated the defendants in
selecting the victim.

Id. at 1211.6 Thus, to determine whether defendants have targeted

"vulnerable victims," we look to "the facts known to defendants

when they decided to target the [victims]." See id. at 1212.

III.

It is clear that having bad credit or otherwise being in a

precarious financial situation is a "vulnerability" to fraudulent

financial solicitations such as the advance fee loan scheme in this

case. See United States v. Borst, 62 F.3d 43, 46 (2d Cir.1995)

(affirming "vulnerable victim" sentence enhancement where

defendant's mobile home financing scheme targeted persons with

financial difficulties); United States v. Holmes, 60 F.3d 1134,

1137 (4th Cir.1995) ("It is manifest that persons with poor credit

ratings who have been turned down elsewhere for loans would be

6
Thus the focus is not on the harm actually suffered by the
"vulnerable victim." See United States v. Yount, 960 F.2d 955,
958 (11th Cir.1992) (defendant who had embezzled money from trust
accounts belonging to elderly and infirm people warranted
"vulnerable victim" enhancement even though the bank reimbursed
the victims such that the latter did not suffer harm); United
States v. Salemi, 26 F.3d 1084, 1088 (11th Cir.1994) (holding
that a six-month-old baby was a "vulnerable victim" to kidnapping
even though the baby was not harmed), cert. denied, --- U.S. ----
, 115 S.Ct. 612, 130 L.Ed.2d 521 (1994).
unusually vulnerable, that is, more prone than most to yield to the

melodious beseeching of a charlatan who assures them that their

dreams are within their grasp"); United States v. Peters, 962 F.2d

1410, 1418 (9th Cir.1992) (persons with poor credit histories were

particularly susceptible to credit card fraud).

A closer issue in this case is whether the defendants

targeted persons with bad credit. The district court found that

they did, and we agree.

A.

Section 3A1.1 provides that "vulnerable victim" enhancement is

appropriate, for instance, "in a fraud case where the defendant

marketed an ineffective cancer cure." (Application Note 1 to §

3A1.1). On the other hand, the "vulnerable victim" enhancement is

not appropriate where, for example, "the defendant sold fraudulent

securities by mail to the general public and one of the victims

happened to be senile." Id. We are persuaded that the instant

case is more closely analogous to the ineffective cancer cure

illustration found in Application Note 1 of § 3A1.1.

The scheme in this case was not simply a loan fraud aimed at

the general public. McKnight advertised a "Program for bad

credit." The district court found that "[t]he intent clearly of

the ads was to prey upon people with financial problems, troubled

people, people desperate for loans as indicated by the

advertisements themselves." (Sentencing Hearing of Seeta McKnight,

May 14, 1993 at 18). Indeed, one of the victims, Tracey Shafer,

testified that she understood the advertisement to be "an ad to

apply for a loan if you had poor credit or a bad credit history or
bankruptcy." (Transcript of Trial at 511). Another victim, Pamela

Westbrook, testified that the advertisement "was about loans, and

that it was something to the fact of not worrying about credit

history or past credit problems." Id. at 597. Yet another victim,

Nathan Councilman thought "the gist of the ad was loans by mail,

bad credit, no problem, poor credit, no problem." Id. at 617.

Furthermore, once the victims called in to inquire about the

loan, the script, as written by McKnight and delivered by the

telemarketers, focused on persons with bad credit. The script

directed the telemarketers to ask whether the customer had been to

a bank or anyone else for this loan. John Beach, who had worked at

Certified Financial as a telemarketer, testified that the purpose

of this question was to find out how easy of a target the victim

was; and thus how eagerly the telemarketer should pursue the

victim. Beach explained:

If they say yes to this, they have been turned down, the odds
are ninety percent you're going to get this person's money,
because he's already been through the experience of being
turned down. If he says no, he hasn't been to a bank, this
may lead you to shy away from him a little bit because he may
not send the money in. He may still go to a bank. You're
looking for immediate response from these people in a matter
of 24 to 36 hours.

(Transcript of Trial at 316).

The script then went on to say: "Well, you'll be pleased to

know that we're not a bank." See id. at 317. The intent of this

part of the script was clearly to offer hope to desperate persons

whose applications had been rejected by banks or other commercial

institutions. Thus, as Beach testified, Certified Financial was

targeting "basically low income, people that have poor credit,

bankruptcies." Id. at 277. The scheme targeted people with bad
credit because "they're desperate for money." Id.

Hence, the present case is not a broad-based fraud aimed at

the general public but which happens to ensnare a few particularly

"vulnerable victims."7 The advance fee loan scheme at issue here

specifically addressed itself to persons with bad credit.

Accordingly, like the promise of a cancer cure to persons afflicted

with cancer, the advance fee loan scheme in the present case

targeted the most desperate victims.8

B.

7
United States v. Wilson, 913 F.2d 136 (4th Cir.1990), which
the defendants cite, is distinguishable. In Wilson, the Fourth
Circuit declined to find that Wilson had targeted vulnerable
victims under section 3A1.1 where he had fraudulently solicited
cash donations for tornado victims by sending solicitation
letters to five residents of Raleigh, North Carolina, an area
recently hit by a tornado.

The limited nature of the Wilson holding, however, is
evident from the Fourth Circuit's recent opinion in United
States v. Holmes, 60 F.3d 1134 (4th Cir.1995). Holmes held
that the defendant, who had engaged in a mortgage loan
scheme, warranted sentence enhancement under § 3A1.1 where
he admitted that he was targeting persons with credit
problems, and where two of his victims testified that they
were drawn to the defendant's scheme because they were
unable to obtain mortgage loans elsewhere. In Holmes, the
Fourth Circuit read Wilson as rejecting § 3A1.1 enhancement
because there had been no showing that any of the randomly
selected victims were more susceptible to the tornado relief
fund scheme than most persons asked to provide donations for
disaster relief. Holmes, 60 F.3d at 1135. In contrast, it
is well established that persons with bad credit are more
susceptible than other potential victims to credit frauds.
8
The telemarketer defendants (Page, Rogers, Jackson, and
Scalise) allege that they cannot be held accountable for the
advertisement because it had been drafted by McKnight only. We
disagree. The telemarketer defendants participated in the same
conspiracy, and knew about and benefitted from the advertisement.
Thus, we find that they are equally culpable for the
advertisement. Furthermore, there can be no dispute that the
telemarketers are accountable for the content of the scripts
which they willingly and repeatedly delivered.
 Further, the record shows that even if the telemarketer

defendants did not initially know of their victims'

vulnerabilities, they warrant § 3A1.1 enhancement because they

learned of such vulnerabilities at some point during the loan fraud

yet continued to perpetrate the fraud against victims whom they

knew to be unusually vulnerable to the loan scheme.

In our recent decision in United States v. Thomas, 62 F.3d

1332 (11th Cir.1995), we held that "where the "thrust of the

wrongdoing' was continuing in nature, the defendant's attempt to

exploit the victim's vulnerability will result in an enhancement

even if that vulnerability did not exist at the time the defendant

initially targeted the victim." Id. at 1345.

Thomas, like the present case, involved an advance fee loan

scheme. After commencing the fraud against Colonel Lewis, the

defendants learned that he had to leave the country on short notice

and would be gone for a lengthy period of time. Before he left,

Lewis gave the defendants a power of attorney, which the defendants

later used to obtain two loans without his knowledge. We affirmed

the district court's finding that Lewis's absence from the country

was a "vulnerability" to the fraud, and we found that the

defendant's exploitation of Lewis's absence sufficiently

constituted "targeting" or "retargeting" of Lewis for purposes of

§ 3A1.1. Even though Lewis's vulnerability (absence from the

country) did not exist at the time that the defendants first

targeted him, we agreed with the district court that the defendants

warranted a § 3A1.1 because the "thrust of the wrongdoing" was

"continuing" in nature, and the defendants exploited the
vulnerability once it appeared.

The "thrust" of the fraud here was also "continuing" in

nature. The fraud was set up in several steps: (1) the newspaper

advertisements encouraging people to call; (2) the telemarketers

taking the customer's personal information to see if the customer

"qualifies" for a "loan," (3) the telemarketers telling the

customer of the "terms" of the "loan;" (4) the telemarketers

instructing the customer to call back after an hour to see if the

"loan" was "approved," (5) the telemarketers telling the customer

that the "loan" was "approved" and urging the customer to send in

the $250 by overnight mail to hold the loan; (6) the customer

sending in the money.

At an early stage of the fraud, the defendants learned of

their victims' financial profiles, including in many instances,

their financial desperation. The script instructed the

telemarketers to ask, among other things, if customers had ever

been bankrupt, had repossessions or foreclosures; how much they

wanted to borrow; who they were working for and for how long;

their income and the income (if any) of their spouse. (Transcript

of Trial at 315). In listening to the customers' responses to

these questions, each of the four telemarketer defendants had

occasion to learn of the bad credit or other serious financial

difficulties of at least some of their victims.

For example, Page persuaded Susan Sirmans to send in the $250

fee for the "loan" even though she told him that she made a little

less than $550 every two weeks and that her husband had been

unemployed for quite a while. (Transcript of Trial at 656).
 Rogers persuaded Saundra Hawkins, to send in $250 even though

Hawkins had to take that amount out of her mortgage payment. Id.

at 913. Rogers also persuaded Denise Jones to send the $250 even

after learning that Jones, who needed the money because she had

just had a baby and also needed a car, only made $526 every two

weeks and that her husband made about the same amount of money by

holding down two jobs. Id. at 629-31.

Scalise persuaded Nathan Councilman to send in the $250 for

the "loan" after Councilman had explained that he needed the loan

because he was going through a divorce and had bad credit. Id. at

618.

Jackson apparently felt so badly about the financial plight of

Sonia Gibbs, who desperately needed the money because her car was

about to be repossessed, that she, Jackson, refunded Gibbs her fee.

Id. at 1162. On other occasions, however, Jackson did not hesitate

to collect the $250 fee from James Brundage who told her that he

needed the loan because he was just coming out of Chapter 13

bankruptcy, id. at 490; from Pamela Westbrook, who needed the loan

to pay rent that she owed in arrears, id. at 601; or from Laurie

Cornell, who was overextended on her credit cards and other debts.

Id. at 609.

Thus we find that the record amply supports the conclusion

that, whether or not they initially knew of the victims'

vulnerabilities (bad credit or desperate financial situations), the

telemarketer defendants learned of those vulnerabilities by asking

personal financial information of the customers; yet persisted in

carrying out the fraud against them. Accordingly, we are satisfied
that under our recent decision in Thomas, that the telemarketers

"targeted" "vulnerable victims" for purposes of § 3A1.1.

C.

The defendants argue that "vulnerable victim" enhancement is

inappropriate here because people with good incomes also answered

the advertisement, including a deputy sheriff, an employee at the

Bank of New York, and a woman whose combined income with her

husband was $60,000-$70,000. We disagree.

We will not absolve the defendants of their culpability for

having targeted "vulnerable victims" simply because, in casting out

their net, they happened to ensnare and defraud some individuals

who did not share this vulnerability. See United States v. Small,

35 F.3d 557 (4th Cir.1994) ("Our review of the record discloses

that the district court was not clearly erroneous in finding that

Small targeted especially vulnerable victims, even though he also

defrauded people who were not in this category."); see e.g. United

States v. Thomas, 62 F.3d 1332 (11th Cir.1995) (upholding § 3A1.1

enhancement on both defendants where one of the defendants' 15

victims was "vulnerable"); United States v. Holmes, 60 F.3d 1134,

1137 (4th Cir.1995) ("vulnerable victim" enhancement appropriate

where defendant admitted to targeting persons with bad credit in

his mortgage fraud scheme, even though the government only produced

evidence that two of the 78 victims were drawn to the scheme

because they had bad credit).

In conclusion, we hold that the district court did not err in

finding that the defendants targeted "vulnerable victims," and by

so doing were subject to sentence enhancement pursuant to section
3A1.1.

IV.

Seeta McKnight contends that the district court erred in

ordering her to pay restitution of $106,000, jointly and severally

with her co-defendants, without considering her financial means.

In addition, even though the remaining defendants, Page, Rogers,

Jackson, and Scalise, did not raise the issue of restitution in

their appeal briefs before us, the district court's restitution

order necessarily must affect them as well, as it was imposed on

all five defendants on a joint and several basis. Because of that

fact, and because the cases of the other four defendants are before

us in this appeal anyway, we exercise our discretion to consider

the restitution issue as though each defendant in this appeal had

raised it.

We normally will not entertain error that was not preserved

in the district court, nor error that has been waived in this

court. Here, as noted, no defendant objected at the time of

sentencing, and all of the defendants other than McKnight failed to

raise in their briefs to this Court any issue involving compliance

with Jones or as to restitution. Nevertheless, because under our

supervisory powers we have required the district court to conduct

certain inquiries during the sentencing process, see United States

v. Jones, 899 F.2d 1097, 1102 (11th Cir.1990), cert. denied, 498

U.S. 906, 111 S.Ct. 275, 112 L.Ed.2d 230 (1990), overruled on other

grounds, 984 F.2d 1136, 1137 (11th Cir.1993) (en banc), we will

review the defendants' sentences here. In doing so, we will vacate

the sentences imposed on all of the defendants by the district
court, and we will remand for resentencing.

A.

As a threshold matter, we find that the district court, in

sentencing McKnight, Page, Jackson, and Scalise, failed to comply

with United States v. Jones, 899 F.2d 1097 (11th Cir.1990), cert.

denied, 498 U.S. 906, 111 S.Ct. 275, 112 L.Ed.2d 230 (1990),

overruled on other grounds, 984 F.2d 1136, 1137 (11th Cir.1993) (en

banc).9

In Jones, we ruled pursuant to our supervisory power, that

after imposing a sentence, the district court must give the parties

an opportunity to object to the court's ultimate findings of facts

and conclusions of law, and to the manner in which the sentence is

pronounced. Id. at 1102. Moreover, we required that the district

court elicit from counsel a full articulation of the grounds on

which any objection is based. Id. "Where the district court has

not elicited fully articulated objections following the imposition

of sentence, this court will vacate the sentence and remand for

further sentencing in order to give the parties an opportunity to

raise and explain their objections." Id. at 1103. On the other

hand:

Where the district court has offered the opportunity to object
and a party is silent or fails to state the grounds for
objection, objections to the sentence will be waived for
purposes of appeal, and this court will not entertain an
appeal based upon such objections unless refusal to do so
would result in manifest injustice.

9
The district court did provide Rogers with an opportunity
to put "any exceptions into the record" after it had imposed
sentence on her. (Transcript of Sentencing Hearing, July 2,
1993, at 21). Rogers' counsel did not make any objections at
that point. Id.
Id.

In the present case, after the district court stated its

findings and imposed its sentence on McKnight, it did not solicit,

and McKnight did not make, any objections to the restitution order

or to any other portion of the sentence. (Transcript of Sentencing

Hearing of Seeta McKnight, May 14, 1993, at 16-20, 24-26). The

court simply advised McKnight that she had the right to appeal the

sentence. Id. at 26. Thereafter, McKnight's counsel only asked

that McKnight be allowed a 60 day delay in her date of surrender:

a request that the court granted. Id. at 27.

The district court's obligation to make a Jones inquiry was

not excused by the fact that McKnight, in her plea agreement,

"acknowledge[d] that the Court may order restitution as part of the

sentence imposed in the instant case." (Negotiated Plea Agreement,

¶ 2). While she acknowledged that restitution could be imposed,

McKnight did not thereby agree to pay any and all amounts of

restitution. Thus, she did not waive her right to contest what she

now claims to be an excessive amount of restitution.

Similarly, the district court failed to solicit any objections

after imposing sentences on Page and Jackson. (Transcript of

Sentencing Hearing of Edsel Page, May 14, 1993, at 12-14);

(Transcript of Sentencing Hearing of Mary Jackson, May 14, 1993, at

34). With respect to Scalise, the district court asked only for

any "exceptions" to its application of the Sentencing Guidelines,

but it did not provide the parties with a broader opportunity to

object. (Transcript of Sentencing Hearing of David Scalise, July

22, 1993, at 18).
 Accordingly, the district court on remand will be obligated to

make the appropriate Jones inquiries with respect to McKnight,

Page, Jackson, and Scalise. Rogers, as we have noted, see supra,

footnote 9, was afforded an opportunity to except to her sentence.

B.

Furthermore, the district court's order cannot be implemented

in light of that court's failure to consider each defendant's

ability to pay. Section 3664 of title 18 of the United States Code

provides that:

The court, in determining whether to order restitution under
section 3663 of this title and the amount of such restitution,
shall consider the amount of the loss sustained by any victim
as a result of the offense, the financial resources of the
defendant, the financial needs and earning ability of the
defendant and the defendant's dependents, and such other
factors as the court deems appropriate.

18 U.S.C. § 3664(a) (emphases added). We have recently held in

United States v. Remillong, 55 F.3d 572 (11th Cir.1995), that we

will affirm an order of restitution only if the record reveals that

the district court considered the defendant's ability to pay prior

to imposing the amount of restitution. Id. at 574. The fact that

the defendant bears the burden of proving his or her financial

ability, 18 U.S.C. § 3664(d), does not diminish the district

court's duty in this respect. We recognize that Remillong was

decided after the district court had sentenced the defendants, but

under Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716,

93 L.Ed.2d 649 (1987), Remillong is applicable to this case.

At the sentencing hearings, the district court imposed

restitution of $106,000 on McKnight and the other defendants

without considering any of the defendants' abilities to pay. (See
e.g. Sentencing Hearing of Seeta McKnight, May 14, 1993, at 20).

With respect to McKnight, the court had earlier adopted the

findings and conclusions of the Presentence Investigation Report

(the "PSR") in all respects. Id. at 2. The PSR concluded that

McKnight "will be unable to make a lump sum fine or restitution

payment," but that she "should be able to make periodic payments

from income from work in prison industries or from income from

legitimate employment while on Supervised Release." (PSR of Seeta

McKnight at 15). However, the wholesale adoption of the PSR at the

commencement of the sentencing hearing, without more, does not

suffice to meet the court's obligation under 18 U.S.C. § 3664(a)

and under Remillong to consider a defendant's financial resources

before imposing restitution. The PSR's findings do not take into

consideration the objections to the PSR or the arguments made by

both parties during the sentencing hearing. Nor did the district

court reaffirm its adoption of the PSR's findings after all

arguments had been heard and before it imposed restitution on

McKnight.

The district court did not consider the financial abilities of

Page, Rogers, or Scalise at all. With respect to Jackson, the

court found that she "certainly cannot pay all this restitution"

but nonetheless imposed restitution for the full $106,000 on her.

(Transcript of Sentencing Hearing of Mary Jackson, May 14, 1993, at

23).

Therefore, we instruct the district court, when it resentences

the defendants in conjunction with its Jones inquiries, to consider

each defendant's ability to pay, pursuant to Remillong, before
imposing a restitution amount.

C.

Moreover the district court, on remand, will be obliged to

clarify the joint and several nature of its restitution order.

When sentenced, all of the defendants were required, jointly and

severally, to pay restitution in the amount of $106,000. Yet the

sentences of McKnight, Rogers, and Scalise also provided: "[t]he

defendant's restitution obligations shall not be affected by any

restitution payments that may be made by other defendants in this

case." (See e.g. Judgment and Commitment of Seeta McKnight at 4).10

Because of the joint and several nature of the restitution

imposed by the district court, the district court could not at the

same time also provide that the monies paid by one defendant could

not be credited toward the restitution obligations of the other

defendants.

While we do not preclude a joint and several restitution order

under appropriate circumstances where the district court has

complied with our mandates on sentencing, see e.g., the

requirements of Jones and Remillong, we do not encourage such a

joint and several provision particularly where differences may

appear in the ability of various defendants to respond to the

overall restitution ordered.

10
The sentences of Page and Jackson did not include this
language. (Judgment and Commitment of Edsel Page at 4);
(Judgment and Commitment of Mary Jackson at 4). However, during
Jackson's sentencing hearing, the district stated that Jackson's
obligation to make restitution shall not be affected by the
restitution payments made by the other defendants until full
restitution has been made. (Transcript of Sentencing Hearing of
Mary Jackson, May 14, 1993, at 32).
 In this particular case, if the district court decides to

reinstate the joint and several provision in its order, it cannot

provide that "[t]he defendant's restitution obligations shall not

be affected by any restitution payments that may be made by other

defendants in this case," inasmuch as the two concepts are mutually

exclusive. Five defendants cannot be ordered as a group to pay

what amounts to five times the amount of loss suffered by the

victims.

It may be that the district court, after considering each
defendant's financial ability pursuant to Remillong, will find that

each defendant can bear the whole restitution amount of $106,000,

in which case a joint and several order may be appropriate. If it

does not so find, however, it would appear that restitution should

be ordered, if at all, only in accordance with each defendant's

financial ability.11

V.

In addition to the "vulnerable victim" and restitution issues,

11
Finally, the district court should also clarify and
correct the sentences of McKnight and Jackson with respect to the
statement of the total amount of restitution owed. Currently,
those sentences provide that the defendants shall make
restitution of $250 "to each of the 453 victims identified by the
Postal Inspector." (See e.g. Judgment and Commitment of Seeta
McKnight at 4). On its face, this statement is inconsistent with
the later provision, found in the same Judgment, that states:
"[t]he total amount of restitution ordered is $106,000." The
calculation which results from multiplying 453 victims by $250 is
$113,250.

It is evident from the record that the district court
intended to impose a restitution amount of no more than
$106,000 on each of the defendants. (See Transcript of
Sentencing Hearing of Mary Jackson, May 14, 1993, at 35).
If, on remand, the district court intends some other
restitution, it is free to order it, if supported by the
record.
the various defendants raised the following issues on appeal:

Page contested the admission of similar act evidence at trial

and argued that his sentence should have been reduced for a minor

role. He also appealed the district court's denial of his motion

for acquittal and the district court's denial of his motion to

dismiss those counts of the indictment that were based on the

conspiracy's activities after his departure.

Jackson contended that she was not afforded pretrial notice

with respect to certain similar act evidence and also contested the

admission in general of all similar act evidence against her. She

also argued that her sentence should have been reduced based on her

minor role.

Rogers contested the admission of similar act evidence at

trial and argued that her sentence should have been reduced based

on her minor role.

Scalise argued that his sentence should have been reduced

based on his minor role.

We have reviewed all of the defendants' contentions and have

considered all of the remaining grounds on which defendants

challenge their convictions and sentences on appeal, and we find

them to be without merit.

VI.

We will VACATE and REMAND the sentences of all of the

defendants and instruct the district court to resentence each of

these defendants pursuant to the requirements of United States v.

Jones, 899 F.2d 1097 (11th Cir.1990), United States v. Remillong,

55 F.3d 572, 574 (11th Cir.1995), and this opinion.
 In particular, after the district court has conducted its

inquiries as required by Jones and Remillong, and after it has

resentenced the defendants as to restitution, it need not revisit

the other sentencing issues which we have affirmed in this opinion.

Thus, issues concerning minor role and "victim vulnerability,"

having been decided in this opinion, will not be available to be

raised by the defendants as objections under Jones.

We will AFFIRM the judgments and sentences imposed by the

district court in all other respects.