UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 94-60178
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARY SCURLOCK,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Mississippi
(May 8, 1995)
Before WISDOM, JONES, and EMILIO M. GARZA, Circuit Judges.
WISDOM, Circuit Judge.
Mary Scurlock, the defendant/appellant, was convicted by
a jury on two counts of mail fraud and acquitted of a charge of
conspiracy to commit mail fraud by participating in a scheme to
commit money order fraud. Her conviction is the result of her
involvement in an altered money order scheme organized by an inmate
at Parchman Penitentiary, Mississippi, where Scurlock was employed
as a guard. Scurlock seeks review of the denial of her motion to
suppress a confession, the admission of documents she contends were
not properly authenticated, and her sentence. We AFFIRM her
conviction but VACATE her sentence and REMAND for resentencing.
I.
In April of 1993, a grand jury for the Northern District
of Mississippi indicted Mary Scurlock and other defendants of
conspiracy to commit mail fraud by participating in a scheme to
commit money order fraud. Scurlock was also charged with two
substantive counts of mail fraud. Scurlock, employed as a prison
guard at Parchman Penitentiary, was accused of assisting an inmate,
Porter Shorter, in his money order scheme. Shorter would contact
his victims through personal advertisements in "lonely hearts type
magazines"1 and try to gain their trust with the promise of a
relationship. Then, Shorter would send his victims altered money
orders, with an apparent value of $700 but a true value of only $1.
The victims would deposit the money orders, return the funds to
Shorter, and become liable for the difference between the apparent
value of the money orders and their true value. Scurlock allegedly
became involved in the plan in 1992 when Shorter became nervous
about his wife smuggling the illegal proceeds to him at the prison.
According to evidence presented by the government, Scurlock
received two Express Mail packages at her personal post office box
sent by Shorter's wife. The packages contained approximately
1
Indictment, Count 1, paragraph 2 appearing in the Record,
volume 1 at 2. Unfortunately, Parchman Penitentiary has a long
history of inmates successfully perpetrating the same type of
altered money order scheme. See e.g., United States v. Jackie
Brown, 7 F.3d 1155 (5th Cir. 1995) (the appeal of a former contract
food manager at Parchman convicted for conspiracy to alter and pass
altered postal money orders and mail fraud); United States v. Leroy
Brown, 941 F.2d 1300 (5th Cir. 1991) (affirming the conviction and
sentence of a former Parchman correctional case manager who was
convicted of possessing heroin with the intent to distribute it to
prisoners and also accused of aiding in an altered money order
scam).
$1,200 of illegal profits which Scurlock delivered to Shorter.
Scurlock allegedly received $25 to $30 per package for her
services.
During the investigation of this scheme, two U.S. Postal
Inspectors, Agent Cooper and Agent McCarran, interrogated Scurlock
about her involvement. During a work day, Scurlock was asked to
meet investigators at the prison's Internal Affairs Office. The
defendant arrived at the office in her own vehicle at about 3:50
p.m. At that meeting, the Postal Inspectors had in their
possession evidence that Scurlock had received and signed for two
packages mailed by Shorter's wife. After Scurlock initially denied
any involvement, the investigators told her they believed she was
involved and read the defendant her Miranda warnings. Scurlock
signed a "Warning and Waiver of Rights" at 4:06 p.m.2
The investigators continued their interrogation and
2
The first section of the "Warning and Waver of
Rights" detailed Scurlock's right to remain silent and her right to
an attorney. The document also stated:
[i]f you decide to answer questions now
without a lawyer present, you will still have
the right to stop answering at any time. You
also have the right to stop answering at any
time until you talk to a lawyer.
Scurlock signed and dated the document immediately below the quoted
sentences. The waiver section of the document, which Scurlock also
signed and dated, stated:
I am willing to discuss subjects presented and
answer questions. I do not want a lawyer at
this time. I understand and know what I am
doing. No promises or threats have been made
to me and no pressure or coercion of any kind
has been used against me.
3
Scurlock admitted that she had received packages on behalf of
Shorter containing cash which she delivered to Shorter at the
prison. The investigators prepared a summary of Scurlock's
statement but also had Scurlock repeat her basic confession on
tape. According to Scurlock, before her statement was recorded she
invoked her right to counsel when, while waiting for Agent McCarran
to retrieve the tape recorder, she told Agent Cooper that she
needed a lawyer.3
According to the testimony of the investigators, at the
end of the interview, Scurlock asked what would happen to her. The
investigators replied by citing the case of another guard convicted
on similar charges who received only six months in prison. The
investigators contrasted that case with the case of another guard
who did not cooperate and was expected to receive a longer
sentence. According to Scurlock, this exchange occurred before she
admitted involvement in the scheme and the investigators' comments
regarding a six month sentence represented an implied promise which
rendered her subsequent confession involuntary.
Before trial the defendant made a motion to suppress her
statements to the investigators alleging that the confession was
involuntary and that the recorded statement was obtained after she
3
The full exchange, according to Scurlock's testimony
at the suppression hearing, was that Agent Cooper told her that she
would be indicted for her participation in the scheme. Scurlock's
response was that she needed a lawyer. Agent Cooper then gave
Scurlock the district attorney's business card and suggested that
once Scurlock employed a lawyer, he or she should contact the
district attorney listed on the card. Her recorded confession was
taped after this exchange. Record, volume 2 at 55-65.
4
had invoked her right to counsel in violation of Miranda. The
trial court denied this motion. After a one week trial, the jury
found Scurlock not guilty on the count of conspiracy but guilty on
the two counts of mail fraud. The defendant was sentenced to 24
months in prison. The sentence was based on a determined loss of
value of $10,186 and increases for more than minimal planning,
abuse of a position of trust, and a finding that the victims were
vulnerable. The defendant now appeals both the conviction and
sentence.
II.
A. Admissibility of Confession
The defendant argues that her incriminating statements to
the Postal Inspectors investigating the scheme were involuntary
because of the agents' comments to her regarding the sentence she
could expect to receive. Specifically, Scurlock alleges that the
agents made an implied promise of a six month sentence if she
confessed and threatened her with a longer sentence if she refused
to cooperate. The government, in response, argues that the
discussion regarding sentences occurred after Scurlock's statements
and could not, therefore, have had any impact on her decision to
cooperate. Even assuming the chronology of events occurred as the
defendant testified, the government argues that the agents simply
responded to Scurlock's questions by citing examples of sentences
that other similarly situated guards had received but that no
promises or threats were made.
5
The trial court held a hearing on the defendant's motion
to suppress at which both Postal Inspectors and the defendant
testified regarding the interrogation at the Internal Affairs
Office. The trial court concluded in its factual findings that the
exchange regarding the sentence Scurlock could expect took place
after the interrogation was completed. Further, the trial court
determined that the agents discussed the possible sentence but
"carefully avoided any promises of leniency to Ms. Scurlock".4 On
appeal, we must accept the findings of fact of the trial court
unless we find that they are clearly erroneous.5 The ultimate
question of voluntariness is a legal question which we review de
novo.6
A confession is voluntary if, "under the totality of the
circumstances, the statement is the product of the accused's free
and rational choice".7 To be considered voluntary, a confession
cannot be the product of "official overreaching, in the form either
of direct coercion or subtle forms of psychological persuasion".8
The government carries the initial burden of showing by a
4
Order denying the defendant's motion to suppress at
3. See, Record, volume 2 at 63.
5
United States v. Ornelas-Rodriguez, 12 F.3d 1339,
1346-47 (5th Cir.), cert. denied, 114 S.Ct. 2713 (1994), 115 S.Ct.
103 (1994); United States v. Restrepo, 994 F.2d 173, 183 (5th Cir.
1993).
6
Restrepo, 994 F.2d at 183.
7
Id. at 183. (citations omitted).
8
United States v. Rojas-Martinez, 968 F.2d 415, 418
(5th Cir. 1992), cert. denied, 113 S.Ct. 828 (1992), 113 S.Ct. 995
(1993). (citations omitted).
6
preponderance of the evidence that the defendant waived her rights
and that the statements she made were voluntary.9
In this case, after hearing the testimony of Scurlock and
the two investigators, the trial court determined that the
conversation between Scurlock and the investigators regarding an
expected sentence occurred after Scurlock admitted involvement in
the mail order scheme. Thus, any implied promise could not have
affected Scurlock's decision to cooperate. We find that the
district court's decision to credit the testimony of the government
witnesses over the defendant was not clearly erroneous. Further,
even if the order of events were reversed, "a truthful and
noncoercive statement of the possible penalties which an accused
faces may be given to the accused without overbearing one's free
will".10 This Court concludes that the district court did not err
in finding that Scurlock's confession was voluntary.
Scurlock also challenges the admissibility of the taped
version of her statement because she alleges that before that
recording was made, she invoked her right to counsel and
questioning should have stopped. The full exchange, according to
Scurlock's testimony at the suppression hearing, was that Agent
Cooper told her that she would be indicted for her participation in
the scheme. Scurlock's response was that she needed a lawyer.
Agent Cooper then gave Scurlock the district attorney's business
9
Restrepo, 994 F.2d at 183.
10
United States v. Ballard, 586 F.2d 1060, 1063 (5th
Cir. 1978); see also, Hawkins v. Lynaugh, 844 F.2d 1132, 1139-41
(5th Cir.), cert. denied, 488 U.S. 900 (1988).
7
card and suggested that once Scurlock employed a lawyer, he or she
should contact the district attorney listed on the card. Her
recorded confession was taped after this exchange. The government
responds by arguing that Scurlock was not in custody at the time of
the interview and that she did not invoke her right to counsel at
any time.
Scurlock is correct when she asserts that if, after
waiving the right to counsel, an accused invokes the right to have
counsel present during further questioning, all questioning must
cease.11 The Supreme Court has recently held, however, that the
right to counsel must be clearly invoked by the accused.12 That is,
if a suspect who is the subject of questioning makes an ambiguous
comment from which a reasonable police officer "would have
understood only that the suspect might be invoking the right to
counsel, our precedents do not require cessation of questioning".13
Further, the investigator conducting the questioning has no
obligation to attempt to clarify the ambiguous comment of the
accused.14 Thus, "after a knowing and voluntary waiver of the
11
Edwards v. Arizona, 451 U.S. 477, 485-86 (1981); see
also, Griffin v. Lynaugh, 823 F.2d 856 (5th Cir. 1987), cert.
denied, 484 U.S. 1079 (1988); United States v. Jardina, 747 F.2d
945 (5th Cir. 1984), cert. denied, 470 U.S. 1058 (1985).
12
Davis v. United States, 114 S.Ct. 2350, 2355 (1994).
13
Id.
14
Id. at 2356 (noting that clarifying questions after
an ambiguous comment by the accused regarding counsel may be good
police practice but refusing to "adopt a rule requiring officers to
ask clarifying questions").
8
Miranda rights, law enforcement officers may continue questioning
until and unless the suspect clearly requests an attorney".15
In this case, the defendant signed a waiver which
detailed her ability to invoke her right to counsel at any time and
end the questioning. The comment Scurlock made regarding an
attorney was after she admitted involvement in the scheme and after
she had agreed to give a recorded statement. Scurlock's reference
to an attorney was made in response to an agent's comment that she
would be indicted in the future. Further, after taping began but
before the agents questioned Scurlock regarding her involvement,
the agents once again asked her if she was willing to answer their
questions.
In these circumstances, Agent Cooper was reasonable in
his conclusions that Scurlock had not changed her mind about
cooperating with their investigation or about recording her
statement. Rather, Scurlock's comment, in context, could
reasonably be understood to be a recognition by the defendant of
her need for an attorney in the future if the case reached the
indictment stage. Since Scurlock did not clearly invoke her right
to counsel, as required, the district court did not err when it
denied the defendant's motion to suppress.
B. Inconsistent Verdicts
Scurlock also challenges the district court's denial of
her post-verdict motion for a judgment of acquittal. The defendant
15
Id.
9
argues that since she was acquitted of the conspiracy charge (count
1), she necessarily could not be found guilty on the substantive
charges of mail fraud (counts 4 and 6). The elements of mail fraud
are participating in a scheme to defraud and causing the mails to
be used for purposes of executing the scheme.16 Essentially,
Scurlock alleges that since, according to the jury, she did not
join the conspiracy, she necessarily cannot be found to have
participated in a scheme to defraud.
Although Scurlock contends that she is not challenging
the jury verdict because of its inconsistency, we see no other way
to characterize her this argument. Scurlock contends that if she
is not guilty of conspiracy, she cannot be guilty of mail fraud
since one element of mail fraud is participating in a scheme to
defraud. The target of this allegation is the inconsistency of the
jury's decision that Scurlock did not join the conspiracy but did,
according to the elements of mail fraud, participate in a scheme to
defraud. This argument must fail.
A jury can render inconsistent verdicts, "even where the
inconsistency is the result of mistake or compromise".17 And,
contrary to the conclusions of the defendant, an acquittal on the
conspiracy charge "does not necessarily equate with a finding that
16
United States v. Duncan, 919 F.2d 981 (5th Cir.
1990), cert. denied, 500 U.S. 926 (1991).
17
United States v. Williams, 998 F.2d 258, 262 (5th
Cir. 1993), cert. denied, 114 S.Ct. 940 (1994). (citations
omitted).
10
the defendant was innocent".18 The jury's verdict may have been
motivated by other considerations. The Supreme Court remarked on
this issue in United States v. Powell:
. . . [t]he most that can be said . . . is
that the verdict shows that either in the
acquittal or the conviction the jury did not
speak their real conclusions, but that does
not show that they were not convinced of the
defendant's guilt.19
Thus, the jury's acquittal of Scurlock on the conspiracy charge
does not require reversal of her conviction on the substantive
counts of mail fraud.
C. The Indictment
Scurlock also alleges a defect in the indictment. She
contends that the indictment itself made the conspiracy charge an
element of the mail fraud counts alleged in counts 4 and 6. In
alleging the first element of mail fraud, participation in a scheme
to defraud, the government referred back to the description of the
mail order scheme in count 1, the conspiracy charge. Scurlock
argues that, with this reference, the government made the
conspiracy charge an element of the substantive counts of mail
fraud.
This argument lacks merit. The government, in paragraphs
2 through 6 of count 1 of the indictment, described the basic
18
United States v, Straach, 987 F.2d 232, 241 (5th
Cir. 1993).
19
469 U.S. 57 (1981).
11
workings of the altered money order scheme. In counts 4 and 6, the
two counts of mail fraud against Scurlock, the government
incorporated by reference the factual description set forth in
count 1. The incorporation of material from count 1 did not
include the paragraphs of count 1 which alleged the conspiratorial
conduct.
Scurlock argues that the allegations of a conspiracy were
incorporated and became an essential element of the counts of mail
fraud. This inaccurately characterizes the content of the
indictment. Under Federal Rule of Criminal Procedure 7(c)(1), the
government is allowed to incorporate material by reference. In
this case, the government chose to refer to any earlier factual
description rather than repeat it. This reference did not create
a defect in the indictment.
D. Admissibility of unauthenticated documents
Scurlock also contends that the trial court erroneously
admitted documentary evidence which was not properly authenticated
as required by Federal Rule of Evidence 901. The documents at
issue are letters sent by or to various co-conspirators which
detail different elements of the altered money order scheme. One
set of letters, apparently authored by Porter Shorter, was seized
by Postal Inspectors in the home of another co-conspirator, Jessie
Shorter. The remaining two sets of letters were delivered to the
Postal Inspectors by two alleged co-conspirators, Theretha Woods
and Peggy Bozeman. At trial, the government relied on the
12
testimony of an investigator regarding when and where the documents
were seized and by whom the other letters were delivered to
authenticate the documents.
Rule 901 provides that "[t]he requirement of
authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponents claim".
We review the district court's decision to admit the evidence for
abuse of discretion.20
Conclusive proof of authenticity is not required.21 "Use
of circumstantial evidence alone to authenticate a document does
not constitute error. . . . Fed.R.Evid. 901(a) requires only some
competent evidence in the record to support authentication".22 The
government can also rely on the contents of the letter to establish
the identity of the declarant.23 And, "the fact that no handwriting
analysis was done is not a bar to . . . admission".24 Here, a
Postal Inspector testified as to the circumstances under which the
letters were seized from or delivered by members of the conspiracy.
20
United States v. Dockins, 986 F.2d 888, 895 (5th
Cir.), cert. denied, 114 S.Ct. 149 (1993).
21
United States v. Wake, 948 F.2d 1422, 1434 (5th Cir.
1991), cert. denied, 112 S.Ct. 2944 (1992); United States v. Singh,
922 F.2d 1169, 1174 (5th Cir.), cert. denied, 500 U.S. 938 (1991).
22
Wake, 948 F.2d at 1434 (quoting United States v.
Elkins, 885 F.d 775 (11th Cir. 1989)).
23
United States v. Arce, 997 F.2d 1123, 1128 (5th Cir.
1993); Wake, 948 F.2d at 1434.
24
Wake, 948 F.2d at 1435 (quoting United States v.
Calbas, 821 F.2d 887 (2d Cir. 1987)).
13
Furthermore, most of the letters themselves are addressed to or
signed by co-conspirators. The jury was free to decide what weight
it would give the evidence.25 Under these circumstances, we find
no abuse of discretion in the district court's decision to admit
the letters into evidence.
E. Sentencing
Under the Sentencing Guidelines the base offense level
for mail fraud is six. In Scurlock's case, this was increased by
three levels after a finding that the amount of loss was over
$10,000. The defendant's offense level was also increased by a
total of six because the trial court found that Scurlock abused a
position of public trust, more than minimal planning was involved,
and the targets of the scheme were vulnerable victims. After
determining the sentencing range as 18 to 24 months, the trial
court sentenced Scurlock to 24 months for each count to run
concurrently. Scurlock challenges several of the trial court's
factual findings regarding her sentence.
We review the application of the Sentencing Guidelines de
novo.26 And, we review the trial court's findings of fact for clear
error.27 "A factual finding is not clearly erroneous as long as the
25
United States v. Whittington, 783 F.2d 1210, 1215
(5th Cir.), cert. denied, 479 U.S. 882 (1986).
26
United States v. Jackie Brown, 7 F.3d 1155, 1159
(5th Cir. 1993).
27
United States v. Sowels, 998 F.2d 249, 251 (5th Cir.
1993), cert. denied, 114 S.Ct. 1076 (1994).
14
finding is plausible in light of the record as a whole."28
1. Amount of Loss
Under U.S.S.G. §2F1.1, the base offense for mail fraud is
six. The Guidelines provide for an incremental increase of the
offense level if the loss suffered by the victims of the fraud was
over $2,000. In this case, the PSI recommended increasing
Scurlock's offense level by 3 because the amount of loss was
determined to be $10,186. Scurlock objected to this recommendation
and argued that her liability for sentencing purposes should be
limited to the $1,200 she actually handled. The district court
reserved ruling on this objection at the sentencing hearing but did
not address the issue in its later order answering the defendant's
objections to the PSI.
On appeal, Scurlock continues to argue that the offense
level for her sentence should be based on the $1,200 she actually
handled rather than the total amount of loss of the fraud scheme as
a whole. In other words, since her criminal acts only directly
involved $1,200, Scurlock argues that her sentence should not be
enhanced because of the additional losses caused by other members
of the scheme about whom Scurlock had no knowledge.
In response, the government cites U.S.S.G.
§1B1.3(a)(1)(B) which provides that relevant conduct includes all
the reasonably foreseeable acts of the members of a jointly
undertaken criminal activity. According to the government,
28
Jackie Brown, 7 F.3d at 1159.
15
Scurlock should be held accountable for the entire loss since it
was foreseeable that all the profits from the money order scam
would not be returned to the prisoners. That is, Scurlock should
have known that the $1,200 she received was merely a fraction of
the illegal profits gained from the scheme.
U.S.S.G. §1B1.3(a)(1)(B) provides that, for sentencing
purposes, a defendant is responsible for the reasonably foreseeable
acts of their partners taken in furtherance of a jointly undertaken
criminal activity. As noted in the comments, however, "the scope
of the criminal activity jointly undertaken by the defendant . . .
is not necessarily the same as the scope of the entire conspiracy,
and hence relevant conduct is not necessarily the same for every
participant".29 Also, Scurlock is only responsible for the amount
of loss that was reasonably foreseeable to her. For each
defendant, "reasonably foreseeability does not follow automatically
from proof that [the defendant] was a member of the conspiracy".30
Thus, a sentencing court cannot assume that all acts of each
participant in a jointly undertaken criminal activity were
reasonably foreseeable to all participants.31 In this case, two
findings are necessary: the amount of loss caused by the entire
conspiracy and the amount of loss reasonably foreseeable to
29
U.S.S.G. § 1B1.3(a)(1)(B) comment 2.
30
United States v. Puma, 937 F.2d 151, 160 (5th Cir.
1991), cert. denied, 502 U.S. 1092 (1992).
31
Puma, 937 F.2d at 160; United States v. Foy, 28 F.3d
464, 476 (5th Cir.), cert. denied, 115 S.Ct. 610 (1994); United
States v. Puig-Infante, 19 F.3d 929, 942-43 (5th Cir.), cert.
denied, 115 S.Ct. 180 (1994).
16
Scurlock.32
As noted above, the district court did not specifically
address the issue of reasonable foreseeability in its sentencing
order and neither did the PSI. "On review of a sentence imposed
pursuant to section 1B1.3 of the Guidelines, we require the
sentencing court to make an express finding that the conspiratorial
activity at issue was reasonably foreseeable."33 Here, the district
court attributed the entire amount of loss to Scurlock without
making a specific finding regarding what amount was reasonably
foreseeable to her. We, therefore, vacate the sentence and remand
to allow the district court an opportunity to make this
determination. In making this determination the sentencing court
should consider "the defendant's relationship with co-conspirators
and [her] role in the conspiracy".34
2. More Than Minimal Planning
Under U.S.S.G. §2F1.1, a defendant's sentence will be
enhanced by two levels if "the offense involved more than minimal
planning, or . . . a scheme to defraud more than one victim". The
32
Puma, 937 F.2d at 160; Foy, 28 F.3d at 476; Puig-
Infante, 19 F.3d at 942-43. Although the cited cases address the
amount of drugs for which a particular member of a conspiracy can
be held accountable, the focus of the analysis is the proper
application of U.S.S.G. §1B1.3(a)(1)(B). As explained, this
section governs a defendant's relevant conduct for sentencing and
places limits on a defendant's responsibility for the acts of
others. We find that this Court's previous interpretation of this
general provision in drug cases is equally applicable in this case.
33
Puig-Infante, 19 F.3d at 943.
34
Id. at 942.
17
district court adopted the findings of the PSI and enhanced
Scurlock's sentence for more than minimal planning or,
alternatively, because the scheme injured more than one victim.
The altered money order scheme in which Scurlock
participated involved an elaborate plan requiring the inmates
formation of a relationship with a victim, the purchase and
altering of money orders, the transmission of illegal proceeds
through the mails, and smuggling the funds into the prison. In
contrast, "[t]o commit a money order scam in its `simple form,' a
defendant would merely obtain money orders, alter the amounts, and
cash them."35 Thus, the district court did not err when it
determined that Scurlock's offense involved more than minimal
planning. The district court was also not clearly erroneous in
determining that Scurlock's offenses involved more than one victim
since the specific funds she carried to Shorter were traced back to
two victims of the scheme, Donna Jean Armstrong and Louise Brewer.
In challenging this enhancement, the defendant argues
that both this enhancement and the enhancement for abuse of a
position of trust were based on her position at Parchman
Penitentiary as a guard. As such, Scurlock argues that imposing
both enhancements for the same fact or activity is impermissible
double counting. We cannot agree.
Each enhancement targets different aspects of a
defendant's behavior. An increase for an abuse of a position of
trust is imposed if a defendant's job places the defendant in a
35
Jackie Brown, 7 F.3d at 1160.
18
superior position to commit a crime and the defendant takes
advantage of that superior position to facilitate a crime. The
enhancement for more than minimal planning targets whether a scheme
to defraud was an elaborate one and, therefore, more difficult to
detect. These two enhancements are based on different aspects of
behavior and the imposition of both does not constitute
impermissible double counting.
In this case, Scurlock received an enhancement for abuse
of a position of trust because of her position as a guard at
Parchman Penitentiary and her willingness to use that position to
aid her in illegal activity. The enhancement for more than minimal
planning was imposed because of the complex nature of the scheme to
defraud in which she participated. The district court committed no
error when it imposed both enhancements. Thus, we reject the
defendant's challenge of the two level enhancement imposed for more
than minimal planning.
3. Abuse of a Position of Public Trust
Scurlock contends that U.S.S.G. §3B1.3 should not be
applied to enhance her sentence because, although she occupied a
position of trust, that position did not facilitate her criminal
activity as required by the Sentencing Guidelines. §3B1.3 provides
for a two level increase "[i]f the defendant abused a position of
public or private trust . . . in a manner that significantly
facilitated the commission or concealment of the offense . . .".
Scurlock argues that her position as a prison guard at Parchman did
19
not facilitate her illegal activities.
This Court addressed a similar argument in United States
v. Leroy Brown in which a correctional case manager at Parchman
Penitentiary was convicted on similar charges and sought review of
his sentence.36 Brown argued that although he occupied a position
of trust at Parchman, that position did not facilitate his crimes
since any other Parchman employee had the same opportunities and
access to the prisoners.37 This Court rejected his argument and
decided that, in determining whether an abuse of a position of
trust facilitated criminal acts, the defendant should be compared
with the public at large.38 The Court concluded that, as a case
manager, Brown occupied a superior position because of the
opportunity to interact freely with the prisoners.39 This superior
position did facilitate his crimes.40
"The public places a great deal of trust in correctional
officers. They expect that the officers will not participate with
inmates in schemes to violate the law."41 In this case, Scurlock
held a position of trust at the prison. The district court decided
that Scurlock's position as a prison guard at Parchman facilitated
36
941 F.2d 1300, 1302 (5th Cir.), cert. denied, 502
U.S. 1008 (1991).
37
Id. at 1304-05.
38
Id.
39
Id.
40
Id.
41
Id. at 1305.
20
her criminal acts and we agree. Scurlock abused her position when
she used her ability to interact with the prisoners to enter a
criminal venture, arrange for her receipt of packages containing
illegal profits, and eventually smuggle the money into the prison.
In fact, there is evidence in a letter from Porter Shorter to his
wife that Shorter specifically chose Scurlock for this scheme
because he was afraid his wife would be caught attempting to
smuggle money into the prison. Unlike the visitors of prisoners,
Scurlock had freedom within the prison which she used to aid
Shorter in his money order scheme. We, therefore, affirm an
enhancement of Scurlock's sentence for abuse of a position of
public trust under U.S.S.G. §3B1.3.
4. Vulnerable Victims
Finally, Scurlock argues that the district court
committed clear error when it determined that the victims targeted
by this scheme were "unusually vulnerable" and it imposed a two
level increase under U.S.S.G. §3A1.1. §3A1.1 requires an
enhancement of sentence "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". Scurlock argues
that there was no evidence regarding the vulnerability of the
victims and that the PSI's conclusion that this enhancement was
proper is not substantiated by the record.
The PSI identifies the victims of Scurlock's acts as
21
Donna Jean Armstrong and Louise Brewer, two women who responded to
Shorter's requests to cash money orders and forward the funds to
him. Based on an examination of the dates of all of the relevant
transactions, it was concluded that the $1,200 Scurlock smuggled
into the prison was a portion of the proceeds sent by Armstrong and
Brewer to an associate of Shorter after cashing the altered money
orders.42
The report notes that the operation of the scam depended
on contacting victims through personal advertisements and falsely
promising a relationship in order to get them to cash the altered
money orders on behalf of the prisoners. Thus, the nature of the
scheme was to take advantage of the victims by preying on their
loneliness. This general description of the type of victim
targeted is supported by the testimony of the actual victims. For
example, Brewer, a retired widow, testified that Shorter contacted
her under an assumed name after she placed an advertisement in a
magazine called "Cupid's Destiny".43 Through their correspondence,
42
See, PSI at 6, paragraph 19. As detailed in the
PSI, Brewer received eight altered money orders with a total face
value of $5,600. Brewer then sent Shorter's associate $2,600,
funds received by cashing altered money orders, on or about April
30, 1992. The package was received by Shorter's associate on or
about May 2, 1992. On or about May 2, 1992, a package containing
$700 in cash was sent by Shorter's associate to Scurlock's personal
post office box. The package was received and signed for by
Scurlock on May 6, 1992. Armstrong received six altered money
orders with a total face value of $4,200. Armstrong, at Shorter's
direction, sent $4,000 to Shorter's associate, funds received by
cashing altered money orders, on or about June 9, 1992. The
package was received by Shorter's associate on June 11, 1992. On
June 19, 1992, Shorter's associate sent Scurlock $500. Scurlock
signed for the package on June 20, 1992.
43
Record, volume 2 at 86.
22
Shorter convinced Brewer that he was about to be released from
prison and returned to his well-established catfish farm in
Mississippi, and even that they might be married upon his release.44
In United States v. Jackie Brown, while reviewing the
sentence of a former contract food manager at Parchman convicted
because of his participation in a similar scheme, we concluded
that:
Not only were the victims of the
Parchman scam specifically chosen
for their age, loneliness, and
gullibility, but the district court
could have reasonable concluded that
lonely, elderly widows, as a group,
are more susceptible than the
general public to this type of
fraud.45
In this case, the two victims were clearly targeted because Shorter
felt he could take advantage of their loneliness and desire for
companionship. Scurlock argues, however, that the record does not
indicate the age of the victims and does not contain information
sufficient to conclude that they were unusually vulnerable.
The trial court had an opportunity to see the victims and
make a first-hand assessment of their vulnerability. As this Court
noted in Jackie Brown:
The determination of "vulnerability
is a complex fact dependent upon a
number of characteristics which a
trial court could not possibly
44
Record, volume 2 at 97, 102.
45
Jackie Brown, 7 F.3d at 1160-61 (emphasis in
original).
23
articulate completely," and is
certainly "not reducible to a
calculation of the victim's age or a
diagnosis of the victim's disease."46
In the light of the record and this Court's previous willingness to
characterize women targeted by this scheme as unusually vulnerable,
we cannot say that the district court's conclusion that the victims
in this case were unusually vulnerable was not "plausible in light
of the record as a whole".47 We, therefore, affirm the district
court's enhancement of Scurlock's sentence for vulnerable victims.
III.
We AFFIRM the defendant's conviction and several aspects
of the sentence imposed. We VACATE the sentence, however, on the
issue of the amount of loss attributable to Scurlock and REMAND for
resentencing after a determination of what amount of loss was
reasonably foreseeable to the defendant under U.S.S.G.
§1B1.3(a)(1)(B).
46
Jackie Brown, 7 F.3d at 1160 (quoting United States
v. Mejia-Orosco, 868 F.2d 807 (5th Cir. 1989)).
47
Jackie Brown, 7 F.3d at 1159.
24