F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 13 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. Nos. 03-6187, 03-6205,
03-6208 & 03-6228
DENNIS DEAN DAZEY, ROY
MATHEW, DIANE LENORE
GRIFFITH, and ROBERT GERALD
CRAFT,
Defendants-Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NO. CR-02-92-R)
David W. Lee, Comingdeer, Lee & Gooch, Oklahoma City, Oklahoma, for
Defendant-Appellant Dennis Dean Dazey.
R. Scott Adams, Oklahoma City, Oklahoma, for Defendant-Appellant Roy
Mathew.
Robert L. Wyatt, IV, Wyatt Law Office, Oklahoma City, Oklahoma for
Defendant-Appellant Diane Lenore Griffith.
Stephen Jones, Stephen Jones & Associates, Enid, Oklahoma, for Defendant-
Appellant Robert Gerald Craft.
Susan Dickerson Cox, Assistant United States Attorney (Robert G. McCampbell,
United States Attorney, with her on the brief) Oklahoma City, Oklahoma, for
Plaintiff-Appellee.
Before KELLY, HOLLOWAY, and McCONNELL, Circuit Judges.
McCONNELL, Circuit Judge.
Robert Gerald Craft, Roy Mathew, Dennis Dean Dazey, and Diane Lenore
Griffith were convicted of conspiracy to commit wire fraud. The defendants were
also convicted of a number of substantive counts of wire fraud, securities fraud,
and/or money laundering. On appeal, each defendant challenges the sufficiency
of evidence for conviction, as well as raising several procedural and evidentiary
issues. Mr. Mathew and Mr. Dazey also challenge their sentences. Appellants’
convictions and Mr. Mathew’s sentence are AFFIRMED. Mr. Dazey’s sentence
is AFFIRMED as to all arguments raised in his initial brief, but is VACATED in
light of United States v. Booker, 125 S.Ct. 738 (2005). The case is REMANDED
to the district court for resentencing in accordance with that decision.
I. BACKGROUND
The four defendants were implicated in a fraudulent investment company
called Wealth-Mart. Wealth-Mart styled itself as an investment fund with a
highly lucrative international “bank debenture” investment program that traded in
secret overseas markets in accordance with Christian and humanitarian investment
principles. Wealth-Mart promised investors very high returns within a few
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months. In addition, because Wealth-Mart invested in instruments representing
obligations of major world banks (known as “prime banks”), the investors’
principal was guaranteed. During the late 1990’s, Wealth-Mart solicited over 14
million dollars in investments. Not a penny of the funds investors entrusted to
Wealth-Mart’s care was invested overseas, and most of it was never returned.
Dr. Craft was Wealth-Mart’s charismatic leader. He ran the company out
of his “Craft & Sons” offices in Oklahoma City. Although Wealth-Mart was
formed by co-defendant Mathew and others, Dr. Craft directed the program from
its inception. The other employees at his Oklahoma City office were all
subordinate to him. Dr. Craft controlled Wealth-Mart’s bank accounts and
directed that all invested funds go through him. He presided at daily staff
meetings, which often included investors. Although Dr. Craft directed the
financial and organizational aspects of the business at these meetings, the
meetings were more often motivational and inspirational events, including prayer
and gospel singing. Dr. Craft spoke at seminars that he organized to promote the
Wealth-Mart program. Investors were impressed with Dr. Craft’s speaking style,
his religious background and approach, and his apparent ability to acquire very
substantial wealth.
Mr. Mathew, a certified public accountant, served both as Wealth-Mart’s
financial manager and as Dr. Craft’s personal accountant. He also created
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Wealth-Mart’s founding documents. He was introduced to investors as the CPA
for the program. At daily meetings, Mr. Mathew frequently addressed the
assembled staff and investors, describing the operation of the program and the
expected return on investment. Mr. Mathew helped set up a tribal bank that Dr.
Craft used to deposit investors’ funds and to pay his and the company’s expenses.
Mr. Mathew also recruited several investors into the program and helped create
letters and documents to assuage concerned investors who began complaining
when promised returns failed to materialize.
Mr. Dazey was the international financier. Investors understood that Mr.
Dazey was the trader, or the liaison to the actual traders, who had the
responsibility of placing investments overseas in the lucrative bank debenture
market. At Wealth-Mart seminars, Mr. Dazey was introduced as an expert with
long experience in international finance. Seminar attendees were treated to
lectures by Mr. Dazey on the high returns that could be generated by investing in
various bank instruments in secret foreign markets. Mr. Dazey was a long-time
friend and associate of Dr. Craft, and they purportedly had been involved in
“international trade” together since the early 1990’s.
Ms. Griffith was Wealth-Mart’s leading sales and customer service
representative. She persuaded many people to invest in Dr. Craft’s program,
including some personal friends and members of her own family. Ms. Griffith
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managed relations with these investors as they began complaining about not
receiving the promised returns. She assisted with planning and logistics at
Wealth-Mart seminars. She also provided various administrative services in
support of Wealth-Mart’s day-to-day operations.
Wealth-Mart’s international investment program was completely bogus.
There is no such thing as a “prime bank.” The prime bank financial instruments
that Wealth-Mart purported to invest in do not exist. The secretive, exclusive
market in which such instruments are traded, accessible only to the world’s
financial elite and Wealth-Mart’s select customers, is also purely imaginary. As a
government expert witness from the Federal Reserve explained at trial, prime
bank investment schemes like Wealth-Mart’s are a common variety of Ponzi
schemes. The usual script for a prime bank fraud has the promoter promising
very high returns with no risk. The promoter solicits investment in fictitious
instruments with complex-sounding nomenclature, which purport to represent debt
obligations of major world banks. The promoter often claims that the instruments
are guaranteed by public institutions such as the Federal Reserve, the World
Bank, or the International Monetary Fund. Promoters tend to emphasize the
exclusive and secret nature of the program and sometimes require investors to
sign nondisclosure agreements.
The Wealth-Mart program followed this template to the letter. By late
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summer of 1997, Dr. Craft, Mr. Mathew, Ms. Griffith, and others began enticing
investors into the program. The sales force described Wealth-Mart as a bank
debenture trading program that would provide enormous returns with no risk.
Wealth-Mart’s marketing materials hyped the lucrative European intra-bank
market and explained that the market was so secret that those with access to the
market might deny its existence and that the investors’ own brokers or bankers
likely had not heard of it. Wealth-Mart Investors were required to sign
nondisclosure agreements.
The Wealth-Mart sales pitch routinely exploited investors’ religious
convictions. Dr. Craft was portrayed as a devout Christian and humanitarian,
while Mr. Dazey and Mr. Mathew were said to be active ministers. Some
investors entrusted funds to Wealth-Mart based on its principals’ religious bona
fides and were attracted to the program in part because they were told their money
would be used to advance charitable causes.
Wealth-Mart put on three investment seminars at a luxurious ranch in
Colorado. The defendants chartered airplanes and buses to transport themselves
and investors to the seminars. Dr. Craft presided at the seminars, made speeches,
mingled with the potential investors, and in general attempted to create the aura
of an elite gathering of international financial insiders. Dr. Craft presented Mr.
Dazey to the audience, under the alias “Wooly West,” as Wealth-Mart’s
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international trader. Wooly West addressed the seminar participants on
international financial topics and touted his financial connections. He dropped
names like Nixon and Rockefeller as being among his former clients. Many
seminar invitees were impressed and decided to place investments, or increase
their existing positions, with Wealth-Mart.
The money rolled in. In less than two years, Wealth-Mart acquired at least
14 million dollars. To receive the investors’ money, Wealth-Mart set up a bank
called First Lenape Nation Bank. First Lenape appeared to be a functioning tribal
bank. In reality, it was just a shell, and investors’ money was commingled and
passed upstream to two accounts at established Oklahoma banks. These accounts
were all controlled by Dr. Craft. A few investors sent their money directly to an
account at Nations Bank controlled by Mr. Dazey.
None of the money was invested overseas. Dr. Craft spent much of it on
personal expenses for himself and his family, including cash payments to family
and associates, fancy cars for himself and his family, and a house for his son. Dr.
Craft also used investor funds to acquire interests in real estate, oil and gas
leases, a restaurant, an emu ranch, and a movie production company. Wealth-
Mart burned additional investor money on lavish travel such as chartering private
airplanes and a Caribbean cruise for Wealth-Mart employees and their families.
Approximately two million dollars of investors’ money went to Mr. Dazey’s
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account, which he used to pay debts and expenditures arising from other business
ventures.
Inevitably, investors began complaining when hefty checks representing the
results of Wooly West’s savvy trading failed to arrive in the mail. Mr. Mathew
and Ms. Griffith devised a “re-entry” plan to stall for time. They asked investors
to sign a re-entry form allowing Wealth-Mart to reinvest their accumulated
earnings. Investors were thereby deceived into believing that the reason they
hadn’t been paid was that Wealth-Mart had rolled their earnings into new
investments. Dr. Craft and Ms. Griffith, among others, offered increasingly
preposterous excuses to suspicious investors who demanded to know what had
become of their money. In addition to variations on the standard “the check is in
the mail” theme, investors were told that various government entities had held up
or frozen the funds, including the Federal Reserve, FBI, and CIA. Princess
Diana’s death and other world events were also blamed for the delay in
repatriating the funds.
Wealth-Mart’s activities eventually came to the attention of the authorities.
Some investors, cooperating with law enforcement, made clandestine tape
recordings of meetings at the Craft offices. The FBI executed search warrants at
the Craft offices and recovered numerous Wealth-Mart documents at Mr.
Mathew’s home. Later, a federal grand jury issued an indictment charging the
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four appellants, as well as another Wealth-Mart employee named Denise Jones,
with conspiracy, wire fraud, securities fraud, and money laundering. Ms. Jones
pled guilty and testified for the government. After a three-week trial, the jury
convicted Dr. Craft on all 59 counts on which he was charged, including one
count of conspiracy and several counts each of wire fraud, securities fraud, and
money laundering. Mr. Mathew was convicted of conspiracy and money
laundering, but was acquitted of securities fraud. The jury convicted Mr. Dazey
of conspiracy and several counts of wire fraud and one money laundering count,
but acquitted him of one wire fraud count. Ms. Griffith was found guilty of
conspiracy and wire fraud, but found not guilty of securities fraud.
The district court sentenced Dr. Craft to 180 months in prison. Mr.
Mathew was sentenced to 46 months, and Mr. Dazey was sentenced to 121. The
district court departed downward from the Guidelines range for Ms. Griffith and
sentenced her to 50 months.
II. DISCUSSION
A. Sufficiency of Evidence
Each of the appellants challenges the sufficiency of evidence to convict on
all counts. Sufficiency of evidence is a question of law that we review de novo.
United States v. Rahseparian, 231 F.3d 1257, 1261 (10th Cir. 2000). We examine
all of the evidence and the reasonable inferences to be drawn from that evidence,
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to determine whether any rational juror could have found the elements of the
crime beyond a reasonable doubt. Id. at 1261-62. We view the evidence in the
light most favorable to the government. United States v. Owen, 15 F.3d 1528,
1532 (10th Cir. 1994). We do not weigh conflicting evidence or evaluate witness
credibility; these are the exclusive province of the jury. United States v.
Castorena-Jaime, 285 F.3d 916, 933 (10th Cir. 2002). As long as the jury’s
inferences are reasonable, “it [is] for the jury, not the court, to determine what
may have occurred.” Rahseparian, 231 F.3d at 1262 (quoting United States v.
Grissom, 44 F.3d 1507, 1510 (10th Cir.1995)).
1. Conspiracy
All of the appellants were convicted of conspiracy to commit wire fraud in
violation of 18 U.S.C. § 371. Each appellant now argues that there was
insufficient evidence to sustain that conviction.
A conviction of conspiracy under 18 U.S.C. § 371 requires: (1) an
agreement, (2) to break the law, (3) an overt act, (4) in furtherance of the
conspiracy’s object, and (5) proof that the defendant wilfully entered the
conspiracy. United States v. Hanson, 41 F.3d 580, 582 (10th Cir. 1994). “The
core of a conspiracy is an agreement to commit an unlawful act.” United States v.
Morehead, 959 F.2d 1489, 1500 (10th Cir. 1992) (quoting United States v.
Esparsen, 930 F.2d 1461, 1471 (10th Cir. 1991)). “[T]he critical inquiry is
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whether the circumstances, acts, and conduct of the parties are of such a character
that the minds of reasonable men may conclude therefrom that an unlawful
agreement exists.” Morehead, 959 F.2d at 1500 (quoting United States v.
Kendall, 766 F.2d 1426, 1431 (10th Cir. 1985)). Because “[s]ecrecy and
concealment are essential features of successful conspiracy,” Blumenthal v.
United States, 332 U.S. 539, 557 (1947), direct evidence of conspiracy is often
hard to come by. Therefore, conspiracy convictions may be based on
circumstantial evidence, and the jury may infer conspiracy from the defendants’
conduct and other circumstantial evidence indicating coordination and concert of
action. United States v. Hardwell, 80 F.3d 1471, 1482 (10th Cir. 1996). Finally,
a conspiracy conviction requires at least the degree of criminal intent necessary
for the substantive offense itself. Morehead, 959 F.2d at 1500 (quoting Ingram v.
United States, 360 U.S. 672, 678 (1959)).
Dr. Craft contends that there was no evidence that he agreed with anyone
to defraud investors and no evidence that he knew that the Wealth-Mart program
was a fraud. He relies heavily on the testimony of Denise Jones, an alleged co-
conspirator and cooperating witness. Ms. Jones testified that, in her opinion, Dr.
Craft believed in the legitimacy of Wealth-Mart and continued to believe in it
even after being indicted. Ms. Jones also said that she herself continued to
believe there was an actual trading program until she was indicted. Many
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investors also testified that they believed in the program, at least until their
money disappeared. In light of this evidence that so many Wealth-Mart
participants, including Dr. Craft himself, believed in the program, Dr. Craft
contends that the government presented insufficient counter-evidence that he
intentionally agreed to defraud investors.
Ms. Jones’s affirmation of Dr. Craft’s innocence was less than unequivocal;
indeed she ascribed his apparent belief in the program to his being “delusional.”
Tr. 779. More importantly, the government provided ample evidence that Dr.
Craft knew Wealth-Mart was a fraud. The jury was entitled to credit that
evidence rather than Ms. Jones’s opinion about what Dr. Craft believed. The jury
heard evidence that Dr. Craft directed and controlled Wealth-Mart’s operations,
including its bank accounts. The government showed that several investors, after
hearing Dr. Craft pitch his international trading program, wired money into Dr.
Craft’s accounts. The evidence showed that Dr. Craft diverted those funds to buy
houses and cars for himself and his family. Dr. Craft told investors he would
invest their money in certain foreign bank securities, but none of it was so
invested. He also told investors that he would guarantee Wealth-Mart
investments with his own personal assets, which the investors believed to be
substantial, when in fact he had no significant assets other than money he diverted
from Wealth-Mart investors. When investors complained, Dr. Craft told them that
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payout was imminent and offered false excuses for the delay. This evidence is
more than sufficient to support an inference that Dr. Craft knew Wealth-Mart was
fake and that he intentionally conspired to defraud investors.
Mr. Mathew also challenges his conspiracy conviction. He claims that the
evidence showed only that he was associated with Dr. Craft, assisted with some
accounting matters, and was present at certain Wealth-Mart meetings. He
concedes that this evidence may have given him some knowledge of others’
involvement in a crime, but he maintains that this is insufficient to show that he
himself participated in the conspiracy. See United States v. Migliaccio, 34 F.3d
1517, 1521-22 (10th Cir. 1994) (a defendant’s knowledge of his business
partner’s intent to commit fraud was insufficient alone to prove conspiracy).
However, the government’s evidence showed that Mr. Mathew’s
participation in Wealth-Mart went well beyond mere association with Dr. Craft
and attendance at meetings. Mr. Mathew developed Wealth-Mart’s founding
documents and forms used for agreements with investors. He made presentations
at staff meetings in which he described how the investment program operated and
estimated the potential return on investment. Mr. Mathew was introduced to
prospective investors as Wealth-Mart’s CPA, a fact which at least one investor
said enhanced his perception of Wealth-Mart’s legitimacy and contributed to his
decision to invest.
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Mr. Mathew was aware that investors were complaining about not being
paid. He, along with others, hatched a plan to stall for time by inducing investors
to sign a “re-entry” form. The form led investors to believe that their investments
were successful and that Wealth-Mart would “re-enter” their earnings into the
program. Mr. Mathew was also involved in creating the First Lenape bank
accounts Dr. Craft used to deposit investor money, and he was present at a
meeting where Dr. Craft said that he was using those accounts to make it difficult
to trace the transactions.
Mr. Mathew also recruited investors into the program. One of his recruits,
Ricky Sanchez, demanded his money back. Mr. Mathew attempted to stall Mr.
Sanchez with excuses about trouble repatriating the money. Mr. Mathew then
paid Mr. Sanchez using investment funds he had recently solicited from another
investor.
This evidence is sufficient for a reasonable jury to infer that Mr. Mathew
intentionally conspired to defraud investors. Mr. Mathew maintains that he took
certain steps to distance himself from Wealth-Mart, such as filing an involuntary
bankruptcy petition against Dr. Craft and providing information to the FBI.
However, the government argues that these steps are also explainable as self-
serving actions to attempt to exculpate himself. Whichever interpretation is true,
this evidence does not preclude a reasonable jury from concluding that Mr.
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Mathew conspired with the other defendants to commit fraud.
Mr. Dazey also argues that there was insufficient evidence to convict him
of conspiracy. He contends that there was no evidence of any connection between
himself and Wealth-Mart and no evidence that he solicited any investors. The
evidence, according to Mr. Dazey, showed only that he was a friend of Dr. Craft
who gave informational presentations at the seminars.
The evidence showed more than this. Denise Jones testified that Mr. Dazey
was involved with Dr. Craft in an earlier investment scheme similar to Wealth-
Mart and that some of the money had been diverted for Mr. Dazey’s personal use.
The evidence showed that some Wealth-Mart investors deposited or wired money
directly to Mr. Dazey’s bank account, and that Mr. Dazey received approximately
$2.2 million from Wealth-Mart. Mr. Dazey maintained frequent contact, via
phone and fax, with Dr. Craft. He provided cell phones that Dr. Craft and Denise
Jones used to carry on the scheme. At seminars packed with potential investors,
Mr. Dazey presented himself as an experienced international investor with special
contacts. Mr. Dazey told investors that he was the trader with whom their
investments would be placed. He praised investment programs like Wealth-
Mart’s as lucrative and safe. All of this evidence, viewed in the light most
favorable to the government, was sufficient for the jury to conclude that Mr.
Dazey knowingly conspired with the other defendants to commit wire fraud.
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Finally, Ms. Griffith also argues that the evidence was insufficient for a
conspiracy conviction. She concedes that the evidence shows that she was an
active and willing participant in the Wealth-Mart program. However, she avers
that she believed in the program and Dr. Craft all along, that her actions were
consistent with a true believer in the program, and thus that there was insufficient
evidence that she intentionally conspired to defraud anyone.
The government responds that there was considerable evidence that Ms.
Griffith knew Wealth-Mart was a fraud. Ms. Griffith was close to Dr. Craft and
was one of three or four people who had direct access to him. She was one of
Wealth-Mart’s leading salespersons, and she persuaded many investors, including
personal friends and family members, to invest. Ms. Griffith played an important
role in communicating with investors as complaints began coming in. She sent
faxes and e-mails reiterating Dr. Craft’s excuses and assuring investors that they
could expect payment very soon. Investors had multiple communications back
and forth with Ms. Griffith over many months in which the investor repeatedly
asked for his money back while Ms. Griffith repeatedly responded by blaming the
delay on uncontrollable international factors and promising imminent payment.
She continued to make such promises long after the investors themselves had
given up hope of ever seeing their money again. Cooperating witness Denise
Jones testified that Ms. Griffith, together with Mr. Mathew, devised the “re-entry”
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plan, in which investors would be told that their investments were doing well and
that their earnings would be re-invested back into the program. Ms. Griffith then
pitched the re-entry program to the investors, including the promise of a 10%
bonus if they stayed in the program for 12 months. The government also provided
evidence that Ms. Griffith knew that the FBI had searched the Craft offices in
1999 and that she was served with notice of a fraud lawsuit against herself and
Dr. Craft. Finally, the government offered evidence that Dr. Craft gave Ms.
Griffith a slice of the profits, including $39,000 over a six-month period, some
“walking around” cash, a Caribbean cruise, and a Lincoln.
Some of this evidence is not as damning as it might seem. Ms. Griffith
points out that $39,000 was small change compared to what Dr. Craft, Mr. Dazey,
and other friends and family of Dr. Craft received. While Ms. Griffith’s receipt
of a Lincoln seems on par with the late model Cadillacs and SUV’s that Dr. Craft
and his family bought with investors’ funds, Ms. Griffith’s son-in-law testified
that her Lincoln, at the time she received it, was past its prime, with high mileage
and a driver’s seat stubbornly stuck in the fully-reclined position. Ms. Griffith
traveled to Colorado by bus, while Dr. Craft, Mr. Dazey, and others traveled in
private planes. She was relegated to double room occupancy at the Colorado
lodges, while others had their own rooms.
Ms. Griffith claims that additional evidence supports her claim to have
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been deceived by Dr. Craft. Investors testified that Dr. Craft put up a very
persuasive front of being a trustworthy Christian businessman with a long history
of successful ventures. Ms. Griffith maintains that there was nothing obviously
suspect about the program, as evidenced by the fact that many of the investors,
some of whom were licensed securities brokers and other experienced
professionals, believed in it enough to invest substantial sums. Ms. Griffith’s
sincere belief in the program was also supported by evidence that she solicited
investments from her own family and personal friends, who put over a quarter of
a million dollars into Wealth-Mart.
Ms. Griffith relies on United States v. Rahseparian, 231 F.3d 1257 (10th
Cir. 2000). In that case, two brothers were running a fraudulent telemarketing
scheme, and their father handled all of the scheme’s banking needs through bank
accounts of his own separate personal business. We held that there was
insufficient evidence to prove that the father knew the scheme was fraudulent,
even though he conducted all of the company’s banking, communicated frequently
with his sons about the incoming deposits, and made false exculpatory statements
to the police. Id. at 1263-64. Ms. Griffith argues that the evidence against her
was similar to that in Rahseparian. It showed that she played an important role in
a business that turned out to be fraudulent, but that is insufficient to prove her
criminal knowledge.
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However, in Rahseparian, we found it important that “[t]here is no
evidence [the defendant] was aware of the misrepresentations being made to
customers, or that they were not receiving their products or promised prizes.” Id.
at 1263. Here, by contrast, there is no doubt that Ms. Griffith knew that investors
were not being paid, and she played a central role in staving off their demands for
return of their money with false promises of imminent payment. It is possible that
Ms. Griffith believed the implausible excuses and promises of repayment she
passed on to investors from Dr. Craft, even as the promises repeatedly turned out
to be false. But the jury was entitled to conclude otherwise, especially in light of
the undeniable implausibility of these representations. See United States v.
McCrimmon, 362 F.3d 725, 729-30 (11th Cir. 2004) (highly implausible
statements by salesperson, including guarantee of high returns without risk, are
suggestive of fraud). We conclude that Ms. Griffith’s communications with
investors and implementation of the re-entry plan, together with all the other
evidence, was sufficient to support Ms. Griffith’s conviction.
2. Wire Fraud and Money Laundering
Dr. Craft claims there was insufficient evidence to sustain his convictions
for wire fraud, securities fraud, and money laundering. However, his brief offers
no argument on this point, and therefore we do not consider it. See Utahns for
Better Transp. v. United States Dept. of Trans., 305 F.3d 1152, 1169, 1175 (10th
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Cir. 2002) (issues not adequately briefed are deemed waived).
Mr. Mathew argues that there was insufficient evidence to convict him of
two counts of money laundering in violation of 18 U.S.C. § 1957. To sustain a
conviction under § 1957, the government must prove that the defendant (1)
engaged or attempted to engage, (2) in a monetary transaction, (3) in criminally
derived property, (4) knowing that the property is derived from unlawful activity,
and (5) the property is, in fact, derived from specified unlawful activity. United
States v. Massey, 48 F.3d 1560, 1565 (10th Cir. 1995).
Mr. Mathew was convicted for cashing two checks payable to himself
drawn on the account of Dr. Craft’s First Lenape Nation Bank, which in turn was
an account at the First National Bank of Oklahoma. Mr. Mathew argues that there
was insufficient evidence to prove that he knew that the money was criminally
derived. However, the government provided evidence that Mr. Mathew knew that
the funds in the First Lenape Nation account came primarily from investors, and
that he knew that those funds were fraudulently obtained. The government need
not meticulously trace the funds involved in a monetary transaction offense or
prove that the funds could not have come from a legitimate source. See United
States v. Johnson, 971 F.2d 562, 570 (10th Cir. 1992). The government’s
evidence was sufficient to support an inference that Mr. Mathew had the requisite
knowledge that the money from the checks came from illegal activity.
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Mr. Dazey was convicted of several counts of wire fraud based on cell
phone conversations between Dr. Craft and investors. Mr. Dazey concedes that
he gave Dr. Craft the cell phone that he used for these conversations. Mr. Dazey
contends, however, that there was no evidence that he knew or intended that the
phone would be used to further a fraudulent scheme.
In order to sustain a conviction for aiding and abetting wire fraud, the
government must prove that Mr. Dazey willfully assisted the perpetrators of the
wire fraud crimes, and that he did so with the requisite intent to defraud. United
States v. Rivera, 295 F.3d 461, 466 (5th Cir. 2002). As set forth in Part II(A)(1)
above, the government provided substantial circumstantial evidence that Mr.
Dazey was a knowing participant in the Wealth-Mart fraud. This same evidence
supports an inference that, when he gave the cell phone to Dr. Craft, he intended
that the phone would be used to facilitate their fraudulent scheme.
Mr. Dazey also challenges the sufficiency of evidence for his money
laundering conviction. He claims there was insufficient evidence that the money
he transferred from his account to the First Lenape account actually came from
illegal activity and that he knew that the money was criminally derived. Mr.
Dazey was convicted of money laundering for wiring $100,000 from an account
he controlled to an account at Dr. Craft’s First Lenape Nation Bank. The
evidence showed that on August 29, 1997, Mr. Dazey’s account balance was $46,
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691.07. Gov’t Exh. 303. Throughout September, Mr. Dazey received four
transfers totaling about $300,000 of investors’ funds from Dr. Craft, including a
transfer of $150,000 on September 29. Id. That same day, Mr. Dazey transferred
$100,000 back out of his account to First National Bank of Chickasha, Oklahoma,
in the name of Dr. Craft’s First Lenape bank. Gov’t Exh. 303.7. Without the
receipt of the investors’ funds throughout September, Mr. Dazey’s account did not
have sufficient funds to wire the $100,000. This is sufficient evidence to show
that the transaction involved criminally derived property. See Johnson, 971 F.2d
at 570.
As for the intent element, the government provided substantial
circumstantial evidence that Mr. Dazey intentionally entered a conspiracy with
Dr. Craft to defraud investors via the sham Wealth-Mart trading program, as
discussed in Part II(A)(1) above. This same evidence would allow a reasonable
jury to conclude that Mr. Dazey knew that the $100,000 he transferred was
fraudulently obtained.
Ms. Griffith argues that there was insufficient evidence to sustain her
convictions on several counts of wire fraud. These convictions were based on
wire transfers to Wealth-Mart from investors that Ms. Griffith brought into the
program. Ms. Griffith challenges these convictions on the same ground as her
conspiracy conviction, namely, that there was insufficient evidence that she knew
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that Wealth-Mart was a fraud. We reject this argument for the reasons explained
in Part II(A)(1) above.
B. Jury Instruction
Dr. Craft contends that the jury instruction on aiding and abetting
erroneously stated that a defendant could be found guilty of conspiracy without
the commission of an overt act. The government responds that a copy of the form
jury instruction that was sent to Dr. Craft’s appellate counsel omits the “overt
act” requirement, but that the instruction that was actually used at trial contains
the necessary language. The government is correct. See Griffith App., Vol. 1,
doc. 230, Instruction No. , “Conspiracy and Aiding and Abetting –
Distinguished.” There was no error.
C. Severance
Before trial, Ms. Griffith moved for severance, arguing that being tried
jointly with the other defendants would deprive her of a fair trial. The district
court denied the motion on the ground that Ms. Griffith had not adequately
demonstrated that she would be prejudiced by a joint trial. We review a district
court’s denial of a motion for severance for abuse of discretion. United States v.
Zafiro, 506 U.S. 534, 538-39 (1993); United States v. Linn, 31 F.3d 987, 992
(10th Cir. 1994).
Ms. Griffith contends that she should have been granted a separate trial for
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two reasons. First, she argues that she and her co-defendants had mutually
antagonistic defenses, as her defense required her to point the finger at Dr. Craft
and Denise Jones. Second, Ms. Griffith claims that the “spillover” effect from the
overwhelmingly damaging evidence against Dr. Craft prejudiced her, as she was
tainted by association with Dr. Craft even though the evidence directly against her
was slight.
To warrant a finding that a district court abused its discretion by not
severing a trial, the conflict between the defendants’ defenses must be such that
“the jury, in order to believe the core of one defense, must necessarily disbelieve
the core of the other.” Linn, 31 F.3d at 992 (quoting United States v. Swingler,
758 F.2d 477, 495 (10th Cir.1985)). Ms. Griffith’s defense was not mutually
exclusive in this sense with the other defendants’ defenses. It would be perfectly
logical for the jury to believe both that Ms. Griffith believed that Wealth-Mart
was legitimate and that Dr. Craft himself believed in the program. The district
court did not abuse its discretion in denying severance on this ground.
As for the second ground, a defendant cannot obtain severance simply by
showing that the evidence against a co-defendant is more damaging than the
evidence against herself. United States v. Emmons, 24 F.3d 1210, 1218-19 (10th
Cir. 1994). The Supreme Court, however, has noted that “[w]hen many
defendants are tried together in a complex case and they have markedly different
-24-
degrees of culpability, [the] risk of prejudice is heightened.” Zafiro, 506 U.S. at
539. That is an apt description of this case. Nevertheless, even in such
situations, severance is not necessarily required because “less drastic measures,
such as limiting instructions, often will suffice to cure any risk of prejudice.” Id.
Moreover, the Supreme Court has made it clear that the “determination of the risk
of prejudice and any remedy that may be necessary” should be left to “the sound
discretion of the district courts.” Id. at 541.
The district court’s conclusion that a joint trial would not be sufficiently
prejudicial to warrant severance was not an abuse of discretion. Although the
case was complex, it should not have been inordinately difficult for the jury to
separate the single, crucial question of Ms. Griffith’s defense (whether she knew
Wealth-Mart was a fraud) from the other issues in the case. The jury was
appropriately instructed that each count was a separate crime and that they were
to consider the culpability of each defendant separately. See Griffith App., Vol.
1, doc. 230, Instruction Nos. __, “Counts are Separate Crimes” and “Consider
Each Defendant.” Finally, the jury verdict itself suggests that the jury considered
each defendant separately, because although Dr. Craft was convicted on all
counts, each of the other defendants, including Ms. Griffith, was acquitted of
some of the charges against them.
D. Admission of Notes
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At trial, the government offered testimony from several people who
attended Wealth-Mart’s Colorado seminars. Some of these investors took notes.
The government offered, as exhibits, the seminar notes of three such investors.
The district court admitted the notes over defense counsel’s objection. On appeal,
Appellants Craft and Dazey contend that the district court erred in admitting the
notes. We review a district court’s evidentiary rulings for abuse of discretion,
and our review of decisions to admit evidence over hearsay objections is
especially deferential. United States v. Hernandez, 333 F.3d 1168, 1176 (10th
Cir. 2003).
Appellants claim the notes are inadmissible hearsay. Hearsay is an out-of-
court statement offered to prove the truth of the matter asserted. See Fed. R.
Evid. 801(c). The government argues that the notes are not hearsay, because they
were offered to prove only the content of the seminar speeches and not the truth
of what was said. This is true in part, but the notes are still hearsay insofar as the
notes are in effect an out-of-court assertion that Dr. Craft and Mr. Dazey said
certain things at the seminars. The notes were offered to prove the truth of that
assertion, and therefore they fit the definition of hearsay.
Federal Rule of Evidence 803(5) provides an exception to the hearsay rule
for a witness’ recorded recollection:
A memorandum or record concerning a matter about which a witness
once had knowledge but now has insufficient recollection to enable
-26-
the witness to testify fully and accurately, shown to have been made
or adopted by the witness when the matter was fresh in the witness’
memory and to reflect that knowledge correctly. If admitted, the
memorandum or record may be read into evidence but may not itself
be received as an exhibit unless offered by an adverse party.
When defense counsel objected to admission of the notes, the district court
asked “Why is this not a past recollection recorded?” Tr. 47. Defense counsel
responded, “We don’t think the foundation has been established for that.” Id.
The district judge himself then asked the witness, “Did you make these notes
contemporaneously with the events that occurred?” Id. at 48. The witness
responded affirmatively, and the judge permitted the witness to continue
testifying about the notes and also admitted the notes as an exhibit. 1
On appeal, the appellants acknowledge that the judge and the government
laid a partial foundation for admission of the notes under Rule 803(5), but they
claim that the witnesses’ inability to testify fully and accurately from memory was
never established. The government concedes that neither the prosecutor nor the
court specifically asked the witnesses whether their memory was sufficient to
testify fully without the notes, but the government contends that the witnesses’
lack of memory is “[i]mplicit in the context of their testimony.” Appellee’s
1
This dialogue took place with respect to the first witness who testified
about notes she took at the seminars. The government laid a similar foundation,
establishing that the notes were taken contemporaneously with the event, for the
other two witnesses whose notes were also admitted as exhibits.
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(Dazey) Br. 31.
Unfortunately, it is difficult to discern from the record exactly how much
the witnesses remembered about what they heard at the seminars. The
government’s examination generally takes the form of a running commentary on
the notes. The prosecutor points to a particular phrase in the notes and asks what
it means, and the witness explains the notation and elaborates on what Dr. Craft
or Mr. Dazey said on that topic. It is clear that the witnesses retained some
independent memory of what was said, and none of the witnesses actually stated
that he or she could not recollect any particular aspect of the seminars. In similar
situations, courts have held that it is error for the district court to admit evidence
under Rule 803(5) without a showing that the witness lacks sufficient memory to
testify fully. See Collins v. Kibort, 143 F.3d 331, 338 (7th Cir. 1998); United
States v. Felix-Jerez, 667 F.2d 1297, 1301-02 (9th Cir. 1982).
Even if the district court erred in admitting the notes without a proper
foundation, such an error does not require reversal of the appellants’ convictions
if it is harmless. A decision to admit evidence is harmless unless a substantial
right of a party is affected. Fed. R. Evid. 103(a). An error affecting a substantial
right is one which had a “substantial influence” on the trial’s outcome or which
creates a “grave doubt” as to whether it had such effect. United States v. Rivera,
900 F.2d 1462, 1469 (10th Cir. 1990) (en banc) (quoting Kotteakos v. United
-28-
States, 328 U.S. 750, 765 (1946)).
We are convinced that the district court’s decision to admit the notes did
not have a substantial influence on the outcome of the trial. In so concluding, we
acknowledge that the content of the pitch delivered by Mr. Dazey and Dr. Craft at
the seminars was an important part of the government’s case against Mr. Dazey.
The government sought to show that Mr. Dazey’s role at the seminars was to
stimulate investments in Wealth-Mart by hyping international investment
opportunities of the sort that Wealth-Mart offered and presenting himself as an
international man of financial mystery with inside contacts and special access to
the international banking system. The notes supported this claim, because the
witnesses jotted down some of the dizzying stream of financial jargon that Mr.
Dazey presented to the audience. Nevertheless, there was a sufficient supply of
properly admitted evidence about what Mr. Dazey said at the seminars to make
the additional evidence contained in the notes immaterial.
First, the note-takers themselves provided substantial evidence, from
memory, about Mr. Dazey’s presentations, describing them generally as
explanations of investment opportunities in international bank-related
instruments. Second, several other witnesses testified from memory about Mr.
Dazey’s presentations and described them in terms consistent with the notes.
Some even provided additional specific details, such as Mr. Dazey saying he
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executed the trading by which the Wealth-Mart investment made money, that he
had worked for the Nixons and Rockefellers and helped to make their fortunes,
and that he wore an ankle bracelet when traveling overseas so that the
international financial movers and shakers would always know where he was. Tr.
939-941. Finally, Mr. Dazey himself testified about his participation at the
seminars in Colorado, summarizing his remarks as a presentation on:
the international banking system as it relates to the issuance of
different types of debenture or credit instruments.
Going back to the understanding of what I was trying to do in
the factoring concept of buying mid-term notes, working through
securities traders, things of this nature, was an opportunity to simply
point out the opportunity of international factoring in different types
of commercial paper, whether it be standby letters or letters of credit
or whatever.
Tr. 2208-09. This learned discourse is, at least to our untrained minds,
substantially similar to the way Mr. Dazey’s remarks were characterized in the
notes. Mr. Dazey also admitted that he talked about “prime bank guarantees” at
the seminars. Moreover, Mr. Dazey introduced as an exhibit his own notes, from
which he delivered his lectures, and these contain references to “bank debenture
trading programs” and other terminology consistent with Wealth-Mart’s program.
Tr. 2213-16; Defendant Exh. 64, 65. In sum, there was so much additional
evidence about the nature of Mr. Dazey’s seminar presentations that the addition
of the notes almost certainly did not affect the outcome of the trial.
Any error in admitting the notes was also harmless as to Dr. Craft. The
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content of Dr. Craft’s speeches at the seminars was much less important to the
case against him than Mr. Dazey’s speeches were to Mr. Dazey’s case. As noted
in Part II(A)(1) above, the evidence against Dr. Craft was overwhelming.
Among all the evidence showing that Dr. Craft was the operational leader and
charismatic force behind the Wealth-Mart program, evidence showing that he
praised the program at the Colorado seminars added little. Moreover, several
witnesses, including the note-takers, testified from memory about the essentials
of Dr. Craft’s presentations. The inclusion of the notes therefore could not have
affected the outcome of the trial.
Appellants also point out that the district court should not have admitted
the notes into evidence as exhibits. Under Rule 803(5), even if the proper
foundation had been laid to admit the notes as a past recollection recorded, the
notes should have been read into evidence and not received as an exhibit. The
only rationale discernible to us for requiring that notes be read aloud into the
record rather than received into evidence is so that the “past recollection
recorded” evidence is treated on par with the oral testimony presented at trial.
Otherwise, the jury might, in its deliberations, tend to privilege the notes that it
gets to take into the jury room over the oral testimony that might already be half-
forgotten. In this case, the likelihood that the jury overemphasized the notes,
simply because they were admitted as exhibits rather than read aloud at trial, was
-31-
vanishingly small. The notes themselves, without the accompanying testimony of
the note-takers, are fairly inscrutable. Some of the handwriting is illegible, and
even where the words are discernible, they mostly form sentence fragments
whose meaning is less than obvious. Moreover, this is not a case where the jury
was sitting in the jury room with nothing but the erroneously admitted notes in
front of them. During the trial, the court admitted hundreds of documents as
exhibits. The government’s exhibits fill twenty three-ring binders. It is difficult
to imagine that the jury, awash as it was in a flood of documentary exhibits,
improperly focused on a few pages of difficult to discern notes at the expense of
the rest of the evidence presented at trial.
E. Admission of Lulling Letters and other Documents
Appellant Griffith challenges the district court’s admission of letters,
emails, and recorded telephone calls between Ms. Griffith and various investors.
The parties refer to these communications as “lulling letters,” because they
generally take the form of Ms. Griffith attempting to reassure concerned investors
that they would get their money back. See United States v. Trammell, 133 F.3d
1343, 1352-53 (10th Cir. 1998) (quoting United States v. Maze, 414 U.S. 395, 403
(1974)) (defining “lulling letter” as a communication “designed to lull the victims
into a false sense of security, postpone their ultimate complaint to the authorities,
and therefore make the apprehension of the defendant . . . less likely”). Ms.
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Griffith maintains that these communications were not probative of her criminal
intent because she made them more than a year after Wealth-Mart had stopped
soliciting investments and because she disclosed to some of the investors that the
FBI was investigating Wealth-Mart. According to Ms. Griffith, the
communications’ probative value was therefore outweighed by the danger of
unfair prejudice, and the district court should have excluded them under Federal
Rule of Evidence 403.
The district court did not abuse its discretion in admitting the
communications. The communications were relevant to the jury’s consideration
of whether Ms. Griffith knew that Wealth-Mart was a fraud. The fact that Ms.
Griffith was constantly fending off frustrated investors’ calls and letters with
increasingly implausible excuses was probative of whether she was knowingly
defrauding people or innocently following orders from Dr. Craft. The
communications do not lose that relevancy simply because Ms. Griffith made
them after Wealth-Mart stopped soliciting investors or because she acknowledged
an FBI investigation. Moreover, Ms. Griffith has not explained how the evidence
raised the danger of unfair prejudice, as opposed to simply asserting that the
evidence harmed her defense.
Ms. Griffith also challenges the admission of evidence regarding a civil
securities fraud suit. At trial, the government moved for admission of a civil
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securities fraud complaint that some Wealth-Mart investors filed against Dr. Craft
and Ms. Griffith. Defense counsel objected, and the district judge called all
counsel to the bench to discuss the objection. Tr. 1697. Dr. Craft’s counsel did
not want the complaint itself admitted because its allegations were
unsubstantiated, but offered to stipulate to the facts that Dr. Craft and Ms.
Griffith had been sued for securities fraud, had been served with the complaint,
and that a default judgment had been entered against Dr. Craft. Tr. 1698. The
government and Ms. Griffith’s counsel agreed to the stipulation. Id. The district
judge then suggested that the government could implement the stipulation by
withdrawing its request to admit the documents in exchange for being allowed to
ask the witness (an FBI agent) questions about the lawsuit to elicit only the
stipulated facts. Tr. 1699-1700. The judge asked whether that arrangement was
satisfactory to everyone, and no one objected. Tr. 1700. The agent then testified
to the stipulated facts only, saying nothing about the details of the suit’s
allegations.
On appeal, Ms. Griffith challenges the admission of the civil securities
fraud petition on confrontation clause grounds. The district court, however, did
not admit the petition. Instead, the only facts that the jury heard about the
securities fraud suit were the facts to which defense counsel stipulated. Defense
counsel’s stipulation to admission of evidence effectively waives the defendant’s
-34-
confrontation rights unless the defendant can show that the waiver constituted
ineffective assistance of counsel. United States v. Aptt, 354 F.3d 1269, 1284
(10th Cir. 2004). Ms. Griffith has made no such showing.
Finally, Appellant Griffith contends that the district court should not have
permitted cooperating witness Denise Jones to testify that she heard Ms. Griffith
and others at Wealth-Mart devising a plan to induce complaining investors to “re-
enter” their money into the program in order to buy themselves more time.
Although defense counsel did not object at trial, Ms. Griffith argues that the
testimony was inadmissible hearsay and highly prejudicial and that it was plain
error to allow it. However, the challenged testimony appears to be statements of
Ms. Griffith herself and other co-conspirators made in furtherance of the
conspiracy, and if so the statements are not deemed to be hearsay and are
admissible. See Fed. R. Evid. 801(d)(2)(E). The district court therefore did not
plainly err in admitting the testimony.
F. Closing Arguments
Mr. Craft and Ms. Griffith claim they were denied due process because of
various improper comments that the United States Attorney made during his
closing argument. When trial counsel lodges no objection at trial to the
prosecutor’s comments, we review claims of prosecutorial misconduct during
closing argument for plain error. United States v. May, 52 F.3d 885, 887 (10th
-35-
Cir. 1995).
In his closing argument, the prosecutor referred to the tape-recorded
December 17, 1997 meeting, at which Dr. Craft spoke and Ms. Griffith was
present. At the meeting, Dr. Craft insisted that employees should characterize
customers’ relationship with Wealth-Mart as a money management contract rather
than an “investment.” Using the magic word “investment” would cross into the
“gray area of SEC or security . . . entities and they don’t need much more than
that to come swoopin’ in.” Appellee’s (Griffith) App. 20. Dr. Craft went on:
“Now they can be stopped. Now we have done it a half a dozen times in the last
eighteen months. But it always cost money, it cost time, it cost effort.” Id.
The United States Attorney argued that these references to potential SEC
investigations supported an inference that Dr. Craft and Ms. Griffith were aware
that Wealth-Mart was a fraud. Appellants Craft and Griffith contend that the
prosecutor’s argument takes the reference to the SEC out of context and
exaggerates its importance. This may be so, but questions of context and
emphasis are what opening and closing statements are about. The prosecutor is
entitled to argue to the jury that it should draw reasonable inferences from the
evidence to support the government’s theory of the case. United States v.
Espinosa, 771 F.2d 1382, 1402 (10th Cir. 1985) (holding that the prosecutor at
closing argument is free to make fair comment on the evidence and draw
-36-
reasonable inferences from it). One of the central issues at trial was whether Dr.
Craft and the other defendants knew that Wealth-Mart was defrauding its
investors. The fact that Dr. Craft told employees that they needed to take steps to
stop the SEC from “swoopin’ in” because the SEC had already tried to swoop in
six times is relevant to what Dr. Craft and those employees thought about Wealth-
Mart’s legitimacy. It would not be unreasonable for the jury to conclude that the
defendants’ concerns about the SEC supported the finding that they were aware
that their business was fraudulent. The prosecutor was therefore entitled to make
this argument to the jury. If defense counsel believed Dr. Craft’s SEC remarks
were unimportant or subject to a different interpretation, he was free in his turn to
make such arguments to the jury in his own closing statements.
The appellants also argue that the prosecutor improperly commented on
their failure to testify at trial. The prosecutor said
I’m not going to try to cover all of the evidence. You all were
obviously paying attention. You know what the evidence is. You
don’t need me to merely repeat what the defendants have said – I
mean, what the victims and the other witnesses have said.
Tr. 2478. Although a prosecutor may not comment on a defendant’s failure
to testify, “we will not consider a statement improper in this respect unless
it was manifestly intended or was of such character that the jury would
naturally and necessarily take it to be a comment on the failure of the
accused to testify.” Espinosa, 771 F.2d at 1402 (quoting United States v.
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Bennett, 542 F.2d 63, 64 (10th Cir.1976), cert. denied, 429 U.S. 1048
(1977)) (internal quotation marks omitted). The prosecutor’s remark was
most likely inadvertent, he corrected himself immediately, and no reasonable
jury would interpret it as a comment on the defendants’ failure to testify.
The appellants allege that the prosecutor made various other improper
statements during closing argument, including an allegedly improper
reference to a civil securities fraud suit against Ms. Griffith, an improper
argument that Ms. Griffith’s role in the re-entry program suggests she knew
Wealth-Mart was a fraud, and an improper suggestion that juries should
convict the defendants in order to express society’s condemnation of fraud.
All of these remarks were fair comments on the evidence or on the jury’s
role and, in any event, none of them was sufficiently egregious or
prejudicial to warrant reversal under the plain error standard of review.
G. Expert Testimony
At trial, the government called an expert witness, Herb Biern, a senior
official at the Federal Reserve Board, to testify about prime bank frauds.
Mr. Biern testified that he had led inter-agency efforts to combat prime bank
frauds for the past decade and that such frauds are very common. Mr. Biern
told the jury that there is no such thing as a “prime bank” and that the secret
trading markets that prime bank fraudsters promote do not exist. He
-38-
explained some of the characteristic “hallmarks” of prime bank frauds,
including references to the secret markets of international banks, promises
of unrealistically high returns, use of technical-sounding financial jargon in
a nonsensical way, and an emphasis on secrecy. Mr. Biern also testified that
the Wealth-Mart bank debenture trading program, as described in a
government exhibit, did not exist.
Appellants Craft and Griffith contend that the district court abused its
discretion in allowing Mr. Biern’s testimony on the ground that it “invaded
the province of the jury.” Appellant’s (Craft) Br. 41. It is somewhat
unclear what Appellants mean by this contention, because the Federal Rules
of Evidence allow an expert to offer opinion evidence even when it
“embraces an ultimate issue to be decided by the trier of fact.” Fed. R.
Evid. 704(a). However, an expert may not simply tell the jury what result it
should reach without providing any explanation of the criteria on which that
opinion is based or any means by which the jury can exercise independent
judgment. See United States v. Simpson, 7 F.3d 186, 188-89 (10th Cir.
1993). Expert testimony of this sort is sometimes excluded on the ground
that it “usurps the function of the jury in deciding the facts, or interferes
with the function of the judge in instructing the jury on the law.” Id. at 188.
We therefore interpret the appellants’ argument as contending that the
-39-
district judge should have excluded Mr. Biern’s testimony on this basis.
We review a trial court’s admission of expert testimony for abuse of
discretion, and we will reverse only when that decision is “manifestly
erroneous.” Id. In addition, erroneous admission of expert testimony that
does not affect substantial rights and results in actual prejudice is deemed
harmless and does not warrant reversal. A.E., By and Through, Evans v.
Independent School District No. 25, 936 F.2d 472, 476 (10th Cir. 1991).
Under this standard of review, we must reject the appellants’ claim. Mr.
Biern’s testimony did not simply tell the jury to reach a particular verdict
based on his own say-so. Rather, he carefully explained the source of his
extensive knowledge of prime bank frauds and explained what attributes
these schemes, in his considerable experience, often share. Although he
also opined that any investment program using the word “prime bank” was a
fraud and that the Wealth-Mart trading program did not exist, he did not
directly testify that any particular defendant actually violated the law. Even
if his testimony arguably embraced the ultimate issue, such testimony is
permissible as long as the expert’s testimony assists, rather than supplants,
the jury’s judgment. See Specht v. Jensen, 853 F.2d 805, 808-09 (10th Cir.
1988).
Finally, any error in admitting the testimony was harmless, because
-40-
none of the defendants questioned the expert’s conclusion that there was no
secret prime bank trading program. No one contended that Wealth-Mart was
actually legitimate. The appellants’ defenses focused instead on their
alleged lack of knowledge of the fraudulent nature of Wealth-Mart, and Mr.
Biern’s direct testimony did not offer an opinion on the defendants’
knowledge or lack thereof.
On cross-examination, defense counsel asked whether he thought
someone who recruited investors for a prime bank scheme might herself
have been duped and genuinely believed in the scheme. Mr. Biern conceded
that it was possible, but hard for him to believe. Tr. 839-40. On appeal,
Appellants Craft and Griffith object to this testimony, but any error was
invited by defense counsel’s question. See Evans, 936 F.2d at 477 (holding
that any error prompted by a direct question from defense counsel is
harmless).
H. Mr. Mathew’s Sentence
Mr. Mathew argues that the district court should have granted him a
two-level reduction for acceptance of responsibility. Mr. Mathew
acknowledges that he put the government to its burden of proof at trial.
Nevertheless, he argues that this should not count against him because he
was acquitted of the securities fraud charges at trial. He also points out
-41-
that, before being indicted, he and his lawyer provided information to the
government while they were negotiating the possibility of Mr. Mathew’s
pleading guilty and testifying for the government. Although those
negotiations fell through, Mr. Mathew asserts that his attempts to cooperate
manifested his acceptance of responsibility.
Whether the facts of a particular case warrant a reduction for
acceptance of responsibility is a question of fact that we review under the
clearly erroneous standard. United States v. Wooten, 377 F.3d 1134, 1145
(10th Cir. 2004). “The sentencing judge is in a unique position to evaluate a
defendant’s acceptance of responsibility. For this reason the determination
of the sentencing judge is entitled to great deference on review.” U.S.S.G. §
3E1.1, cmt. n.5. The district judge denied Mr. Mathew’s motion for an
acceptance of responsibility reduction based on the logical ground that Mr.
Mathew had not accepted responsibility: “I am fairly familiar with the case
and I know that the defendant has never actually admitted any guilt in this
case.” Appellee’s (Mathew) App., Vol. 2, 218. Mr. Mathew has not
demonstrated that this finding was clearly erroneous. He has not pointed to
any record evidence showing that he admitted guilt or accepted any
responsibility whatsoever for the millions of dollars that were stolen from
investors. Indeed, he continues to insist on appeal that there was
-42-
insufficient evidence to convict him on all counts. We therefore see no
basis for overturning the district court’s determination.
Mr. Mathew also challenges the district court’s determination of the
amount of loss. At sentencing, the district court applied a 15-point
enhancement to the base offense level on the ground that the loss was over
$10 million. At the sentencing hearing, Mr. Mathew’s attorney agreed that a
loss figure over $10 million was appropriate, based upon documents that Mr.
Mathew himself had introduced at trial:
Your honor, based upon Defendant’s Exhibit 18 that was introduced
at trial, I can’t validly object to the amount of loss figure, because
the documents reflect an $11 million figure, so as relates to that
number, Your Honor, I believe whatever objection that is, we would
have to agree that that’s the appropriate amount.
Appellee’s (Mathew) App., Vol. 2, 215. Mr. Mathew has failed to
demonstrate that it was clearly erroneous for the district court to find a loss
amount that was reflected in the defendant’s own exhibits and which was
agreed to by defense counsel. 2
I. Blakely, Booker & Plain Error
After oral argument, Mr. Dazey moved to file a supplemental brief
2
Mr. Mathew has not filed any motions with this Court challenging his
sentence under Blakely v. Washington, 124 S.Ct. 2531 (2004), perhaps because
trial counsel, by agreeing to the loss figure, may have waived Mr. Mathew’s
rights under Blakely. See id. at 2541 (explaining that a defendant may waive
Blakely rights by stipulating to relevant facts).
-43-
arguing that his sentence was invalid under Blakely v. Washington, 124 S.Ct.
2531 (2004). We granted that motion and now consider his argument in
light of the Supreme Court’s ruling in United States v. Booker, 125 S. Ct.
738 (2005).
The jury found Mr. Dazey guilty of one count of conspiracy to commit
fraud, 18 U.S.C. § 371, ten counts of wire fraud, id. § 1343, and one count
of money laundering, id. § 1957. During sentencing, the district court found
the following facts that were not established by the jury’s verdict: (1) that
the loss attributable to Mr. Dazey’s role in the conspiracy was more than $7
million (a 20 level enhancement under the Sentencing Guidelines); (2) that
there were fifty or more victims of the scheme (a 4 level enhancement); and
(3) that Mr. Dazey obstructed justice (a 2 level enhancement). Using these
judge-found facts, the district court determined Mr. Dazey’s offense level to
be 32. Mr. Dazey’s criminal history category of I and his offense level of
32 provided for a sentencing range of 121-151 months. See U.S.S.G. Ch. 5
Pt. A. The court sentenced Mr. Dazey to the bottom end of the range, 121
months. Mr. Dazey argues, and the government does not contest, that the
judge-found facts increased the his sentence beyond the maximum
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authorized by the jury’s verdict. 3
Though Mr. Dazey contested the evidentiary basis of the judge-found
facts, he did not assert at trial that use of the Sentencing Guidelines violated
the Constitution. Because Mr. Dazey did not raise this issue below, we
review the district court’s sentencing decision for plain error. United States
v. Gonzalez-Huerta, No. 04-2045, slip op. at 7 (10th Cir. 2005) (en banc);
United States v. Hurlich, 348 F.3d 1219, 1220 (10th Cir. 2003); cf. Booker,
125 U.S. at 769 (“[W]e expect reviewing courts to apply ordinary prudential
doctrines, determining, for example, whether the issue was raised below and
whether it fails the ‘plain-error’ test.”).
3
It is not possible to determine the exact offense level authorized by the
jury’s verdict because the indictment does not specify an amount of loss
attributable to Mr. Dazey’s involvement in the conspiracy. A defendant convicted
of conspiracy is accountable for conduct that was in furtherance of the conspiracy
and was reasonably foreseeable in connection with the criminal enterprise.
U.S.S.G. § 1B1.3(a)(1)(A). The commentary to this guideline explains that when
a conspiracy count is worded broadly “the scope of the criminal activity jointly
undertaken by the defendant . . . is not necessarily the same for every participant.”
Id. § 1B1.3 n. 2.
The conspiracy count in this case, which jointly indicts five individuals, is
written at a general level and does not contain sufficient detail to determine the
amount of loss that Mr. Dazey could reasonably foresee. Accordingly, we cannot
determine the maximum sentence authorized by the jury verdict with precision.
Nevertheless, the substantial 20 level enhancement for the amount of loss
determined by the district court, as well as the enhancements for the number of
victims and obstruction of justice (neither of which were alleged in the
indictment), make it clear that the district court’s fact finding increased the Mr.
Dazey’s maximum sentence beyond the range established by the jury’s verdict.
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To establish plain error, Mr. Dazey must demonstrate that the district
court (1) committed error, (2) that the error was plain, and (3) that the plain
error affected his substantial rights. United States v. Cotton, 535 U.S. 625,
631 (2002); Gonzalez-Huerta, slip op. at 7. If all these conditions are met, a
court reviewing the error may exercise discretion to correct it if the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Cotton, 535 U.S. at 631-32; Gonzalez-Huerta, slip op. at 8.
We conduct this analysis “less rigidly when reviewing a potential
constitutional error.” United States v. James, 257 F.3d 1173, 1182 (10th
Cir. 2001).
1. Error
The district court committed constitutional error in sentencing Mr.
Dazey. In Booker, the Court extended the logic of Blakely to the Federal
Sentencing Guidelines, holding that the Sixth Amendment requires that
“[a]ny fact (other than a prior conviction) . . . necessary to support a
sentence exceeding the maximum authorized by the facts established by a
plea of guilty or a jury verdict must be admitted by the defendant or proved
to a jury beyond a reasonable doubt.” Booker, 125 U.S. at 756. To remedy
this constitutional infirmity created by applying judge-found facts to
mandatory sentencing guidelines, the Court severed the provision of the
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Sentencing Reform Act making application of the Guidelines mandatory.
Id. at 756 (excising 18 U.S.C. § 3553(b)(1)). In Mr. Dazey’s case, the
district court, applying the then-mandatory Guidelines, relied on three facts
that the judge found by a preponderance of the evidence to increase his
sentence beyond the maximum authorized by the facts established by the
jury’s verdict. This sentencing methodology violated Mr. Dazey’s Sixth
Amendment rights.
The constitutional nature of this error distinguishes Mr. Dazey’s case
from cases such as Gonzalez-Huerta or United States v. Trujillo-Terrazas,
No. 04-2075 (10th Cir. 2005), in which the sentence was based entirely on
facts found by the jury, admitted by the defendant, or the fact of a prior
conviction. See Gonzalez-Huerta, slip op. at 6 (distinguishing between
“constitutional Booker error” and “non-constitutional Booker error”). Such
cases involve no violation of constitution and no misinterpretation of
operative statutes; they are “error” only in the sense that they violate the
remedial reconstruction of the Sentencing Reform Act performed by the
Booker Court. Because the error in sentencing Mr. Dazey was
constitutional, we relax our analysis on the remaining elements of plain
error review. See James, 257 F.3d at 1182.
2. Plain
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The error here is plain. To be plain, an error must be “clear or
obvious” under “current, well-settled law.” United States v. Whitney, 229
F.3d 1296, 1309 (10th Cir. 2000). An error is plain “where the law at the
time of trial was settled and clearly contrary to the law at the time of
appeal.” Johnson v. United States, 520 U.S. 461, 468 (1997). That is the
situation here. The district court sentenced Mr. Dazey in accordance with
law that was well-settled at the time, which we know now was in error. See
Gonzalez-Huerta, slip op. at 8.
3. Affects Substantial Rights
The more difficult question is whether the constitutional error in Mr.
Dazey’s case affects his substantial rights. For an error to have affected
substantial rights, “the error must have been prejudicial: It must have
affected the outcome of the district court proceedings.” United States v.
Olano, 507 U.S. at 725, 734 (1993); see Gonzalez-Huerta, slip op. at 8-9.
The burden to establish prejudice to substantial rights is on the party that
failed to raise the issue below. United States v. Vonn, 535 U.S. 55, 63
(2002); Olano, 507 U.S. at 734-35; Gonzalez-Huerta, slip op. at 8-9.
To demonstrate that the mandatory application of the Guidelines to
facts that a judge found by a preponderance of the evidence affected
substantial rights, a defendant must show a “reasonable probability” that the
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defects in his sentencing altered the result of the proceedings. See U.S. v.
Dominguez Benitez, 124 S.Ct. 2333, 2339 (2004) (“In cases where the
burden of demonstrating prejudice . . . is on the defendant seeking relief, we
have invoked a standard . . . requiring the showing of ‘a reasonable
probability that, but for [the error claimed], the result of the proceeding
would have been different.’”) (quoting United States v. Bagley, 473 U.S.
667, 682 (1985) (opinion of Blackmun, J.)).
In a case of constitutional Booker error, 4 there are at least two ways a
defendant can make this showing. First, if the defendant shows a reasonable
probability that a jury applying a reasonable doubt standard would not have
found the same material facts that a judge found by a preponderance of the
evidence, then the defendant successfully demonstrates that the error below
affected his substantial rights. This inquiry requires the appellate court to
review the evidence submitted at the sentencing hearing and the factual
basis for any objection the defendant may have made to the facts on which
the sentence was predicated. Second, a defendant may show that the district
court’s error affected his substantial rights by demonstrating a reasonable
probability that, under the specific facts of his case as analyzed under the
4
Obviously, in a case of non-constitutional Booker error, only the second
of these possibilities is available, and the standard is applied more rigorously.
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sentencing factors of 18 U.S.C. § 3553(a), 5 the district court judge would
reasonably impose a sentence outside the Guidelines range. For example, if
during sentencing the district court expressed its view that the defendant’s
conduct, based on the record, did not warrant the minimum Guidelines
sentence, this might well be sufficient to conclude that the defendant had
shown that the Booker error affected the defendant’s substantial rights.
We do not agree with the apparent conclusion of some other courts
that the mere difference between the imposed Guidelines sentence and the
sentence the defendant would have received based on the facts found by the
jury, admitted by the defendant, or based on the fact of a prior conviction, is
sufficient to satisfy the third prong of plain error. See United States v.
Hughes, No. 03-4172, slip op. at 14 (4th Cir. March 16, 2005); United
States v. Oliver, 397 F.3d 369, 379-80 (6th Cir. 2005). If the defendant is
unable to show a reasonable probability that either the factual predicate for
sentencing would be different if the district court were not required to
sentence on the basis of judge-found, preponderance-of-the-evidence facts,
5
Section 3553(a) requires sentencing courts to take account of factors such
as the “the nature and circumstances of the offense and the history and
characteristics of the defendant”, 18 U.S.C. § 3553(a)(1), the range suggested by
the Guidelines, id. § 3553(a)(4), and the need for sentencing uniformity for
defendants with similar criminal histories and found guilty of similar conduct, id.
§ 3553(a)(6).
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or that the ensuing sentence would be different if the court were entitled to
greater latitude in considering the sentencing factors of 18 U.S.C. § 3553(a),
there is no basis for concluding that the error affected his substantial rights.
The analytical error committed by the courts that have reached the opposite
conclusion, we believe, is to treat the use of any use of extra-verdict
enhancements as constitutional Booker error. See, e.g., Hughes, slip op. at
17-21 (refusing to consider the remedial scheme contemplated by Booker to
determine whether Sixth Amendment error affected substantial rights);
Oliver, F.3d at 379-80. The error, instead, is the use of extra-verdict
enhancements in a mandatory guidelines system. See United States v.
Rodriguez, 398 F.3d 1291, 1300-01 (11th Cir. 2005). To determine
prejudice to substantial rights, we must compare the actual sentence to the
sentence the defendant would have received under an “effectively advisory”
guidelines system—not to the sentence he would have received solely on the
basis of the facts found by a jury, admitted by the defendant, or based on
prior convictions. 6
6
Two circuits have suggested that their approach is compelled by the fact
that the Supreme Court remanded in Booker without questioning whether the
defendants’ substantial rights were affected. Hughes, slip op. at 20-21; United
States v. Milan, 398 F.3d 445, 453-54 (6th Cir. 2005). The simple answer to this
is that the government did not raise the plain error issue in Booker, and the Court
had no reason to consider it.
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While Mr. Dazey does not point to any evidence that the judge
believed that the Guidelines range was excessive in light of the facts found
by the court, he does argue that there was insufficient evidence for the jury
to find the sentence-enhancing facts that the judge found by a preponderance
of the evidence. Mr. Dazey contends there was not sufficient evidence for a
jury to conclude that he was responsible for the entire $14 million loss
attributable to the Wealth-Mart scheme. He argues that the jury’s verdict
does not establish that he was responsible for over $7 million in losses and
the evidence submitted at trial demonstrated that only $2.2 million ended up
in his bank accounts.
A defendant convicted of conspiracy is accountable for reasonably
foreseeable conduct in furtherance of the jointly undertaken criminal
activity. See U.S.S.G. § 1B1.3(a)(1)(A). However, a defendant’s
accountability only extends to the criminal activity that he agreed to
undertake. See id. § 1B1.3 n.2. This means “proper attribution at
sentencing requires . . . particularized findings about, the scope of the
specific agreement the individual defendant joined in relation to the
conspiracy as a whole.” United States v. Melton, 131 F.3d 1400, 1404 (10th
Cir. 1997) (internal quotation marks omitted). In the context of a
conspiracy to defraud, we have held that a defendant is accountable for the
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entire loss created by a fraudulent organization if the defendant played a
major role in the organization and the losses were reasonably foreseeable.
See United States v. Osborne, 332 F.3d 1307, 1311-12 (10th Cir. 2003). If
the defendant’s role in the conspiracy was less substantial, then
particularized findings about the defendant’s agreement to join the
conspiracy must support the scope of the defendant’s role in the conspiracy.
See Melton, 131 F.3d at 1406. Moreover, a defendant is not accountable for
the conduct of members of a conspiracy “prior to the defendant joining the
conspiracy, even if the defendant knows of that conduct.” U.S.S.G. § 1B1.3
n.2.
At sentencing, Mr. Dazey strenuously contested the factual basis for
the sentencing enhancements, presenting evidence that he did not play a
central role in the Wealth-Mart scheme and did not reasonably foresee the
full scope of the fraudulent activity. His principal role in the scheme was as
an actor: he appeared at investor “seminars” in the guise of Wealth-Mart’s
international trader and lectured the guests about the profits to be had from
investing. There is no evidence that he participated in any of Wealth-Mart’s
day-to-day business meetings or operations, received investments, handled
finances, or participated in overall management. His name does not appear
on Wealth-Mart documents or confidentiality agreements. On the other
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hand, the government stresses that Mr. Dazey had somewhat regular phone
contact with Dr. Craft, was a speaker at Wealth-Mart seminars, and received
over $2 million of investor funds in his bank account. While this
inculpatory evidence was more than sufficient to satisfy the old, clearly
erroneous standard, the question of what a jury would have concluded using
a reasonable doubt standard is closer.
In light of the constitutional nature of the error, we are compelled to
conduct this analysis “less rigidly” than we would otherwise. James, 257
F.3d at 1182. Taking the requisite, “less rigid[]” approach appropriate to
constitutional error, we conclude there is a reasonable probability that a jury
evaluating the evidence presented at trial would not determine, beyond a
reasonable doubt, that Mr. Dazey could reasonably foresee the full extent of
investor losses. Cf. United States v. Turner, 400 F.3d 491, 500 (7th Cir.
2005) (remanding a sentence to correct constitutional Booker error where
the defendant was one of fifteen people listed on an indictment for a money
laundering conspiracy, but the jury’s guilty verdict and the evidence
presented were insufficient for the district court to conclude that the
defendant was accountable for the entire amount of money laundered by the
conspiracy).
We further conclude there is a reasonable probability that if the
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district judge had not thought himself bound by the mandatory Guidelines to
sentence in accordance with these judge-found, preponderance-of-the-
evidence facts, he might have determined that Mr. Dazey’s conduct
warranted a sentence below that prescribed for losses of more than $7
million. In the post-Booker world, district courts are accorded greater
latitude to determine sentences in light of the “seriousness of the offense.”
18 U.S.C. § 3553(a)(2)(A). District courts might reasonably take into
consideration the strength of the evidence in support of sentencing
enhancements, rather than (as in the pre-Booker world) looking solely to
whether there was a preponderance of the evidence, and applying
Guidelines-specified enhancements accordingly. We therefore hold that Mr.
Dazey has met his burden of establishing that the mandatory 20 point
enhancement, based on a judicial finding that he was responsible for all the
losses inflicted by Wealth-Mart, affected his substantial rights. 7
7
Mr. Dazey also maintains that the district court’s finding that there were
more than 50 victims was based on hearsay. While sentencing courts may
consider hearsay evidence provided that the evidence has sufficient indicia of
reliability, United States v. Shewmaker , 936 F.2d 1124, 1129 (10th Cir. 1991),
juries may not consider this type of evidence. However, use of this hearsay
evidence, by itself, does not violate Mr. Dazey’s substantial rights. Under
Booker , district courts must “consider the Guidelines ranges,” Booker , 125 S. Ct.
at 757, and nothing in the Supreme Court’s opinion suggests that the evidentiary
basis for Guidelines determinations (now that they are “effectively advisory”) has
changed in any way. Mr. Dazey has supplied no reason, other than the hearsay
(continued...)
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4. Integrity, Fairness, or Public Reputation
If a plain error affects the integrity, fairness, or public reputation of
judicial proceedings, it is in the discretion of the reviewing court to correct
the error. Johnson v. United States, 520 U.S. 461, 467 (1997). In an
instance of non-constitutional error the standard for satisfying the fourth
prong of the plain error test is demanding. See Dominguez Benitez, 124 S.
Ct. at 2335. A party that fails to raise an argument in the district court must
show that allowing a non-constitutional error to stand would be “particularly
egregious” and would constitute a “miscarriage of justice.” United States v.
Gilkey, 118 F.3d 702, 704 (10th Cir. 1997). In the context of an alleged
constitutional error, the relaxed standard means we do not require the
exceptional showing required to remand a case of non-constitutional error.
Nevertheless, the defendant still bears the burden of showing that an
exercise of our discretion is appropriate. United States v. Olano, 507 U.S.
725, 734 (1993); Gonzalez-Huerta, slip op. at 18.
We believe there are at least three reasons to support the exercise of
our discretion to correct this plain error. First, the error in this case was
7
(...continued)
nature of the evidence, to doubt that there were at least 50 victims, and he has
thus failed to show a reasonable probability that any Sixth Amendment error
involving this enhancement affected his substantial rights.
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constitutional in nature, which entails a less rigorous application of the plain
error review burden. See United States v. Jefferson, 925 F.2d 1242, 1254
(10th Cir. 1991). Unlike the error in non-constitutional cases, which is
purely the result of the Supreme Court’s choice of remedy, Gonzalez-
Huerta, slip op. at 20, Mr. Dazey’s sentence was the result of a violation of
his Sixth Amendment rights.
Second, Mr. Dazey does not merely speculate that, if the district court
had understood it had discretion, it might have exercised leniency. Rather,
Mr. Dazey vigorously contested the judge-found facts that enhanced his
sentence. This distinguishes Mr. Dazey’s case from our cases holding that
Blakely/Booker violations are not plain error when the defendant did not
dispute a judge’s factual findings that led to an increase in his sentence,
even though, in such a case, the district court could have exercised its
discretion to reach a different sentence. See United States v.
Maldonado-Ramires, 384 F.3d 1228, 1231 n.1 (10th Cir. 2004); cf.
Gonzalez-Huerta, slip op. at 19-24 (finding, in a case of non-constitutional
Booker error, that the fourth prong was not satisfied). The strength of the
evidence supporting Guidelines enhancements was not relevant to the
mandatory results under the pre-Booker regime (provided the evidence
satisfied the preponderance standard); now, in the discretion of the district
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court, it may be. See 18 U.S.C. § 3553(a)(2)(A) (requiring sentencing court
to consider, inter alia, the “seriousness of the offense”).
Third, the judge-found facts in this case substantially increased Mr.
Dazey’s sentence under the Guidelines. In Booker, the Court noted that the
significant divergence between the sentence authorized by the jury’s verdict
and the sentence imposed after judicial fact-finding demonstrates the extent
to which the right to have a jury find facts has atrophied. Booker, 125 S.Ct.
at 751 (describing an increase of ten years as “very serious”). That
divergence is present here. The judge-found fact that Mr. Dazey was
responsible for over $7 million in losses authorized a sizable 20 level
enhancement of his offense level. 8 While Booker permits this approach to
sentencing, allowing a substantial increase in Mr. Dazey’s sentence through
the now-suspect practice of mandatory enhancements, based on judge-found
facts, runs the risk of impugning the integrity and reputation of judicial
proceedings.
We do not necessarily believe all constitutional Booker errors that
8
As noted above, it is not possible to precisely determine Mr. Dazey’s
offense level authorized by the jury’s verdict due to the broad wording of the
indictment. For that reason we cannot precisely determine the increase in Mr.
Dazey’s sentence attributable to judicial fact finding. Nevertheless, the 20 level
enhancement authorized by the judicially-found fact ensures that the district
court’s sentencing methodology produced a significantly longer sentence than that
permitted by the jury’s verdict.
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affect substantial rights also undermine the integrity, fairness, or public
reputation of judicial proceedings. However, Mr. Dazey received a
substantial enhancement on the basis of judge-found facts that he contested
at the sentencing hearing, and he has demonstrated a reasonable likelihood
that, applying proper post-Booker standards, the outcome might have been
significantly different. For these reasons, we believe this plain error
warrants our exercise of discretion to remand the case.
III. CONCLUSION
For the foregoing reasons, all Appellants’ convictions and Mr.
Mathew’s sentence are AFFIRMED. Mr. Dazey’s sentence is AFFIRMED
as to all arguments raised in his initial brief, but is VACATED in light of
Booker. The case is REMANDED to the district court for resentencing in
accordance with that decision.
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