United States v. Heijnen

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 04-4036

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ANTONIUS HEIJNEN,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Anderson. G. Ross Anderson, Jr., District
Judge. (CR-03-45)

Submitted: August 3, 2005 Decided: September 19, 2005

Before WILKINSON, WILLIAMS, and KING, Circuit Judges.

Affirmed in part, vacated, and remanded by unpublished per curiam
opinion.

Jessica Ann Salvini, SALVINI & BENNETT, LLC, Greenville, South
Carolina, for Appellant. David Calhoun Stephens, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Antonius M. Heijnen appeals his convictions after a jury

trial on one count of conspiracy against the United States, in

violation of 18 U.S.C. § 371 (2000), and five counts of wire fraud,

in violation of 18 U.S.C. § 1343 (2000), and the 188-month

sentence. We affirm Heijnen’s convictions, but vacate his sentence

and remand for resentencing.

Heijnen asserts that, because he never left New Mexico or

was ever physically present in South Carolina during the time

period alleged in the indictment, the district court in South

Carolina did not have jurisdiction over the charges against him and

that venue was improper in South Carolina. Heijnen presented these

arguments to the district court in pretrial motions to dismiss.

Congress established the criminal jurisdiction of the

district courts by statute: “The district courts of the United

States shall have original jurisdiction, exclusive of the courts of

the States, of all offenses against the laws of the United States.”

18 U.S.C. § 3231 (2000); see generally United States v. Cotton, 535

U.S. 625, 629-31 (2002) (discussing criminal jurisdiction of

district courts). The indictment in this case alleged that Heijnen

violated sections 2, 371, and 1343 of Title 18, United States Code.

(R. Vol. 1, Tab 11). Because the indictment properly alleged

offenses against the laws of the United States, the district court

had jurisdiction over Heijnen and the charged crimes.

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 The venue statute generally applicable to criminal cases

provides that “[e]xcept as otherwise expressly provided by

enactment of Congress, any offense against the United States begun

in one district and completed in another, or committed in more than

one district, may be inquired of and prosecuted in any district in

which such offense was begun, continued, or completed.” 18 U.S.C.

§ 3237 (2000). We have recognized that “a conspiracy may be

prosecuted in any district in which the agreement was formed or in

which an act in furtherance of the conspiracy was committed.”

United States v. Gilliam, 975 F.2d 1050, 1057 (4th Cir. 1992), and

that the acts of one member of a conspiracy can be attributed to

all other co-conspirators for venue purposes. United States v.

Al-Talib, 55 F.3d 923, 928-29 (4th Cir. 1995). The indictment

alleged overt acts in furtherance of the conspiracy that included

two of the co-conspirators traveling to South Carolina and meeting

with undercover agents posing as potential investors. We therefore

conclude that the district court properly rejected Heijnen’s motion

to dismiss the conspiracy count for lack of venue.

The wire fraud counts charged that Heijnen participated

in telephone conversations with undercover agents located in South

Carolina and sent documents by telefax in which he made

representations related to the investment scheme. In the context

of a wire fraud prosecution, we have held that “wire fraud [is] a

‘continuing offense,’ as defined in § 3237(a), properly tried in

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any district where a . . . wire communication was transmitted in

furtherance of [the] fraud scheme,” and that “[e]ach of [the]

transmittals occurred ‘both where it was sent and where it was

received.’” United States v. Ebersole, 411 F.3d 517, 527 (4th Cir.

2005) (quoting United States v. Kim, 246 F.3d 186, 191 (2d Cir.

2001)). Because the indictment alleged that Heijnen caused wire

communications in furtherance of the fraud scheme that were

received in South Carolina, venue for the wire fraud counts was

proper in the District of South Carolina.

Heijnen asserts that he was entrapped because he did not

approach the undercover agents posing as potential investors,

rather they approached him. Heijnen did not request an instruction

on entrapment at trial. Entrapment is an affirmative defense that

requires that the defendant first establish that the government

induced him to commit the charged offense. United States v. Hsu,

364 F.3d 192, 198-201 (4th Cir. 2004). Our review leads us to

conclude that the evidence does not in any way indicate that the

undercover agents induced Heijnen into participating in the

conspiracy or the wire fraud. Rather, at most, the evidence shows

merely that agents provided an opportunity to Heijnen to commit

these crimes, which does not demonstrate inducement. Jacobsen v.

United States, 503 U.S. 540, 549 (1992).

Heijnen next asserts that a proposed defense witness was

improperly blocked from appearing at trial when his visa was

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revoked. The Government objected to this witness’ potential

testimony, as Heijnen failed to provide prior notice of an expert

witness as required by Fed. R. Crim. P. 16(b)(1)(C). Heijnen

provides no evidence beyond his assertions to show that the

revocation of this person’s visa was in any way improper or

instigated by the Government in order to block the witness’

testimony. Moreover, Heijnen’s statements to the court describing

this witness’ expected testimony and the written statement provided

by the witness demonstrate that the court was correct in concluding

that this person would present expert testimony rather than fact

testimony based upon personal knowledge of this case. Because

Heijnen admittedly did not provide the notice required by Fed. R.

Crim. P. 16(b)(1)(C), the district court would not have abused its

discretion in excluding the witness if he had appeared at trial.

Accordingly, Heijnen’s arguments provide no basis to question the

propriety of his conviction.

Heijnen next asserts that the district court erroneously

prevented him from introducing exculpatory documentary evidence at

trial. Heijnen did not object to these evidentiary rulings by the

court and never made a proffer of the evidence to the court. On

appeal Heijnen does not specify the evidence he desired to present

that was improperly excluded. A district court’s exclusion of

evidence under the Federal Rules of Evidence is reviewed for an

abuse of discretion. United States v. Francisco, 35 F.3d 116, 118

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(4th Cir. 1994). The district court’s evidentiary rulings will not

be reversed unless they are “arbitrary or irrational.” United

States v. Powers, 59 F.3d 1460, 1464 (4th Cir. 1995). Our review

leads us to conclude that the district court properly prevented

Heijnen from introducing documents downloaded from the internet

generally, as these documents are hearsay, and Heijnen provided no

indication that he could establish a proper foundation to admitting

this evidence, or to authenticate it. Moreover, because Heijnen

did not make a proffer of the evidence to the district court, he

has failed to preserve this issue. See Fed. R. Crim. P. 51(b),

Fed. R. Evid. 103(a)(2).

Heijnen next argues that his offense level under the

Sentencing Guidelines1 was improperly enhanced by facts not found

by the jury, in violation of United States v. Booker, 125 S. Ct.

738 (2005), and that the proper sentence would be less than the

time he has already served. He does not assert any error in the

determination of his base offense level. In Booker, the Supreme

Court applied the rationale of Blakely v. Washington, 542 U.S. 296

(2004), to the federal sentencing guidelines and held that the

mandatory guidelines scheme that provided for sentence enhancements

based on facts found by the court violated the Sixth Amendment.

Booker, 125 S. Ct. at 746-48, 755-56 (Stevens, J., opinion of the

Court). The Court remedied the constitutional violation by

1
U.S. Sentencing Guidelines Manual (USSG) (2002).

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severing and excising the statutory provisions that mandate

sentencing and appellate review under the guidelines, thus making

the guidelines advisory. Id. at 756-57 (Breyer, J., opinion of the

Court).

Subsequently, in United States v. Hughes, 401 F.3d 540,

546 (4th Cir. 2005), we held that a sentence that was imposed under

the pre-Booker mandatory sentencing scheme and was enhanced based

on facts found by the court, not by a jury (or, in a guilty plea

case, admitted by the defendant), constitutes plain error that

affects the defendant’s substantial rights and warrants reversal

under Booker when the record does not disclose what discretionary

sentence the district court would have imposed under an advisory

guideline scheme. Hughes, 401 F.3d at 546-56. Sentencing courts

were directed to calculate the appropriate guideline range,

consider that range in conjunction with other relevant factors

under the guidelines and 18 U.S.C.A. § 3553(a) (West 2000 & Supp.

2004), and impose a sentence. If the district court imposes a

sentence outside the guideline range, the court should state its

reasons for doing so. Id. at 546.

Because Heijnen did not assert a Sixth Amendment

objection at sentencing, we review the district court’s guideline

calculation for plain error. United States v. Olano, 507 U.S. 725,

732 (1993); Hughes, 401 F.3d at 547. Under the plain error

standard, Heijnen must show: (1) there was error; (2) the error was

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plain; and (3) the error affected his substantial rights. Olano,

507 U.S. at 732-34. Even when these conditions are satisfied, we

may exercise our discretion to notice the error only if the error

“seriously affect[s] the fairness, integrity or public reputation

of judicial proceedings.” Id. at 736 (internal quotation marks

omitted).

The jury in Heijnen’s trial, by special verdict, found

that the amount intended to be invested in the scheme was $100

million,2 which resulted in a twenty-four level enhancement of his

base offense level. See USSG § 2B1.1(b)(1)(M). At sentencing,

Heijnen argued against this enhancement in two ways. First, he

asserted that, because no real money was ever involved or at risk,

there was no loss or even a possibility of loss. Second, he argued

that the jury’s verdict found only the amount intended to be

invested, not an amount lost or intended to be lost, and therefore

the enhancement was not supported by the jury’s verdict.

The Guidelines require that, for purposes of determining

the offense level for property and financial crimes, loss is the

greater of actual or intended loss. Those terms are defined as

follows:

2
The question posed to the jury was “[i]f your verdict as to
any of the counts in the indictment is guilty, what was the amount
of money proposed to be invested by the Defendant?” On the blank
line following the question, the foreperson wrote in
“$100,000,000.00.” (R. Vol. 3, Tab 153).

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 (i) Actual Loss. - “Actual loss” means the
reasonably foreseeable pecuniary harm that resulted from
the offense.
(ii) Intended Loss. - “Intended loss” (I) means the
pecuniary harm that was intended to result from the
offense; and (II) includes intended pecuniary harm that
would have been impossible or unlikely to occur (e.g., as
in a government sting operation, or an insurance fraud in
which the claim exceeded the insured value.)

USSG § 2B1.1, comment. (n.2(A)). The plain language of these

definitions refutes Heijnen’s assertion that because there were

never any actual funds involved, there could be no loss. Moreover,

we have adopted “the majority view, and [held] as a matter of law

that the Guidelines permit courts to use intended loss in

calculating a defendant’s sentence, even if this exceeds the amount

of loss actually possible, or likely to occur, as a result of the

defendant’s conduct.” United States v. Miller, 316 F.3d 495, 502

(4th Cir. 2003).

We also reject Heijnen’s argument that the jury’s special

verdict does not support a finding of intended loss. When viewed

in the context of the charges on which the same jury convicted

Heijnen, and the evidence at trial, it is apparent that the jury

fully understood that the amount intended to be invested equated to

the amount Heijnen hoped to convince the potential investors to

invest so that he could eventually steal that amount of money from

their accounts. Because the twenty-four level enhancement was

based upon a fact specifically found by the jury, we conclude that

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no Sixth Amendment error occurred in the imposition of that

enhancement.

Heijnen’s offense level was also enhanced by two levels

based upon his misrepresentations that the investment programs he

offered were backed by the Federal Reserve or otherwise associated

with an agency of the United States Government. At sentencing, the

district court overruled Heijnen’s objection to this enhancement,

adopting the PSR’s finding that the evidence at trial established

that Heijnen stated that he worked with a task force that was

purportedly connected to the Government. Because the jury’s

verdict does not include any findings with regard to any

representations by Heijnen that he or the program he offered were

connected to the Government, we conclude that imposition of this

enhancement was error that was plain.3 If this enhancement were

removed, Heijnen’s total offense level would be thirty, and his

sentencing range would be 121 to 151 months. Because the 188-month

sentence imposed does not fall within the guideline range

calculated without the two-level enhancement, we conclude that this

error affects Heijnen’s substantial rights and requires

3
Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Heijnen's sentencing.
See generally Johnson v. United States, 520 U.S. 461, 468 (1997)
(stating that an error is ‘plain’ if “the law at the time of trial
was settled and clearly contrary to the law at the time of
appeal”).

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resentencing pursuant to Booker and Hughes. Although the

Sentencing Guidelines are no longer mandatory, Booker makes clear

that a sentencing court must still "consult [the] Guidelines and

take them into account when sentencing." 125 S. Ct. at 767. On

remand, the district court should first determine the appropriate

sentencing range under the Guidelines, United States v. Hughes, 401

F.3d 540, 546 (4th Cir. 2005). The court should consider this

sentencing range along with the other factors described in 18

U.S.C. § 3553(a), and then impose a sentence. Hughes, 401 F.3d at

546. If that sentence falls outside the Guidelines range, the

court should explain its reasons for the departure, as required by

18 U.S.C. § 3553(c)(2). Hughes, 401 F.3d at 546. The sentence

must be "within the statutorily prescribed range and . . .

reasonable." Id. at 547.

Finally, Heijnen makes several assertions of judicial

bias on the part of the trial judge. Specifically, Heijnen argues

that the revocation of his pretrial bond, the judge’s evidentiary

rulings and restrictions on his cross-examination of Government

witnesses, and the denial of bond pending appeal indicate that the

judge was prejudiced. Our review of the record convinces us that

this argument is completely meritless.

We have considered the remaining assertions of error in

Heijnen’s interlocutory notice of appeal and his informal brief,

and find them to be without merit. We therefore affirm Heijnen’s

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convictions but vacate his sentence and remand for resentencing.

We deny Heijnen’s “Motion for Intervention of Right and Application

for Writ in the Nature of Quo Warranto, and Official Notice of

Identification of Parties.” We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the

decisional process.

AFFIRMED IN PART,
VACATED, AND REMANDED

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