[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 30, 2004
No. 02-15462
THOMAS K. KAHN
CLERK
D.C. Docket No. 02-00046 CR-3-RV
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN W. GRAY,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Florida
(April 30, 2004)
Before TJOFLAT, BARKETT and HILL, Circuit Judges.
TJOFLAT, Circuit Judge:
On September 17, 2002, a jury found Kevin Gray guilty of mail fraud, in
violation of 18 U.S.C. § 1341.1 He now appeals his conviction and sentence.
First, he seeks a judgment of acquittal on the ground that his fraudulent scheme
was “so absurd” that a person of ordinary prudence would not have believed it; the
scheme therefore lies outside the realm of conduct proscribed by the mail fraud
statute. Alternatively, he seeks a new trial on the ground that the district court
erred in instructing the jury on the elements of mail fraud.2 He also challenges his
sentence on the ground that the court took an uncounselled prior conviction into
1
In its entirety, 18 U.S.C. § 1341 reads:
Whoever, having devised or intending to devise any scheme or artifice to defraud,
or for obtaining money or property by means of false or fraudulent pretenses,
representations, or promises, or to sell, dispose of, loan, exchange, alter, give
away, distribute, supply, or furnish or procure for unlawful use any counterfeit or
spurious coin, obligation, security, or other article, or anything represented to be
or intimated or held out to be such counterfeit or spurious article, for the purpose
of executing such scheme or artifice or attempting so to do, places in any post
office or authorized depository for mail matter, any matter or thing whatever to be
sent or delivered by the Postal Service, or deposits or causes to be deposited any
matter or thing whatever to be sent or delivered by any private or commercial
interstate carrier, or takes or receives therefrom, any such matter or thing, or
knowingly causes to be delivered by mail or such carrier according to the direction
thereon, or at the place at which it is directed to be delivered by the person to
whom it is addressed, any such matter or thing, shall be fined under this title or
imprisoned not more than 20 years, or both. If the violation affects a financial
institution, such person shall be fined not more than $1,000,000 or imprisoned not
more than 30 years, or both.
2
As an additional ground for a new trial, Gray cites the court reporter’s failure to
transcribe verbatim two tape-recorded conversations between Patti and the appellant that were
introduced into evidence and played before the jury. Because this ground is frivolous, we make
no further mention of it.
2
account in fashioning his sentence. For the reasons that follow, we affirm the
appellant’s conviction and sentence.
I.
The appellant’s current predicament can only be understood against the
backdrop of the event – the criminal prosecution of a prominent businessman in
Pensacola, Florida – that led him to initiate the scheme to defraud for which he
was convicted.3 In May, 2000, a Northern District of Florida grand jury indicted
Frank M. Patti, Sr., a prominent Pensacola, Florida businessman, on eight counts
for filing false income tax returns for himself and one of his companies, Patti
Shipyard, Inc., for the tax years 1993, 1994, 1995 and 1996. In February, 2001,
the grand jury returned a superceding indictment, adding four more counts
charging Patti with filing false tax returns for himself and the shipyard. Ten
months later, in December, 2001, the grand jury returned yet another superceding
indictment; it contained twelve additional counts for a total of twenty-four. Count
thirteen charged Patti, the president of Joe Patti Seafood, Inc., and Alice Guy, the
company’s manager, with conspiring from 1994 through 1998 to withhold the
3
Because the appellant claims that the evidence was insufficient to establish mail fraud
and, thus, that he is entitled to a judgment of acquittal, we review the evidence in the light most
favorable to the Government. United States v. Hansen, 262 F.3d 1217, 1236 (11th Cir. 2001).
We have viewed the evidence in that light in reciting, in Part I, the salient facts.
3
payroll taxes due with respect to the company’s employees. Counts fourteen
through twenty-four charged Patti and Guy with the substantive failing to withhold
offenses that were the objects of the count thirteen conspiracy.
As the federal government closed in on Patti, he took steps to gain sympathy
for his side of the case. He professed his innocence to members of the press, and
they reported what he said. This publicity, in turn, exposed him to unsavory
characters who sought to exploit his legal woes for pecuniary gain.4 Enter the
appellant, who devised a scheme to bait Patti into forking over $185,000.00 in
exchange for not being sent to prison.
On January 2, 2002, the district court entered an order scheduling Patti’s
trial for April 15, 2002. On Thursday, April 4, eleven days before the trial was to
begin, Patti received a FedEx letter delivered to his seafood restaurant in
Pensacola. The letter read:
FP., Your current predicament has been brought to our attention by a mutual
friend & colleague Your files from Memphis, Butner,5 Pensacola &
Tallahassee have been reviewed by our associates This case against you
4
At the appellant’s trial, Patti, testifying as a prosecution witness, said that he received
literally hundreds of “nut letters” while his case was pending in the district court.
5
Following his indictment, the question arose as to whether Patti was competent to stand
trial. To determine his competence, the district court had him examined at the Federal Medical
Center in Butner, North Carolina.
4
and AG6 gives the government an 80/20 favorable conviction Our mutual
friend is concerned for your well being and has asked us to intervene This
is not a prank but real serious business & it is imperative you believe in the
contents of this letter & follow the advice & directions given Do not
discuss this info with anyone including AG & Comisky7 You are a deep
pocket figure to him only & he is a liability to all involved We can assure
you & AG of no imprisonment but you must pay the agreed tax settlement
issued by the court You are facing a long incarceration stay & Collier,
Davies & Hensel8 are using you to inhance [sic] their career [sic] If you
wish to continue with our help follow these directions step by step Insert
the words . . . YES WE HAVE . . . in front of the words SHRIMP, OYSTER
& CATFISH on your digital flashing sign out front of Joe Patti’s This will
allow our associates in Pensacola to inform us of your intentions . . . The
pay phone on the corner of Main & Palafox will ring Saturday 4-06-02 at
2:10 & again at 2:10 Sunday The phone is located in front of The Daily
Grind Café You must answer the phone by saying . . . Hello this is Jack
6
In the letter, A.G. refers to Patti’s co-defendant, Alice Guy.
7
Ian Comisky was Patti’s defense counsel.
8
Collier was the presiding judge in Patti’s case, while Davies and Hensel were the
prosecutors bringing the case against Patti.
5
Simmons . . . You will use this name for future conversation Do not ask
questions just follow the directions given Do not bring any recording
devices just a pen & paper You will be observed at all times Your future
rest [sic] in your hands & many people have risk [sic] political & military
careers to assist you The importance of extreme silence is essential
Good luck
HWH
This letter, which evinced a concrete level of knowledge with respect to the
parties involved in Patti’s legal predicament, represented a “ray of hope” for the
businessman who was facing the prospect of prison sentences totaling ninety-six
years.9 Thus, the following Saturday, April 6, he went to the pay phone by the
designated café. There, he received the expected phone call shortly after 2 p.m.;
the caller asked him if he was, in fact, “Jack Simmons.” After Patti acknowledged
that he was, the caller instructed him to return to his truck and await a second call
at the pay phone. The call never came. When he returned to his place of business,
however, he received another call from the same unknown person, again asking
9
Patti testified that the letter represented a “ray of hope” in an otherwise desperate
situation for him.
6
him if he was “Jack Simmons.” This time, the caller reiterated what he had written
in his letter to Patti and added that United States Senator Jesse Helms,10 some
congressmen, and a five-star general were inclined to help emancipate Patti from
his legal troubles.
After dangling the promise of political leverage, the caller instructed Patti to
package $120,000 in six bags and to write down a series of numbers and letters
signifying the amounts of that money intended to go to specific jurors.11 In
exchange for the money, the caller promised Patti that he would serve no jail time.
However, the caller’s disclosure to Patti that some of the money would be used to
bribe jurors alerted Patti that there was something suspicious about the caller’s
intentions. As Patti testified at the appellant’s trial, “When J-1 came out of the
phone I knew this was nothing but extortion, and I listened on. I didn’t hang up. I
was – I didn’t believe in that. And he told me what was–what to do, and I knew
this was just – this – this was just baloney.”12
10
At the appellant’s trial, Patti testified that the caller’s mentioning of Senator Helms,
who represented the state of North Carolina in the U.S. Senate from 1972 to 2002, seemed to
authenticate the validity of the letter he had received; the letter had been sent from Clyde, North
Carolina, and Patti had some connections to the state.
11
J-1 (Juror 1) was earmarked for $35,000; J-2 – $25,000; J-3 – $25,000. Patti was also
told that “S” would receive $20,000; another “S” would receive $5,000, and “P” would have to
be given $10,000.
12
Patti intimated that the caller’s plan to bribe jurors tipped him off to the fraudulent
nature of the scheme because he believed it was impossible to bribe jurors.
7
Shortly after this realization, Patti contacted his attorney, Ian Comisky, who
in turn informed federal authorities of what was occurring. They told Patti to take
the caller’s bait and that the FBI would tape any phone calls he received from the
caller. Growing bold at the prospect of receiving $185,00013 in cash, the caller
repeatedly contacted Patti by telephone. He even solicited payments from Patti
after Patti entered into a plea agreement with the Government and pled guilty to
counts eight and thirteen of the indictment. Eventually, the FBI determined that
the calls had been made to Patti from a pay phone at 605 W. Garden Street in
Pensacola. The appellant was apprehended at that location on the night of April
11, while he was on the phone with Patti.14
On May 8, 2002, a federal grand jury in the Northern District of Florida
Q: And you knew it was a baloney and a hoax, because –
A: You don’t bribe jurors.
Q: You knew that that was unreasonable even to say something like that?
A: It’s impossible.
Q: Impossible to bribe a juror?
A: I would think so.
Q: Okay? Is that what you thought?
A: Yes, sir.
13
In one of their phone conversations, the appellant told Patti that in addition to the
$120,000 he would have to pay in the pre-trial phase, Patti would have to pay an extra $65,000
after the trial began.
14
An FBI agent listening on the other end of the phone testified that the phone
conversation lasted roughly five to ten minutes before it ended abruptly. He was informed
shortly after that the appellant had been taken into custody.
8
returned an indictment charging the appellant on one count of mail fraud. He pled
not guilty, and the case proceeded to trial before a jury. The jury, having received
evidence establishing the facts set forth above, found the appellant guilty, and the
district court sentenced him to prison for twenty-eight months. This appeal
followed.
II.
A.
The appellant’s initial attack on his conviction is that the evidence was
insufficient to make out a case of mail fraud. He bases this attack on United States
v. Brown, 79 F.3d 1550 (11th Cir. 1996). There, we said that to prove the crime of
mail fraud, the Government must establish that the defendant “intended to create a
scheme ‘reasonably calculated to deceive persons of ordinary prudence and
comprehension.’” Id. at 1557 (citation omitted). Additionally, it must show that
the defendant took some action in furtherance of his scheme – to bring it to
fruition – in the form of a material misrepresentation made to the would-be victim
that “a reasonable person would have acted on.” Id.15 It is on this peg that the
15
Presumably, that a reasonable person would have acted on the defendant’s
representation is some evidence of the defendant’s intent to defraud. Said another way, if a
reasonable person would not have acted on the representation, a finding that the defendant made
the representation with the intent to defraud would be problematic.
9
appellant hangs his hat, contending that a reasonable person would not have acted
on his representations when considered as a whole. In bolstering his argument, he
draws attention to his statement to Patti that $85,000 would be needed to bribe
three of the jurors who would be trying his case: $35,000 for J-1, and $25,000
each for J-2 and J-3.16 The appellant contends that a reasonable person would
know that since the pool from which these jurors would be selected would not be
known until April 15 – when the pool assembled at the courthouse for the trial –
the representation had to be phony.
While it is true that statements like the one he cites would seem absurd or
fanciful to a reasonable person, the mail fraud statute does not require that every
representation a defendant utters while executing his scheme must be credible.
Instead, the statute requires proof that the defendant’s scheme to defraud involved
the use of material, false representations or promises. See 18 U.S.C. § 1341
(“[w]hoever ... having devised or intended to devise a scheme or artifice to
defraud, or for obtaining money or property by means of false pretenses,
representations, or promises. . . shall be fined under this title or imprisoned not
16
As recited in the text supra, at Part I, one of the appellant’s representations to Patti was
that Senator Helms and a five-star general were willing to help him out. Although in his brief to
us the appellant does not label this representation as absurd, we assume that he would place it in
the same category as the payments to jurors 1, 2 and 3.
10
more than 20 years, or both.”). The initial representations the appellant made to
Patti – those in the FedEx letter – satisfy this requirement.
In the letter, the appellant made a false promise: “[w]e can assure you. . . no
imprisonment but you must pay the agreed tax settlement issued by the court.” In
addition, he falsely represented that an undisclosed number of sympathizers –
including “[o]ur mutual friend” and “our associates in Pensacola” – would work to
extricate Patti from his legal predicament if the businessman would agree to
follow certain instructions. True, the letter did not identify precisely how the
writer and these sympathizers would help Patti, but this omission did not render
the letter devoid of any material misrepresentations that were capable of
prompting a reasonable person to act as Patti did.17 What the appellant overlooks
17
Although in his brief, Gray never makes the claim that the letter sent to Patti was itself
absurd (indeed he admits that the letter gave Patti “a glimmer of hope” when he first received it
and states that the “letter alone” may have satisfied Brown’s objective standard), the dissent
appears to contend that because the letter was shrouded in anonymity and instructed Patti to
resort to cloak and dagger activities to communicate whether he was interested in contacting the
source of the letter, a reasonable person would not have acted on the letter. We disagree with
this premise. After all, it is well known that secrecy, anonymity, and concealment are a leitmotif
in plans and conspiracies to engage in criminal activity. See, e.g., United States v. Netterville,
553 F.2d 903, 909 (5th Cir. 1977) (“a conspiracy by its very nature is born and clothed in
secrecy.”) (citations omitted). For this reason, the observations made by the dissent, e.g.,
stressing that the letter advised Patti to “not discuss this info with anyone” and that it “require[s]
Patti to assume a code name” and “communicate secret messages” far from rendering the letter
unbelievable in this case, add to its plausibility as a communication contemplating the possibility
of extricating Patti from his legal predicament through clandestine means. At any rate, such
factually intensive issues over which reasonable minds can disagree seem best left in the
province of the jury. See Bryan v. Jones, 530 F.2d 1210, 1218 (5th Cir. 1976) (Wisdom, J.,
concurring in part and dissenting in part) (“reasonableness is basically a jury question; it is a
11
is that the mail fraud statute “punish[es] unexecuted, as well as executed, schemes.
This means that the government can convict a person for mail . . . fraud even if his
targeted victim never encountered the deception – or, if he encountered it, was not
deceived.” Pelletier v. Zweifel, 921 F.2d 1465, 1498 (11th Cir. 1991) (citations
omitted). All that the Government needs to show to establish the mens rea
element of the offense is that the defendant anticipated the intended victim’s
reliance, and the appellant’s anticipation of Patti’s reliance can be inferred from,
among other things, the fact that he was prepared to call Patti at the pay phone at
the time and location specified in the letter. See id. at 1503.
Because the letter received by Patti contained false, material representations
from the appellant as part of an effort to receive cash payments from the desperate
businessman, the crime of mail fraud was complete when the appellant delivered
the letter via FedEx to Patti. See United States v. Crossley, 224 F.3d 847, 859 (6th
Cir. 2000) (“the offense of mail fraud is completed and the statute of limitations
begins to run on the date on which the defendant, depending on the specific use of
the mails charged in the indictment, ‘places,’ ‘deposits,’ ‘causes to be deposited,’
‘takes,’ or ‘receives’ mail, or ‘knowingly causes’ mail ‘to be delivered’ as part of
the execution of a scheme to defraud.”); United States v. Kennedy, 64 F.3d 1465,
concept that loses meaning when courts try to pin it down.”).
12
1478 (10th Cir. 1995) (“The ‘completion’ of both wire and mail fraud occurs when
any wiring or mailing is used in execution of a scheme; there is no requirement
that the scheme actually defraud a victim into investing money for the crime to be
complete.”); United States v. Hickey, 16 F. Supp. 2d 223, 234 (E.D.N.Y. 1998)
(“the crime [of mail fraud] is complete upon the hatching of the scheme with the
requisite intent supplemented by the use of the mails.”). That the appellant
subsequently shot himself in the foot by explaining to Patti during one of their
phone conversations that the money he sought would be used to bribe jury
members does not retrospectively render his illegal conduct non-illegal. Indeed, it
is worth noting that our precedent in this circuit establishes that the appellant
could have been convicted for his scheme even if Patti had not received the letter.
See Kreuter v. United States, 218 F.2d 532, 535 (5th Cir. 1955) (“Success of the
scheme is not essential to completion of the offense and it is not necessary to
prove communication of the alleged false representations to the victims.”);
Pelletier, 921 F.2d at 1498 (same). Accordingly, it is clear that a phone
conversation taking place after the mailing does not shield the appellant from
criminal liability under the mail fraud statute.
We also note that this case is distinguishable from Brown because, unlike
the claims made by the Brown defendants, the appellant’s nebulous
13
representations to Patti (promising to interfere illegally with a federal prosecution)
did not lend themselves to easy verification when Patti received the mailing
precisely because the false promises that were made concerned illegal activity.18
Because the fraudulent promise in this situation encompassed illegal activity
which by its nature tends to operate by clandestine means, Patti could not easily
verify or investigate the accuracy of the appellant’s representations “by a
telephone call or a visit . . . to a competitor, or by a look at newspaper classified
ads.” Cf., Brown, 79 F.3d at 1559. In other words, there was no information
readily accessible in the public domain which Patti could immediately obtain to
confirm or disprove the letter’s representations. Cf. Assoc. in Adolescent
Psychiatry, S.C. v. Home Life Ins. Co., 941 F.2d 561 (7th Cir. 1991) (no scheme
18
We also are troubled with the dissent’s suggestion that “a scheme that depends on a
person’s willingness to bribe a jury is, in most instances, not a ‘scheme reasonably calculated to
deceive persons of ordinary prudence” because it involves “transcending the bounds of ethics and
morality” and a “greater risk” of criminal sanctions. First, it should be noted that risk-aversion
and reasonableness are not necessarily the same thing: a reasonable people may decide to take a
risk whenever his or her unique risk-utility calculus leads him or her to believe the potential gain
is worth the hazard. To confuse reasonable behavior for risk-preferences could have troubling
implications in myriad, mail fraud situations, e.g., would liability attach in a Ponzi-scam
operation where only reasonable people, albeit reasonable people with a certain tolerance for risk
would be swayed while reasonable people who are more risk averse would stay away? Second,
we note that a holding that most schemes contemplating criminal or immoral behavior are not
reasonably calculated to deceive persons of ordinary prudence would lead to the following
bizarre result: individuals who make fraudulent promises to engage in criminal activities for the
benefit of another in exchange for money are shielded from liability under the mail fraud statutes
while only false promises to engage in legal, moral, and ethical activities can be penalized.
Surely, the framers of the mail fraud statute contemplated no such result.
14
to defraud where “[t]he relation between the rates offered . . . and those available
on other investments can be checked by a quick look at the Wall Street Journal or
the Chicago Tribune); Blount Fin. Serv. v. Walter E. Heller & Co., 819 F.2d 151
(6th Cir. 1987) (no scheme to defraud where reliance on the defendants’ statement
was unreasonable because the fraudulent representations could have been
contradicted by information accessible to the alleged victim). Accordingly, this
case is distinguishable from Brown on many levels, and the notion that the
appellant was somehow entitled to a judgment of acquittal fails.
B.
The appellant next contends that the district court erred when, in charging
the jury, it provided the jury with two inaccurate statements of the law. Whether a
district court’s instruction mis-characterized the law or misled the jury to the
prejudice of the defendant presents a question of law that is subject to de novo
review. United States v. Deleveaux, 205 F.3d 1292, 1296 (11th Cir. 2000).
The relevant portion of the jury instruction challenged by the appellant
reads as follows:
A statement or representation is false or fraudulent if it relates to a material
fact and is known to be untrue or is made with reckless indifference as to its
truth or falsity and is made or caused to be made with intent to defraud. A
statement or . . . representation may also be false or fraudulent when it
constitutes a half truth or effectively conceals a material fact, provided it is
15
made with intent to defraud.
A fact is material if it has a natural tendency to influence or is capable of
influencing the decision of the person or entity to whom or to which it is
addressed. A false or fraudulent statement, representation or promise can be
material even if the decision maker did not actually rely on the statement or
even if the decision maker actually knew or should have known that the
statement was false.
To prove a fraud crime the government must show that the defendant under
consideration intended to devise or participate in a scheme reasonably
calculated to deceive a person of ordinary prudence and comprehension
under the same circumstances. The person of ordinary prudence standard is
an objective standard and is not directly related to the level of knowledge
and experience of any specific person. For purposes of this offense the
government must prove that a reasonable person of average prudence and
comprehension under the same circumstances would have acted on the
representation made by the defendant.
According to the appellant, the court got off track when it instructed the jury
on the definition of a “material” fact. Specifically, he contends that the instruction
improperly stated that “[a] false or fraudulent statement, representation or promise
can be material even if the decision maker did not actually rely on the statement or
even if the decision maker actually knew or should have known that the statement
was false.” We find no merit in this contention because the district court’s
language is a correct statement of law and mirrors the language this court crafted
in United States v. Neder, 197 F.3d 1122, 1128 (11th Cir. 1999).
The appellant next challenges the district court’s instruction to the jury not
16
just “to look at a person of ordinary prudence, as Brown instructed, but to look at a
person of ordinary prudence in the peculiar situation facing Mr. Patti.” The
portion of the charge at issue reads, “For purposes of this offense the government
must prove that a reasonable person of average prudence and comprehension
under the same circumstances would have acted on the representation made by
the defendant.” (emphasis added). The appellant contends that this instruction is
problematic because by advising the jury to consider the “same circumstances”
faced by the victim of the fraud, the court implicitly rejected the dictates of Brown,
where we said that “[t]he ‘person of ordinary prudence’ standard is an objective
standard not directly tied to the experiences of a specific person or persons.” 79
F.3d at 1557. (emphasis in original). We disagree with the appellant’s
characterization of the district court’s instruction.
First, we note that the district court correctly included in its instructions to
the jury that “[t]he person of ordinary pruden[ce] standard is an objective standard
and is not directly related to the level of knowledge and experience of any specific
person.” This correct statement of the law militates against the error the court
supposedly committed. Second, we note that while some inconsistency may be
found between this part of the instruction and the “under the same circumstances”
language found elsewhere, the appellant can hardly claim unfair prejudice in this
17
instance because the Government was entitled to go into Patti’s circumstances to
the extent necessary to prove that the appellant had the statutorily required mens
rea, or intent, to deceive and defraud Patti. The Government has the prerogative,
if not the duty, to inform the jury of the would-be victim’s (in this instance Patti’s)
circumstances, as seen through the mind of the defendant, to help enable the jury
to determine whether the defendant had the requisite intent to defraud his selected
victim(s). Similarly, the jury was required to consider Patti’s circumstances in
deciding whether the materiality element of the mail fraud statute was met.19
Accordingly, it was not improper for the jury to consider Patti’s circumstances in
making its final determination as to the appellant’s guilt.
Finally, it is worth observing that as a practical matter, even the objective,
reasonable person of ordinary prudence standard must be anchored in reality and
connected to the material circumstances surrounding the victim or the intended
19
In Neder v. United States, 527 U.S. 1, 25, 119 S. Ct. 1827, 1841, 144 L. Ed. 2d 35
(1999), the Supreme Court determined that materiality was an element the Government has to
establish to support a conviction under the mail and wire fraud statutes. The Court further
instructed that “a false statement is material if it has ‘a natural tendency to influence, or [is]
capable of influencing, the decision of the decisionmaking body to which it was addressed.’” Id.
at 15, 119 S. Ct. at 1837 (citations omitted). In this case, for the jury to determine whether
Gray’s representations had a natural tendency to influence Patti’s decisionmaking, it was
necessary for them to consider the circumstances the addressee found himself in because a person
not facing criminal prosecution would not tend to be influenced by a statement offering to help
him avoid serving time in prison.
18
victim of a scheme to defraud if it is to serve a useful function in guiding a jury’s
deliberations. Stated differently, if a jury could not take into account the material
circumstances surrounding a scheme to defraud, almost no mail fraud conviction
could be upheld in cases where the victim faced a “peculiar situation” far removed
from the circumstances with which most people of ordinary prudence are generally
familiar, and where, as in the instant case, the defendant tailored his scheme to
defraud that particular individual because of the unique circumstances confronting
the victim.20 We do not see Brown as extending so far as to require an instruction
that a jury may not consider the targeted victim’s circumstances although those
circumstances are relevant to establishing whether the defendant had the requisite
intent to defraud the victim. Therefore, because there was no evidence that the
jury was instructed to consider improper factors, and bearing in mind the practical
considerations we acknowledge above, the appellant’s claim of error in the jury
instruction is denied.
C.
20
For example, a scheme to defraud the mother of a missing child by falsely promising to
return the child in exchange for money would be credible only to a mother missing a child. Thus,
to some extent the peculiar circumstances surrounding a particular victim – in this case Patti’s
exposure to criminal tax charges – have to be considered by the jury. Otherwise fraudulent
schemes aimed at people who find themselves in extraordinary situations would always lie
beyond the purview of the criminal statutes penalizing fraud because the jury could only consider
whether a given scheme to defraud would have deceived a person of ordinary prudence and not a
reasonable person “under the same circumstances” faced by the fraud victim.
19
As a last measure, the appellant questions the district court’s decision to
consider his prior convictions (for communicating threats) in determining his
criminal history category under the Sentencing Guidelines. See generally
U.S.S.G. §4A1.2. In calculating the appellant’s criminal history for sentencing
purposes, the court’s probation office included as part of his criminal history two
North Carolina misdemeanor convictions for which the Superior Court of North
Carolina had sentenced appellant to 45 days incarceration but suspended the
sentence. The inclusion of the North Carolina offenses raised the appellant’s
Criminal History Category from II to III.21 He timely objected to the addition of
one criminal history point for these offenses and cited Alabama v. Shelton, 535
U.S. 654, 657, 122 S. Ct. 1764, 1767, 152 L. Ed. 2d 888 (2002), contending that
because he was not represented by counsel when he was convicted in North
Carolina, it would be error to include those offenses in calculating his criminal
history. We find that the district court did not misapply the sentencing guidelines.
In Shelton, the Court stated that an indigent defendant who receives a
suspended or probated sentence to imprisonment has a constitutional right to
counsel. This holding in effect acknowledged that indigents are entitled to
21
Had the court used Criminal History Category II, the sentence range would have been
24-30 months’ imprisonment. Criminal History Category III yielded a range of 27-33 months.
The court sentenced the appellant to 28 months’ imprisonment.
20
appointed counsel “in any misdemeanor case that ‘actually leads to
imprisonment.’” Shelton, 535 U.S. at 661, 122 S. Ct. at 1769 (citing Argersinger
v. Hamlin, 407 U.S. 25, 33, 92 S. Ct. 2006, 2010, 32 L. Ed. 2d. 530 (1972)). As
the district court noted, however, the North Carolina court specifically found that
the appellant was not indigent and therefore did not qualify for the appointment of
counsel.22 Thus, it was left to him to determine whether he wanted to hire his own
attorney or represent himself, and, as the district court correctly noted, the North
Carolina court’s record conclusively established that on November 18, 1996, the
appellant executed a waiver of counsel and then chose to enter a guilty plea to the
offenses. Because he waived his right to counsel and did not qualify for the
appointment of counsel, Shelton does not apply here.
In the wake of these findings, the district court could not have discounted
the appellant’s prior conviction in North Carolina absent a showing that his waiver
of counsel was somehow flawed or that the North Carolina court erroneously
refused to designate him as indigent. See United States v. Phillips, 120 F.3d 227,
231 (11th Cir. 1997) (“The result is that in sentencing a defendant a district court
22
The appellant completed an “Affidavit of Indigency for Superior Court” on January 6,
1997. Court documentation indicates that the court denied the appellant’s request for court
appointed counsel after finding him financially able to provide the necessary expenses of legal
representation.
21
cannot ignore or discount for any purpose a prior conviction that has not been
invalidated in a prior proceeding, unless there was an unwaived absence of
counsel in the proceedings resulting in that conviction.”). The evidence presented
to the district court does not suggest that the appellant’s waiver of counsel in the
North Carolina court was invalid. His sentence therefore stands.
AFFIRMED.
22
BARKETT, Circuit Judge, dissenting:
I respectfully dissent, finding the majority opinion in conflict with United
States v. Brown, 79 F.3d 1550 (11th Cir. 1996).1 Brown holds that "[t]o prove a
crime [of mail fraud], the government must show the defendant intended to create
a scheme reasonably calculated to deceive persons of ordinary prudence and
comprehension." Id. at 1557 (emphasis added)(internal citation omitted). I cannot
accept that the scheme or representations in this case could be “reasonably
calculated to deceive persons of ordinary prudence and comprehension."
We found in Brown that agents of a large real estate developer who made
material misrepresentations in an attempt to lure costumers from snow-belt states
into buying overpriced homes were not guilty of mail-fraud because "reasonable
jurors could not find that a person of ordinary prudence, about to enter into an
agreement to purchase a. . . home in Florida, would rely on . . . the seller's own
affirmative representations about the value or rental income of the . . . homes." 79
F.3d at 1559.
I find it impossible to reconcile how a prudent person would not rely on a
large developer's official-looking but false or misleading real-estate appraisals; but
1
Whether or not we agree with this Court's decision in Brown, we are bound by it. United
States v. Hogan, 986 F.2d 1364, 1369 (11th Cir.1993) (“[I]t is the firmly established rule of this
Circuit that each succeeding panel is bound by the holding of the first panel to address an issue of
law, unless and until that holding is overruled en banc, or by the Supreme Court.”).
23
that a prudent person (albeit, this time facing serious criminal charges) would rely
on the anonymous communications in this case.
The majority asserts that the crime was complete at the time of the first
communication, in which the anonymous author misrepresented that “we can
assure you . . . no imprisonment” and that certain mutual friends were willing to
aid Patti in this respect. However, the letter containing that communication reeked
of unreliability: the letter requires that Patti not tell anyone about the
communication (“[d]o not discuss this info with anyone, including [with your
associate and lawyer]”); the letter requires Patti to assume a code name (“[y]ou
must answer the phone by saying hello, this is Jack Simmons”); it requires that he
should communicate secret messages (“[i]nsert the words ... yes, we have ... in
front of the words shrimp, oysters and catfish on your flashing sign out front of
Joe Patti’s”); it guarantees the result in a criminal case, irregardless of guilt (“[w]e
can assure you and A.G. of no imprisonment, but you must pay the agreed tax
settlement issued by the court.”); and it is anonymous. No doubt the unbelievable
nature of the communication motivated the author to self-consciously assert that
“[t]his is not a prank but real serious business.”
If “reasonable jurors could not find that a person of ordinary prudence,
about to enter into an agreement to purchase a. . . home in Florida, would rely on .
24
. . the seller's own affirmative representations about the value” of the properties at
issue in Brown, how can it possibly be said that a reasonable juror could find that
a person of ordinary prudence would act on this shady and ridiculous anonymous
communication?
Because the initial letter was not designed to deceive a person of ordinary
prudence, I do not believe the crime of mail fraud was completed by the mailing of
that communication. Subsequent communications similarly failed to lend any
credibility to the scheme. Indeed, the first conversation Patti had with Gray
quickly dispelled any notion Patti had that the representations were genuine;2 just
as it would have dispelled any hint of reliability for a reasonable person. The
caller created a fantastic conspiracy theory complete with mysterious five-star
generals and famous senators.3
2
Patti testified: “I didn’t believe anything he told me after the J-1, J-2, and J-3.”
3
Moreover, in my mind, a scheme that depends on a person's willingness to bribe a jury is,
in most instances, not a "scheme reasonably calculated to deceive persons of ordinary prudence."
Id. at 1557. Besides transcending the bounds of ethics and morality, a person who would bribe a
jury exposes herself to greater risk and criminal sanctions. Furthermore, because illegal
contracts cannot be enforced by law, a person that gives consideration for such a contract must
do so with full knowledge that no legal remedy exists if the other party breaches. It is hardly
believable that a prudent person would rely on an invitation to commit a crime without knowing
who was behind the invitation.
Despite the majority’s assertions to the contrary, the amount of risk involved is central to
a determination of whether a reasonably prudent person would participate in the proposed
transaction. See Majority Opinion, Note 18. Indeed, “prudence” is defined as “attentiveness to
possible hazard or disadvantage” and “prudent” is synonymous with “cautious.” Webster's Third
New International Dictionary 1828 (1993). Furthermore, risk-aversion is intimately related with
25
I therefore respectfully dissent.
“reasonableness.” See, e.g., Bourg v. Texaco Oil Co. Inc., 578 F.2d 1117, 1121 (5th Cir.
1978)(approving trial court’s jury instruction that stated: “A prime consideration in determining
reasonableness is the possible risk in the particular situation. Naturally, the greater the risk of
danger in any given situation, the greater the caution that will be exercised by the reasonably
prudent person. That is, as the risk of danger increases, the reasonably prudent person exercises
more and more care.”(emphasis added)).
The “bizarre result” the majority fears is really an expression of dissatisfaction with our
holding in Brown that a mail fraud scheme must be calculated to deceive “persons of ordinary
prudence.” Once again, whether or not we believe this should be the rule, we are nevertheless
bound by it.
26
United States v. Kevin Wayne Gray
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2004-04-30
Citations: 367 F.3d 1263
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