F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 2 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
No. 01-8090
DEREK A. FREDETTE,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 01-CR-052-1J)
Submitted on the briefs: *
Susan L. Foreman, Boulder, Colorado for the Defendant-Appellant.
Matthew M. Mead, United States Attorney, and Lisa E. Leschuck, Assistant
United States Attorney, Cheyenne, Wyoming for the Plaintiff-Appellee.
Before EBEL, PORFILIO and LUCERO, Circuit Judges.
LUCERO, Circuit Judge.
*
At the parties’ request, the case is unanimously ordered submitted without
oral argument pursuant to Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G).
Consumers love coupons; this case is about coupons. Having duped
numerous automobile dealerships into spending millions of dollars to purchase
enticing “fuel vouchers” to provide to their customers—vouchers that proved to
be virtually worthless—Derek A. Fredette was convicted of conspiracy to commit
mail and wire fraud under 18 U.S.C. § 371, mail fraud under 18 U.S.C. § 1341,
and wire fraud under 18 U.S.C. § 1343. He appeals his conviction and sentence.
We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a),
and affirm.
I
On April 28, 2000, Fredette incorporated National Fuels Corporation
(“NFC”), a company that sold fuel vouchers to automobile dealerships. Although
NFC was physically located in Holiday, Florida, NFC’s promotional materials
falsely claimed that it was based in Seattle, Washington and had offices in
Chicago, Toronto and Munich. Elaborate mail and telephone routing systems
were developed to give the impression that NFC was in fact based in Seattle, and
employees were instructed to speak and act as though they were in Seattle.
Fredette and his key associates used aliases to hide their true identities, and
Fredette himself used at least five different false names.
NFC employed twelve to fourteen telemarketers, who telephoned
automobile dealerships and other businesses nationwide, marketing to them fuel
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vouchers at substantially discounted prices. Vouchers were to be provided by the
dealerships to their customers as a sales incentive. Fredette prepared a script for
these telephone calls. During the course of the telephone conversations, NFC
employees falsely stated that NFC maintained close relationships with major oil
companies that were offering the vouchers at a substantial discount in order to
establish brand loyalty. NFC employees also advised dealerships that NFC was a
member of the North American Fuels Marketing Association, actually an
organization Fredette created that consisted solely of an answering service in
Washington, D.C.
In order to collect on their vouchers and receive reimbursement for gasoline
purchases, customers were required to complete a registration card and send it to
NFC. NFC’s program was designed so that, upon receipt of the cards, NFC would
issue each customer a letter containing a “PIN number . . . to put on their receipts
when they mailed them in to get their gas refunds.” (7 R. at 251.) This letter
directed customers to write assigned PIN numbers on their receipts for gasoline
purchases and return the receipts to NFC for reimbursement.
While registration cards noted that they must be returned by registered
mail, NFC employees informed dealers that cards sent through certified mail
would be accepted, although they would take longer to process. Despite
assurances by NFC employees to the contrary, vouchers that were not submitted
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through registered mail were never reimbursed. Under NFC’s program,
reimbursements were supposed to be issued within ten working days after NFC
received receipts for gasoline purchases. NFC required registration cards to be
submitted unfolded, which, due to the odd size of the card, required a special
envelope. NFC’s stated purpose for this requirement was that each
reimbursement card had a special bar code at the bottom that could not be read if
the card was folded. In reality, these bar codes served no purpose and were not
used to process the reimbursement cards.
On the rare occasions when customers were actually reimbursed, checks
were sent out in envelopes bearing a picture of a missing child and providing
phone numbers for the Center for Missing and Exploited Children. Letters
containing the PIN number were also sent out in these envelopes. Nothing on the
envelope indicated that it was sent from NFC or contained a letter with a PIN
number or a reimbursement check—presumably, in order to cause people to
discard the letters as “junk mail.”
Although NFC sold approximately 30,000 to 35,000 vouchers to car
dealers, NFC issued only 613 redemption checks. Customers who threatened
legal action were more likely to be reimbursed, as were customers of dealerships
who had the potential to reorder vouchers. Of the $2,045,991.54 received from
dealerships and deposited in a bank account by NFC, approximately $10,478 was
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used to reimburse customers. Fredette transferred $957,500 to a trust controlled
by his ex-wife, who had no known connection with NFC.
Fredette was indicted for conspiracy along with two co-conspirators.
Fredette was also indicted for mail fraud and wire fraud. The other two co-
conspirators pled guilty and testified against Fredette. At trial, Fredette defended
NFC’s practices by referring to the concept of “breakage,” which he claimed was
fundamental to the rebate industry. “Breakage” is a concept that relies on the fact
that “only a relatively small percentage of people that get a coupon or rebate
actually use it or, frankly, jump through the hoops that are associated.” (7 R. at
226.) Fredette sought to call an “expert witness” who would testify about the
concept of breakage, but the district court held that the proposed testimony did
not satisfy the requirements of the Federal Rules of Evidence.
The jury found Fredette guilty on all counts, and he was sentenced to sixty
months’ imprisonment on the conspiracy count and twenty-four months on the
other two counts, to run concurrently with each other but consecutively to the
conspiracy sentence. The court also sentenced Fredette to three years’ supervised
release and ordered him to pay special assessments and restitution. We consider
his direct appeal.
II
As his first argument, Fredette contends that the district court erred in
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refusing to admit expert testimony from James D. Feldman. “We review the
district court’s decision to admit expert testimony for abuse of discretion, and we
reverse a decision only if it is ‘manifestly erroneous.’” United States v.
McPhilomy, 270 F.3d 1302, 1312 (10th Cir. 2001) (quoting General Elec. Co. v.
Joiner, 522 U.S. 136, 141–42 (1997)). The law “grants a district court the same
broad latitude when it decides how to determine reliability as it enjoys in respect
to its ultimate reliability determination.” Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137, 142 (1999).
Rule 702 sets forth the standard for admission of expert testimony:
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of
an opinion or otherwise, if (1) the testimony is based on sufficient
facts or data, (2) the testimony is the product of reliable principles
and methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.
Fed. R. Evid. 702. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 597 (1993), the Supreme Court interpreted this rule in the context of
scientific evidence, holding that Rule 702 “assign[s] to the trial judge the task of
ensuring that an expert’s testimony both rests on a reliable foundation and is
relevant to the task at hand.” These two requirements of reliability and relevance
were extended by Kumho Tire, 526 U.S. at 141, to all expert testimony. In
reviewing the district court’s exclusion of Feldman’s testimony, therefore, we
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consider whether the proposed testimony was reliable or relevant to the instant
case.
In an effort to rebut the government’s assertion that his “rebate program”
was specifically designed to pay virtually no rebates, Fredette sought to submit
testimony from Feldman, a “marketing expert who makes himself available for
counseling and consulting and trial testimony.” (10 R. at 950.) Feldman intended
to compare the “breakage rules and requirements” of Fredette’s program to other
programs, based upon his purported knowledge of standards in the rebate
industry. (10 id. at 937.)
With regard to the first Daubert factor, the district court found Feldman’s
testimony to be unreliable. Feldman’s proposed testimony might have established
that other rebate programs took into account the concept of “breakage,” i.e., that
not all rebate recipients would collect on the rebate. Feldman admitted at the
Daubert hearing, however, that the NFC program was unusual and that he had
never before encountered a rebate program like NFC’s where $500 or more was
offered over a twelve-month period. In light of the unusual nature of Fredette’s
program, Feldman conceded that applying “an industry standard doesn’t really
work,” and proposed to evaluate the program based on whether the rules and
regulations “were adhered to or not.” (10 id. at 939, 945.) Feldman’s alleged
expertise with regard to other programs gave him no special insight into whether
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NFC adhered to its rules and regulations. Evidence at trial established that the
rules were not in fact adhered to, and Feldman could not have rebutted this
testimony by describing other rebate programs with which he was familiar.
Fredette argues on appeal that the district court failed to appreciate that
Feldman’s proposed testimony was based on “personal knowledge or experience,”
rather than scientific evidence. (Appellant’s Br. at 17.) Under Kumho Tire, a
district court “may focus upon personal knowledge or experience.” 526 U.S. at
150. Kumho Tire goes on to state, however, that “[o]ur emphasis on the word
‘may’ reflects Daubert’s description of the Rule 702 inquiry as a flexible one.”
Id. (quotation omitted). Moreover, a witness “relying solely or primarily on
experience” must “explain how that experience leads to the conclusion reached,
why that experience is a sufficient basis for the opinion, and how that experience
is reliably applied to the facts.” Fed. R. Evid. 702 advisory committee’s note. In
the instant case, Feldman’s “personal knowledge or experience” related only to
other rebate programs, and would not have enabled him to establish whether the
rules and regulations of the NFC program “were adhered to or not” under his
proposed methodology. (10 R. at 945.)
Feldman never explained why his personal experience was a sufficient basis
for his opinion. Accordingly, Feldman’s proposed testimony did not “rest[] on a
reliable foundation” as required by Kumho Tire, 526 U.S. at 141 (quotation
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omitted), and would not have “assist[ed] the trier of fact” as required by Rule
702. We conclude that the district court’s decision that Feldman’s testimony was
unreliable was not an abuse of discretion.
With regard to the second Daubert factor, relevance, Feldman’s proposed
testimony did not deal with matters outside the everyday knowledge of a typical
juror. This circuit has held that, as stated in the Advisory Committee Notes to
Rule 702,
[t]here is no more certain test for determining when experts may be
used than the common sense inquiry whether the untrained layman
would be qualified to determine intelligently and to the best possible
degree the particular issue without enlightenment from those having
a specialized understanding of the subject involved in the dispute.
Corneveaux v. CUNA Mut. Ins. Group, 76 F.3d 1498, 1504 (10th Cir. 1996)
(quoting Fed. R. Evid. 702 advisory committee’s note). According to the district
court, the issues that Feldman would deal with were not “rocket science,” and did
not require the testimony of an expert. (10 id. at 958.)
Most of the jurors in the instant case, as the district court explained, were
familiar with rebate programs and how they work, and were able to draw their
own conclusions about such programs. The concept of “breakage,” moreover,
was not so complicated as to require expert testimony. According to the district
court, a reasonable juror would intuitively understand Fredette’s argument that
rebate programs typically work on the assumption that not everyone will go
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through all the tedious steps required to obtain a rebate. This conclusion of the
district court was not manifestly erroneous.
We hold that the district court’s decision to exclude Feldman’s testimony
was not an abuse of discretion. Feldman’s proposed testimony was both
unreliable and irrelevant. Thus, neither Daubert requirement was satisfied.
Feldman had no adequate basis for comparing the NFC program to other rebate
programs, and he would have added nothing to the trial that a juror could not
understand on the basis of common sense.
III
Fredette’s next two claims concern the instructions given to the jury by the
district court. “We review the jury instructions de novo to determine whether, as
a whole, the instructions correctly state the governing law and provide the jury
with an ample understanding of the issues and applicable standards.” United
States v. Wittgenstein, 163 F.3d 1164, 1168 (10th Cir. 1998). “The instructions
as a whole need not be flawless, but we must be satisfied that, upon hearing the
instructions, the jury understood the issues to be resolved and its duty to resolve
them.” Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 552 (10th Cir. 1999).
A
Fredette first argues that the district court erred by failing adequately to
define the terms “scheme or artifice to defraud” and “material” representations as
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elements of the crimes with which he was charged. (Appellant’s Br. at 21.) This
claim stems from the district court’s refusal to tender Fredette’s proposed
Instructions 1 and 3 to the jury. While we consider the instructions as a whole de
novo to determine whether they accurately informed the jury of the governing
law, the district court’s decision to give a particular jury instruction is reviewed
for abuse of discretion. McPhilomy, 270 F.3d at 1310. “[N]o particular form of
words is essential if the instruction as a whole conveys the correct statement of
the applicable law.” Webb v. ABF Freight Systems, Inc., 155 F.3d 1230, 1248
(10th Cir. 1998) (quotation omitted).
Fredette’s proposed Instruction 1 defined the phrase “scheme or artifice to
defraud” as “deliberate conduct intended or or [sic] reasonably calculated to
deceive persons of ordinary prudendce [sic] and comprehension.” (2 R. Doc. 64.)
Proposed Instruction 3 stated that “[i]n order to prove fraud, the government must
show that a person of ordinary prudence would rely on a representation or
deception in making a decision about an important matter or transaction.” (2 id.)
Thus, both instructions referred to a person or persons of “ordinary prudence” as
the benchmark for assessing whether a particular deception constituted fraud.
Fredette objected to the court’s refusal to tender his proposed Instructions 1
and 3, arguing that these instructions made it clear that the jury needed to
consider the impact of Fredette’s representations on a person of ordinary prudence
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and comprehension. Fredette is correct that, in order to prove a scheme to
defraud, “the government must show conduct intended or reasonably calculated to
deceive persons of ordinary prudence or comprehension.” United States v.
Janusz, 135 F.3d 1319, 1323 (10th Cir. 1998) (quotation omitted). We have not
mandated, however, that these exact words appear in the district court’s
instructions to the jury. See Webb, 155 F.3d at 1248 (explaining that no
particular form of words is required).
Rather than tender Fredette’s proposed Instructions 1 and 3, the district
court offered instructions modelled after Kevin F. O’Malley et al., Federal Jury
Practice and Instructions (5th ed. 2000). 1 Instruction 29, describing the wire
fraud charge, stated:
[F]or the crime of using a wire communication in interstate
commerce . . . , for the purpose of executing and attempting to
execute a scheme and artifice to defraud, and for obtaining money by
means of false and fraudulent pretenses, representations, and
promises . . . the United States must prove the
following . . . elements beyond a reasonable doubt:
One: The defendant . . . knowingly devised or knowingly
participated in a scheme or artifice to defraud as detailed in the
. . . Indictment;
Two: The representations or promises were material, that is, it
would reasonably influence a person to part with money or
property;
....
1
Instruction 29 was taken from O’Malley et al., supra, at §47.03 and
§47.07. Instruction 33 was taken from id. §47.03, and Instruction 35 was lifted
word-for-word from id. §47.13.
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(3 R. Doc. 90 (emphasis added).) Instruction 33 included similar language to
describe the mail fraud charge:
[F]or the crime of using the mails to further a scheme or plan to
defraud . . . the United States must prove the following . . . beyond a
reasonable doubt:
One: The defendant . . . knowingly devised or knowingly
participated in a scheme or artifice to obtain money by means
of false or fraudulent pretenses, representations, or promises as
detailed in the . . . Indictment;
Two: The representations or promises were material, that is, it
would reasonably influence a person to part with money or
property;
....
(3 R. Doc. 90 (emphasis added).) Finally, Instruction 35 provided:
The term “false or fraudulent pretenses, representations or promises
. . .” means a statement or an assertion which concerns a material or
important fact or a material or important aspect of the matter in
question and that was either known to be untrue at the time that it
was made or used, or that it was made or used with reckless
indifference as to whether it was, in fact, true or false, and made or
used with the intent to defraud. A material fact is a fact that would
be of importance to a reasonable person in making a decision about a
particular matter or transaction.
(3 R. Doc. 90 (emphasis added).)
Thus, Instructions 29 and 33 made clear that material representations or
promises are those that “would reasonably influence a person to part with money
or property.” (3 R. Doc. 90 (emphasis added).) Instruction 35 further clarified
that “[a] material fact is a fact that would be of importance to a reasonable person
in making a decision about a particular matter or transaction.” (3 id. (emphasis
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added).) The district court’s instructions therefore specified that materiality was
to be considered in reference to what a reasonable person would consider
important. This language adequately conveyed to the jury that whether a
representation is fraudulent depends on what impact it would have on a person of
ordinary prudence and comprehension. 2 Accordingly, the instructions in question
“correctly state the governing law and provide the jury with an ample
understanding of the issues and applicable standards,” Wittgenstein, 163 F.3d at
1168, and the district court’s decision to issue these particular instructions was
not an abuse of discretion.
B
Fredette’s second challenge to the district court’s jury instructions is that
the district court violated his Sixth Amendment rights by failing to give a specific
unanimity instruction. “The Sixth Amendment guarantees a federal criminal
defendant the right to a unanimous jury verdict.” United States v. Linn, 31 F.3d
987, 991 (10th Cir. 1994). This court has held that the crime of mail fraud under
2
Because the jury was adequately instructed on this point, we need not
consider Fredette’s argument that a reasonable person would not have believed
the “puffing” or “seller’s talk” used by Fredette and other NFC employees.
(Appellant’s Br. at 27.) We note, however, that the misrepresentations made by
Fredette went far beyond mere “puffing.” Fredette attempted to pass off worthless
rebate vouchers as valuable commodities, and went to great lengths to disguise
the actual nature of his business. A person of ordinary prudence cannot be
expected to unravel a web of deception as complex as that spun by Fredette and
his associates.
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18 U.S.C. § 1341 consists of two separate but interrelated offenses: “[a]lthough
largely overlapping, a scheme to defraud, and a scheme to obtain money by means
of false or fraudulent pretenses, representations, or promises, are separate
offenses.” United States v. Cronic, 900 F.2d 1511, 1513 (10th Cir. 1990). The
wire fraud statute also refers to both a scheme to defraud and false pretenses. See
18 U.S.C. § 1343.
Fredette therefore claims that the district court should have instructed the
jury that they must unanimously agree that, with respect to each charge, he was
guilty or not guilty either of devising a scheme or artifice to defraud or of false
pretenses (or both). However, Fredette did not propose a specific unanimity
instruction to the trial court. “Where, as in this case, a defendant does not request
a specific unanimity instruction, we review the lack of such an instruction under
the plain error standard.” United States v. Powell, 226 F.3d 1181, 1194 (10th Cir.
2000) (quotation omitted).
The present case is comparable to United States v. Haber, 251 F.3d 881
(10th Cir. 2001). In Haber, the defendant was convicted of both mail fraud and
wire fraud. Id. at 885. Haber sought to overturn his conviction because the
indictment charged him with both a scheme to defraud and a scheme to obtain
money by false pretenses, while the jury instructions permitted conviction based
on either type of scheme. Id. at 888. Haber requested a jury instruction
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specifically explaining that the jury must unanimously agree as to either a scheme
to defraud or false pretenses, but the district court declined to give this
instruction, reasoning that a general unanimity instruction was sufficient. Id. In
affirming, this court noted that Haber failed to object to the allegedly duplicitous
indictment prior to trial, and held that a failure to “timely challenge [an]
indictment on duplicity grounds . . . waive[s] any later challenge based on a
failure to use a special verdict form to avoid the alleged duplicity problem.” Id.
at 888–89 (quotation omitted). Moreover, concluding that there was sufficient
evidence to convict Haber under either of the alternative theories, and noting that
Haber did not contend there was insufficient evidence under either theory, we
held that any error by the district court was harmless. Id. at 888–89.
In the instant case, as in Haber, the district court issued a general
instruction that the verdict of the jury must be unanimous. We do not begin with
a presumption that a general unanimity instruction is insufficient to indicate
whether all jurors agreed on each individual offense. Rather, “it is assumed that a
general instruction on the requirement of unanimity suffices to instruct the jury
that they must be unanimous on whatever specifications they find to be the
predicate of the guilty verdict.” United States v. Phillips, 869 F.2d 1361, 1366
(10th Cir. 1988) (quotation omitted).
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Fredette never requested a specific unanimity instruction, and hence his
claim that the district court erred in not tendering such an instruction is even more
suspect than in Haber. Furthermore, Fredette does not claim on appeal that the
evidence was insufficient to convict him on either count. “When a jury returns a
guilty verdict on an indictment charging several acts in the conjunctive, . . . [a
general] verdict stands if the evidence is sufficient with respect to any one of the
acts charged.” Haber, 251 F.3d at 889 (alteration in original) (quotation omitted).
Ample evidence at trial showed that Fredette both devised a scheme to defraud
customers and dealers and devised a scheme to obtain money by false pretenses.
Accordingly, the district court’s decision not to tender a specific unanimity
instruction was not plainly erroneous.
IV
Fredette also claims that the district court erred in applying a sentencing
enhancement for a scheme to defraud more than one victim in conjunction with a
separate enhancement for committing the offense through the use of mass-
marketing. “Factual findings made at sentencing are reviewed under a clearly
erroneous standard, but the district court’s legal interpretation of the guidelines is
reviewed de novo.” United States v. Lambert, 995 F.2d 1006, 1008 (10th Cir.
1993).
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At the time of Fredette’s sentencing, U.S.S.G. § 2F1.1(b)(2) provided for a
two-level increase in the offense level for “a scheme to defraud more than one
victim,” and U.S.S.G. § 2F1.1(b)(3) provided for another two-level increase for
an “offense . . . committed through mass-marketing.” Fredette objected to the
application of both these increases on the grounds that doing so constituted
impermissible double counting. The district court was not persuaded, concluding
that the two enhancements “are distinct and serve different purposes.” (4 R. at
103.)
We have held that
[i]mpermissible double counting or impermissible cumulative
sentencing [under the Guidelines] occurs when the same conduct on
the part of the defendant is used to support separate increases under
separate enhancement provisions which necessarily overlap, are
indistinct, and serve identical purposes. Importantly, the last three
conditions are stated as a conjunctive requirement; that is, all three
must be met for the use of separate enhancements to constitute
impermissible double counting.
United States v. Browning, 252 F.3d 1153, 1160 (10th Cir. 2001) (alteration in
original) (quotations omitted). Thus, in order to prevail, Fredette must show that
§ 2F1.1(b)(2) and (b)(3) necessarily overlap, are indistinct, and serve identical
purposes.
We conclude that Fredette cannot establish that these two provisions
necessarily overlap. Although it is usually the case that an offense that involves
mass-marketing will also involve a scheme to defraud more than one victim, the
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converse is not necessarily true. “A successful double counting claim must
demonstrate that the two enhancements necessarily overlap in every conceivable
instance, not just that they overlap often.” Browning, 252 F.3d at 1160. It is not
difficult to imagine a scheme to defraud three or four victims, which would
trigger the § 2F1.1(b)(2) enhancement, but which does not involve mass-
marketing. 3 It is not sufficient to establish that enhancement A necessarily
implicates enhancement B: one must also show that enhancement B necessarily
implicates enhancement A. See United States v. Rucker, 178 F.3d 1369, 1372
(10th Cir. 1999) (explaining that an enhancement for “more than minimal
planning” does not necessarily overlap with an enhancement for being the leader
of an extensive criminal enterprise, because one can engage in substantial
planning without being the leader of the enterprise (citing United States v. Smith,
13 F.3d 1421, 1429 (10th Cir. 1994)). In this case, Fredette cannot show that
both enhancements necessarily implicate each other. 4
3
The application note to § 2F1.1(b)(2) gives the example of “a wire fraud
in which a single telephone call was made to three distinct individuals to get each
of them to invest in a pyramid scheme.” § 2F1.1(b)(2) cmt. n.4. Phone calls to
three individuals would scarcely constitute “mass-marketing,” but would be
sufficient to trigger the § 2F1.1(b)(2) enhancement for multiple victims.
4
Furthermore, it is not clear that § 2F1.1(b)(2) and (b)(3) serve identical
purposes. As the government points out, the enhancement for multiple victims
goes to the ultimate harm caused by the defendant’s conduct, while the
enhancement for mass-marketing concerns the scope and sophistication of the
defendant’s fraud. Moreover, the enhancement for cases involving mass-
marketing may be designed to protect the integrity of mass-marketing mechanisms
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Because the enhancements under § 2F1.1(b)(2) and (b)(3) do not
necessarily overlap, Fredette cannot show that the district court’s imposition of
separate two-level enhancements under the two provisions constituted
impermissible double-counting. We conclude that the district court’s sentencing
calculations were correct.
V
Fredette’s final argument is that the district court’s enhancements and
adjustments to his sentence violated Apprendi v. New Jersey, 530 U.S. 466, 490
(2000), insofar as they were not pled in the indictment, submitted to the jury, and
proven beyond a reasonable doubt. This issue was not raised below, and
accordingly we review it under the “plain error” standard. See United States v.
Bailey, 286 F.3d 1219, 1222 (10th Cir. 2002).
Fredette concedes that we have held, in United States v. Sullivan, 255 F.3d
1256, 1264–65 (10th Cir. 2001), cert. denied, 534 U.S. 1166 (2002), that
Apprendi does not apply to sentencing factors that increase a defendant’s
guideline range but do not increase the statutory maximum. Fredette’s sentence
in this case does not exceed the total statutory maximum. Thus, under our
precedent, Fredette is not entitled to relief under Apprendi.
regardless of the number of persons affected. We need not decide this issue,
however, as we conclude that the two enhancements in question do not
necessarily overlap.
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VI
For the foregoing reasons, we AFFIRM the conviction and the sentence
imposed by the district court.
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