FILED
United States Court of Appeals
Tenth Circuit
January 9, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-6239
ROBERT EVAN PARKER,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NO. 5:06-CR-00070-F-3)
Mark Henricksen, Henricksen & Henricksen, Lawyers, Inc., Oklahoma City,
Oklahoma.
Scott E. Williams, Assistant United States Attorney (John C. Richter, United
States Attorney, with him on the brief), Office of the United States Attorney,
Oklahoma City, Oklahoma.
Before MURPHY, McKAY, and TYMKOVICH, Circuit Judges.
TYMKOVICH, Circuit Judge.
This case involves a scheme to sell defective airplane engines. Robert
Parker and two co-defendants were accused of improperly overhauling small
aircraft engines and falsely representing to customers that the engines met Federal
Aviation Administration requirements. After a jury trial, Parker was convicted on
five counts for his role in the scheme—one count for conspiracy, three counts for
aiding and abetting or making or using false writings in connection with aircraft
parts, and one count for mail fraud. The district court sentenced Parker to 72
months in prison and ordered him to pay $378,633 in restitution.
Parker appeals his conviction with five objections attacking the sufficiency
of the evidence, several evidentiary rulings, and the amount of restitution. After
carefully reviewing the record and legal authorities, we AFFIRM Parker’s
conviction and sentence.
I. Background
Parker was a long-time fan of single-engine aircraft and by the mid-1990s
he started to deal with Good Aviation, an airplane mechanic shop which overhauls
engines in Washington, Oklahoma. At Good Aviation two technicians, Larry
Good and Michael Redpath, held airframe and powerplant (A&P) certificates
from the Federal Aviation Administration, allowing them to work on domestic
aircraft. Larry Good’s son, Allen, also worked in the shop. Allen Good did not
have A&P certification, but he did work on overhauling airplane engines,
ostensibly under the supervision of either his father or his cousin, Michael
Redpath. As early as 1998 Parker engaged Good Aviation to overhaul engines
which he would sell to third parties, typically by advertising the engines in a trade
journal, Trade-A-Plane.
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The superceding indictment alleges a conspiracy between Parker and
relevant parties at Good Aviation for the years 2000 through 2002. During that
time Good Aviation overhauled approximately 17 engines for Parker. These
engines were mostly Lycoming IO-360 engines, which are typically installed in
small, home-built aircraft.
Allen Good did the bulk of the engine work for Parker. Each overhauled
engine had a logbook describing the overhaul. Because Allen Good did not have
A&P certification, either Larry Good or Michael Redpath would sign off on his
work in the engine logbooks—the seal of good approval for rebuilt engines.
Parker frequently visited Good Aviation to deliver parts for the engine overhauls,
and to observe and direct work on the engines.
As part of the overhaul process, Parker was solely responsible for
engraving data plates for the engines. Data plates affixed to engines must include
information about the precise type and model of engine, especially if an engine is
type certified. Good Aviation supplied the data plates and Parker used a local
trophy shop to engrave them.
At trial, the government presented evidence regarding ten engines
purchased during the conspiracy time-frame. 1 The government also introduced
evidence of a few engine sales preceding the conspiracy time-frame. Several
1
Evidence presented at trial showed Parker sold engines to Mr. Gimple,
Mr. Hamilton, Mr. Brown, Mr. Wedman, Mr. Shoop, Mr. Royall, Mr. Peters, Mr.
and Mrs. Pryce-Jones, Mr. Kardell, Mr. Stricker, and the Flemings.
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mechanics were called and testified in detail about the dysfunctional state of the
engines. Victims testified that Parker told them the engines had been properly
overhauled. But evidence at trial showed engines with cracks or rusted parts,
missing or wrong parts, and other serious problems. Two engines caused in-flight
failures and placed the pilots at substantial risk. None of the engines were
airworthy and many were never installed in aircraft. Parker frequently sold the
engines with an accompanying propeller. In every instance, the propellers were
likewise found to be deficient because of cracks or other problems, rendering the
propellers useless.
Parker and his co-defendants testified in their own defense. Parker claimed
that he relied on logbooks, had no knowledge the repairs were fraudulent, and
blamed all the problems with the engines on Good Aviation. The jury returned a
conviction for Parker on all counts.
II. Discussion
Parker challenges his conviction and sentence on five grounds: (1) the
district court wrongly admitted evidence of prior bad acts under Federal Rule of
Evidence 404(b); (2) insufficient evidence; (3) improper hypothetical questions
during cross-examination of Parker’s character witnesses; (4) the sentence
imposed was procedurally and substantively unreasonable; and (5) the restitution
amount failed to provide an offset for the engines’ core-value. We address each
argument in turn.
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A. Rule 404(b) evidence of sales predating the conspiracy
Parker first argues the district court erred in admitting evidence of prior
bad acts under Federal Rule of Evidence 404(b) when the government introduced
evidence of engine sales not listed as overt acts in the indictment. We review the
district court’s admission of evidence under Rule 404(b) for abuse of discretion.
United States v. Shumway, 112 F.3d 1413, 1419 (10th Cir. 1997). Without
objection at trial we review the admission only for plain error. United States v.
Hill, 60 F.3d 672, 675 (10th Cir. 1995).
Federal Rule of Evidence 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident. . . .
In weighing the admissibility of Rule 404(b) evidence, we consider four factors:
(1) whether the evidence is offered for a proper purpose, (2) whether the evidence
is relevant, (3) whether the probative value of the evidence is substantially
outweighed by its prejudicial effect, and (4) whether a limiting instruction is
given if the defendant so requests. See Huddleston v. United States, 485 U.S.
681, 691 (1988); United States v. Zamora, 222 F.3d 756, 762 (10th Cir. 2000).
The standard for satisfying Rule 404(b) admissibility is permissive: “[I]f the
other act evidence is relevant and tends to prove a material fact other than the
defendant’s criminal disposition, it is offered for a proper purpose under Rule
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404(b) and may be excluded only under Rule 403.” United States v. Tan, 254
F.3d 1204, 1208 (10th Cir. 2001).
Parker challenges two sets of engine sales admitted under Rule 404(b):
(1) one set of sales during the charged conspiracy time, but not included in the
charged overt acts, and (2) a second set of sales that occurred before the
conspiracy.
Sales during conspiracy time-frame
Parker seeks to have three engine sales, which were not listed in the overt
acts section of the indictment, excluded under Rule 404(b). The indictment
charged Parker with conspiracy to make or use false statements in aircraft engine
logbooks during the calendar years 2000 through 2002. The charged conspiracy
covered the sale of unsafe airplane engines with accompanying false
documentation, listing six overt acts, “among others” (R., Vol. 1 at 41 (indictment
¶ 9)), all in violation of 18 U.S.C. § 38(a)(3). Parker challenges three engines
sold during the conspiracy time-frame to Messrs. Kardell 2 and Brown, and the
2
Parker argues in his Reply Brief that the Kardell transaction should be
counted as outside the charged conspiracy time-frame because the log book was
dated November 1, 1999. The government contends the transaction falls within
the conspiracy because Kardell testified that he dealt with Parker during the 1999
or 2000 time-frame. We analyze the transaction as within the conspiracy, but
note the distinction does not matter. Parker did not object to the Kardell
testimony at trial, and under plain error review, the testimony easily satisfies the
four Huddleston factors as permissible Rule 404(b) evidence, for many of the
same reasons the transactions outside the conspiracy time-frame were properly
admitted. Thus the Kardell testimony did not run afoul of Rule 404(b), and even
(continued...)
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Flemings, but not listed in the overt acts section. The government argues the
transactions are intrinsic to the charged crimes and thus not subject to the Rule
404(b) limitation. We agree.
Rule 404(b) limits evidence of ‘other’ crimes, wrongs, or acts—not the
crime in question. Similarly, “[i]t is well settled that Rule 404(b) does not apply
to other act evidence that is intrinsic to the crime charged.” United States v.
O’Brien, 131 F.3d 1428, 1432 (10th Cir. 1997); see also United States v. Arney,
248 F.3d 984, 992 (10th Cir. 2001) (discussing Rule 404(b) as not applying to
intrinsic evidence). Generally speaking, “[i]ntrinsic evidence is directly
connected to the factual circumstances of the crime and provides contextual or
background information to the jury. Extrinsic evidence, on the other hand, is
extraneous and is not intimately connected or blended with the factual
circumstances of the charged offense.” Thomas M. DiBiagio, Intrinsic and
Extrinsic Evidence in Federal Criminal Trials: Is the Admission of Collateral
Other-Crimes Evidence Disconnected to the Fundamental Right to a Fair Trial,
47 Syracuse L. Rev. 1229, 1231 (1997). Because Rule 404(b) only limits
evidence of ‘other’ crimes—those extrinsic to the charged crime—evidence
2
(...continued)
if it were improperly admitted, the error would be harmless.
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of acts or events that are part of the crime itself, or evidence essential to the
context of the crime, does not fall under the other crimes limitations of Rule
404(b).
The three transactions within the charged conspiracy time-frame are
intrinsic to the crime and substantiate the criminal conspiracy. They directly
support the conspiracy charged, namely that Parker made or used false statements
in connection with airplane parts and logbooks associated with the sales to Mr.
Kardell, Mr. Brown, and the Flemings. These three sales provided direct proof of
Parker’s involvement with the crimes charged. The sales were not merely
contextual, they supported elements of the charged crimes. Rule 404(b) only
applies to evidence of ‘other’ crimes—the transactions were part of the crimes
charged, not some other crime.
Accordingly, the district court did not err in admitting the transactions. 3
Sales outside the conspiracy time-frame
The government also introduced two engine sales outside the charged
conspiracy time-frame, one to Ms. Pryce-Jones in 1999 and one to Mr. Peters in
1998. Pryce-Jones contacted Parker in 1999 about an advertisement for an
airplane engine in Trade-A-Plane, and she and her husband arranged to purchase
3
And, even though Rule 404(b) does not apply, we note that all four parts
of the Huddleston test are satisfied. When Parker requested a cautionary
instruction for Brown’s testimony, the district court provided the requested
instruction.
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the engine. Parker claimed he had overhauled this engine for his own plane, but
after deciding to upgrade the horsepower, he could sell the recently overhauled
engine. When Pryce-Jones inspected the engine in person, the “exterior looked
great” and “everything appeared to be very good.” R. Vol., IV at 694. The
certified engine came with a logbook indicating it was overhauled in accordance
with the manufacturers’s instructions. The Pryce-Joneses purchased the engine
for $32,000. However, they later discovered multiple problems, including a
cracked crankcase, substantial oil leaks, five cracked cylinders, and worn out
connecting rods and bushings. Not surprisingly, the engine was not safe for
flight.
The engine purchased by Peters involved similar circumstances. Parker
advertised the engine in Trade-A-Plane. Parker explained the engine was recently
overhauled and just lying around his shop. However, after purchase, an
independent mechanic examined the engine and discovered major problems, such
as incorrect bolts inside the engine.
Upon reviewing this evidence, we conclude the district court did not
commit plain error in admitting the evidence of Parker’s engine sales before the
charged conspiracy. Both transactions satisfy the four-part Huddleston test.
First, the government offered Pryce-Jones’s testimony for a proper purpose under
Rule 404(b) to address Parker’s intent and knowledge—both of which Parker
disputed at trial. According to Parker, he was merely an innocent seller of
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overhauled engines, and all the blame rests on the mechanical work performed by
others. But the Pryce-Jones engine sale shows that even when Parker sold an
engine overhauled by someone other than Good Aviation, the result was the same:
a deficient engine that appeared new on the outside, including a clean logbook,
but was not airworthy. Also, Parker requested, and the court gave, a Rule 404(b)
cautionary instruction for Ms. Pryce-Jones’s testimony.
Second, the government offered the Peters transaction for a proper purpose,
and to show Parker’s knowledge of the nature and quality of Good Aviation’s
repair work. This testimony demonstrated Parker’s knowledge of the Goods’
inadequate repair work and his desire to profit from the sale of shoddy engines.
In fact, when challenged with a complaint letter sent to Trade-A-Plane, Parker
responded with a highly pertinent letter, blaming Good Aviation for poor engine
repairs.
In sum, Parker fails to demonstrate how either engine sale outside the
conspiracy time-frame lacked relevance or would have been unduly prejudicial.
United States v. Cuch, 842 F.2d 1173, 1176 (10th Cir. 1988) (“It is well settled
that the rule is one of inclusion which admits evidence of other crimes relevant to
an issue in a trial, unless the evidence is introduced for an impermissible purpose
or undue prejudice is shown.”).
While we conclude the district court did not abuse its discretion in
admitting the evidence, any possible error would plainly be harmless. “A
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harmless error is one that does not have a substantial influence on the outcome of
the trial; nor does it leave one in grave doubt as to whether it had such effect.”
United States v. Resendiz-Patino, 420 F.3d 1177, 1181 (10th Cir. 2005). Parker
does not persuade us the admitted evidence had a substantial influence, or was so
influential that we should doubt the jury’s verdict.
The district court committed no error, but even if it did, the error would
have been harmless.
B. Sufficiency of the evidence
Parker next challenges the sufficiency of the evidence for his conviction on
each of five counts. We review sufficiency of the evidence de novo. United
States v. Voss, 82 F.3d 1521, 1524–25 (10th Cir. 1996). In so doing, we “view[ ]
the evidence in the light most favorable to the government” asking whether “any
rational trier of fact could have found the defendant guilty of the crime beyond a
reasonable doubt.” United States v. Wood, 207 F.3d 1222, 1228 (10th Cir. 2000)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). When conducting this
review, “we do not weigh conflicting evidence or consider witness credibility, as
that duty is delegated exclusively to the jury.” United States v. Hien Van Tieu,
279 F.3d 917, 921 (10th Cir. 2002). We also do not review the evidence in “bits
and pieces,” but we evaluate the sufficiency of the evidence by “consider[ing] the
collective inferences to be drawn from the evidence as a whole.” United States v.
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Hooks, 780 F.2d 1526, 1532 (10th Cir. 1986). We will only overturn a guilty
verdict on sufficiency grounds if no reasonable juror could have reached such a
verdict on the evidence presented. United States v. Shepard, 396 F.3d 1116, 1119
(10th Cir. 2005).
Count 1: conspiracy under § 38(a)(3)
Parker first argues the government failed to provide sufficient evidence that
he engaged in a conspiracy to commit fraud involving aircraft parts. To obtain a
conviction for conspiracy under 18 U.S.C. 38(a)(3), 4 the government is required
to prove: (1) an agreement with another person to violate the law; (2) knowledge
of the essential objectives of the conspiracy; (3) knowing and voluntary
involvement; and (4) interdependence among the alleged co-conspirators. See
United States. v. Edwards, 69 F.3d 419, 430 (10th Cir. 1995) (discussing elements
for conspiracy under 21 U.S.C. § 846). Participation in a conspiracy can be
4
18 U.S.C. 38(a) provides in relevant part: “Offenses.–Whoever, in or
affecting interstate or foreign commerce, knowingly and with the intent to
defraud–
(1) . . .
(C) makes or uses any materially false writing, entry, certification,
document, record, data plate, label, or electronic communication
concerning any aircraft or space vehicle part;
...
(3) attempts or conspires to commit an offense described in paragraph (1)
or (2),
shall be punished as provided in subsection (b).”
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proven by either explicit or implicit agreement by the defendant. See United
States v. Rahseparian, 231 F.3d 1267, 1272 (10th Cir. 2000).
Parker argues “[t]here was insufficient evidence to prove that an agreement
existed among the alleged co-conspirators.” Aplt. Br. at 39. In support of this
contention, Parker selects favorable bits and pieces of testimony from his and his
co-defendants’ testimony to deny the existence of a conspiracy. 5
Not every piece of evidence need support the jury’s verdict. When we look
at the record as a whole, we find enough evidence to support Parker’s conviction.
The evidence shows Parker worked independently of his co-conspirators as a
central figure in the scheme, with full knowledge and intent to defraud the
purchasers of the defective engines. The trial contained testimony of 12
customers, who purchased engines from Parker, and several mechanics, who later
5
Parker also challenges the sufficiency of the evidence supporting the
“aviation quality” of the parts. Aplt. Br. 37–39. We reject this challenge. First,
Parker claims “aviation quality” is an essential element of the underlying crime of
violating 18 U.S.C. § 38(a)(1)(C), but in fact, the aviation quality issue pertains
to the penalty provision of the statute, § 38(b)(1), which provides for a greater
fine and longer term of imprisonment if the offense “relates to the aviation quality
of a part,” § 38(b)(1). Aviation quality only relates to the statutory sentencing
enhancement. Second, sufficient evidence supports the aviation quality
determination of many parts involved in Parker’s conspiracy. Third, any error
would be harmless because Parker received a sentence less than 10 years, and the
aviation quality enhancement operates to increase the standard sentence maximum
of 10 years to 15 years. Parker could not have been harmed by the aviation
quality portion of the statute.
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worked on the engines, for a total of 22 government witnesses indicating the poor
quality of the engines.
In each case, the engines sold by Parker included a new logbook that
falsely represented the overhaul work done to the engine. A few logbooks even
stated that the engine “was in a condition for safe operation.” R., Vol. III, at 468.
In reality the engines were so inadequate that not a single engine was safe for
flight. Three engines actually failed during flight, causing substantial risk to the
pilots. The government’s first witness, Kardell, testified about the dramatic
failure of the engine on the very first take-off that forced an emergency landing.
As one representative example of the defective engine quality, Mr. Stricker,
who is also an A&P mechanic, described the numerous deficiencies he found in
the engine he purchased from Parker. He testified that the rocker box, valve
springs and all four cylinders were covered with rust, vital engine bolts were
finger-loose, the crankcase was contaminated with bead-blasting media, the oil
pump was defective, other parts were incorrect, one part was missing, cylinders
were not honed correctly, the pistons were used, the crankshaft was worn below
the maximum allowable specifications and cracked, valves and valve keepers
were worn, and the bearings were used. See R., Vol. III at 398–404. Deficiencies
of similar magnitude were found in trial testimony about each of the engines. As
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another clear example, some engines were overhauled with internal parts stamped
“not airworthy.” Id. at 464.
Parker played a central role in marketing and advertising these defective
engines. Parker placed the advertisements in Trade-A-Plane, a publication
targeted at small airplane enthusiasts, and he gave a similar deceptive sales-pitch
to the purchasers.
The engines were overhauled in a way that supports a plan to sell grossly
deficient engines as if they were in proper working order. The engines had the
external appearance of being properly overhauled. Only when the engine was
torn down did the defective nature of the work become apparent. The jury could
conclude that Parker, as the salesman of these engines, had full knowledge of
their defective state and acted with an intent to defraud the customers. Testimony
at trial demonstrated an overwhelming pattern of grossly deficient engines, all
sold with pretense of being newly overhauled and in airworthy condition.
To counter this, Parker’s defense claimed he was unaware of the
deficiencies and was just a mere seller of the engines, who had no intention to
profit from selling the dangerously defective engines. Parker also claimed to
have stopped selling the deficient engines once he became aware that Good
Aviation was producing less than satisfactory overhauls. Substantial evidence at
trial contradicted both lines of defense.
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First of all, the evidence supported a finding that Parker was more than a
mere salesman and played an active role in a conspiracy. Three witnesses
testified Parker was present at Good Aviation on multiple occasions and
instructed or supervised Allen Good in the overhaul of engines. One witness
testified Parker was at Good Aviation more than a dozen times, provided
numerous engine parts to the mechanics, was very knowledgeable about the
particular types of airplane engines he sold, and observed the engine overhaul
process at every stage. One witness testified Parker brought defective parts to
Allen Good for use in an engine overhaul. Multiple witnesses supported the
claim that Parker was essentially Allen Good’s only customer during the time-
frame of the conspiracy. The overall weight of the evidence was not consistent
with Parker’s claim to be an unknowing salesman.
The evidence also supports the jury’s conclusion that Parker did not stop
selling the engines once he learned about Allen Good’s inadequate work. A letter
Parker sent to the FAA on July 14, 2002 shows his active role in the scheme. The
letter expressly recognized the inadequate nature of the engine overhauling work
performed by Good Aviation. Yet Parker continued to sell engines after
admitting in the letter that he knew the repairs were inadequate, directly
contradicting his testimony that he had stopped selling defective engines.
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In addition, throughout the conspiracy Parker personally requested
logbooks from Allen Good, and those logbooks contained material false
statements relating to the deficiently overhauled engines. This evidence also
demonstrates Parker’s knowledge and involvement in the conspiracy. In each
case the logbook entries falsely stated repair work was done to the overhauled
engines. The logbooks contained numerous, materially false statements. Parker
alone was responsible for having data plates engraved at a trophy shop and then
installed on the engines before sale.
Finally, the jury heard testimony from several customers who contacted
Parker about their deficient engines and Parker’s refusal to correct any of the
problems. This evidence points to Parker’s deep involvement in the plan to sell
deficient engines, and his desire to profit from the sale by ignoring or refusing to
correct the defects after the engines were sold.
In sum based on the entire record, a jury could reasonably conclude that
Parker was involved in a conspiracy to commit fraud in connection with airplane
parts in violation of 18 U.S.C. § 38(a)(3).
Counts 2,3,and 4: false statements involving aircraft parts
Parker argues the government failed to provide sufficient evidence that he
aided or abetted, or made or used false statements involving aircraft parts. He
was charged under 18 U.S.C. § 38(a)(1)(C), which prohibits making or using a
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false writing concerning any aircraft part, and with aiding and abetting violations
of the same statute under 18 U.S.C. § 2. The three counts involved three specific
engines sold by Parker during the conspiracy time-frame: Count 2 for the
Wedman engine; Count 3 for the Shoop engine; and Count 4 for the Royall
engine. See R., Vol. I. at 19–20; PSR ¶ 21.
To obtain a conviction for violating 18 U.S.C. § 38(a)(1)(C), the
government must prove beyond a reasonable doubt that (1) Parker made or used a
false writing; (2) he knew the false writing contained a false statement or entry at
the time he made or used it; (3) the false writing was material; (4) he made or
used the false writing with the intent to defraud; and (5) the false writing
concerned aircraft parts in or affecting interstate commerce. See 18 U.S.C.
§ 38(a); cf. Tenth Cir. Pattern. Crim. Jury Ins. § 2.46.2 (instruction for 18 U.S.C.
§ 1001(a)(3)). According to the statute, a false writing can include any “entry,
certification, document, record, data plate, label, or electronic communication.”
18 U.S.C. 38(a).
The relevant evidence supporting Parker’s conviction on these three counts
has been discussed in detail above regarding the conspiracy count. The same
evidence supports the jury’s conclusion that Parker knowingly, with an intent to
defraud, either made or used false writing in connection with airplane
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parts—namely the logbooks Parker provided to purchasers attesting to the
workmanship of the overhauled engines.
In short, a reasonable jury could conclude Parker violated 18 U.S.C.
§ 38(a)(1)(C).
Count 5: mail fraud
Finally, Parker argues the government failed to provide sufficient evidence
that he committed mail fraud.
To obtain a conviction for mail fraud under 18 U.S.C. § 1341, the
government must prove beyond a reasonable doubt that (1) Parker engaged in a
scheme or artifice to defraud customers or obtain money by means of false and
fraudulent pretenses, representations or promises; (2) Parker intended to defraud
customers, and (3) Parker used the United States mails or a commercial interstate
carrier to facilitate that scheme. 18 U.S.C. § 1341; see United States v.
Rahseparian, 231 F.3d 1267, 1271 (10th Cir. 2000).
The evidence supports Parker’s conviction for committing mail fraud. At
Parker’s request, Mr. Royall sent a $3,000 check to Parker for a down payment
through the United States mail. Parker’s contention that the mailing was not
necessary to carry out the scheme misses the mark. The use of the mail need not
be an essential element of the scheme, rather the use of the mail may be “incident
to an essential part of the scheme” or “a step in the plot.” Schmuck v. United
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States, 489 U.S. 705, 711 (1989) (internal citations omitted). The evidence of
Royall mailing a $3,000 check to Parker—a step in the plot to defraud his
customers—supports Parker’s conviction for committing mail fraud.
C. Character witness cross-examination
Parker next challenges the district court’s decision to allow the government
to ask certain hypothetical questions to three character witnesses.
We review the district court’s decision to allow cross-examination
questions of character witnesses for abuse of discretion. See World Wide Ass’n of
Specialty Programs v. Pure, Inc., 450 F.3d 1132, 1138 (10th Cir. 2006). We
review how character evidence “depend[s] on numerous and subtle considerations
difficult to detect or appraise from a cold record, and therefore rarely and only on
clear showing of prejudicial abuse of discretion will [we] disturb rulings of trial
courts on this subject.” Michelson v. United States, 335 U.S. 469, 480 (1948); see
also SEC v. Peters, 978 F.2d 1162, 1172 (10th Cir. 1992) (finding exclusion of
cross-examination question to character witnesses to be an abuse of discretion).
Under Rule 405, a defendant is entitled in limited circumstances to call
witnesses to attest to the defendant’s good character and the prosecution may
conduct limited cross-examination. Our cases allow the prosecution in a criminal
case to ask questions of the ‘have you heard’ variety when a character witness
testifies about personal opinion of the defendant’s character, as opposed to
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offering testimony limited to the defendant’s general reputation in the community.
United States v. Polsinelli, 649 F.2d 793, 795–96 (10th Cir. 1981). The
prosecution may ask a personal opinion witness whether he or she “has heard” the
defendant had been sued for fraud and whether that information “would have
affected your opinion” of good character. See Peters, 978 F.2d at 1168–70 (10th
Cir. 1992); see generally 1 McCormick on Evidence, § 48 (6th ed. 2006).
Parker called four witnesses to vouch for his character as a matter of
personal opinion, and now challenges the prosecution’s cross-examination of
three of the witnesses. We analyze each witness separately.
First, Mr. Buddy testified to Parker’s community reputation and gave a
personal opinion, stating, “I think very highly of [Parker], because he’s been a
true friend to me, and I have seen nothing that would degrade from his position,”
and he has been “honorable and upright and truthful in every dealing[] I’ve ever
had with him.” R., Vol. V, 1119. On cross-examination the government asked
Buddy if it would “change your opinion of Mr. Parker if you found out he had
been selling aircraft engines through Trade-A-Plane that were unairworthy.” R.,
Vol. V. at 1126. The government also asked “if it became apparent to [Mr.
Parker] through complaints from those purchasers that the engines were bad,
would it change your opinion of him if you learned that he did not then go ahead
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and contact the other purchasers of the engines to warn them that they might have
a defective engine?” Id. Neither question assumed Parker’s guilt.
Parker objected to the government’s cross-examination of Buddy. After
extensive argument, the district court concluded that Buddy “expressed a personal
opinion of Mr. Parker’s character,” which did not prohibit the government’s
cross-examination about hypothetical instances of prior conduct. The rules of
evidence did not prohibit the cross-examination as long as the questions did not
assume Parker was “convicted of the crimes alleged in this case.” R., Vol. VI at
1126.
Second, Mr. Way testified favorably about Parker’s reputation. Without
objection, the government asked limited cross-examination questions about Way’s
knowledge of Parker’s reputation outside the local community. None of the
questions suggest prior bad acts, and we see no reason to find the cross-
examination improper or prejudicial.
Third, Mr. Hudson testified about Parker’s character saying, “I do have an
opinion. I admire him greatly,” and “[h]e’s a great craftsman.” R. Vol., V. at
1140. Without objection, the government cross-examined Hudson about his
knowledge of co-defendant Good, as well as asking details about the people
Hudson knew concerning Parker’s reputation. None of these questions dealt with
prior bad acts or assumed Parker’s guilt.
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In sum, the district court did not abuse its discretion in allowing the limited
questioning by the government on cross-examination of Parker’s character
witnesses. Moreover, given the extensive evidence of guilt, even if the cross-
examination was error, it would be harmless.
D. Parker’s sentence
Parker challenges both the procedural and substantive reasonableness of his
sentence. Procedurally, Parker challenges the two-level upward adjustment for a
leadership role and the district court’s explanation of the § 3553(a) factors.
Substantively, he challenges the length of the sentence.
We review sentences for reasonableness by giving deference to the district
court under “the familiar abuse-of-discretion standard.” Gall v. United States,
128 S. Ct. 586, 594 (2007); see United States v. Smart, 518 F.3d 800, 805 (10th
Cir. 2008) (noting that it is now “well settled that we review a district court's
sentencing decisions solely for abuse of discretion”). We address the procedural
and substantive reasonableness in turn.
1. Procedural reasonableness
Parker makes two arguments of procedural error. First, he challenges the
district court’s calculation of the sentencing guidelines range and, second, he
contends the district court inadequately explained its decision not to depart
downward. See Gall, 128 S. Ct. at 597 (noting as examples of “significant
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procedural error” a district court’s “failing to calculate (or improperly
calculating) the Guidelines range” and “failing to adequately explain the chosen
sentence”); see also United States v. Romero, 491 F.3d 1173, 1176 (10th Cir.
2007) (treating defendant’s allegation that the district court failed to explain its
reasons for rejecting a below-Guidelines sentence as a claim of procedural
unreasonableness).
Application of § 3B1.1(c)
The district court applied United States Sentencing Guidelines (USSG) §
3B1.1(c), finding that Parker played a leadership role. We review the district
court’s legal interpretation of the Guidelines de novo and its factual findings for
clear error. See United States v. Dalton, 409 F.3d 1247, 1251 (10th Cir. 2005).
The district court heard evidence indicating Parker was the leader and organizer
of the conspiracy, and thus subject to the two-level upward adjustment for his
leadership role.
The Guidelines call for the leadership enhancement “[i]f the defendant was
an organizer, leader, manager, or supervisor.” USSG § 3B1.1(c). The Guidelines
commentary to § 3B1.1 suggests factors the sentencing court should consider
when evaluating whether a defendant is an organizer or leader. These factors
include:
the exercise of decision making authority, the nature of participation
in the commission of the offense, the recruitment of accomplices, the
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claimed right to a larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense, the nature and
scope of the illegal activity, and the degree of control and authority
exercised over others.
USSG § 3B1.1 cmt. n.4; see also United States v. Suitor, 253 F.3d 1206, 1210
(10th Cir. 2001) (applying the commentary factors to find leadership or organizer
adjustment). To qualify for the adjustment, the defendant need only “have been
the organizer, leader, manager, or supervisor of one or more other participants” or
have exercised “management responsibility over the property, assets, or activities
of a criminal organization.” 6 Id. cmt. n.2. More than one person involved in a
conspiracy can qualify for the enhancement. USSG § 3B1.1 cmt. n.4.
The district court had the benefit of a four-day jury trial, and a number of
facts support the court’s finding. First, Parker does not dispute that he alone
placed advertisements in Trade-A-Plane to sell the engines in the conspiracy.
Further, Parker alone explained to each victim why the engines were available for
resale as well as representing, falsely, the basic quality of the engines. Parker
alone engraved the data plates for the engines, which were a necessary and
important element of the scheme. Finally, Parker frequently visited Good
6
We find Parker’s characterization of Allen Good as the conspiracy leader
unavailing. Although Allen Good participated in the conspiracy by placing
defective parts in the engines and obtaining payment from Parker, he was not the
leader.
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Aviation to check on the status of the engines and to direct the engine overhaul
work.
Taken together, these facts are more than sufficient to qualify Parker as a
leader or organizer for the § 3B1.1 upward adjustment.
Failure to explain § 3553(a) factors at sentencing
Parker makes a procedural challenge by claiming the district court failed to
consider, or explain its consideration of, the § 3553(a) sentencing factors. See
Smart, 518 F.3d at 803 (quoting Gall, 128 S. Ct. at 597). Where, as here, a
district court imposes a sentence within the range suggested by the Guidelines,
§ 3553(c) requires the court to provide only a general statement of “the reasons
for its imposition of the particular sentence.” 18 U.S.C. § 3553(c). We do not
require the district court to “recite any magic words to show us that it fulfilled its
responsibility” to consider the § 3553(a) factors. United States v. Sanchez-
Juarez, 446 F.3d 1109, 1115 (10th Cir. 2006) (internal quotations and citations
omitted).
The district court judge entertained Parker’s sentencing arguments at length
and indicated on the record the § 3553(a) factors explaining the reliance on the
sentencing range suggested by the Guidelines:
I conclude that the Section 3553 factors carefully considered and
taken together do lead to a result entirely in harmony with the
application of the guidelines alone and that there is nothing in the
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Section 3553 factors which leads me to a conclusion that a sentence
below the bottom of the guidelines range is warranted.
R., Vol. IX at 1632–33. In the absence of any request for a downward departure,
when a sentence is within the Guidelines range, nothing more is required.
2. Substantive reasonableness
Parker also challenges the substantive reasonableness of his sentence. We
review the district court’s sentence for reasonableness in light of the § 3553(a)
sentencing factors. See United States v. Hamilton, 510 F.3d 1209, 1217–18 (10th
Cir. 2007) (“In evaluating the substantive reasonableness of a sentence, we ask
whether the length of the sentence is reasonable considering the statutory factors
delineated in 18 U.S.C. § 3553(a).”). Sentences imposed within a properly
calculated Guidelines range are accorded a presumption of substantive
reasonableness. United States v. Hernandez, 509 F.3d 1290, 1298 (10th Cir.
2007); see Gall, 128 S. Ct. at 597 (“If the sentence is within the Guidelines
range, the appellate court may, but is not required to, apply a presumption of
reasonableness.”); Rita v. United States, 127 S. Ct. 2456, 2457 (2007). The
presumption of reasonableness “is a deferential standard that either the defendant
or the government may rebut by demonstrating that the sentence is unreasonable
when viewed against the other factors delineated in § 3553(a).” United States v.
Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006).
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Parker makes a perfunctory challenge that his sentence is not reasonable,
“considering the factors set out in § 3553(a).” Aplt. Br. at 53. We conclude
Parker fails to overcome the presumption of reasonableness. The record supports
the district court’s sentencing determination as substantively reasonable in light
of the charged crimes and the evidence presented at trial.
E. Restitution
Finally, Parker challenges the district court’s restitution order. We review
the legality of a restitution order de novo, the district court’s factual findings for
clear error, and the amount of restitution for abuse of discretion. See United
States v. Serawop, 505 F.3d 1112, 1117 (10th Cir. 2007).
The district court ordered Parker to pay $378,633 in restitution pursuant to
the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A (MVRA). Under the
MVRA, the sentencing court must order a defendant convicted of a felony
through fraud or deceit to pay restitution to the victims of the defendant’s illegal
conduct. See 18 U.S.C. §§ 3663A(a)(1), (c)(1)(A)(ii). The district court resolves
disputes over the proper amount of restitution by the preponderance of the
evidence. See id. § 3664(e).
Restitution is not intended to “punish defendants or to provide a windfall
for crime victims, but rather to ensure that victims, to the greatest extent possible,
are made whole for their losses.” United States v. Arutunoff, 1 F.3d 1112, 1121
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(10th Cir. 1993). “The determination of an appropriate restitution amount is by
nature an inexact science.” United States v. Teehee, 893 F.2d 271, 274 (10th Cir.
1990). The MVRA relies on the procedures set forth in 18 U.S.C. § 3664, which
directs sentencing courts to “reach an expeditious, reasonable determination of
appropriate restitution by resolving uncertainties with a view toward achieving
fairness to the victim.” Id. “A restitution order must be based on actual loss,
which the government bears the burden of proving.” United States v. Hudson,
483 F.3d 707, 710 (10th Cir. 2007) (quoting United States v. Quarrell, 310 F.3d
664, 678, 680 (10th Cir. 2002)). While not an exact science, “one logical way to
assess the value of the lost property is by its cost to the victim—how much the
victim paid for the lost property.” United States v. Wilfong, No. 07-6214, 2008
WL 5340423 at *6 (10th Cir. Dec. 23, 2008). This method is not the “only
reasonable form of valuation,” and “[i]n some cases, replacement cost may be
more appropriate” method of valuation. Id. at *6 n.2.
By comparison, loss calculations under the Guidelines requires the “district
court [to] only make a reasonable estimate of the loss,” United States v. Sutton,
520 F.3d 1259, 1268 (10th Cir. 2008), whereas a restitution order under the
MVRA must be based on actual loss. See also USSG § 2B1.1 app. n.3(c)
(discussing that loss calculation “need only make a reasonable estimate of the
loss.”); and United States v. Baum, No. 07-6257 at *14 (10th Cir. 2008)
(proposed slip) (discussing intended loss under USSG § 2B1.1 and how “it is an
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unsettled question whether intended loss requires knowledge that the loss is a
virtual certainly or only knowledge that the loss is probable.”). Because
restitution under the MVRA must be for actual loss, awarding restitution for an
amount greater than the actual loss constitutes an abuse of discretion. See United
States v. Serawop, 505 F.3d 1112, 1124 (10th Cir. 2007). 7
Parker argues the restitution order miscalculates the actual loss because the
district court failed to deduct the core-value (the base value of the engine before
overhaul), 8 for the engines sold to victims. We disagree. After reviewing the
entire record we cannot conclude that the district court abused its discretion in
ordering the amount of restitution, nor that it committed clear error in concluding
the engines had no off-setting core value.
To challenge the restitution amount, Parker primarily relies on the
testimony of Robert DeSpain, who indicated that “according to Lycoming’s sheet
7
Parker also contends the restitution amount increased his offense level
under Guidelines § 2B1.1. The PSR calculated the loss by using the same amount
calculated for restitution. On appeal, Parker focuses exclusively on the
imposition of restitution, never challenging the calculation of loss under the
Guidelines. Even if Parker properly raised an objection to the Guidelines
calculation, we would affirm since the standard for calculating loss under the
Guidelines appears to be more flexible than the standard for imposing restitution,
since “loss” under Guidelines § 2B1.1 can be for actual loss or intended loss. See
USSG § 2B1.1 app. note 3(A).
8
In this case scrap value should not be confused with core-value. The
district court used the phrase “scrap value” to signify that the engines had no
residual value, including the core. In essence, the court concluded the defective
engines were worthless.
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from the factory, [the core price] is $11,000–or $12,150.” R., Vol. III, at 539.
Parker uses this evidence to argue the district court should have subtracted a core-
value equivalent to $11,000 for each of the engines sold when calculating the
restitution amount.
The district court rejected this argument. Relying on the testimony at trial,
including testimony of the victims and multiple independent mechanics, the court
decided not to “attribute any value to these cores other than scrap value.” R.,
Vol. IX at 1599. Based on facts developed during trial as well as the character of
the victims, the district court concluded that the core value argument lacked
merit. For four reasons, we agree.
(1) First, Mr. DeSpain’s testimony supports the district court’s
conclusions. Parker construes DeSpain’s testimony to stand for the proposition
that the victims received a windfall without an offset for the engine core. Even if
we assume the core-value for each engine was $11,000, the district court’s
calculation was not clearly erroneous. DeSpain’s evidence only stated that the
Lycoming price for a factory core was $11,000. At minimum, it would not be
clear error to conclude that the Lycoming factory price for a core does not control
the price for a core engine in substantially worse shape.
Furthermore, DeSpain testified that if a customer supplies a core engine, a
rebuild and overhaul would cost $21,013. DeSpain testified that the price of an
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engine rebuild and overhaul would be $33,163. If any one of Parker’s victims
wished to simply take their core engine and have it rebuilt, it would cost
$21,000—without paying for a new core—to obtain a properly rebuilt engine.
Likewise, the purchase of a rebuilt engine—with a new core—would cost more
than $33,000. If the district court subtracted the suggested $11,000 ‘core-value’
from the restitution amount of each victim, as advocated by Parker, each victim
would carry a substantial, actual loss. The reduced restitution amount would not
make the parties whole. Based just on DeSpain’s testimony, the district court
properly found that the actual loss to the victims was an amount equivalent to the
purchase price paid to Parker.
(2) Other evidence supports the restitution amount. After considering the
testimony of victims and government experts, the district court found the engines
in fact did not have a core-value, but were essentially in such state of disrepair
that they were worthless. For example, Redpath testified he was very concerned
that the “cases” of the engines were being welded and not stress-relieved, which
would potentially lead to cracking problems. While no evidence explains what
precisely comprises the core-value in an airplane engine, oral argument seemed to
indicate that the airplane engine “case” is the equivalent of the car engine
“block,” and provides the basis of the core-value. This specific testimony about
serious flaws in the airplane engine cases further supports the finding that the
engines sold by Parker did not have the core-value he claimed.
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The district court also found under the unique facts of this case and the
types of victims of Parker’s fraud, that the victims were not in the position to sell
the scrap engine parts. Consistent with the district court’s determination of scrap
value, the record does not show a single victim to have sold a defective engine for
a ‘core-value.’
(3) Third, consistent with the district court’s factual findings for the
restitution order, a few victims did pay other mechanics to make their engines
airworthy, at considerable cost. For example, Mrs. Pryce-Jones testified that she
had her deficient engine overhauled to proper working condition at an expense “in
excess of $30,000.” R. Vol. IV, at 702. The evidence shows that an overhaul of
the deficient engines to proper working condition would cost as much as the total
purchase price paid to Parker. 9 Another victim purchased an engine from Parker
for $20,000 but then had to expend approximately $30,000 to put the engine in
proper working condition.
(4) Finally, the actual losses suffered by Parker’s victims were more than
the amounts paid for the deficient engines. For example, the victims were on the
hook for travel and shipping expenses related to their purchases, and time and
delay in obtaining a functioning engine. As an extreme example, one victim went
9
Consistent with this testimony at trial, the PSR indicates that Pryce-Jones
paid $32,000 for an engine “worth about $1,500” that was supposed to be
certified. See PSR ¶ 39 Vol. VII, 1254.
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so far as to request restitution for more than $100,000 for losses incurred after
Parker sold him a defective engine for $13,000, claiming losses stemming from
his inability to complete construction and sell an aircraft with the engine
purchased from Parker. While the entirety of this particular victim claim may not
be properly added to a restitution amount, the evidence supports the consistent
pattern of Parker’s victims suffering actual losses in excess of their original
purchase price for the deficient airplane engine. See United States v. Wilfong,
No. 07-6214, 2008 WL 5340423 at *10–11 (10th Cir. Dec. 23, 2008) (discussing
how the MVRA for property crimes does not permit consequential damages to be
added to the restitution amount).
Given the totality of the evidence, we cannot say it was clear error for the
district court to conclude that the engines sold by Parker did not retain a
substantial core-value, but were instead essentially worthless. Viewed as a
whole, the restitution amount conservatively reflected the actual losses to victims.
In this case, the district court’s method for determining restitution satisfies the
MVRA command to obtain a “reasonable determination of appropriate restitution
by resolving uncertainties with a view toward achieving fairness to the victim.”
18 U.S.C. § 3664.
We therefore affirm the district court’s calculation of the amount of
restitution.
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III. CONCLUSION
For the foregoing reasons, we AFFIRM Parker’s conviction and sentence.
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