United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 9, 2000 Decided February 23, 2001
No. 99-3077
United States of America,
Appellee
v.
Sonni Wilson,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 96cr00362-01)
Stephen C. Leckar, appointed by the court, argued the
cause and filed the briefs for appellant.
Sonni I. Wilson, appearing pro se, was on the briefs for
appellant.
Mary B. McCord, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Wilma A.
Lewis, U.S. Attorney, John R. Fisher, Mary-Patrice Brown
and Ann M. Carroll, Assistant U.S. Attorneys.
Before: Williams and Garland, Circuit Judges, and
Silberman, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Williams.
Opinion by Circuit Judge Garland concurring in part and
dissenting in part.
Williams, Circuit Judge: A jury in district court convicted
Sonni Wilson of bank fraud and other related offenses. The
evidence at trial revealed two separate schemes--one in 1996
targeting several banking institutions including the First
Bank Card Center and one in 1997/98 targeting First Nation-
al Bank of Maryland. In both, Wilson fraudulently procured
and used credit cards, ATM cards, check cards and checks
issued in other people's names. In some cases he accom-
plished his fraud by opening entirely new accounts, while in
others he supplied confidential personal information about
actual account holders to fraudulently gain control of their
accounts. For any one account, the fraud was necessarily
short-lived: Use of an actual account would quickly trigger
reaction either by the true holder or by bank personnel on
the alert for suspicious activity such as unusually large cash
withdrawals; use of fictional accounts would be exposed by
suspicious account activity or by non-payment of the bill.
Wilson was first arrested in 1996 after bank investigators
alerted the police. After indictment, he jumped bail. Follow-
ing a new arrest in 1998, he was charged with six counts of
bank fraud (18 U.S.C. s 1344), one count of possession of 15
or more unauthorized access devices1 with intent to defraud
(18 U.S.C. s 1029(a)(3)), one count of conspiracy to commit
bank fraud and to possess 15 or more unauthorized access
devices with intent to defraud (18 U.S.C. s 371), and one
count of possession of five or more false identification docu-
ments with intent to use illegally (18 U.S.C. s 1028(a)(3)).
__________
1 18 U.S.C. s 1029(e)(1) defines "access device[s]" as cards or
other "means of account access" that can be used to obtain money,
etc., or initiate a transfer of funds.
The jury convicted Wilson on all counts, and the district court
sentenced him to 51 months' imprisonment followed by three
years of supervised release.
On appeal Wilson challenges several aspects of his convic-
tion and sentencing. Because of an error in sentencing, we
reverse.
* * *
Effect on commerce of Wilson's possession of access de-
vices. 18 U.S.C. s 1029(a), which prohibits various forms of
access device fraud, applies only "if the offense affects inter-
state or foreign commerce." Wilson first argues that under
United States v. Lopez, 514 U.S. 549 (1995), he can be held
criminally accountable under federal law only if the govern-
ment proves that his actions had a "substantial" effect on
interstate commerce. But we have already held, since Lopez,
that to support a statutory jurisdictional link for a specific
criminal act it is enough that the evidence show that the act
had "an 'explicit' and 'concrete' effect on interstate commerce,
rather than a 'substantial' one." United States v. Harring-
ton, 108 F.3d 1460, 1465 (D.C. Cir. 1997). In Harrington, we
upheld a conviction on the basis of evidence that defendant's
robbery of a Roy Rogers restaurant deprived the restaurant
of money that would have traveled to an out-of-state bank and
then been used by the Roy Rogers parent company in part to
make out-of-state purchases. See id. at 1468.
Wilson also offers a second, independent argument that the
evidence failed to show that the access card offenses had any
effect at all on interstate commerce. The government con-
cedes that Wilson properly preserved this argument by mak-
ing a motion for judgment of acquittal after the government
rested. Because Wilson presented no defense at all, his
motion at the end of the government's case fully preserved
his claim. See United States v. Foster, 783 F.2d 1082, 1085
(D.C. Cir. 1986); see also United States v. Sherod, 960 F.2d
1075, 1077 (D.C. Cir. 1992). We review de novo the denial of
the motion to determine whether the evidence, considered in
the light most favorable to the government, was "sufficient to
permit a rational trier of fact to find all of the essential
elements of the crime beyond a reasonable doubt." Harring-
ton, 108 F.3d at 1464.
Wilson's claim is meritless. His only argument for insuffi-
ciency is that an expert witness's general testimony regarding
the losses suffered by banks as a result of similar fraudulent
schemes was not specific enough to establish that Wilson's
deeds affected interstate commerce. But the government
points to a great deal of other evidence that speaks to the
interstate commercial effect of Wilson's fraud. There is, in
fact, evidence of interstate impact for all 16 of the devices
charged in the indictment.
Of these devices, three are armed services MasterCards
that Wilson applied for in 1996 through Andrews Air Force
Base in Maryland, causing them to be issued by the First
Card Bank Center in Louisiana, and sent to Washington, D.C.
Regarding the 1997/98 scheme, 12 access devices serviced
accounts that Wilson fraudulently opened via phone calls to a
bank center in North Carolina but were handled by a Wash-
ington, D.C. branch office. (For several of these Wilson used
a Maryland address, and for several of those with a Maryland
address he used identities of persons located in states other
than the District or Maryland). Finally, the remaining device
is a Sears Card issued in the name of a California resident
and found in Wilson's wallet when he was arrested in Wash-
ington, D.C. Although Wilson evidently lived in Washington,
he used this card in Maryland and provided a Maryland
address for the account. The jury could reasonably find the
modest interstate effect required under Harrington.
Failure to instruct jury on need to find interstate nexus
for false ID conviction. Conviction under 18 U.S.C. s 1028
for possession of five or more false identification documents,
with intent to use unlawfully, requires that the government
satisfy the requirement of s 1028(c)(1) that the possession be
"in" or "affect" interstate commerce. The government con-
cedes that the trial judge failed to instruct the jury on the
need for such a finding. And Wilson concedes that because of
his failure to object at trial the error would be grounds for
reversal only if it amounted to plain error under Rule 52(b) of
the Federal Rules of Criminal Procedure.2 As the Supreme
Court explained in United States v. Olano, 507 U.S. 725
(1993), Rule 52(b) requires that there "be an error that is
plain and that affect[s] substantial rights. Moreover, Rule
52(b) leaves the decision to correct the forfeited error within
the sound discretion of the court of appeals, and the court
should not exercise that discretion unless the error seriously
affect[s] the fairness, integrity, or public reputation of judicial
proceedings." Id. at 732 (internal quotations omitted).
The Supreme Court's holding in United States v. Gaudin,
515 U.S. 506 (1995), strongly suggests there was an error and
that it was "plain." The Court held that the Fifth and Sixth
Amendments require that all elements of a crime be submit-
ted to the jury, with the only conceivable exception being for
issues involving a "uniform postratification practice" to the
contrary. Id. at 519. The government invokes no such
practice. But we need not conclusively determine the issue,
as Wilson has failed to show that the alleged error affected
"substantial rights."
In his opening brief, Wilson argued summarily that the
defective instruction affected substantial rights and was
"prejudicial": "It invited the jury to convict without finding
whether Appellant's conduct had been in or affected inter-
state commerce. There is no reason to believe that the jury
disregarded that invitation." Appellant's Main Brief at 29.
This simple treatment would have been adequate if omission
of an essential element of the crime were a "structural" error,
such as "complete deprivation of counsel or trial before a
biased judge," which is automatically deemed to affect sub-
stantial rights. Neder v. United States, 527 U.S. 1, 8-9
(1999). But Neder holds that failure to instruct on an ele-
ment of the crime is not structural. Where, as in Neder,
objection has been made, omission of an element of the crime
from the instructions is reviewed for harmless error, id. at 8-
__________
2 Rule 52(b) provides that "[p]lain errors or defects affecting
substantial rights may be noticed although they were not brought to
the attention of the court."
15, so that (the error being of constitutional magnitude) the
verdict can be upheld if the government shows " 'beyond a
reasonable doubt that the error complained of did not contrib-
ute to the verdict obtained.' " Id. at 15 (quoting Chapman v.
California, 386 U.S. 18, 24 (1967)). Olano explains that for
plain error review the burden on prejudice is reversed, re-
quiring the defendant to show the error's likely effect on the
verdict. 507 U.S. at 734. Wilson made no effort whatever to
carry that burden. Thus the government was on solid ground
in reading his brief as claiming only structural error. As the
alleged error was not structural, Wilson has failed to offer
support for a key ingredient of his claim, which thus neces-
sarily fails.
We are not diverted from this conclusion by the fact that
the government's brief, in a backup passage addressing the
final element of plain error (whether the error affected "the
fairness, integrity or public reputation of judicial proceed-
ings," see Olano, 507 U.S. at 732), included a summary
collection of evidence on interstate impact. First, as this was
offered for a purpose different from the issue of actual
impact, the government could fairly suppose that different
standards were applicable. Second, we are doubtful in any
event whether gilding the lily in the appellee's brief should
ever excuse an appellant's complete failure to support a
necessary ingredient of a claim. Similarly, of course, Wil-
son's effort in his reply brief to meet his burden of showing
prejudice comes too late. McBride v. Merrell Dow and
Pharmaceuticals, Inc., 800 F.2d 1208, 1210 (D.C. Cir. 1986);
see also Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir.
1983).
Alleged prosecutorial "vouching" for a witness's credibility.
Wilson argues that his conviction should be overturned be-
cause the prosecutor, during closing argument, improperly
vouched for the credibility of an Inspector Bartlett, who had
investigated and arrested Wilson in both 1996 and 1998 and
who obtained a confession from him after the 1998 arrest.
Although Wilson does not actually identify any specific state-
ment, the target of his complaint appears to be the second
half of the prosecutor's claim that "there is no evidence to
support any of those allegations [against Bartlett] and, if it
[sic] was, we would not be here." Trial Transcript (June 15,
1998) at 70. The context of the statement was the defense
attorney's suggestion, as the climax of his closing argument,
that because of racial bias Bartlett had not only manufactured
the confession but somehow tainted (or perhaps even manu-
factured) "[t]his case, and all of this evidence." Id.
We need not decide whether, given this provocation, there
was any error in the trial court's failure to act on the
prosecutor's response. Wilson has shown no impact on "sub-
stantial rights," which Olano requires and here means a
demonstration of prejudice. To judge the prejudicial effect of
a closing argument error we look to the severity of the
alleged misconduct, the centrality of the issue affected by the
error, the steps taken to mitigate the error, and the closeness
of the case. See United States v. Gartmon, 146 F.3d 1015,
1026 (D.C. Cir. 1998). Wilson makes no effort to show how
the prosecution's single offhand remark could have been a
severe error. Cf. id. at 1026 (" 'Without other compelling
factors, a single misstatement confined to a closing argument
rarely amounts to severe misconduct.' "). While Bartlett's
account of Wilson's statement and Bartlett's role in authenti-
cation of the fraudulent credit cards and IDs made him an
important witness, Wilson's guilt was critically proven by the
documents themselves, and the testimony of several victims,
bank fraud investigators, and co-conspirator Clarence Terrell.
Wilson concedes that the court gave the standard limiting
instructions that the lawyers' arguments are not evidence,
and we have found that such instructions "mitigate the impact
of erroneous jury argument." Id. at 1026. Finally, the case
was not particularly close. We find no prejudice, and thus no
plain error.
Effectiveness of counsel. In a pro se brief Wilson asserts
that trial counsel was ineffective. We do not normally resolve
such claims when raised initially on appeal, unless "the record
is so clear that remand is unnecessary." United States v.
Soto, 132 F.3d 56, 59 (D.C. Cir. 1997). As Wilson's claims are
vague and conclusory, or based on assertions of admissions by
counsel that are plainly not admissions of any ineffectiveness,
they do not meet that standard. Pursuant to our usual
practice, we remand the issue for consideration by the trial
court.
Enhancement of sentence for obstruction of justice. Wil-
son says that the court erred by imposing a two-level en-
hancement for obstruction of justice, under U.S.S.G. s 3C1.1,
based upon a finding that Wilson committed perjury at a
suppression hearing. The court found two separate perju-
ries. Either would be sufficient, so we need resolve Wilson's
(failing) attack on only one.
At the suppression hearing Wilson falsely denied that he
was the man depicted in a photograph shown to him at the
hearing. He says that the question was not material to the
subject of the hearing, which focused on the voluntariness of
Wilson's post-arrest confession. Materiality is indeed essen-
tial, see United States v. Dunnigan, 507 U.S. 87, 94 (1993),
but Wilson's claim is specious. The government presented
evidence that at his arrest Wilson claimed to be "Imione
Wilson," that he signed a waiver of his Miranda rights as
"Imione Wilson," and that a driver's license bearing that
name was found in his residence. Wilson denied that he had
signed such a waiver and that he was Imione Wilson. When
presented with the Imione Wilson driver's license, he denied
that he was the person depicted in the photo on the card.
His denial was clearly material to whether or not he had
signed the waiver, and thus to whether or not his confession
had been voluntary.
Sentence enhancement under U.S.S.G. s 3B1.1(a). Section
3B1.1(a) of the United States Sentencing Guidelines allows
for a four-level upward adjustment in the base offense level
"[i]f the defendant was an organizer or leader of a criminal
activity that involved five or more participants or was other-
wise extensive." Wilson argues that the trial court erred both
when it determined he was an "organizer or leader," and also
when it found the relevant criminal activity was "otherwise
extensive."
When reviewing the district court's application of the
Guidelines, "purely legal questions are reviewed de novo;
factual findings are to be affirmed unless 'clearly erroneous';
and we are to give 'due deference' to the district court's
application of the guidelines to facts." United States v. Kim,
23 F.3d 513, 517 (D.C. Cir. 1994); see 18 U.S.C. s 3742(e).
In finding that Wilson was an "organizer or leader of a
criminal activity," the district court relied heavily on the
testimony of Clarence Terrell, a former bank teller at First
National. Terrell testified that he assisted Wilson's fraudu-
lent scheme by providing him with names and confidential
information regarding account holders. The court found that
Wilson "solicited Mr. Terrell's involvement" in the criminal
conduct, and gave him "very explicit directions as to exactly
the kind of information, and exactly the kind of profile that he
wanted Mr. Terrell to get out of the bank's records." Sen-
tencing Transcript (June 10, 1999) at 56. In addition, the
court found that "Mr. Terrell himself received extremely little
gain from the entire scheme, and Mr. Terrell had no decision
making role or authority in the criminal activity." Id.
Wilson attacks these findings, mainly on the ground that
they do not address his "control" of Terrell. We need not
attempt an exegesis of the concept of control. Cf. United
States v. Kelley, 36 F.3d 1118, 1129 (D.C. Cir. 1994). The
exercise of decisionmaking authority, recruitment, and a
claimed right to a larger share of the proceeds are prominent
among the factors that the commentary to the Guidelines
indicates should be considered. See U.S.S.G. s 3B1.1, Appli-
cation Note 4. Given that the trial court's findings accurately
reflect Terrell's trial testimony, the court's determination
easily meets the "due deference" standard.
Although the finding that Wilson was an organizer or
leader of criminal activity is itself enough to justify a two-
point enhancement under s 3B1.1(c), Wilson's four-point en-
hancement under s 3B1.1(a) is contingent on the additional
finding that the criminal activity Wilson organized or led
involved "five or more participants, or was otherwise exten-
sive." "Participants," for these purposes, explicitly include
only persons "criminally responsible for the commission of the
offense." s 3B1.1, Application Note 1. At sentencing, the
court conceded that "there may be some question in the
evidence as to whether five or more participants were actually
clearly established," but found the criminal activity "other-
wise extensive," declaring that "there is no question in the
court's mind on the basis of ... evidence presented at trial
... that this was a many layered scheme that was an
extraordinarily extensive scheme to defraud people of their
monies." Sentencing Transcript (June 10, 1999) at 55-56.
Wilson asserts that the district court's concept of "other-
wise extensive" was incorrect, and that to make such a
finding the court must look primarily or solely to the number
of persons involved in the criminal activity, criminally or
noncriminally, as did the Second Circuit in United States v.
Carrozzella, 105 F.3d 796, 802 (2d Cir. 1997). We agree.
The circuits are currently split on the factors relevant to an
activity's being "otherwise extensive." The Third Circuit has
recently adopted the Carrozzella test. See United States v.
Helbling, 209 F.3d 226, 244-45 (3rd Cir. 2000). On the other
side the leading case is United States v. Dietz, 950 F.2d 50, 53
(1st Cir. 1991), which reads the Guidelines as imposing first
an "irreducible minimum" requirement that the defendant be
involved in criminal activity with at least one other criminally
responsible person,3 but, once this is met, as directing the
court to plunge into an unconstrained inquiry into the scale of
the activity. Thus, under Dietz, the court looks to "the
totality of the circumstances, including not only the number of
participants but also the width, breadth, scope, complexity,
and duration of the scheme." Id. The Tenth Circuit has
expressly endorsed the Dietz test, see United States v. Yar-
nell, 129 F.3d 1127, 1139 (10th Cir. 1997), and others have
similarly looked to a broad range of factors beyond the
number of persons involved, see, e.g., United States v. Tai, 41
F.3d 1170, 1174-75 (7th Cir. 1994); United States v. Rose, 20
__________
3 It is unclear whether the Second Circuit has any such mini-
mum requirement of a single guilty coparticipant. Given the find-
ings on Terrell, we need not consider whether such a finding is
necessary.
F.3d 367, 374 (9th Cir. 1994); United States v. Mergerson, 4
F.3d 337, 348 (5th Cir. 1993).
We think the Second and Third Circuits have the better
case. It is true that the text of s 3B1.1(a) says nothing about
what factors render criminal activity "extensive." But the
Sentencing Commission's Commentary focuses solely on the
role of unknowing actors: "In assessing whether an organiza-
tion is 'otherwise extensive,' all persons involved during the
course of the entire offense are to be considered. Thus, a
fraud that involved only three participants but used the
unknowing services of many outsiders could be considered
extensive." U.S.S.G. s 3B1.1, Application Note 3.
Our dissenting colleague correctly notes that the commen-
tary does not expressly state that the number of persons is
the "only" relevant factor, see Dissent at 4, but then relies on
other language in the commentary to support a broader
interpretation of the phrase "otherwise extensive":
In relatively small criminal enterprises that are not
otherwise to be considered as extensive in scope or in
planning or preparation, the distinction between organi-
zation and leadership, and that of management or super-
vision, is of less significance than in larger enterprises
that tend to have clearly delineated divisions of responsi-
bility. This is reflected in the inclusiveness of
s 3B1.1(c).
U.S.S.G. s 3B1.1, Background (emphasis added); see Dissent
at 4-5.
While we agree that the reference to "scope," "planning,"
and "preparation" is somewhat confusing, in context the
sentence ultimately supports our reading of s 3B1.1. The
immediately preceding paragraph of the commentary explains
that s 3B1.1 "provides a range of adjustments to increase the
offense level based upon [1] the size of a criminal organization
(i.e., the number of participants in the offense) and [2] the
degree to which the defendant was responsible for the of-
fense." Id. (emphasis and numbers added). The language at
issue here, whether a criminal activity "involved five or more
participants or was otherwise extensive," s 3B1.1(a),(b),
plainly relates only to the first factor--"size." Although the
commentary does not explicitly discuss the "otherwise exten-
sive" prong, the explicit identification of "size" with "number
of participants" reinforces the impression that the language is
concerned with the number of people involved in the offense.
On the other hand, s 3B1.1 addresses the second factor,
degree of responsibility, by providing enhancement only for
the criminal who is either an "organizer or leader" (subsec-
tion (a)) or "a manager or supervisor" (subsection (b)).
The paragraph emphasized by the dissent addresses a
particular aspect of how s 3B1.1 treats these two basic
factors. Subsections (a) and (b) cover the cases where the
activity "involved five or more participants or was otherwise
extensive," giving the "organizer or leader" a four-level en-
hancement, and the "manager or supervisor" only a three-
level one. But when the size factor is not satisfied, s 3B1.1(c)
applies a uniform two-level enhancement to the "organizer,
leader, manager, or supervisor," drawing no distinction be-
tween these types of responsibility. The language quoted
explains the interaction by noting that "the distinction be-
tween organization and leadership, and that of management
or supervision" is of "less significance" in the case of "rela-
tively small criminal enterprises that are not otherwise to be
considered as extensive in scope or in planning or prepara-
tion." s 3B1.1, Background (emphasis added). By contrast,
the distinction is more significant in the case of "larger
organizations that tend to have clearly delineated divisions of
responsibility." Id. (emphasis added).
Thus, rather than suggest that scope, planning and prepa-
ration actually define an organization as large or small, the
commentary merely conveys the point that organizations that
are larger tend to be of broader scope and involve more
planning and preparation than those that are smaller, and
that, for this reason, it is appropriate to distinguish between
types of responsibility in larger organizations to an extent not
necessary in the case of smaller ones. Far from defining
whether or not a criminal activity is "otherwise extensive,"
the cited factors are relevant to decide the entirely separate
question of degree of responsibility. As the commentary
states elsewhere, "[i]n distinguishing a leadership and organi-
zational role from one of mere management or supervision"
the court should consider factors such as "the degree of
participation in planning or organizing the offense" and "the
nature and scope of the illegal activity." Id. at Application
Note 4.
The court in Carrozzella also reasoned that an open-ended
approach invited double counting:
Many characteristics that might ordinarily be considered
evidence of 'extensive' activity are dealt with elsewhere
in the Guidelines. For example, in fraud cases, the base
offense level can be raised according to the amount of
loss, the extent of planning, and the number of victims.
[U.S.S.G] s 2F1.1. Further adjustments can be made
according to the vulnerability of the victim, s 3A1.1, the
defendant's role, ss 3B1.1, 3B1.2, and abuse of a position
of trust, s 3B1.3.
105 F.3d at 802.
While our dissenting colleague correctly points out that the
Guidelines' key distinction for double counting is between
permissible and impermissible, see Dissent at 5-6, the cited
case, United States v. Valdez-Torres, 108 F.3d 385, 389 (D.C.
Cir. 1997), holds simply that the prospect of double counting
does not allow a court to "ignore the plain language of the
Guidelines." Id. That is not inconsistent with joining the
Second Circuit in taking duplication into account in the
construction of an ambiguous phrase such as "otherwise
extensive."
Of course, a court could address the concern for impermis-
sible double counting by finding extensiveness only in charac-
teristics (besides the number of actors) not adequately taken
into account elsewhere in the Guidelines. But the Sentencing
Reform Act expressly contemplates enhancement for such
omissions or underassessments, allowing the sentencing court
to depart from the otherwise applicable range if "the court
finds that there exists an aggravating or mitigating circum-
stance of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in formulating
the guidelines that should result in a sentence different from
that described." 18 U.S.C. s 3553(b); see generally Koon v.
United States, 518 U.S. 81, 91-96 (1996). So it seems proba-
ble that any straying beyond the number of persons involved
would at best create two headings under which these extras
would be considered, and at worst cause unauthorized double
counting.
The government suggests that we have already implicitly
rejected the Second Circuit view, pointing to United States v.
Sobin, 56 F.3d 1423, 1428 (D.C. Cir. 1995), and United States
v. Dale, 991 F.2d 819, 857 (D.C. Cir. 1993). In Sobin, we did
rely on factors other than head count to uphold an "otherwise
extensive" determination, but in that case the defendant
challenged only the factual findings, not the legal standard.
56 F.3d at 1428. Dale similarly did not involve a conflict as to
the standard, and in fact the trial court had found at least five
persons involved. 991 F.2d at 857. Thus we are free to
adopt, and do adopt, the view of the Second Circuit that
s 3B1.1(a) is "not so much about extensiveness in a colloquial
sense as about the size of the organization in terms of persons
involved that a defendant 'organize[d]' or 'le[d].' " Carrozzel-
la, 105 F.3d at 803.
We further agree with the Second Circuit that, at a mini-
mum, " 'Section 3B1.1's 'otherwise extensive' prong demands
a showing that an activity is the functional equivalent of an
activity involving five or more participants.' " Id. at 803
(quoting United States v. Tai, 41 F.3d 1170, 1174 (7th Cir.
1994)). To read the "otherwise extensive" prong as a lesser
requirement would either allow this provision to eat up the
"five or more participant" prong or would produce the anoma-
lous result that unknowing outsiders count more than crimi-
nally culpable participants. See id. A necessary implication
of this analysis is that the number of persons involved must
total at least five, as it is hard to see how any lesser number
could constitute the functional equivalent of five or more
knowing participants. But what is necessary may not always
be enough.4 In Carrozzella the Second Circuit observed that
__________
4 On the facts of this case, we need not explore whether on a
rare occasion the innocent actor might be found more effective than
the use of "unknowing participants"5 may be "less efficient"
than the use of knowing participants or "may still only
minimally further the criminal activity." 105 F.3d at 804.
Cf. Tai, 41 F.3d at 1174-75 ("If a district court intends to rely
solely upon the involvement of a given number of individuals
to support a determination that criminal activity is 'otherwise
extensive,' it must point to some combination of participants
and outsiders equaling a number greater than five."). To
ensure that the "extent of harm and degree of culpability in
organizing or leading five unknowing participants" is not less
than in case of knowing participants, Carrozzella permits the
sentencing court to "take into account the role and perfor-
mance as well as the number of unknowing participants." 105
F.3d at 804 (emphasis added).
There remains the issue of who should be counted once we
include those who are unknowing or otherwise not criminally
involved. Indeed, the government claims that Wilson's en-
hancement is justified even under the Carrozzella framework.
The Second Circuit considered the problem, noting as an
example that it was necessary to distinguish the "taxi driver
who brought a leader of the fraudulent scheme to work on a
single occasion" from the "[s]alespeople who unknowingly
conveyed fraudulent misrepresentations at a defendant's re-
quest." Id. The court identified the following factors as
relevant to the head count:
(i) the number of knowing participants; (ii) the number
of unknowing participants whose activities were orga-
__________
knowing participants, perhaps because his ignorance of the scheme
made him less nervous or otherwise improved his plausibility. Nor
need we consider whether there should be some presumptive rate of
substitution between the types of actors (e.g., one participant
presumptively equals two outsiders).
5 Although the Guidelines define the word "participant" solely
in terms of criminally culpable actors, see U.S.S.G. s 3B1.1., Appli-
cation Note 1, the Second Circuit, at the risk of some confusion, has
adopted the term "unknowing participants" to describe those "out-
siders" contemplated in the commentary to the Guidelines. Carroz-
zella, 105 F.3d at 803-804; see also U.S.S.G. s 3B1.1., Application
Note 3.
nized by or led by the defendant with specific criminal
intent [as opposed to mere service providers]; and (iii)
the extent to which the services of the unknowing partici-
pants were peculiar and necessary to the criminal
scheme [rather than fungible with others generally avail-
able to the public].
Id. at 803-804. We agree that these criteria are relevant.
In trying to fit the present case under Carrozzella, the
government claims that "[d]ozens of 'unknowing participants'
were involved, carrying out [Wilson's] bogus directions to
open accounts and change addresses without realizing that
[Wilson] was not who he claimed to be." Appellee's Brief at
47. In the government's view, the role of these "unnamed
bank employees" is analogous to that of the hypothetical
salespeople mentioned in Carrozzella, who convey fraudulent
misrepresentations on behalf of the defendant.
But even if we assume that the activities of the various
bank personnel invoked by the government were "peculiar
and necessary" to Wilson's scheme, we do not see how they
could be described as "organized or led" by him. The bank
employees who changed account addresses and issued credit
cards on Wilson's instructions were, so far as appears, simply
performing routine tasks that, according to pre-established
bank policies, followed automatically once Wilson provided
the necessary information. Such automatic behavior by func-
tionaries of a victim institution appears totally different from
the salesmanship of people retained by the defendant to
market and sell a product with representations that, unbe-
knownst to the agent, are false. To hold otherwise would risk
the absurdity that a defendant who procured 10 different
credit cards on 10 different days would escape upward adjust-
ment if the same telephone operator happened to receive his
request each time, whereas an otherwise identical defendant
would get the enhancement solely because each of his calls
connected him to a new employee. To take the government's
logic one step further, upward adjustment might turn on the
complexity of a bank's internal bureaucracy, with the count of
unknowing participants determined by the number of desks
over which a fraudulent request must pass.
The government alternatively suggests, presumably as a as
a matter of common sense, that we can infer that Wilson must
have used a number of additional knowing confederates. But
it does not point to evidence of bank operations from which
we (or the district court) could reasonably draw such an
inference.
Finally, we note that in United States v. Nolan, 136 F.3d
265, 273 (2d Cir. 1998), the Second Circuit applied the Carroz-
zella test without discussion of whether the unknowing partic-
ipants were in any way organized or led by the defendant.
Of course we cannot say whether this foreshadows a Second
Circuit retreat from Carrozzella, but in any event we think
Carrozzella got it right.
Accordingly, we see no basis for the four-point enhance-
ment under s 3B1.1(a). We vacate the sentence and remand
the case for further proceedings consistent with this decision.
As noted earlier, we remand the claim of ineffective assis-
tance of counsel. The conviction is otherwise affirmed.
So ordered.
Garland, Circuit Judge, concurring in part and dissenting
in part:
I concur in the court's affirmance of defendant Wilson's
conviction and of his sentence enhancement for obstruction of
justice. I differ only in that I would also affirm the district
court's decision to increase Wilson's sentence under
s 3B1.1(a), for his role as the leader of a criminal activity that
was "otherwise extensive." My colleagues hold that "other-
wise extensive" should be defined solely by the number of
persons involved in the activity. Op. at 14. In so doing, they
follow the lead of two circuits,1 but reject the views of eight
others, all of which look to factors beyond a simple head-
count.2 This circuit, too, has looked to such other factors,
although, as the court notes, in those cases the legal question
now before us was not squarely raised.3 Because I conclude
__________
1 See United States v. Helbling, 209 F.3d 226, 244-45 (3d Cir.
2000); United States v. Carrozzella, 105 F.3d 796, 802-04 (2d Cir.
1997).
2 See, e.g., United States v. Dietz, 950 F.2d 50, 53 (1st Cir. 1991)
("[T]he extensiveness of a criminal activity is not necessarily a
function of the precise number of persons, criminally culpable or
otherwise, engaged in the activity. Rather, an inquiring court must
examine the totality of the circumstances, including not only the
number of participants but also the width, breadth, scope, complexi-
ty, and duration of the scheme."); United States v. Mergerson, 4
F.3d 337, 348 (5th Cir. 1993); United States v. Sanders, 95 F.3d
449, 457 (6th Cir. 1996); United States v. Tai, 41 F.3d 1170, 1175
(7th Cir. 1994); United States v. Morphew, 909 F.2d 1143, 1145 (8th
Cir. 1990); United States v. Rose, 20 F.3d 367, 374 (9th Cir. 1994);
United States v. Yarnell, 129 F.3d 1127, 1139 (10th Cir. 1997);
United States v. Rodriguez, 981 F.2d 1199, 1200 (11th Cir. 1993).
As the court notes, the First Circuit reads the Guidelines as also
requiring, as an irreducible minimum, that the activity involve at
least one criminally responsible person in addition to the defendant.
See Dietz, 950 F.2d at 53. Although I agree that we need not
decide that point in order to resolve this case, Op. at 10 n.3, the
First Circuit's view appears to be in accord with the commentary to
s 3B1.1. See U.S.S.G. s 3B1.1, comment., n.2.
3 See United States v. Sobin, 56 F.3d 1423, 1428 (D.C. Cir.
1995) ("The government's evidence of Sobin's elaborate scheme to
defraud the bankruptcy court, involving multiple bank accounts,
that the great majority of the circuits are correct, and that it
is more faithful to the Sentencing Guidelines to consider the
totality of the circumstances in determining whether an activ-
ity was "otherwise extensive," I respectfully dissent.
Guideline s 3B1.1(a) directs the sentencing court to in-
crease a defendant's offense level by four if the defendant was
an organizer or leader of a criminal activity "that involved
five or more participants or was otherwise extensive." (Em-
phasis added). My colleagues hold that the second of these
two alternative criteria is satisfied only by criminal activity
that is the functional equivalent of the first, and they go on to
define functional equivalence as a headcount of knowing and
unknowing individuals.
There is nothing in the language of s 3B1.1(a), however,
that justifies limiting the term "otherwise extensive" to a
headcount. To the contrary, a commonsense reading sug-
gests several ways in which criminal activity may be adjudged
"extensive." The number of individuals involved is, to be
sure, a sensible factor to consider. But so are such other
factors as duration, geographic reach, degree of organization-
al sophistication, and number of constituent transactions--as
our sister circuits have found.4
__________
aliases and transactions, amply supports the implicit finding that
Sobin orchestrated an 'extensive' criminal activity."); United States
v. Dale, 991 F.2d 819, 857 (D.C. Cir. 1993) (noting "the wide
geographic reach of the criminal activity and the extensiveness of
the actions taken to further the conspiracy").
4 See, e.g., Yarnell, 129 F.3d at 1139 (relying on geographic
scope, duration, number of victims, amount of losses, planning,
complex execution, as well as number of persons involved); Sand-
ers, 95 F.3d at 457 (relying on fact that activities "took place in
several states"); United States v. Briscoe, 65 F.3d 576, 580, 590 (7th
Cir. 1995) (holding that fraudulent loan operation, run by three
criminal participants over four years and involving fifty-nine fraudu-
lent transactions totaling $120,000, constituted "otherwise exten-
sive" enterprise); Mergerson, 4 F.3d at 347-48 (relying on "totality
of the evidence," including amount, value, and purity of heroin
negotiated, as well as number of participants); Dale, 991 F.2d at
857 (taking into account "the wide geographic reach of the criminal
This conclusion is only strengthened by consideration of the
guideline's additional descriptor, the word "otherwise." Had
the Sentencing Commission used "similarly" extensive, rather
than "otherwise" extensive, to describe s 3B1.1(a)'s second
criterion, the court would have textual support for its head-
count limitation. But the use of the word "otherwise" indi-
cates an intention to open the second category to factors
different from those considered in the first, rather than to
restrict it to those that are strictly of-a-piece. See Webster's
Third New International Dictionary 1598 (1976) (defining
"otherwise" as "in a different way or manner" (emphasis
added)); see also United States v. Alpers, 338 U.S. 680, 682-
84 (1950) (noting that, in statute making it an offense to
kidnap "for ransom or reward or otherwise," term "or other-
wise" indicates that kidnaping is prohibited for any purpose
and not simply for pecuniary gain, as would be suggested by
the first two terms).
Acknowledging that the text of s 3B1.1(a) does not confirm
their interpretation, Op. at 11, my colleagues look instead in
other directions. First, they note the commentary to
s 3B1.1, which states: "In assessing whether an organization
is 'otherwise extensive,' all persons involved during the course
of the entire offense are to be considered. Thus, a fraud that
involved only three participants but used the unknowing
services of many outsiders could be considered extensive."
U.S.S.G. s 3B1.1, comment., n.3. This commentary, however,
merely instructs that all persons involved--and not simply
__________
activity and the extensiveness of the actions taken to further the
conspiracy"); Rodriguez, 981 F.2d at 1200 (relying on fact that drug
operation "extended from Columbia to Florida to Boston to New
York" and "included the purchase and street distribution of 100
kilos of cocaine worth $350,000 in the wholesale market"); Dietz,
950 F.2d at 54 (relying on "course of criminal activity that spanned
twelve years, crossed into seven states, utilized many fictitious
identities, infiltrated two distinct sets of [government] programs,
and snared eight different governmental agencies in its intricately
spun web," as well as number of persons involved); United States v.
McKenzie, 922 F.2d 1323, 1329 (7th Cir. 1991) (resting on number of
couriers, cross-country trips, and transactions).
those who were knowing--should be considered. It does not
indicate that the number of persons is to be the only factor in
assessing extensiveness.
Moreover, other commentary to s 3B1.1 strongly suggests
that the Commission did not intend sentencing courts to
confine their analysis of "otherwise extensive" to the number
of persons involved. On the contrary, the commentary indi-
cates that in applying s 3B1.1, courts should consider wheth-
er the enterprise was extensive "in scope or in planning or
preparation":
In relatively small criminal enterprises that are not
otherwise to be considered as extensive in scope or in
planning or preparation, the distinction between organi-
zation and leadership, and that of management or super-
vision, is of less significance than in larger enterprises
that tend to have clearly delineated divisions of responsi-
bility. This is reflected in the inclusiveness of
s 3B1.1(c).
U.S.S.G. s 3B1.1, comment., background (emphasis added).5
These are precisely the kind of factors considered by circuits
__________
5 Although the commentary set forth in the text explicitly
mentions only s 3B1.1(c), its elaboration of the meaning of "other-
wise ... extensive" applies to s 3B1.1(a) and (b) as well. Guideline
s 3B1.1 states:
(a) If the defendant was an organizer or leader of a criminal
activity that involved five or more participants or was
otherwise extensive, increase by 4 levels.
(b) If the defendant was a manager or supervisor (but not an
organizer or leader) and the criminal activity involved five
or more participants or was otherwise extensive, increase
by 3 levels.
(c) If the defendant was an organizer, leader, manager, or
supervisor in any criminal activity other than described in
(a) or (b), increase by 2 levels.
U.S.S.G. s 3B1.1. As the guideline makes clear, the line between
criminal activity covered by subsection (c), and that covered by
subsections (a) and (b), is the activity's size (number of participants)
or extensiveness. The import of the commentary is its description
that employ the totality of the circumstances test. See supra
note 4.
My colleagues suggest two further reasons for limiting
"otherwise extensive" to a headcount. First, they worry that
if "otherwise extensive" is not cabined by a headcount princi-
ple, courts will plunge into an "unconstrained inquiry." Op.
at 10. This concern seems overstated. Prior to the Sentenc-
ing Reform Act of 1984, a court's sentencing inquiry was
indeed unconstrained. See Mistretta v. United States, 488
U.S. 361, 363-65 (1989). Although it is true that the Sentenc-
ing Guidelines were intended to limit that discretion, they
were not intended to squeeze out every last drop. See Koon
v. United States, 518 U.S. 81, 97, 112 (1996). A court's
analysis of whether criminal activity was "otherwise exten-
sive," based on factors that accord with a commonsense
reading of the term and that have been applied by eight other
circuits, is no more unconstrained than is the search for the
meaning of many other dispositive, but equally vague, guide-
line terms. See, e.g., U.S.S.G. s 2F1.1(b)(2)(B) ("more than
minimal planning"); s 3B1.2(b) ("minor participant");
s 3D1.2(b) ("common scheme or plan"); s 1B1.3 ("relevant
conduct"). And, of course, a district court's determination
remains ultimately constrained by appellate review for abuse
of discretion. See 18 U.S.C. s 3742(e).
My colleagues also suggest that a headcount principle is
required to prevent "double counting" of offense characteris-
tics taken into account elsewhere in the Guidelines, such as
"more than minimal planning" or multiple victims. See, e.g.,
s 2F1.1(b)(2). But the "Commission 'plainly understands the
concept of double counting, and expressly forbids it where it
__________
of otherwise extensive as a function of "scope or ... planning or
preparation." My colleagues' interpretation of the commentary as
indicating that scope, planning, and preparation are not factors to
consider in determining whether criminal activity is otherwise ex-
tensive, but rather factors in determining the "entirely separate"
question of degree of responsibility, Op. at 12, is inconsistent with
the commentary's language. See U.S.S.G. s 3B1.1, comment., back-
ground ("otherwise to be considered as extensive in scope or in
planning or preparation" (emphasis added)).
is not intended.' " United States v. Valdez-Torres, 108 F.3d
385, 389 (D.C. Cir. 1997) (quoting United States v. Williams,
954 F.2d 204, 208 (4th Cir. 1992)).6 The Commission has not
forbidden double counting here, nor even indicated that it is
disfavored. See s 1B1.1, comment., n.4 ("Absent an instruc-
tion to the contrary, the adjustments from different guideline
sections are applied cumulatively.... For example, the ad-
justments from s 2F1.1(b)(2) (more than minimal planning)
and s 3B1.1 (Aggravating Role) are applied cumulatively.").
Nor is double counting truly at issue where, as in this case,
the same conduct may be the ground for multiple adjust-
ments based on different attributes of culpability. See, e.g.,
United States v. Kelly, 993 F.2d 702, 704-05 (9th Cir. 1993)
(holding that enhancements for both more than minimal
planning under s 2F1.1(b)(2), and leading an extensive crimi-
nal activity under s 3B1.1(a), may be applied without double
counting because the two derive from distinct sentencing
concerns).7
__________
6 See id., 108 F.3d at 389 n.9 (noting, for example, that applica-
tion note 1 to U.S.S.G. s 2A2.4 expressly directs against enhance-
ment for an "official victim" under s 3A1.2 when the offense itself is
assault on a government officer); United States v. Lilly, 13 F.3d 15,
19-20 (1st Cir. 1994) ("Double counting in the sentencing context is
a phenomenon that is less sinister than the name implies. Since
double counting is often perfectly proper, the guidelines themselves
are the most helpful aid in the task of separating permissible double
counting from its impermissible counterpart.... We believe the
Commission's ready resort to explicitly stated prohibitions against
double counting signals that courts should go quite slowly in
implying further such prohibitions where none are written." (inter-
nal quotations omitted)); see also United States v. Johnstone, 107
F.3d 200, 212-13 (3d Cir. 1997); United States v. Wong, 3 F.3d 667,
670-71 (3d Cir. 1993).
7 See United States v. Cobleigh, 75 F.3d 242, 251 (6th Cir. 1996)
(applying both more than minimal planning enhancement and en-
hancement under s 3B1.1(b)); United States v. Curtis, 934 F.2d
553, 556-57 (4th Cir. 1991) (applying both more than minimal
planning enhancement and enhancement under s 3B1.1(c)); see
Finally, even if double counting were of critical concern
with respect to s 3B1.1(a), it would not counsel excluding all
factors except for the number of persons involved. There are
many other factors upon which extensiveness could properly
be based, such as duration and geographic scope, that are not
taken into consideration by any guideline other than
s 3B1.1(a). Such factors pose no risk of double counting
under any theory, and there is thus no basis for excluding
them from consideration at sentencing.8
--------------
The court does not dispute that if "otherwise extensive"
were defined by the totality of the circumstances, rather than
by a headcount, the four-level enhancement of s 3B1.1(a)
would be warranted in this case. Because I conclude that the
broader definition is more faithful to the Sentencing Guide-
lines, I would affirm the defendant's sentence in all respects.
__________
also United States v. Syrax, 235 F.3d 422, 428 (9th Cir. 2000);
United States v. Then, 56 F.3d 464, 466 (2d Cir. 1995).
8 It is not an answer to say that such factors may still be
considered in granting an upward departure from the range estab-
lished by the applicable guidelines. Op. at 13-14. The availability
of departures, which are intended to address circumstances "not
adequately taken into consideration by the Sentencing Commis-
sion," 18 U.S.C. s 3553(b) (emphasis added), cannot logically be
used to reach a conclusion about which circumstances the Commis-
sion did take into consideration. Moreover, the threshold for
determining whether a departure from the Guidelines is warrant-
ed--i.e., conduct outside the heartland of cases governed by an
offense guideline, see U.S.S.G. ch.1, pt.A(4)(b)--is significantly dif-
ferent from the standard for applying an enhancement within the
Guidelines.