United States v. Williams

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 16, 2008
No. 06-15318 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 05-00014-CR-HL-7

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALMA WILLIAMS,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Georgia
_________________________

(May 16, 2008)

Before TJOFLAT, HULL and WILSON, Circuit Judges.

WILSON, Circuit Judge:

Alma Williams (“Williams”) appeals her convictions for five counts of wire

fraud and one count of theft concerning programs receiving federal funds
[hereinafter “federal funds theft”], in violation of 18 U.S.C. §§ 1343 and 666, and

the resulting 33-month sentence imposed by the district court. On appeal,

Williams argues that her convictions violate the Double Jeopardy Clause.

Williams also argues that the evidence at trial was insufficient to support a

conviction, and that the district court constructively amended the indictment,

improperly admitted evidence, and improperly applied three sentencing

adjustments. For the following reasons, we affirm Williams’s convictions, but

vacate her sentence and remand this case back to the district court for resentencing

consistent with this opinion.

I. BACKGROUND

Williams was the Executive Director and Chief Financial Director of

Eastside Training Academy (“ETA”) in Valdosta, Georgia. ETA, a non-profit

organization incorporated in the State of Georgia, primarily provides pre-

kindergarten child care and infant daycare. Williams’s husband, Bunnis Williams,

was the Chief Executive Officer and President of the Board of Directors of ETA.

In late 2000, Williams agreed to manage two federal programs, the Foster

Grandparent Program and the Retired Senior Volunteer Program, under ETA’s

sponsorship. To that end, Williams applied for and received federal grants from

the Corporation for National and Community Service (“CNCS”). CNCS is an

2
independent federal agency that administers and dispenses federal grant funds to

support local programs fostering volunteer and community service activities.

CNCS granted funds to ETA for the limited purpose of organizing senior

volunteers to engage in community service in schools, hospitals and museums.

During 2001, CNCS wired approximately $320,000 in federal grants to

ETA’s account for its management of the Foster Grandparent Program and the

Retired Senior Volunteer Program. ETA’s use of the grant funds was limited to

the direct costs of managing these programs, including mileage reimbursements

and small stipends to low-income senior volunteers, and salaries for a full-time

project director, full-time coordinators, and a part-time bookkeeper. CNCS also

authorized ETA to spend grant funds on certain administrative overhead costs that

CNCS had pre-approved and built into the budgets for each program. Grant rules

prohibited service providers such as ETA from using grant funds to pay for

administrative overhead or indirect costs not pre-authorized by CNCS through a

separate line-item budget.

As we describe in further detail later in this opinion, ETA spent federal grant

money on unauthorized items such as Williams’s salary, checks made payable to

Bunnis Williams, general ETA operating expenses, rent and utilities for facilities

not being used by the federal grant programs, and plumbing work for one of

3
Williams’s separate rental properties. Despite CNCS restrictions, ETA spent

approximately one-third, or $101,000, of grant funds on unauthorized

expenditures.

A federal grand jury charged Williams and her husband with seven counts of

wire fraud, one count of federal funds theft, and aiding and abetting each other

thereto, pursuant to 18 U.S.C. §§ 1343, 666, and 2. At trial, the government

showed that Williams had primary authority over ETA finances and that she had

direct control over the bookkeepers who managed the federal grant funds. The

evidence showed how the bookkeepers, following Williams’s orders, charged

unapproved, personal expenditures to the federal grant programs using a

percentage-based formula that Williams devised. In support of her good faith

defense, Williams testified that she was unaware that her use of the grant funds

was improper and that she did not intend to defraud the government. The jury

convicted Williams on five counts of wire fraud and on the federal funds theft

count, but it acquitted Bunnis Williams of all charges.

To determine Williams’s advisory guideline sentence, the district court

applied four upward adjustments to Williams’s base offense level: (1) a two-level

aggravating role adjustment; (2) a two-level abuse of trust adjustment; (3) a two-

level obstruction of justice adjustment; and (4) an eight-level adjustment for the

4
amount of loss. After applying these adjustments, the district court sentenced

Williams to thirty-three months imprisonment, the bottom of the applicable

guidelines range.

II. DISCUSSION

A. Double Jeopardy

Williams first contends that her separate convictions for wire fraud and

federal funds theft violate the Double Jeopardy Clause of the Fifth Amendment

because the factual basis of her theft conviction is “part and parcel”of the scheme

to defraud underlying her conviction for wire fraud. She also asserts that her

convictions on multiple counts of wire fraud constitute double jeopardy.

We review claims of constitutional error de novo. United States v. Brown,

364 F.3d 1266, 1268 (11th Cir. 2004). Where a defendant fails to assert a double

jeopardy claim before the district court, however, she has forfeited that claim.

United States v. Lewis, 492 F.3d 1219, 1222 (11th Cir. 2007) (en banc). We

nonetheless review such forfeited claims under the plain error standard of Federal

Rule of Criminal Procedure 52(b). Lewis, 492 F.3d at 1222. As the Supreme

Court explained in United States v. Olano, 507 U.S. 725, 113 S. Ct. 1770, 123 L.

Ed. 2d 508 (1993), the defendant’s “[m]ere forfeiture, as opposed to waiver, does

not extinguish an ‘error’ under Rule 52(b).” Id. at 733, 113 S. Ct. at 1777.

5
 Williams did not raise her double jeopardy arguments to the district court.

Although she failed to raise the claims, Williams made no affirmative steps to

voluntarily waive them. See Lewis, 492 F.3d at 1221–22 (finding that defendant

did not waive, but rather forfeited, double jeopardy claim when raising it for the

first time on appeal). Consequently, Williams’s failure to raise these claims did

not result in her intentional relinquishment of a known right, and we review these

forfeited claims for plain error.

As a threshold matter, “[w]e will correct a plain error when (1) an error has

occurred, (2) the error was plain, and (3) the error affected substantial rights.”

Lewis, 492 F.3d at 1222. “If all three conditions are met, an appellate court may

then exercise its discretion to notice a forfeited error, but only if . . . the error

seriously affect[ed] the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Cotton, 535 U.S. 625, 631–32, 122 S. Ct. 1781,

1785, 152 L. Ed. 2d 860 (2002) (internal quotation marks omitted) (quoting

Johnson v. United States, 520 U.S. 461, 467, 117 S. Ct. 1544, 1549, 137 L. Ed. 2d

718 (1997)); Lewis, 492 F.3d at 1222.

We analyze issues of double jeopardy under the test set forth by the Supreme

Court in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306

(1932). United States v. Hassoun, 476 F.3d 1181, 1185 (11th Cir. 2007). Under

6
Blockburger, when a single, completed criminal transaction violates two or more

criminal statutes, the Double Jeopardy Clause does not shield a defendant against

prosecution under one or more of the applicable statutes so long as “each statute

requires proof of an additional fact which the other does not . . . .” Blockburger,

284 U.S. at 304, 52 S. Ct. at 182. The Blockburger test is one of statutory

interpretation in which we examine the elements of each offense to determine

whether Congress intended to authorize cumulative punishments. Albernaz v.

United States, 450 U.S. 333, 337, 101 S. Ct. 1137, 1141, 67 L. Ed. 2d 275 (1981);

Hassoun, 476 F.3d at 1185.

1. Convictions for Wire Fraud and Federal Funds Theft

Under 18 U.S.C. § 1343, wire fraud requires proof beyond a reasonable

doubt that (1) the defendant participated in a scheme or artifice to defraud; (2) with

the intent to defraud; and (3) used, or caused the use of, interstate wire

transmissions for the purpose of executing the scheme or artifice to defraud.1

Under 18 U.S.C. § 666, federal funds theft requires proof beyond a reasonable

1
18 U.S.C. § 1343 provides:
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for
obtaining money or property by means of false or fraudulent pretenses, representations,
or promises, transmits or causes to be transmitted by means of wire, radio, or television
communication in interstate or foreign commerce, any writings, signs, signals, pictures,
or sounds for the purpose of executing such scheme or artifice, shall be fined under this
title or imprisoned not more than 20 years, or both. If the violation affects a financial
institution, such person shall be fined not more than $1,000,000 or imprisoned not more
than 30 years, or both.

7
doubt that (1) the defendant was an agent of an organization; (2) the organization

receives more than $10,000 from a federal grant program in one year; (3) the

defendant embezzled, stole, obtained by fraud, or otherwise without authority

knowingly converted or intentionally misapplied property valued at $5,000 or more

that was under the organization’s care, custody, or control.2

The elemental analyses of §§ 1343 and 666 demonstrate that Williams’s

convictions for wire fraud and federal funds theft satisfy the Blockburger test.

Wire fraud requires neither proof of the defendant’s agency relationship to an

organization receiving federal funds, nor proof of theft. Federal funds theft

requires no proof of the use of interstate wire transmissions during a purported

scheme or artifice to defraud. Contrary to the contention implicit in Williams’s

argument, the use of wires in interstate commerce is a substantive, albeit

2
18 U.S.C. § 666 provides, in relevant part:
Whoever, if the circumstance described in subsection (b) of this section exists—
(a)(1) being an agent of an organization . . . embezzles, steals, obtains by fraud, or
otherwise without authority knowingly converts to the use of any person other than the
rightful owner or intentionally misapplies, property that . . . is valued at $5,000 or more,
and . . . is owned by, or is under the care, custody, or control of such organization,
government, or agency[] . . . shall be fined under this title, imprisoned not more than 10
years, or both.
(b) The circumstance referred to in subsection (a) . . . is that the organization . . .
receives, in any one year period, benefits in excess of $10,000 under a Federal program
involving a grant[] . . . .

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jurisdictional, element that the government must prove beyond a reasonable doubt.

Because §§ 1343 and 666 each requires proof of an element not required by the

other, Williams’s convictions for both crimes satisfy the Blockburger test.

2. Convictions for Multiple Counts of Wire Fraud

Likewise, we find no error in Williams’s convictions on multiple counts of

wire fraud because each count satisfies the Blockburger test. Williams argues that

the indictment was multiplicitous because it alleged only one scheme to defraud,

which the government manipulated into separate counts with each wire of grant

funds into ETA’s account. Williams’s argument fails because it rests on a

fundamental misinterpretation of the wire fraud statute.

An indictment is multiplicitious if it charges a single offense in more than

one count. Ward v. United States, 694 F.2d 654, 660–61 (11th Cir. 1983) (quoting

United States v. De la Torre, 634 F.2d 792, 794 (5th Cir. 1981)). A multiplicitious

indictment not only subjects the defendant to numerous sentences for one offense,

but also “prejudice[s] the defendant and confuse[s] the jury by suggesting that not

one but several crimes have been committed.” United States v. Hearod, 499 F.2d

1003, 1005 (5th Cir. 1974) (per curiam).3 A multiplicitous indictment therefore

3
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit handed down prior to close of
business on September 30, 1981.

9
violates the principles of double jeopardy because it gives the jury numerous

opportunities to convict the defendant for the same offense. We use the

Blockburger test to determine whether an indictment is multiplicitious, verifying

that each count requires an element of proof that the other counts do not require.

Ward, 694 F.2d at 661.

Wire fraud requires proof of a scheme or artifice to defraud and the use of

interstate wire transmissions in furtherance of the scheme. 18 U.S.C. § 1343.

Section 1343 targets not the defendant’s creation of a scheme to defraud, but the

defendant’s execution of a scheme to defraud. To that end, it punishes each

interstate wire transmission that carries out that scheme. See Sibley v. United

States, 344 F.2d 103, 105 (5th Cir. 1965). Where one scheme or artifice to defraud

involves multiple wire transmissions, each wire transmission may form the basis

for a separate count. In determining whether each wire transmission is an

execution, courts must look to the function of the wire transmission in the context

of the defendant’s overall scheme and examine how that transmission furthers the

scheme.

Moreover, the text of § 1343 plainly states that the defendant need not make

a wire transmission herself, but may cause such wire transmission to be made to

further her scheme to defraud. The statute thus prevents defendants from escaping

10
criminal liability merely because another party makes the wire transmission

underlying the charge. Consequently, a federal agency’s a priori decision to

disburse grant funds through periodic installments neither bars criminal liability

nor constitutes an unfair conversion of one offense into multiple counts.

Precedent under the mail fraud and bank fraud statutes, 18 U.S.C. §§ 1341

and 1344, respectively, supports this conclusion.4 In Badders v. United States, 240

U.S. 391, 36 S. Ct. 367, 60 L. Ed. 706 (1916), the Supreme Court held that so long

as each act “ha[d] been found to have been done for the purpose of executing the

scheme, . . . . there is no doubt that the law may make each putting of a letter into

the postoffice a separate offense.” Id. at 394, 36 S. Ct. 368. We have applied this

interpretation of § 1341, finding that “[e]ach mailing in furtherance of a fraudulent

scheme constitutes a separate violation of the mail fraud statute.” United States v.

Edmondson, 818 F.2d 768, 769 (11th Cir. 1987) (per curiam). We have made an

analogous interpretation of the bank fraud statute, holding that “[u]nder 18 U.S.C.

4
See Carpenter v. United States, 484 U.S. 19, 25 n.6, 108 S. Ct. 316, 320 n.6, 98 L. Ed. 2d 275
(1987) (“The mail and wire fraud statutes share the same language in relevant part, and
accordingly we apply the same analysis to both sets of offenses . . . .”); Neder v. United States,
527 U.S. 1, 20–21, 119 S. Ct. 1827, 1839, 144 L. Ed. 2d 35 (1999) (“The bank fraud statute,
which was modeled on the mail and wire fraud statutes, similarly prohibits any ‘scheme or
artifice to defraud a financial institution . . . .’” (quoting 18 U.S.C. § 1344)); United States v.
Ward, 486 F.3d 1212, 1221 (11th Cir.) (“Aside from the means by which a fraud is effectuated,
the elements of mail fraud, 18 U.S.C. § 1341, and wire fraud, 18 U.S.C. § 1343, are identical.”),
cert. denied, — U.S. — , — S. Ct. — , — L. Ed. 2d — (2007); United States v. Conner, 752
F.2d 566, 574 (11th Cir. 1985) (“The wire fraud statute is to be interpreted the same as the mail
fraud statute . . . .”).

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§ 1344, a defendant may be charged in separate counts for each ‘execution’ of the

scheme to defraud.” United States v. Sirang, 70 F.3d 588, 595 (11th Cir. 1995);

see also United States v. De La Mata, 266 F.3d 1275, 1287 (11th Cir. 2001) (“The

unit of the offense created by § 1344 is each execution or attempted execution of

the scheme to defraud . . . .”). In the bank fraud context, we have found that

“[r]elevant factors in determining whether there are multiple executions are . . . the

number of transactions[] and the number of movements of money.” Sirang, 70

F.3d at 595. Our sister circuits faced with this issue have reached similar

interpretations of 18 U.S.C. §§ 1341, 1343, and 1344. 5

Here, the indictment charged Williams with devising “a scheme and artifice

to defraud and obtain money by means of false and fraudulent pretenses . . . .” R.

1, Doc. 1 at 3–4. It further charged Williams with “executing [this] scheme and

artifice to defraud [by] knowingly . . . and willfully caus[ing] [CNCS] and the

United States Department of Health and Human Services, to send electronic wire

transfers of funds . . . to the business account of Eastside Training Academy.” Id.

5
See, e.g., United States v. Abboud, 438 F.3d. 554, 567 (6th Cir.) (noting that the circuits have
consistently held that each check in a check kiting scheme is an execution of bank fraud that may
be charged as a separate offense), cert. denied, — U.S. — , 127 S. Ct. 446, 166 L. Ed. 2d 309
(2006); United States v. Garlick, 240 F.3d 789, 792 (9th Cir. 2001) (holding that “each use of the
wires constitutes a separate violation of 18 U.S.C. § 1343”); United States v. Gardner, 65 F.3d
82, 85 (8th Cir. 1995) (“Under 18 U.S.C. § 1341, it is not the plan or scheme that is punished,
but rather each individual use of the mails in furtherance of that scheme.”).

12
at 4–5. The indictment then lists seven separate wire transmissions—made on

different dates and in different amounts—of funds from CNCS and the U.S.

Department of Health and Human Services, through the U.S. Treasury, into ETA’s

account. Each resultant wire fraud count requires proof of a separate wire

transmission made in furtherance of Williams’s scheme to defraud—an element

not required by the others. We hold that each wire fraud offense was complete

upon each wire disbursement that Williams caused CNCS to make in furtherance

of her scheme to defraud. See Sibley, 344 F.2d at 105.

Williams points to United States v. Eaves, 877 F.2d 943 (11th Cir. 1989), to

support her claim that the government manipulated one scheme to defraud into

multiple counts of wire fraud by wiring separate payments of one lump sum.

Eaves involved a prosecution on four counts of extortion under the Hobbs Act, 18

U.S.C. § 1951(a),6 in which the defendant, a Fulton County public official, made

several agreements with an informant and an undercover FBI agent to accept

money in exchange for favorable votes on certain zoning plans and government

6
18 U.S.C. § 1951(a) provides:
Whoever in any way or degree obstructs, delays, or affects commerce or the
movement of any article or commodity in commerce, by robbery or extortion or
attempts or conspires so to do, or commits or threatens physical violence to any
person or property in furtherance of a plan or purpose to do anything in violation
of this section shall be fined under this title or imprisoned not more than twenty
years, or both.

13
contracts. The government had been investigating Eaves for three years before his

indictment. We held that two of those counts were multiplicitous because they

stemmed from one agreement Eaves made to accept $30,000 that the FBI agent, at

the government’s request, paid in two installments. 877 F.2d at 947. Reversing

Eaves’s conviction on one count, we found that the two counts failed to satisfy the

Blockburger test, as each count under § 1951 “requires that (1) the defendant

induced his victim to part consensually with property (2) either through the

wrongful use of actual or threatened force, violence or fear or under color of

official right (3) in such a way to adversely affect interstate commerce.” Id.

Although Eaves accepted two payments, we concluded that those payments were

“installments of a lump sum” stemming from one act of inducement. Id. We

cautioned that allowing multiple charges on the basis of those facts “would give

the government unfettered discretion to determine how many crimes with which to

charge a defendant by manipulating the methods of payment.” Id.

Eaves is inapposite to this case. As we have explained above, § 1343

punishes not the creation of a scheme to defraud, but each execution of that scheme

by use of interstate wire transmissions. In this case, ETA, through Williams,

submitted two applications for federal grants to CNCS. After CNCS approved

ETA’s budget applications, the funds were wired into ETA’s account on a

14
quarterly schedule during 2001. The wire transfers occurred well before CNCS

began its investigation of ETA in 2002, and the record reveals no evidence of the

government’s manipulation of the wire transfers or bad faith. For these reasons,

we find that Williams’s indictment for seven counts of wire fraud was not

multiplicitous, and that her prosecution and subsequent convictions on five of

those counts did not constitute double jeopardy.

B. Sufficiency of the Evidence

Williams next argues that the evidence not only failed to establish her intent

to steal or defraud, but also failed to rebut her good faith defense. In support of her

defense, Williams testified that her misapplication of grant funds was due to her

honest misunderstanding of grant rules and conditions, and that she ordered ETA

bookkeepers to modify Quickbook records, in good faith, once she learned of her

previous accounting errors. In addition, Williams claims that the prosecution

failed to meet its burden of proof because it did not establish any financial loss

suffered by the victim of her fraud.

We review de novo challenges to the sufficiency of the evidence in criminal

trials, viewing the evidence in the light most favorable to the government. United

States v. Futrell, 209 F.3d 1286, 1288 (11th Cir. 2000) (per curiam). The Court

will resolve any conflicts in favor of the government and accept all reasonable

15
inferences that tend to support the government’s case. United States v. Ward, 197

F.3d 1076, 1079 (11th Cir. 1999). We assume that the jury made all credibility

choices in support of the verdict. United States v. Thompson, 473 F.3d 1137, 1142

(11th Cir. 2006), cert. denied, — U.S. — , 127 S. Ct. 2155, 167 L. Ed. 2d 882

(2007). Viewed in this light, the evidence is sufficient to support a conviction if “a

reasonable trier of fact could find that the evidence established guilt beyond a

reasonable doubt.” United States v. Calhoon, 97 F.3d 518, 523 (11th Cir. 1996).

In rebutting the government’s evidence “[i]t is not enough for a defendant to put

forth a reasonable hypothesis of innocence, because the issue is not whether a jury

reasonably could have acquitted but whether it reasonably could have found guilt

beyond a reasonable doubt.” Thompson, 473 F.3d at 1142.

We first examine the government’s theory of prosecution in determining the

sufficiency of the evidence. United States v. Ross, 131 F.3d 970, 980 (11th Cir.

1997). At trial, the government advanced the theory that Williams devised a

scheme to defraud in which she knowingly misused federal grant funds for

personal expenses and misapplied grant funds to items not approved in the CNCS

line-item budget. In furtherance of this scheme, Williams caused CNCS to make

scheduled wire transmissions of federal grant funds into ETA’s account, over

which she exercised final authority for how money was spent.

16
 The government presented sufficient evidence, direct and circumstantial, to

prove Williams’s intent to defraud. During trial, the government showed that

under Williams’s direction, the ETA issued a $15,000 check payable to the order

of P.R. Property Investments, the umbrella name for Williams’s private rental

properties. The evidence also showed that Williams authorized checks to be used

for other unapproved items, such as a personal salary, payments on Bunnis

Williams’s car note, rent payments on Williams’s night club, expenses related to

their new home, and construction work on ETA grounds unrelated to the federal

programs. Furthermore, the evidence revealed that Williams fired ETA employees

after they questioned, and later reported, her mismanagement of ETA’s account.

During 2001, CNCS made seven wire transfers disbursing grant funds into

ETA’s account, totaling $320,081. Although grant rules did not require ETA to

maintain the grant funds in a separate account, the rules did mandate that ETA

keep detailed records tracking the expenditure of grant money to ensure that grant

funds were spent only on approved program costs.7 As Chief Financial Director,

7
Requiring ETA and other grantees to maintain federal grant funds in a separate account would
have been the easiest and clearest way to track federal funds. By allowing commingling of
funds, the grant rules placed a burden on grantees to create a method of separating their
expenditures of federal funds from other financial responsibilities, such as unapproved
administrative overhead costs. This may be difficult where, as here, the grantee is operating
other programs in addition to the federal grant programs, and may be doing so in the same
building. While Williams is fully responsible for her criminal conduct, we wonder why CNCS
permits commingling of funds, which may tempt grantees in these circumstances to risk dipping
into the pool of available federal funds.

17
Williams had direct supervisory authority over ETA bookkeepers and required the

bookkeepers to allocate costs to the Foster Grandparent Program and Retired

Senior Volunteer Program pursuant to a percentage-formula she devised. Rather

than ensure that grant funds were used only for approved program expenses,

Williams ordered the bookkeepers to use her percentage-formula for all

expenditures from ETA’s account. For example, ETA bookkeepers used

Williams’s formula to charge $9,000 of the $15,000 check payable to P.R.

Investments to the two federal grant programs. CNCS investigators determined

that under Williams’s direction, the ETA charged approximately $101,000 in

unauthorized expenditures to the federal grant programs during 2001.

The evidence, when viewed in the light most favorable to the government,

was sufficient to allow a reasonable juror to find Williams’s guilt for wire fraud

and federal funds theft beyond a reasonable doubt. Although Williams testified

that she lacked knowledge that her actions were wrongful, the jurors were the sole

judges of credibility and were free to discredit her testimony and reject her good

faith defense. See Conklin v. Schofield, 366 F.3d 1191, 1200–01 (11th Cir. 2004)

(finding that by convicting defendant of murder, jury necessarily discredited

defendant’s testimony and rejected his theory of self defense).

Williams’s argument that the evidence is insufficient because the

18
government failed to show financial loss suffered by CNCS also fails. Wire fraud

does not require the government to prove actual financial loss or that the defendant

benefitted from her scheme. See Ross, 131 F.3d at 986 (“Punishment under the

wire fraud statute is not limited to successful schemes.”). Rather, “[t]he

government merely needs to show that the accused intended to defraud his victim

and that his or her communications were ‘reasonably calculated to deceive persons

of ordinary prudence and comprehension.’” Ross, 131 F.3d at 986 (quoting

Pelletier v. Zweifel, 921 F.2d 1465, 1498–99 (11th Cir. 1991)).

We conclude from our review of the record that the evidence was sufficient

to prove William’s intent to defraud, as well as the requisite elements of wire fraud

and federal funds theft. A rational finder of fact could infer from the evidence that

Williams knowingly devised and participated in a scheme to defraud CNCS by

applying for grant funds with the promise to use them only for approved program

expenditures, and that she caused wire transfers to be made in furtherance of her

scheme. A reasonable jury also could infer that in her position as an agent of ETA,

Williams embezzled, stole, obtained by fraud, intentionally misapplied, or

knowingly converted approximately $100,000 of federal funds belonging to the

Foster Grandparent Program and Retired Senior Volunteer Program.

C. Pattern Jury Instructions and Constructive Amendment

19
 Williams contends that the district court’s jury instructions created a

constructive amendment to her indictment, violating her due process rights under

the Fifth Amendment.8

A constructive amendment to the indictment resulting from the district

court’s jury instructions is per se reversible error. See Stirone v. United States, 361

U.S. 212, 219, 80 S. Ct. 270, 274, 4 L. Ed. 2d 252 (1960); United States v. Behety

32 F.3d 503, 508 (11th Cir. 1994). Under the Fifth Amendment, a defendant has

the right to be tried on felony charges returned by a grand jury indictment. Stirone,

361 U.S. at 215, 80 S. Ct. at 272. Only the grand jury may broaden the charges in

the indictment once it has been returned, and the district court may not do so by

constructive amendment. Id. at 215–16, 80 S. Ct. at 272. “‘A constructive

amendment to the indictment occurs where the jury instructions so modify the

elements of the offense charged that the defendant may have been convicted on a

8
We note that Williams exercised her right to review the district court’s instructions prior to the
final charge and had it amended to include instructions on her theory of defense. Although
Williams suggested several modifications, she did not object to the pattern instructions for 18
U.S.C. § 2. Normally, we review challenges to jury instructions not raised at trial for plain error,
reversing only if the instructions were “so clearly erroneous as to result in a likelihood of a grave
miscarriage of justice or . . . seriously affect[] the fairness, integrity or public reputation of [the]
judicial proceeding.” United States v. Fuentes-Coba, 738 F.2d 1191, 1196 (11th Cir. 1984).
Because Williams raises a constitutional challenge to this instruction under the Fifth
Amendment’s grand jury requirement, however, we frame our review under the standard set
forth in Stirone v. United States, 361 U.S. 212, 215–17, 80 S. Ct. 270, 272–73, 4 L. Ed. 2d 252
(1960). Indeed, Williams’s challenge goes to whether the district court, in giving those
instructions, exceeded its jurisdiction. McCoy v. United States, 266 F.3d 1245, 1265 (11th Cir.
2001).

20
ground not alleged by the grand jury’s indictment.’” United States v. Starke, 62

F.3d 1374, 1380 (11th Cir. 1995) (quotation marks omitted) (quoting United States

v. Lignarolo, 770 F.2d 971, 981 n.15 (11th Cir. 1985)).

The indictment charged Williams and her husband, Bunnis Williams, with

aiding and abetting each other, in violation of 18 U.S.C. § 2, in conjunction with

seven counts of wire fraud and one count of federal funds theft. Williams argues

that the district court’s jury instructions constructively amended the indictment to

allow a jury to find her guilty of aiding and abetting someone other than her

husband.

We find no such error from our review of the instructions. The district court

instructed the jury as follows:

[I]f the acts or conduct of an agent, employee, or other associate of a
defendant are willfully directed or authorized by such defendant, or if a
defendant aids and abets another person by willfully joining together with
that person in the commission of the crime, then the law holds such
defendant responsible for the conduct of that other person just as though the
defendant had personally engaged in the conduct.

R. 6 at 18.

The district court has discretion in the wording and style of the jury

instructions, so long as the instructions accurately reflect the law. Starke, 62 F.3d

at 1380. These instructions provided two ways by which the jury could have found

21
Williams’s guilt: (1) that Williams committed the offenses as a principal through

her direction of ETA employees, or (2) that Williams aided another person to

commit the offenses, and thus find her criminally liable as an accomplice.

Williams and her husband were each charged with the substantive counts, as well

as with aiding and abetting each other, and tried together as co-defendants. Thus,

these instructions accurately reflected the distinction between principal and

accomplice liability from the indictment. Here, the district court read the pattern

jury instruction for 18 U.S.C. § 2. While the district court did not specify Bunnis

Williams by name in this pattern charge, it did not impermissibly expand the scope

of the indictment. We therefore find no error in the district court’s instructions.

We must analyze jury instructions in the context of the evidence presented

and the government’s theory at trial to determine whether a constructive

amendment to the indictment has occurred. In the context of the evidence

presented in this case, the instructions did not allow the jury to find that the

bookkeepers—who were never charged with criminal wrongdoing—were

principally culpable for wire fraud and federal funds theft and to base Williams’s

guilt on her aiding and abetting the bookkeepers she directed. Such a reading of

the jury instructions is untenable in light of the prosecution’s theory and evidence.

We therefore reject Williams’s claim that the instruction resulted in a constructive

22
amendment and find no error in the district court’s use of the pattern instruction.

D. Admission of Evidence

Williams claims, for the first time on appeal, that the district court erred in

admitting evidence of her failure to follow the terms and conditions for the federal

program grants and other regulatory violations. Because Williams failed to object

timely to the introduction of this evidence at trial, we review this issue for plain

error. United States v. Baker, 432 F.3d 1189, 1202 (11th Cir. 2005). For the

admission of evidence to constitute plain error, the evidence must have been “so

obviously inadmissible and prejudicial that, despite defense counsel’s failure to

object, the district court, sua sponte, should have excluded the evidence.” United

States v. Smith, 459 F.3d 1276, 1300 (11th Cir. 2006) (Tjoflat, J., specially

concurring), cert. denied, — U.S. — , 127 S. Ct. 990, 166 L. Ed. 2d 747 (2007).

Under the Federal Rules of Evidence, evidence of other crimes, wrongs, or

acts is inadmissible character evidence that may not be used to prove a person’s

propensity to act. Fed. R. Evid. 404(b). Such evidence “may, however, be

admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident[] . . . .”

Id. In this case, Williams argued a good faith defense, claiming that her misuse of

federal grant funds was nothing more than an inadvertent mistake. In rebuttal, the

23
government offered evidence of Williams’s history of non-compliance with federal

grant regulations to prove her intent to defraud, establish her knowledge and show

lack of mistake. The court gave appropriate instructions, both immediately after it

admitted the evidence and in the final charge, limiting the jury’s consideration of

this evidence to determining Williams’s intent and whether she committed the acts

by accident or mistake. We therefore find that the district court did not commit

plain error by admitting this evidence under Rule 404(b).

E. Application of Offense Level Adjustments

We apply a two-pronged standard to review claims that the district court

erroneously applied sentencing guidelines adjustments. First, we review the

factual findings underlying the district court’s sentencing determination for clear

error. United States v. Walker, 490 F.3d 1282, 1299 (11th Cir. 2007). We then

review the court’s application of those facts to the guidelines de novo. Id.

Although the sentencing guidelines are now advisory after the Supreme Court’s

decision in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d

621 (2005), “district courts are still required to correctly calculate the appropriate

advisory guidelines range.” United States v. Livesay, 484 F.3d 1324, 1329 (11th

Cir. 2007) (per curiam). The ultimate sentence imposed by the district court is

reviewed for reasonableness in light of the factors outlined in 18 U.S.C. § 3553(a).

24
United States v. Scott, 426 F.3d 1324, 1328 (11th Cir. 2005).

1. Aggravating-Role Adjustment

Williams argues that the district court erred in applying the two-level

aggravating-role adjustment per U.S.S.G. § 3B1.1(c) because her husband’s

acquittal on all counts precludes any basis for finding that she was an organizer,

leader, manager, or supervisor of one or more other participants.9

The federal sentencing guidelines provide for an increase in the defendant’s

base offense level by two levels “if the defendant was an organizer, leader,

manager, or supervisor in any criminal activity other than described in

[subsections] (a) or (b).” U.S.S.G. § 3B1.1(c).10 The commentary states that to

qualify for an adjustment under § 3B1.1, “the defendant must have been the

organizer, leader, manager, or supervisor of one or more other participants.”

U.S.S.G. § 3B1.1, cmt. n.2.11 “Participant” is defined as “a person who is

9
Because Williams was sentenced on September 18, 2006, all citations to the sentencing
commission guidelines, policy statements, commentary, and amendments thereto, are to United
States Sentencing Commission, Guidelines Manual (2005), which was in effect on that date.
10
U.S.S.G. § 3B1.1(a) and (b) provide:
Based on the defendant’s role in the offense, increase the offense level as follows:
(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.
11
The Supreme Court has held that “commentary in the Guidelines Manual that interprets or
explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is

25
criminally responsible for the commission of the offense, but need not have been

convicted.” Id., cmt. n.1 (emphasis added).

The district court would not have been precluded from applying the § 3B1.1

adjustment merely because Williams’s husband was acquitted on all counts.12 At

sentencing, the court did not face the same burden of proof—beyond a reasonable

doubt—that the jury faced at trial. The court could have applied the § 3B1.1

adjustment if it found by a preponderance of the evidence that Bunnis Williams

was criminally responsible for the wire fraud scheme or federal funds theft and that

Alma Williams exerted some degree of control, leadership or influence over him.

See United States v. Ndiaye, 434 F.3d 1270, 1304 (11th Cir.), cert. denied, — U.S.

— , 127 S. Ct. 128, 166 L. Ed. 2d 95 (2006).

inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v. United States,
508 U.S. 36, 38, 113 S. Ct. 1913, 1915, 123 L. Ed. 2d 598 (1993); United States v. Gallo, 195
F.3d 1278, 1281 (11th Cir. 1999).
12
At the sentencing hearing, Williams argued against the application of any upward adjustment
under § 3B1.1, stating:
If the Court will recall Ms. Williams and her husband were charged with these offenses.
In fact, he specifically said, “they aided and abetted each other.” The jury returned a not
guilty verdict as to all counts as to Mr. Williams, then we’re left with the theory under
the government that she aided and abetted herself.
R. 7 at 16. Although Williams did not specifically state at the sentencing hearing that her
husband could not be counted as a “participant” because he was acquitted, this argument was
adequately preserved her by her objections, through counsel, at sentencing. See United States v.
Massey, 443 F.3d 814, 819 (11th Cir. 2006) (finding that the defendant had adequately preserved
her objections to an upward obstruction of justice adjustment on the basis of her “willfulness”
where the defendant’s counsel “repeatedly referenced the effect of Zoloft and heroin on her
mental state” but “did not specifically utter the words ‘intent’ or ‘ mens rea[.]’”).

26
 The relevant question, therefore, is whether Bunnis Williams was a

“participant,” or someone criminally responsible for the commission of Williams’s

wire fraud and theft. The district court’s application of § 3B1.1 to determine that a

person is a “participant” is a question law that we review de novo, while we review

the underlying factual findings for clear error.

In applying the two-level upward adjustment under § 3B1.1(c), the district

court considered, inter alia, Bunnis Williams’s “participation in the scheme.” This

record reveals, however, that Bunnis’s role was de minimus and insufficient to

justify a § 3B1.1(c) upward adjustment. At sentencing, the district court found that

to accomplish her fraud, Williams directed the accounting entries to cover

unauthorized expenses, which included travel expenditures and “loan payments” to

Bunnis Williams. The court also found that Bunnis Williams would often take and

use of ETA checks without the bookkeepers’ knowledge and without justifying his

expenses.

Assuming, without deciding, that these factual findings are correct, they do

not go so far as to establish, by a preponderance of the evidence, that Bunnis

Williams was a criminally culpable “participant” in Williams’s wire fraud or

federal funds theft. A “participant,” as the guidelines defines the term, is “a person

who is criminally responsible for the commission of the offense.” U.S.S.G. §

27
3B1.1, cmt. n.1. Bunnis’s intent to defraud and steal is a requisite threshold

question for determining his criminal responsibility. Because grant rules expressly

permit commingling of funds in ETA’s account and Bunnis Williams was the

Chief Executive Officer of ETA, he could have taken funds from ETA’s account,

without intending to defraud the government or steal federal funds. Although these

facts may amount to unethical conduct, they fall short of demonstrating by a

preponderance of the evidence that Bunnis Williams was criminally responsible for

his wife’s wire fraud and federal funds theft. See United States v. Yates, 990 F.3d

1179, 1182 (11th Cir. 1993) (per curiam) (reviewing the guidelines commentary to

§ 3B1.1 and concluding that the district court’s statement that the defendant was

“involved in an organization that was ‘otherwise extensive,’” even if correct, was

insufficient as a matter of law to justify an upward adjustment under § 3B1.1(a)).

Because the evidence is insufficient as a matter of law to show that Williams

was “an organizer, leader, manager, or supervisor of one or more other participants

in criminal activity,” we conclude that the district court erred in applying the two-

level aggravated-role adjustment under U.S.S.G. § 3B1.1(c).

2. Abuse of Position of Trust Adjustment

Williams contends that the district court erred in applying the two-level

abuse-of-trust adjustment to her base offense level, per U.S.S.G. § 3B1.3, because

28
she did not occupy a position of public or private trust in relation to CNCS. The

sentencing guidelines provide that the sentencing court may increase the

defendant’s base offense level by two levels if the court finds by a preponderance

of the evidence that the “defendant abused a position of public or private trust . . .

in a manner that significantly facilitated the commission or concealment of the

offense.” U.S.S.G. § 3B1.3. The application note accompanying § 3B1.3 defines

“position of public or private trust” as “a position . . . characterized by professional

or managerial discretion (i.e., substantial discretionary judgment that is ordinarily

given considerable deference).” U.S.S.G. § 3B1.3 cmt. n.1.

Sentencing and reviewing courts must determine whether a defendant

occupied a position of trust that justifies the § 3B1.3 upward adjustment by

assessing the defendant’s relationship to the victim of the crime. United States v.

Garrison, 133 F.3d 831, 837 (11th Cir. 1998). Therefore, the abuse-of-trust

adjustment “‘applies only where the defendant has abused discretionary authority

entrusted to the defendant by the victim . . . .’” Id. at 839 (quoting United States v.

Jolly, 102 F.3d 46, 48 (2d Cir. 1996)); see also United States v. Walker, 490 F.3d

1282, 1300 (11th Cir. 2007). Additionally, we have explained that § 3B1.3 applies

in the fraud context where the defendant is in a fiduciary, or other personal trust,

relationship to the victim of the fraud, and “‘the defendant takes advantage of the

29
relationship to perpetrate or conceal the offense.’” Garrison, 133 F.3d at 838

(quoting United States v. Koehn, 74 F.3d 199, 201 (10th Cir. 1996)).

Where statutory reporting requirements are the only connection between the

defendant and the government agency that is the victim, this connection is

insufficient to show a fiduciary relationship necessary for a § 3B1.3 adjustment. In

Garrison, we held that while the government may have been a victim in a

Medicare fraud scheme, an abuse-of-trust adjustment was unjustified because the

defendant “did not occupy a sufficiently proximate position of trust relative to

Medicare.” Id. at 841. In so holding, we found that “statutory reporting

requirements do not create a position of trust relative to a victim of the crime.” Id.

We confirmed this finding in United States v. Mills, 138 F.3d 928 (11th Cir. 1998),

where we held that the defendants’ sentences could not be upwardly adjusted under

§ 3B1.3 because lying to Medicare did not constitute any breach of public trust.

138 F.3d at 941. In summary, the abuse-of-trust adjustment under § 3B1.1 is

justified where the defendant has abused a fiduciary relationship or discretionary

authority entrusted by a victim of the crime.

In addition to this fiduciary prerequisite to the abuse-of-trust adjustment, the

guidelines specify that “[t]his adjustment may not be employed if an abuse of trust

. . . is included in the base offense level or specific offense characteristic.”

30
U.S.S.G. § 3B1.3. This is particularly true where, as here, the underlying offense

involves fraud because “‘there is a component of misplaced trust inherent in the

concept of fraud[.]’” Garrison, 133 F.3d at 838 (quoting United States v. Mullens,

65 F.3d 1560, 1567 (11th Cir. 1995)). We have previously cautioned that “a

sentencing court must be careful not to be ‘overly broad’ in imposing the

enhancement for abuse of a position of trust or ‘the sentence of virtually every

defendant who occupied a position of trust with anyone, victim or otherwise’

would receive a section 3B1.1 enhancement.” Id. (quoting United States v.

Moored, 997 F.2d 139, 145 (6th Cir. 1993)). Thus, for the abuse-of-trust

adjustment to apply in the fraud context, there must be a showing that the victim

placed a special trust in the defendant beyond ordinary reliance on the defendant’s

integrity and honesty that underlies every fraud scenario.

The district court found that CNCS, an independent federal agency, was the

victim of Williams’s wire fraud and federal funds theft. The record supports this

finding, especially considering the amount of loss that CNCS suffered. The court

determined that Williams occupied a position of trust vis-a-vis CNCS because as

ETA’s Executive Director, she maintained a position of managerial and

professional discretion, had little or no supervision, and exercised a high level of

authority over ETA employees. These facts, however, show that ETA, not CNCS,

31
entrusted Williams with discretionary authority in the financial management of its

3
funds. 1

As to CNCS, Williams did not have any discretion as to how federal funds

were spent. Rather than permit Williams to use her independent judgment in

making program expenditures and later charge them to CNCS in a reimbursement-

type scenario, CNCS awarded grant funds only after reviewing and pre-approving

a specific line-item budget. Williams’s only obligation was to provide accurate

progress status reports demonstrating that ETA spent grant funds in the manner

required by CNCS. The record does not show that CNCS—the victim—entered

into a fiduciary relationship with Williams and entrusted her with discretion in

allocating the federal funds by awarding the grants to ETA.

Nor did the district court find that CNCS placed a special trust in Williams

13
William appears to argue, on the basis of United States v. Mills, 138 F.3d 928 (11th Cir. 1998),
that CNCS is the only possible victim in this case. Despite our holdings in Garrison and Mills, it
does not follow that, as a matter of law, the United States is the only possible victim of a
fraudulent scheme worked on a federal agency. In Mills, we read Garrison to “apparently
require[] us to hold that the United States is, as a matter of law, the only possible victim of a
Medicare-fraud crime and that therefore [a] private position of trust is irrelevant.” Id. In United
States v. Linville, 228 F.3d 1330 (11th Cir. 2000) (per curiam), we declined to take this position,
holding that Garrison and Mills did not compel us to find that only a federally insured bank
could be a victim in a bank fraud scheme. 228 F.3d at 1332. Taking a more reasonable
approach, we instead held that “more than one person could, depending on the case’s facts, be
the victim who reposes trust in the defendant.” Id. Thus, the probation officer (who prepared
the PSI) and the district court could have considered and determined that there were additional
victims, such as ETA. However, that is not what happened here. Instead, in this case, the PSI
reported without objection by the government that “[t]he victim in this case is the Corporation
for National and Community Service, an independent federal agency” and the district court
simply adopted the findings of the PSI.

32
above her obligation to adhere to the terms and conditions for the grants. The

district court justified the § 3B1.3 adjustment because CNCS, by administering the

grants, relies on the integrity and honesty of the grantees to use the funds

appropriately and as outlined in the approved line item budget. Williams’s abuse

of this trust as to CNCS is already accounted for in the base offense level for her

convictions of wire fraud and federal funds theft. The promise of veracity, often

under penalty of perjury, underlies nearly every loan application, grant, or other

financial transaction with the federal government. It could not have been intended

that § 3B1.3 apply in every case where the defendant receives pecuniary gain by

lying to the government.

Because there is no evidence that CNCS entrusted Williams with

discretionary authority or placed a special trust, akin to that of a fiduciary, in

Williams, the district court erred in applying the abuse-of-trust adjustment based

on Williams’s relationship with CNCS. On remand, the district court shall re-

calculate Williams’s advisory Guidelines sentence without the § 3B1.3 adjustment.

3. Obstruction of Justice Adjustment

The district court applied a two-level obstruction-of-justice adjustment to

Williams’s base offense level because Williams began to amend the accounting

system to remove some of the unapproved expenditures after learning of the

33
allegations and the pending investigation. Williams argues that she bore no

fraudulent intent when she ordered the reallocation of expenses in Quickbooks, and

that she was only correcting her prior misunderstanding of how program

expenditures should be classified under government regulations. We reject

Williams’s argument.

Section § 3C1.1 provides for an upward adjustment by two levels if the

defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the

administration of justice with respect to the investigation, prosecution or

sentencing of the instant offense of conviction . . . .” U.S.S.G. § 3C1.1. An

example of such obstructive conduct is “producing or attempting to produce a

false, altered, or counterfeit document or record during an official investigation or

official proceeding.” U.S.S.G. § 3C1.1, cmt. n.4. Notwithstanding Williams’s

assertion of good faith, there is sufficient evidence in the record to support the

district court’s finding that she did in fact direct the bookkeepers to alter the ETA’s

accounting records to conceal the unapproved expenditure of federal funds. The

district court’s finding was not clearly erroneous, and we affirm the district court’s

application of the § 3C1.1 adjustment.

III. CONCLUSION

Williams’s convictions for five counts of wire fraud and one count of federal

34
funds theft do not violate the Fifth Amendment Double Jeopardy Clause because

each count satisfies the Blockburger test. Neither the district court’s admission of

evidence nor its final jury charge constituted error, and there is sufficient evidence

to support Williams’s convictions. For the foregoing reasons, we affirm

Williams’s convictions. As to Williams’s sentence, the district court’s factual

findings do not justify application of adjustments for aggravated role or for abuse

of trust. Therefore, we vacate Williams’s sentence and remand for resentencing

without the upward adjustments under U.S.S.G. §§ 3B1.1(c) and 3B1.3.

AFFIRMED, IN PART; VACATED AND REMANDED, IN PART.

35
HULL, Circuit Judge, concurring in part and dissenting in part:

I concur in full in Sections I and II(A)-(D), (E)(2) and (E)(3) of the

majority’s opinion. However, as to Section II(E)(1), I conclude that the district

court’s application of the two-level role enhancement must be affirmed and thus

respectfully dissent as to the reversal in Section II(E)(1).

As the majority opinion notes, Williams on appeal argues that the district

court improperly found that her husband was a “participant” for purposes of

applying the role enhancement in U.S.S.G. § 3B1.1(c).

Section 3B1.1(c) authorizes a two-level increase in a defendant’s offense

level if the defendant was the “organizer, leader, manager, or supervisor in any

criminal activity other than described in (a) or (b) . . . .”14 U.S.S.G. § 3B1.1(c). To

qualify for a § 3B1.1(c) role enhancement, “the defendant must have been the

organizer, leader, manager, or supervisor of one or more other participants.”

U.S.S.G. § 3B1.1 cmt. n.2. As the majority opinion notes, a “participant” is

someone who “is criminally responsible for the commission of the offense, but

14
Subsection (a) of § 3B1.1 provides for a four-level offense level increase if the defendant was
the “organizer or leader of a criminal activity that involved five or more participants or was
otherwise extensive . . . .” U.S.S.G. § 3B1.1(a). Subsection (b) provides for a three-level
offense level increase if the defendant was the “manager or supervisor (but not an organizer or
leader) and the criminal activity involved five or more participants or was otherwise extensive . .
. .” U.S.S.G. § 3B1.1(b). Thus, the criminal activity implicated by a subsection (c) two-level
increase involves less than five participants and is not “otherwise extensive.”

36
need not have been convicted.” U.S.S.G. § 3B1.1 cmt. n.1 (emphasis added).

According to Williams on appeal, her husband could not be considered a

participant because he was acquitted by the jury. I fully agree with the majority

opinion that the district court may properly consider an acquitted co-defendant,

such as Williams’s husband, to be a participant for § 3B1.1 purposes.15

Williams’s argument on appeal that the district court improperly counted her

husband as a participant is limited to her husband’s status as a co-defendant

acquitted by the jury. Williams’s brief does not argue that the trial evidence was

insufficient to support a finding by a preponderance of the evidence that her

husband was knowingly involved in the criminal activity for purposes of the

§ 3B1.1(c) sentencing enhancement. Thus, I would not reach this issue and would

15
Williams did not advance the acquitted-husband argument in the district court. Instead,
Williams’s objection to the § 3B1.1(c) role enhancement at sentencing was that she had relied in
good faith on her bookkeepers and accountant to advise her as to the availability and use of the
federal funds and that she was essentially innocent. Because Williams did not object to the role
enhancement on the husband-related grounds urged on appeal, our review should be for plain
error. See United States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006) (explaining that a
defendant “fails to preserve a legal issue for appeal if the factual predicates of an objection are
included in the sentencing record, but were presented to the district court under a different legal
theory”); United States v. Gallo-Chamorro, 48 F.3d 502, 507 (11th Cir. 1995) (“To preserve an
issue for appeal, a general objection or an objection on other grounds will not suffice.”); United
States v. Zinn, 321 F.3d 1084, 1088 (11th Cir. 2003) (concluding that, if a defendant fails to
“clearly articulate a specific objection during sentencing,” the objection is waived and the issue
is reviewed only for plain error). In any event, the acquitted-husband argument advanced by
Williams on appeal must be rejected under either standard of review – whether de novo or plain
error.

37
affirm the district court’s application of the § 3B1.1(c) two-level enhancement.16

16
Williams challenges the application of the role enhancement as impermissible double-counting.
This argument is not addressed by the majority opinion, and, in any event, it is meritless and
does not warrant discussion.

38