United States v. Neighbors , 457 F. App'x 785 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
January 26, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Nos. 10-3243 & 11-3037
v. (D.C. No. 2:07-CR-20124-CM-JPO-1)
(D. Kan.)
CARRIE MARIE NEIGHBORS,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TYMKOVICH, Circuit Judge, BRORBY, Senior Circuit Judge, and
EBEL, Circuit Judge.
Carrie Marie Neighbors and her husband were accused of knowingly buying
stolen property and reselling it on eBay for a profit. The second superseding
indictment against the couple identified many manifestations of their scheme,
including interstate wire and mail communications, and interstate financial
transactions involving proceeds from the buying and selling of stolen property.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
A jury convicted Ms. Neighbors of twelve counts of wire fraud, three counts of
money laundering, and one count of conspiracy to commit wire fraud, mail fraud,
and money laundering. The district court sentenced Ms. Neighbors to 97 months’
imprisonment. In this direct criminal appeal, she challenges: (1) the denial of a
motion to suppress evidence seized from her home in December 2005,
(2) a deliberate ignorance jury instruction, (3) the sufficiency of the evidence
supporting her convictions, and (4) a two-level sentencing enhancement for
obstruction of justice under section 3C1.1 of the United States Sentencing
Guidelines Manual (2010). 1 Exercising jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a), we affirm Ms. Neighbors’ convictions and sentence.
I. Background 2
Ms. Neighbors and her husband owned and operated two stores in Kansas
known as the Yellow House. Both stores bought personal property for resale.
Ms. Neighbors ran the Lawrence store and her husband ran the Topeka store.
1
Ms. Neighbors filed a notice of appeal after she was convicted but before
the district court imposed its sentence and judgment. That appeal, Case
No. 10-3243, was abated. Once the district court entered its final judgment,
Ms. Neighbors filed another appeal, Case No. 11-3037, which we consolidated
with Case No. 10-3243.
2
The parties are familiar with the facts and extensive procedural history in
this case. We therefore set forth only the material necessary to frame the four
issues on appeal.
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In October 2005, Target security personnel notified the Lawrence Kansas
Police Department (LPD) that property stolen from a local Target was being sold
by Ms. Neighbors on eBay under the username Yellowhair Bargains.
Shortly thereafter, the LPD sent an undercover officer, Micky Rantz, to the
Yellow House in Lawrence. He surveyed what was for sale and made small talk
with Ms. Neighbors. The next day, he returned with a graphing calculator and a
drill, both of which were new, in-the-box items. Ms. Neighbors purchased both.
When Officer Rantz later checked eBay he saw the calculator and drill were
posted for sale under Ms. Neighbors’ username.
Before the end of November 2005, Officer Rantz completed five more
transactions with Ms. Neighbors at the Lawrence store, selling her a variety of
new, in-the-box items, including: a Garmin GPS, a KitchenAid mixer,
iPod shuffles, iPod classics, Sonicare electric toothbrushes, and a Samsung
camera. Each time Ms. Neighbors paid Officer Rantz thirty to forty percent of the
new, in-the-box merchandise’s retail value. And each time, after Ms. Neighbors
purchased the merchandise, it was posted for sale on eBay under Ms. Neighbors’
username.
In November 2005, LPD officers conducted two trash pulls at
Ms. Neighbors’ home seeking evidence related to her alleged resale of stolen
property on eBay. In the trash, officers found several eBay and PayPal
documents associated with Ms. Neighbors’ eBay username and email address.
-3-
In December 2005, LPD officers executed state search warrants at
Ms. Neighbors’ home and the Yellow House in Lawrence. Seven months later, in
July 2006, federal search warrants were executed, again at her home and the
Lawrence business.
During the December 2005 search of Ms. Neighbors’ home, officers found
sixteen cases of stolen athletic shoes, ten to twelve bicycles, empty bicycle boxes,
business records related to the Yellow House, new jeans with tags still attached,
shipping boxes, and packaging material. During the July 2006 search of her
home, officers found new, in-the-box merchandise, including: an electric
toothbrush, an underground electric dog fence, a mechanical bore sight for a
firearm, a security camera, and a telephone. All of the items found in July 2006
had eBay auction numbers attached.
During the December 2005 search of the Yellow House in Lawrence,
officers discovered stolen merchandise, including a new, in-the-box Sony
Cybershot camera, with its pricing label removed. 3 The camera and other stolen
goods, many of which had eBay auction numbers attached, were found in a “back
closet area . . . that had [a] door . . . marked private.” R., Vol. 2 at 860. In and
around the back closet officers also found, among other items, four electric razors
3
At trial, a LPD detective testified that “the UPC label and/or the pricing
label” is often removed by thieves to conceal the origin of stolen goods.
R., Vol. 2 at 861.
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and a perfume set. It was later determined that the razors and perfume set had
been stolen from a Dillons. During the July 2006 search of the Yellow House in
Lawrence, officers found several new, in-the-box tool sets near the back closet
with eBay auction numbers attached.
At trial, numerous coconspirators testified, including Lewis Parsons,
Patrick Nieder, James Ludwig, Michael Aldridge, Nicole Beach, Marcus
Crawford, James Ludwig, and Stacy Barnes-Catlett. Other witnesses included an
employee of Ms. Neighbors, Anthony Reyes, and LPD Officer Rantz.
Lewis Parsons, a truck driver, testified that he primarily sold
Ms. Neighbors new, in-the-box DeWalt tool sets he had stolen from Home Depot
or Lowe’s. When Ms. Neighbors asked him if the tool sets he was selling her
were stolen he “said yes.” Id. at 1079. Nevertheless, Ms. Neighbors continued to
buy tool sets from him. Mr. Parsons also testified that Ms. Neighbors asked him
whether he could get “more DeWalt tool sets . . . , and I said yeah, I could. . . .
She bought all the DeWalt cordless tool sets that I could bring in, and I brought
in, oh, my God, I don’t know, a bunch.” Id. at 1080-81.
Patrick Nieder, a drug dealer, testified that he traded cocaine for stolen
merchandise and then sold the stolen merchandise to Ms. Neighbors. He did this
from the late nineties until 2003 or 2004, and dealt with Ms. Neighbors about
three times a week. When asked whether he told Ms. Neighbors the items he was
selling her were stolen, he answered, “Yes, sir, I did”; indeed, he told her “more
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than once.” Id. at 1204. But this admission did not halt Ms. Neighbors’ business
with Mr. Nieder. Further, when Mr. Nieder was asked whether he knew what
Ms. Neighbors did with the items that he sold to her, he answered: “Yeah, she
put ‘em on the internet and sold ‘em, or on eBay or something.” Id. at 1206. He
elaborated that he frequented her store and “she pretty much told [him] what she
was doing” with the stolen merchandise he sold her. Id. at 1207.
James Ludwig testified that he began dealing with Ms. Neighbors in
January 2004 and dealt with her on an almost daily basis. He stated that when he
told Ms. Neighbors some of the merchandise he would be bringing in was stolen,
“[s]he said [I] can live with that.” Id. at 1393.
Anthony Reyes, who worked for Ms. Neighbors at the Lawrence Yellow
House, also testified. He stated that when Ms. Neighbors bought new, in-the-box
items, she moved them to a storage closet where no one could see them. He also
testified about the time a police officer from the University of Kansas showed up
at the store with a list of bicycles stolen from campus. According to Mr. Reyes,
Ms. Neighbors reviewed the list and told the officer she did not recognize any of
the stolen bicycles identified. After the officer left, however, Ms. Neighbors
remarked that two of the bicycles on the officer’s list were “in her possession.”
Id. at 1272.
Ultimately, a jury convicted Ms. Neighbors of twelve counts of wire fraud,
see 18 U.S.C. §§ 2, 1343; three counts of money laundering, see id.-6-
§§ 2, 1956(a)(1)(A)(i), and one count of conspiracy to commit wire fraud, mail
fraud, and money laundering, see id. § 371. The district court determined that
Ms. Neighbors should receive a two-level enhancement for obstruction of justice
under § 3C1.1 of the United States Sentencing Guidelines Manual (USSG), and
sentenced her to 97 months’ imprisonment. Ms. Neighbors appeals her
convictions and sentence.
II. Analysis
A. Denial of Ms. Neighbors’ Motion to Suppress
Ms. Neighbors contends that the district court erred in denying her motion
to suppress evidence seized from her home because the affidavit in support of the
warrant to search her home did not establish probable cause for the search. In her
view, probable cause was lacking because the supporting affidavit did not show a
nexus between the materials officers recovered during their trash pulls at her
home and “any specific transaction involving property that was suspected of
being stolen.” Aplt. Opening Br. at 14.
“When reviewing the district court’s denial of a motion to suppress, we
view the evidence in the light most favorable to the government[,] . . . accept the
district court’s factual findings unless . . . clearly erroneous,” and review de novo
its determination of reasonableness under the Fourth Amendment. United States
v. Burkhart, 602 F.3d 1202, 1205 (10th Cir. 2010) (internal quotation marks
omitted). Notwithstanding, our review of the probable cause ruling by the judge
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issuing the search warrant is afforded “great deference.” Id. (internal quotation
marks omitted). “[A] reviewing court’s only duty is to ensure that the [issuing
judge] had a substantial basis for concluding that probable cause existed.” United
States v. Mathis, 357 F.3d 1200, 1205 (10th Cir. 2004) (internal quotation marks
omitted).
An affidavit supporting a search warrant establishes probable cause for the
warrant’s issuance “if the totality of the information [in the affidavit] establishes
the fair probability that contraband or evidence of a crime will be found in a
particular place.” United States v. Roach, 582 F.3d 1192, 1200 (10th Cir. 2009)
(internal quotation marks omitted). We do not require “hard evidence or personal
knowledge of illegal activity [to] link a Defendant’s suspected unlawful activity
to his home.” United States v. Biglow, 562 F.3d 1272, 1279 (10th Cir. 2009)
(internal quotation marks omitted). Rather, “a sufficient nexus is established
once an affidavit describes circumstances which would warrant a person of
reasonable caution in the belief that the articles sought are at a particular place.”
Id. (internal quotation marks omitted).
The search warrants in this case were sought to investigate “the fencing of
stolen property and attempted possession of stolen property.” R., Vol. 1 at 178
(affidavit in support of search warrants). To that end, the supporting affidavit set
forth LPD Officer Rantz’s opinion that the evidence collected during the trash
pulls at Ms. Neighbors’ home was “consistent with the selling and shipping of
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posted eBay merchandise on the yellowhair-bargains web store indicating
transactions [we]re being conducted at the Neighbors’ residence.” Id. at 165.
The supporting affidavit also detailed the evidence collected in the trash pulls.
This included: (1) eBay documents with the username Yellowhair Bargains,
(2) two PayPal shipping labels from the Lawrence Yellow House to a California
addressee, (3) one PayPal shipping label from the Lawrence Yellow House to an
Alaska addressee, (4) a PayPal “create your own shipping label” listing the
Lawrence Yellow House as the shipper, (5) an eBay document showing that
payment for a computer had been sent to Ms. Neighbors’ email address, and
(6) an envelope addressed to Ms. Neighbors at the Lawrence Yellow House.
Mindful of our standard of review and applicable legal principles, the
supporting affidavit provided the issuing judge a substantial basis for concluding
that the materials identified in the warrant would be found in Ms. Neighbors’
home. 4 Further, the district court did not err in concluding that the supporting
4
As set forth in the search warrant, officers sought:
[a]ny books, record sheets, receipts, check/check ledgers, eBay
documents and other documentation recording the sale, delivery, and
possession of items being sold or purchased by or through the
[Lawrence Yellow House], including any . . . electronic data. The
data stored on any computer, or removable media, located at
the . . . residence[, and] [p]ersonal property tending to establish
identities of person(s) in control of [the Lawrence Yellow House]
(continued...)
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affidavit, taken together with the reasonable inferences the issuing judge was
allowed to draw, Biglow, 562 F.3d at 1280, provided probable cause to believe
that the items sought might be found at Ms. Neighbors’ home. Accordingly, we
affirm the district court’s denial of Ms. Neighbors’ motion to suppress.
B. Deliberate Ignorance Jury Instruction
Over defense counsel’s objection, the district court instructed the jury that
it could infer Ms. Neighbors’ knowledge that the merchandise she purchased for
resale was stolen. This type of instruction is known as a deliberate ignorance
instruction and is “appropriate when a defendant denies knowledge of an operant
fact but the evidence, direct or circumstantial, shows that defendant engaged in
deliberate acts to avoid actual knowledge of that operant fact.” United States v.
Delreal-Ordones, 213 F.3d 1263, 1268 (10th Cir. 2000). The instruction “alerts a
jury that conscious avoidance of knowledge in order to have a defense at trial
suggests a sufficient guilty knowledge to satisfy the knowing element of the
crime.” United States v. Baz, 442 F.3d 1269, 1272 (10th Cir. 2006) (internal
quotation marks omitted).
4
(...continued)
and the residence located at 1104 Andover, Lawrence, Douglas
County, Kansas [(Ms. Neighbors’ home)].
R., Vol. 1 at 179.
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The instruction in this case read:
When the word “knowingly” is used in these instructions, it
means that the act was done voluntarily and intentionally, and not
because of mistake or accident. Although knowledge on the part of
the defendant cannot be established merely by demonstrating that the
defendant was negligent, careless, or foolish, knowledge can be
inferred if the defendant deliberately blinded herself to the existence
of a fact. Knowledge can be inferred if the defendant was aware of a
high probability of the existence of the fact that the merchandise she
was purchasing from many of her customers was stolen, unless the
defendant did not actually believe that the merchandise in question
was stolen.
R., Vol. 1 at 339 (emphasis added) (Instruction No. 26). In finding the deliberate
ignorance instruction appropriate, the district court stated: “Evidence was
presented from which a jury could find either that Carrie Neighbors knew that
items were stolen, or that she took measures to avoid finding out that items were
stolen.” Id., Vol. 2 at 1513.
Although Ms. Neighbors concedes that the district court’s deliberate
ignorance instruction properly stated the law, she maintains that there was
insufficient evidence to support an inference that she deliberately refrained from
learning about the rightful ownership of property she purchased for resale. In
support, she asserts that the evidence at trial showed she even “asked . . . sellers
where the property came from and had them sign a form affirmatively stating that
the property was not stolen.” Aplt. Opening Br. at 18.
When “reviewing a challenge to a ‘deliberate ignorance’ instruction based
on insufficient evidence, we view the evidence in a light most favorable to the
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Government, and examine the instructions as a whole to determine whether,
considered in their entirety, the instructions accurately informed the jury of the
applicable law.” Delreal-Ordones, 213 F.3d at 1264 (internal citation and
quotation marks omitted). Ultimately, though, we review de novo the district
court’s decision to give a deliberate ignorance instruction. Id.The evidence adduced at trial warranted the district court’s deliberate
ignorance instruction. Although some witnesses testified that they specifically
told Ms. Neighbors the items they were selling her had been stolen, other
witnesses indicated that Ms. Neighbors never asked about the merchandise’s
origins, even in the face of suspicious circumstances. For example, Michael
Aldridge testified that he sold Ms. Neighbors new, in-the-box merchandise on a
daily basis, but she never asked him where he got the merchandise. Similarly,
Nicole Beach testified that she sold Ms. Neighbors several brand new Dyson
vacuums but Ms. Neighbors never asked her where she had gotten the vacuums.
Marcus Crawford testified that he and Ms. Neighbors would “play a little game”
where he told her the bicycles he was selling to her had been won “in a poker
game.” R., Vol. 2 at 1037. Further, several witnesses testified that
Ms. Neighbors paid only fifty percent of retail value for items that were brand
new; a situation where a legitimate owner could have simply returned the items to
the store for their full value.
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Based on the foregoing, there was sufficient evidence for the jury to infer
that Ms. Neighbors knew she was buying stolen property but intentionally closed
her eyes to this fact. Thus, we affirm the district court’s decision to tender the
deliberate ignorance instruction because it properly informed the jury that it could
“look at the charade of ignorance as circumstantial proof of knowledge,”
Delreal-Ordones, 213 F.3d at 1269 (internal quotation marks omitted). 4
C. Sufficiency of the Evidence to Support the Jury’s Guilty Verdicts
As best we can discern, Ms. Neighbors raises two sufficiency of the
evidence arguments. First, she contends there was insufficient evidence to prove
she knowingly bought and sold stolen property. Without the requisite mens rea,
she asserts there was insufficient evidence to support the jury’s guilty verdicts for
wire fraud, money laundering, and conspiracy to commit wire fraud, mail fraud,
and money laundering. Second, she contends there was insufficient evidence to
support the jury’s guilty verdict on her conspiracy charge because the government
failed to prove she and her alleged coconspirators were interdependent, an
4
We do not consider Ms. Neighbors’ perfunctory argument that a deliberate
ignorance instruction is improper in a conspiracy case. Despite our local rules, it
is unclear whether she objected to the deliberate ignorance instruction on this
basis, see 10th Cir. R. 28.2(C)(3), and the government does not address the issue
in its reply brief. Further, Ms. Neighbors failed to ask “us to address this issue
under the plain error standard, and we decline to do so sua sponte.” United States
v. Janus Indus., 48 F.3d 1548, 1559 (10th Cir. 1995).
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essential element of conspiracy, see United States v. Fishman, 645 F.3d 1175,
1186 (10th Cir. 2011).
Our “restrictive standard of review for . . . sufficiency of the evidence
question[s] provides us with very little leeway.” United States v. Evans, 970 F.2d
663, 671 (10th Cir. 1992). Although we review de novo a challenge to the
sufficiency of the evidence, “we owe considerable deference to the jury’s
verdict.” United States v. King, 632 F.3d 646, 650 (10th Cir. 2011) (internal
quotation marks omitted). We ask “only whether taking the evidence—both
direct and circumstantial, together with the reasonable inferences to be drawn
therefrom—in the light most favorable to the government, a reasonable jury
would find the defendant guilty beyond a reasonable doubt.” Id. (internal
quotation marks omitted). We do “not weigh conflicting evidence or consider
witness credibility, as that duty is delegated exclusively to the jury.” Id.(internal quotation marks omitted). We “may reverse only if no rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt.” Id. (internal quotation marks omitted).
Ms. Neighbors’ Knowledge
In support of her argument that she did not knowingly buy and sell stolen
property, Ms. Neighbors refers to testimony that she often asked sellers whether
their property was stolen, told sellers she would not purchase stolen property, and
had sellers sign statements that the property they were selling was not stolen.
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While that may be so, the jury also heard testimony from many witnesses
indicating that they had specifically told Ms. Neighbors the merchandise she was
buying from them was stolen. As noted earlier, Mr. Nieder testified that he told
Ms. Neighbors more than once that the items he was selling to her were stolen.
So did Mr. Parsons, although he only told her once. Mr. Ludwig testified that
Ms. Neighbors said she could live with the fact that he was bringing her stolen
merchandise. And, Officer Rantz testified that Ms. Neighbors bought
merchandise from him even after he told her it had been “nabbed off the back of a
truck by a buddy,” R., Vol. 2 at 547.
The foregoing direct evidence, along with the circumstantial evidence
discussed in relation to the deliberate ignorance jury instruction, was more than
sufficient for a reasonable jury to conclude that Ms. Neighbors knowingly bought
and sold stolen property. That is, a rational trier of fact could have found, beyond
a reasonable doubt, the requisite mens rea present with respect to each of
Ms. Neighbors’ convictions. See generally Fishman, 645 F.3d at 1186-87 (setting
forth the elements necessary to prove the substantive crimes at issue in
Ms. Neighbors’ case).
Ms. Neighbors’ Conspiracy Conviction
Ms. Neighbors also contends that there was insufficient evidence to support
her conviction for a single conspiracy to commit wire fraud, mail fraud, and
money laundering because the government failed to prove interdependence among
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herself, her husband, and other individuals. In support she asserts that “[t]here
was no evidence that those selling stolen property to [her] . . . agreed to anything
other than the sale of the property itself. . . . [T]he sellers neither knew nor cared
what [she] did with the property after she paid them for it.” Aplt. Opening Br.
at 25.
To establish guilt for a wire or mail fraud conspiracy, the government must
prove “that (1) two or more persons agreed to violate the law, (2) the defendant
knew the essential objectives of the conspiracy, (3) the defendant knowingly and
voluntarily participated in the conspiracy, and (4) the alleged coconspirators were
interdependent.” Fishman, 645 F.3d at 1186 (internal quotation marks omitted).
To establish guilt for a conspiracy to launder money, the government must prove
“(1) that there was an agreement between two or more persons to commit money
laundering and (2) that the defendant joined the agreement knowing its purpose
and with the intent to further the illegal purpose.” Id. at 1187 (internal quotation
marks omitted); see also id. at 1188 (discussing “interdependence” of
coconspirators in a money laundering scheme).
“Interdependence is present if the activities of a defendant charged with
conspiracy facilitated the endeavors of other alleged coconspirators or facilitated
the venture as a whole.” United States v. Wardell, 591 F.3d 1279, 1291 (10th Cir.
2009) (internal quotation marks omitted). Circumstantial evidence “is often
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sufficient to demonstrate interdependence.” Fishman, 645 F.3d at 1189 (internal
quotation marks omitted).
We conclude that the record contains ample evidence from which a
reasonable jury could find interdependence among Ms. Neighbors and her
coconspirators. The evidence at trial demonstrated that she relied upon her
coconspirators for her inventory (without which she could not have made a profit
on eBay), and that her alleged coconspirators relied upon her to buy stolen
merchandise that they could not sell elsewhere.
As to Ms. Neighbors’ reliance on her coconspirators for her inventory,
Mr. Parsons testified that she “always wanted” DeWalt tool sets, she asked him to
“get . . . more,” and she bought all the stolen tool sets he brought to her.
R., Vol. 2 at 1080-81. Mr. Aldridge testified that Ms. Neighbors told him specific
merchandise she “could use,” which he would then go steal and sell to her. Id.
at 1124. Stacy Barnes-Catlett testified that she and Ms. Neighbors discussed what
she should shoplift, based on the season. During back-to-school time,
Ms. Neighbors suggested Ms. Barnes-Catlett shoplift musical instruments,
calculators, and clothes (which she did), whereas during Christmas time, she
would shoplift “things that were hot that year,” id. at 1338. Likewise, Wesley
Bateson testified that Ms. Neighbors asked him to get DeWalt tool sets, and
Mr. Crawford testified that Ms. Neighbors told him, in a roundabout way, to get
Trek bicycles.
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Turning to Ms. Neighbors coconspirators’ reliance on her to purchase
property they could not sell elsewhere, Mr. Bateson testified that he sold stolen
property to Ms. Neighbors, instead of going to a pawn shop, because
Ms. Neighbors did not require identification that would link him to the stolen
property. He also testified that Ms. Neighbors agreed to write checks to him in
names other than his own, because he did not “want to write [his] name” on her
seller’s form stating that the property was not stolen. Id. at 985. Mr. Crawford
testified that Ms. Neighbors did not require identification before buying property
from him. Rather, identification only came into play “to cash the checks” from
the Yellow House. Id. at 1035.
Further, the jury heard testimony that Ms. Neighbors told Mr. Nieder she
was reselling on eBay the stolen merchandise she had purchased from him.
They also heard from Ms. Barnes-Catlett, who said she thought Ms. Neighbors
“put . . . on eBay” some of the shoplifted items Ms. Neighbors had purchased
from her. Id. at 1352.
Guided by our authority concerning interdependence and the applicable
standard of review, we conclude that the evidence at trial was sufficient to allow a
rational jury to find Ms. Neighbors guilty, beyond a reasonable doubt, of
conspiracy to commit wire fraud, mail fraud, and money laundering. We
therefore affirm the district court’s denial of Ms. Neighbors’ oral motions for
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judgment of acquittal, and her written motion for judgment of acquittal or for a
new trial.
D. Obstruction of Justice Sentencing Enhancement
Finally, Ms. Neighbors argues that the district court erred by applying a
two-level enhancement to her offense level for obstruction of justice under
§ 3C1.1 of the USSG. The government counters that the district court’s findings
of fact were sufficient to support its application of § 3C1.1. We agree with the
government.
“In reviewing the district court’s application of the sentencing guidelines,
this court reviews legal questions de novo and reviews factual findings for clear
error, giving due deference to the district court’s application of the guidelines to
the facts.” United States v. Maestas, 642 F.3d 1315, 1319 (10th Cir. 2011)
(internal quotation marks omitted). “A finding of fact is clearly erroneous only if
it is without factual support in the record or if the appellate court, after reviewing
all of the evidence, is left with a definite and firm conviction that a mistake has
been made.” Id. (internal quotation marks omitted).
Section 3C1.1 states that an offense level should be increased by two
levels if
(A) 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, and (B) the obstructive conduct related to (i) the
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defendant’s offense of conviction and any relevant conduct; or (ii) a
closely related offense . . . .
USSG § 3C1.1. The commentary to § 3C1.1, provides a nonexhaustive list of the
types of conduct warranting an obstruction of justice enhancement, including:
“(a) threatening, intimidating, or otherwise unlawfully influencing
a . . . witness . . . directly or indirectly, or attempting to do so;” “(d) destroying or
concealing . . . evidence that is material to an official investigation or judicial
proceeding[;]” and “(g) providing a materially false statement to a law
enforcement officer that significantly obstructed or impeded the official
investigation or prosecution of the instant offense . . . .” Id. cmt. 4 (Examples of
Covered Conduct).
The presentence investigation report recommended the § 3C1.1
enhancement because of certain statements made by Ms. Neighbors in a blog
concerning LPD officers and potential witnesses, and because she withheld
evidence related to a stolen laptop that was brought into the Lawrence Yellow
House. In overruling defense counsel’s objection to the presentence investigation
report’s factual findings (in paragraphs forty-one through forty-three) and the
actual adjustment (in paragraph fifty-one), the district court stated:
To begin with, the court is aware of the number of allegations in this
case that [Ms. Neighbors] was obstructing or attempting to obstruct
or did in fact obstruct justice during the course of these proceedings.
Over the years, the court has viewed much evidence of [her] alleged
activities. . . . [N]early all of [her] activities have been related to the
offenses or other closely related offenses. The court is mindful of
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[her] argument or mentioning of her First Amendment constitutional
rights that she believed that she was exercising during the course of
these proceedings. . . . In regards to this objection, the court believes
what was most persuasive . . . [is] the fact that there does appear to
have been attempts made by Miss Neighbors to impede or at least
stall the prosecution of her case as well as malign the prosecution.
Mindful of the language in . . . Section 3C[1].1, the court . . . find[s]
that there was an attempt to obstruct justice, and as such, there is
support for a two level adjustment[.]
R., Vol. 2 at 1560-61.
Having reviewed the evidence that was before the district court, consistent
with our duty to afford deference to its application of the guidelines to the facts,
we conclude that the district court properly overruled defense counsel’s objection
to the two-level sentencing enhancement under § 3C1.1. Accordingly, we affirm
the district court’s application of § 3C1.1.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
Entered for the Court
Wade Brorby
Senior Circuit Judge
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