United States v. Twigg , 424 F. App'x 881 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-12317 APR 22, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 1:09-cr-00150-TCB-CCH-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KATHERINE ELLEN TWIGG,
a.k.a. Catherine Twigg,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(April 22, 2011)
Before BARKETT, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Katherine Twigg appeals her convictions and sentence of 60 months of
imprisonment for three counts of wire fraud, 18 U.S.C. §§ 2, 1343, and one count
of conspiracy to commit wire and mail fraud, id. § 1349. Twigg challenges the
denial of her objection under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712(1986), a jury instruction about deliberate ignorance, and the findings about the
amount of loss and the number of victims for which she was responsible. We
affirm.
The United States argues that we should dispose of Twigg’s Batson
argument on the ground that she failed to establish a prima facie case of racial
discrimination, but we disagree. “We understand the district court to have ruled
implicitly that [Twigg] had made a prima facie showing of racial discrimination
because ‘a district court cannot ignore the prima facie showing requirement.’”
United States v. Campa, 529 F.3d 980, 998 (11th Cir. 2008) (quoting United
States v. Allen-Brown, 243 F.3d 1293, 1297 (11th Cir. 2001)). The district court
required the United States to provide race-neutral reasons for its peremptory
challenges, and the district court overruled Twigg’s Batson objection on the
ground that the United States had “provided legitimate race-neutral reasons for its
exercise of peremptory strikes.”
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The district court did not err when it denied Twigg’s Batson objection. The
prosecutor provided “comprehensible” and race-neutral reasons for removing five
prospective jurors. Rice v. Collins, 546 U.S. 333, 338, 126 S. Ct. 969, 973–74
(2006). The prosecutor removed from the venire three African-American men
based on concerns about their unsteady employment: one man had worked in
street entertainment, the second man had left a labor union to pursue self-
employment, and the third man had provided vague responses to questions about
his employment. See Barfield v. Orange Cnty., 911 F.2d 644, 648–49 (11th Cir.
1990). The prosecutor also removed from the venire a Hispanic man and woman
on the ground that they had responded to questions in “broken English” and might
“get[] lost” in the “document-intensive case” against Twigg. See United States v.
Edouard, 485 F.3d 1324, 1342–43 (11th Cir. 2007). Twigg does not argue that the
prosecutor failed to remove any similar-situated white jurors, Edouard, 485 F.3d at
1343, and two African-American men remained on the petit panel after the
prosecutor exercised his peremptory strikes, see United States v. Gamory, No.
09-13929, slip op. at 29 (11th Cir. Mar. 11, 2011); Edouard, 485 F.3d at 1343.
This Court accords “great deference” to the findings of the district court about the
credibility of the reasons for removal of prospective jurors, Edouard, 485 F.3d at
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1341, and Twigg fails to explain how the district court clearly erred in its finding
that the peremptory strikes by the United States were not racially discriminatory.
The district court also did not err when it instructed the jury about deliberate
ignorance. The district court told the jury that “[i]gnorance is deliberate if the
defendant was presented with facts that put her on notice that criminal activity was
particularly likely and yet she intentionally failed to investigate those facts.” That
instruction is consistent with our decisions that a defendant is deliberately ignorant
if her “suspicion [is] aroused but then deliberately omits to make further
enquiries[] because [she] wishes to remain in ignorance,” United States v. Hristov,
466 F.3d 949, 952 (11th Cir. 2006) (quoting United States v. Rivera, 944 F.2d
1563, 1570 (11th Cir. 1991)). The district court did not misstate the law.
The district court also did not clearly err in its findings about Twigg’s
amount of loss and number of victims. When a defendant challenges a fact in the
presentence investigation report, the United States must “establish[] the disputed
fact by a preponderance of the evidence,” United States v. Lawrence, 47 F.3d
1559, 1566 (11th Cir. 1995), after which the district court must “resolve the
dispute by making appropriate findings of fact,” United States v. Butler, 41 F.3d
1435, 1446 (11th Cir. 1995). The findings of fact “‘for purposes of sentencing
may be based on, among other things, evidence heard during trial, undisputed
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statements in the PSI, or evidence presented during the sentencing hearing.’”
United States v. Ndiaye, 434 F.3d 1270, 1300 (11th Cir. 2006) (quoting United
States v. Polar, 369 F.3d 1248, 1255 (11th Cir. 2004)). The district court held
Twigg responsible for $2 million in losses caused by the conspiracy based on
emails that Twiggs had sent to victims and testimony at trial from Postal Inspector
Bryan Musgrove about the operation of the advance fee scheme and from one of
Twigg’s cohorts, Anthony Tobin, about Twigg’s participation in the conspiracy.
The district court attributed to Twigg 55 victims based on the presentence
investigation report and Musgrove’s testimony at the sentencing hearing that he
had “examined financial records” of the three primary accounts where the victims
of the conspiracy had wired funds, he had separated the deposits “by dates and by
time and by amount and by the corresponding name,” and he had been “able to
distinguish” and identify 55 “unique” victims. See Polar, 369 F.3d at 1255–56.
Twigg relies on our decision in United States v. Bernardine, 73 F.3d 1078,
1081 (11th Cir. 1996), to argue that the United States failed to produce sufficient
evidence to prove the number of victims who had been defrauded, but Twigg’s
reliance on Bernardine is misplaced. In Bernardine, the United States proffered
that it could produce three witnesses to establish facts necessary to support a
sentencing enhancement, but never produced those witnesses. At Twigg’s
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sentencing hearing, Musgrove testified about the specific method he used to
determine the number of victims. Moreover, even if the district court had erred in
its findings, the error would be harmless because the district court stated that it
would have “sentenced [Twigg] to the same term” regardless of its calculations.
See Williams v. United States, 503 U.S. 193, 203, 112 S. Ct. 1112, 1120–21
(1992); United States v. Tampas, 493 F.3d 1291, 1305 (11th Cir. 2007). Twigg’s
sentence is reasonable.
Twigg’s convictions and sentence are AFFIRMED.
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