United States v. Glosson ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5669
PATRICIA DAWN GLOSSON,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5948
JONATHAN IDEMA,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5235
JONATHAN IDEMA,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5398
JONATHAN IDEMA,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5399
JONATHAN IDEMA,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5400
JONATHAN IDEMA,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5401
JONATHAN IDEMA,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5402
JONATHAN IDEMA,
Defendant-Appellant.
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5403
JONATHAN IDEMA,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of North Carolina, at Fayetteville.
Terrence W. Boyle, District Judge.
(CR-93-2-BO)
Argued: March 7, 1996
Decided: April 15, 1996
Before RUSSELL and WILKINS, Circuit Judges, and CHAPMAN,
Senior Circuit Judge.
_________________________________________________________________
Affirmed in part, vacated in part, and remanded with instructions by
unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Laura Lynne Wagner, WAGNER & WAGNER, Rich-
mond, Virginia, for Appellant Idema; Aaron Peter Buda, Cincinnati,
Ohio, for Appellant Glosson. John Samuel Bowler, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF:
Janice McKenzie Cole, United States Attorney, Raleigh, North Caro-
lina, for Appellee.
_________________________________________________________________
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Patricia Dawn Glosson and Jonathan Keith Idema appeal their con-
victions and sentences resulting from a scheme to obtain merchandise
from vendors by falsely representing their intent and ability to pay.
See 18 U.S.C.A. § 2 (West 1969); 18 U.S.C.A. § 371 (West Supp.
1996); 18 U.S.C.A. § 1343 (West Supp. 1996). Although Appellants
raise numerous issues, we conclude that none have merit except for
Idema's claim that the district court failed to make adequate factual
findings to support the order of restitution imposed as part of his sen-
tence. Accordingly, we affirm Appellants' convictions and sentences
except for the restitution order, which we vacate and remand with
instructions.
I.
As part of a plan to acquire materials for Idema Combat Systems,
Inc., Idema organized a sham corporation known as United Manufac-
turing Company. With the assistance of Glosson, he ordered materials
from suppliers by facsimile and supported the requests with fraudu-
lent financial information. Idema was convicted of conspiracy to com-
mit wire fraud and 58 counts of wire fraud. See 18 U.S.C.A. §§ 371,
1343. Glosson was convicted of 58 counts of aiding and abetting wire
fraud. See 18 U.S.C.A. §§ 2, 1343. The district court sentenced Idema
to 48 months imprisonment and ordered him to pay restitution in the
amount of $254,485.88, representing losses suffered by victims of the
wire fraud. Glosson was sentenced to 15 months imprisonment.
II.
We conclude that the various allegations of error raised by Appel-
lants in challenging their convictions are without merit. Questions
asked by the Government during its examination of witnesses and
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comments made as part of its closing argument did not deprive
Appellants of their right to a fair trial. See United States v. Adam, 70
F.3d 776, 780-81 (4th Cir. 1995). In addition, the district court did not
abuse its discretion in denying a motion for a new trial, because the
evidence that Appellants claimed was newly discovered could have
been obtained prior to trial. See United States v. Bales, 813 F.2d 1289,
1295 (4th Cir. 1987). Viewed in the light most favorable to the Gov-
ernment, the evidence was sufficient to support Glosson's conviction
of 58 counts of aiding and abetting wire fraud. See Glasser v. United
States, 315 U.S. 60, 80 (1942). And, contrary to Idema's argument,
the decision of the district court to admit Glosson's redacted confes-
sion subject to a limiting instruction was not an abuse of discretion.
See Richardson v. Marsh, 481 U.S. 200, 211 (1987).
III.
We also reject Appellants' challenges to their sentences. The entire
amount of loss suffered by victims of her offense was properly attri-
buted to Glosson. See United States Sentencing Commission,
Guidelines Manual, § 2F1.1, comment. (n.7) (Nov. 1994). Further,
the district court did not abuse its discretion in denying Idema's
motion for the production of witnesses at the sentencing hearing. See
Fed. R. Crim. P. 32(c). It was not improper to enhance Idema's
offense level both for a leadership role in the offense, see U.S.S.G.
§ 3B1.1(a), and for more than minimal planning, see U.S.S.G.
§ 2F1.1(b)(2), because neither section prohibits double counting. See
United States v. Curtis, 934 F.2d 553, 556 (4th Cir. 1991). The district
judge did not err in denying Idema's motion to recuse himself. See
Liteky v. United States, 114 S. Ct. 1147, 1157-58 (1994). And, it was
not an abuse of discretion to deny Idema's motion for services other
than counsel at sentencing without conducting an ex parte hearing.
See 18 U.S.C.A. § 3006A(e)(1) (West Supp. 1996); Lawson v. Dixon,
3 F.3d 743, 752-53 (4th Cir. 1993), cert. denied, 114 S. Ct. 1208(1994).
One issue raised by Idema, however, has merit; specifically, the
district court erred in failing to make appropriate findings in support
of the order of restitution. See United States v. Molen, 9 F.3d 1084,
1086 (4th Cir. 1993), cert. denied, 114 S. Ct. 1649 (1994). We have
held on numerous occasions that sentencing courts must make explicit
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findings of fact regarding each of the factors contained in 18 U.S.C.A.
§ 3664(a) (West Supp. 1996), connecting the amount and type of res-
titution ordered to the financial resources, financial needs, and earn-
ing ability of the defendant. See, e.g., id. In addition, a determination
that compliance with the order of restitution will not cause undue
hardship to the defendant or his dependents must be made. Id. A dis-
trict court may satisfy this requirement by announcing its findings on
the record or adopting adequate proposed findings contained within
a presentence report. Id.We are compelled to remand for the district court to make appro-
priate findings regarding the order of restitution. The court below nei-
ther articulated on the record specific findings with regard to the
factors under 18 U.S.C.A. § 3664, nor adopted a presentence report
containing adequate findings as to these factors. As an assistance on
remand, we note that the district court properly may consider the fact
that Idema failed to provide information to the probation officer con-
cerning his financial condition as evidence that he possesses sufficient
resources to pay restitution. Cf. United States v. Castner, 50 F.3d
1267, 1277 n.9 (4th Cir. 1995) (noting that defendant bears the burden
of proof in establishing the inability to pay restitution). Further, the
district court may not delegate its judicial function of determining the
amount and timing of restitution payments. See United States v.
Johnson, 48 F.3d 806, 809 (4th Cir. 1995).
IV.
For the reasons set forth above, we affirm Glosson's convictions
and sentence. Further, we affirm Idema's convictions. Except for the
order of restitution, we also affirm his sentence; however, we vacate
the order of restitution and remand for the district court to make
appropriate findings.
AFFIRMED IN PART; VACATED IN PART; AND REMANDED
WITH INSTRUCTIONS
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