United States v. Clements ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4000
ROBERT M. CLEMENTS, JR.,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4001
THOMAS TURBEVILLE,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4041
ERNEST MICHAEL JONES,
Defendant-Appellant.
Appeals from the United States District Court
for the District of South Carolina, at Greenville.
G. Ross Anderson, Jr. and William B. Traxler, Jr.,
District Judges.
(CR-96-480, CR-97-133)
Argued: December 4, 1998
Decided: January 14, 1999
Before WILKINSON, Chief Judge, KING, Circuit Judge, and
WILLIAMS, United States District Judge
for the District of Maryland,
sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Russell Doyle Ghent, LEATHERWOOD, WALKER,
TODD & MANN, P.C., Greenville, South Carolina, for Appellants.
David Calhoun Stephens, Assistant United States Attorney, Green-
ville, South Carolina, for Appellee. ON BRIEF: Chad A. McGowan,
MCGOWAN LAW FIRM, Atlanta, Georgia, for Appellant Clements;
Edward M. Saufain, Greenville, South Carolina, for Appellant Jones.
J. Rene Josey, United States Attorney, Greenville, South Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Robert M. Clements, Jr. and Thomas Turbeville appeal their con-
victions on multiple counts of wire fraud under 18 U.S.C. § 1343,
alleging that the district court abused its discretion by failing to sever
their trials from those of other codefendants, and that it erred in deny-
ing their motions to suppress certain evidence. Clements and Tur-
beville also allege multiple evidentiary, procedural, and sentencing
errors. Finally, Clements, Turbeville, and codefendant Ernest Michael
Jones--who pleaded guilty to wire fraud--argue that the district court
2
improperly enhanced their sentences because, in the district court's
opinion, they had chosen "vulnerable victims." U.S. Sentencing
Guidelines Manual § 3A1.1(b) (1997) (hereinafter U.S.S.G.). We
hold that each of the district court's rulings of which appellants com-
plain was proper, and, as a result, we affirm the convictions and sen-
tences appealed.
I.
In the late 1980s, Kashma Porter began a telemarketing operation
in Atlanta, Georgia, called CD Marketing ("CDM"). Sometime in
1994, Clements came to work as a telephone solicitor for CDM, and
Turbeville began work in the same capacity approximately six months
later.
CDM's "business" consisted of telephoning individuals whose
names appeared on "lead sheets" that were provided by CDM's co-
owner, Reginald Jennings. The telephone solicitors would contact
individuals on the lead sheets and inform them that they had been
selected to receive large cash prizes, but that they needed to send cash
to CDM in order to "qualify" for the prizes. Some of the contacted
individuals would respond by sending varying amounts of cash to
CDM, usually between $1000 and $2000, as requested by the solici-
tors. See J.A. 332. In some cases, CDM would then send low-value
merchandise to responding individuals (i.e., their victims); these
goods included small safes, "household items," and "trinkets." J.A.
333.
Contrary to what the solicitors had told them, the people contacted
had not been selected to receive any "top bonus prizes." Instead, their
names and phone numbers had simply appeared on the lists obtained
by Jennings. The overwhelming majority of the people contacted
were elderly, and, at trial, witnesses testified that these victims had
been selected because of their age. E.g., J.A. 324, 778. Many victims
who had sent in money to one of Porter's companies in the past--
thereby demonstrating themselves to be, in one solicitor's words,
"proven buyer[s]"--were contacted repeatedly. Such victims were
referred to as "reloads." Id.
Clements, Turbeville, and Jones made phone calls like those
described above. When making such calls, each used an alias. Tur-
3
beville used the alias "John Wilson," and Clements identified himself
as "Bobby Boyd." J.A. 331. One fellow solicitor explained that the
aliases were used to prevent reloads from identifying solicitors that
had previously called them. J.A. 330.
In 1995, Porter was sued by the Georgia Department of Consumer
Affairs. As a result of that litigation, he entered into a consent decree
under which he agreed to close down CDM and pay restitution to its
victims. Porter later testified that he provided copies of the consent
decree to all of CDM's employees, including Clements and Tur-
beville. J.A. 780.
While he was negotiating the consent decree in Georgia, Porter
began setting up a nearly identical operation in Greenville, South Car-
olina, under the name of Initial Services. After CDM was shut down,
both Clements and Turbeville came to work as telephone solicitors for
Initial Services. The company operated from a single, two-bedroom
apartment in which multiple phone lines had been installed. Ordinar-
ily, all solicitors would make their calls over speaker phones, so that
they could easily overhear each others' conversations. J.A. 338,
784-85. As Porter would later testify, "[I]f you were in the apartment,
it was quite difficult for you not to hear." J.A. 786. The speaker
phones also allowed the solicitors to coach each other through partic-
ularly difficult conversations. One of the solicitors testified at trial
that he had personally coached Turbeville. J.A. 339.
During the six months of 1995 when it operated out of Greenville,
Initial Services collected approximately $500,000 from its victims.
J.A. 707. Worried that he would soon experience the same problems
he had encountered in Georgia, Porter decided to close Initial Ser-
vices's Greenville office and to re-establish the company near Chatta-
nooga, Tennessee. The new company was called Safe Health Products
("SHP"), and it employed both Clements and Turbeville. In preparing
to commence its operations, SHP opened an account at AmSouth
Bank and rented a drop box at Mail Boxes Etc in Chattanooga.
In January 1996, Special Agent Earl Burns of the F.B.I., who
headed a taskforce on telemarketing fraud, received word from
AmSouth Bank that SHP's account showed signs of being used in an
illegal telemarketing operation. Specifically, a large number of out-of-
4
state checks were being deposited into the account, and many of those
checks were being dishonored and returned to the bank. Near the
same time, Burns learned that complaints had been filed against SHP
in the F.B.I.'s Charlottesville, Virginia office. Id. The complainant
had identified SHP's address at Mail Boxes Etc near Chattanooga.
On January 19, 1996, Burns contacted the Mail Boxes Etc branch
that SHP was using. In response to Burns's questions, Mail Boxes Etc
explained that SHP's mail ordinarily consisted of thin Federal
Express envelopes, and that one of these envelopes showed the return
address of the original complainant in Virginia. Using their return
addresses and phone numbers--which appeared on the outside of the
Federal Express envelopes--Burns contacted several of the people
who had sent packages to SHP. All of the senders Burns spoke to
were elderly, each had been told by SHP that he or she had won a
prize, and each had sent a check for between $1000 and $2000 to SHP
to "qualify" for this prize. J.A. 218.
Burns and other federal agents then went to the Mail Boxes Etc in
Chattanooga, Tennessee, where they met Reginald Brown, who had
come to retrieve SHP's mail. Id. As Burns examined Brown's driver's
license, Brown volunteered that his license had been suspended. J.A.
220. When Burns informed Brown that Brown would not be permit-
ted to operate the car that he had driven to Mail Boxes Etc, Brown
telephoned SHP's apartment. Jones and Turbeville soon arrived to
pick up Brown. J.A. 220.
Burns identified himself to Jones and Turbeville and asked if they
would show him SHP's apartment. The pair consented, and Burns and
the other agents followed them to the apartment. J.A. 221-22. Jones,
Turbeville, or Brown opened the door and allowed Burns and the
other agents to enter the apartment. J.A. 222-23. Once inside, Burns
immediately saw several telephones, tape recorders, lead sheets, a fax
machine, and several opened Federal Express packages. J.A. 223.
Based on his experience with telemarketing fraud, Burns recognized
that the apartment was probably a "boiler room" for a telemarketing
operation, and that, in his opinion, it could be dismantled in five to
ten minutes. Clements and Porter, among others, were present in the
apartment when Burns arrived. J.A. 226.
5
Burns then contacted an Assistant United States Attorney
("AUSA") to request assistance in conducting a lawful search of the
apartment and a seizure of any evidence there. J.A. 224. At the
AUSA's instruction, Burns asked if Porter--whom Burns had been
told was the leader of the operation--would consent to a search of the
apartment. J.A. 225. Porter did not immediately consent, but after
Burns began preparing the affidavit necessary to obtain a warrant,
Porter signed a written consent allowing Burns to search the apart-
ment. J.A. 226.
Burns and the other agents then searched the apartment. During
their search they found lead sheets in various rooms, handwritten
sales logs, handwritten summaries of payments made to solicitors,
tape recordings of various solicitors' phone calls, and other docu-
ments relating to the company's operations in both Tennessee and
South Carolina. See J.A. 227-28.
Based on this and other information, including the company's
banking records from South Carolina, a federal grand jury in Green-
ville, South Carolina, indicted Porter, Clements, Turbeville, Jones,
Brown, Jennings, and Gary Becks. J.A. 55-67 (original and supersed-
ing indictments). The superseding indictment charged each defendant
with sixteen counts of committing wire fraud, in violation of 18
U.S.C. § 1343. J.A. 66. Each count was predicated on a single, sepa-
rate phone call made from the offices of Initial Services in Greenville
between July and November, 1995, a period during which both Clem-
ents and Turbeville worked for the company.
Clements and Turbeville each filed motions to sever their trials
from those of the other defendants and to suppress all evidence recov-
ered during the search of the Chattanooga apartment. The district
court denied those motions. J.A. 132, 306. Before trial, defendants
Jones, Becks, and Brown entered guilty pleas, leaving Porter, Jen-
nings, Turbeville, and Clements to be tried jointly.
At trial in Greenville, South Carolina, in late 1996, the Government
presented the documentary evidence and tapes of phone calls that had
been seized in Tennessee. The sales logs, along with testimony of cer-
tain victims, indicated that some of the phone calls listed in the super-
seding indictment had been made by Clements, and others by
6
Turbeville. E.g., J.A. 720-21. Becks also testified for the Government.
He detailed the day-to-day aspects of the company and confirmed that
he had known that the operation was fraudulent. J.A. 333.
After the Government rested its case, defendants Porter and Jen-
nings pleaded guilty, leaving only Clements and Turbeville as active
defendants. J.A. 767. The Government then immediately moved to
reopen its case, so that it could call Porter as an additional witness.
J.A. 768. The district court granted the Government's motion over
objections from Clements and Turbeville. Id. Porter then testified as
to the remaining defendants' involvement in his operation, and he
confirmed that the Government's case had accurately portrayed the
nature of the telemarketing scheme. J.A. 791. Porter further acknowl-
edged that the group had targeted the elderly. J.A. 778.
In response to Porter's strong testimony, both Clements and Tur-
beville testified in their defense. Each of them denied knowing that
the operation had been fraudulent, and each denied that he had
intended to defraud anyone he had called. J.A. 841, 921.
At the close of the trial, the jury found Turbeville guilty on Counts
II and VII of the superseding indictment, and it convicted Clements
on Counts II, III, and VIII. J.A. 1021. The parties agree that specific
record evidence indicated that each of these defendants had actually
been involved in each phone call that formed the basis for the counts
of which he was convicted. Both defendants were acquitted on all
other counts.
At sentencing, the district court determined that the amount of loss
for which Clements and Turbeville each were responsible exceeded
$500,000. The court further enhanced their sentences on the grounds
that each had (a) obstructed justice by committing perjury on the wit-
ness stand, U.S.S.G. § 3C1.1; and (b) undertaken "more than minimal
planning", U.S.S.G. § 2F1.1(2). The court also declined to reduce
Clements's and Turbeville's sentences on the grounds that they were
minor participants in the scheme, as defined by U.S.S.G. § 3B1.2(b).
J.A. 1200. Finally, the district court enhanced the sentences of Clem-
ents, Turbeville, and Jones for having chosen victims that were vul-
nerable because of their advanced ages, U.S.S.G.§ 3A1.1(b). As a
result of these adjustments, the district court sentenced Clements to
7
sixty months of imprisonment, Turbeville to forty-seven months, and
Jones to thirty-eight months. Clements and Turbeville appeal their
convictions, and along with Jones, appeal the sentences they received.
II.
Clements and Turbeville challenge the district court's denial of
their severance motions, as well as its refusal to suppress the evidence
seized during the search of the apartment. They also challenge the
court's decision to permit the Government to reopen its case after
Porter had pleaded guilty, as well as certain of the court's evidentiary
and procedural rulings.
With regard to their sentences, Clements and Turbeville maintain,
among other things, that the district court erroneously enhanced their
sentences based on its determination that they had committed perjury.
Finally, Clements, Turbeville, and Jones all assert that the district
court abused its discretion in applying the "vulnerable victim"
enhancement to each of their sentences.
A.
Clements and Turbeville argue that the district court erred in deny-
ing their motions to be tried separately from the other defendants.
First, they argue that the overwhelming evidence of their codefen-
dants' guilt prevented the jury from making individualized determina-
tions with respect to their individual criminal intent, or lack thereof.
Second, they allege that, because the jury must have viewed them as
being "in the same boat" as their codefendant, Kashma Porter, they
were unduly prejudiced when Porter later testified against them. In
essence, they believe that the jury must necessarily have taken their
codefendant's on-stand confession as an implicit acknowledgment of
their own guilt. We disagree.
1.
Rule 8(b) of the Federal Rules of Criminal Procedure permits the
joint trial of defendants that have been named in the same indictment
"if they are alleged to have participated in the same . . . series of acts
8
or transactions constituting an offense or offenses." The Supreme
Court has emphasized that the federal system of criminal justice pro-
motes and supports the joint trial of defendants who are indicted
together. Zafiro v. United States, 506 U.S. 534, 536 (1993) ("Joint tri-
als ``play a vital role in the criminal justice system.'" (quoting
Richardson v. Marsh, 481 U.S. 200, 209 (1987))). Nevertheless, a dis-
trict court may sever the trials of codefendants"[i]f it appears that a
defendant . . . is prejudiced by a joinder of . . . defendants . . . for trial
together." Fed. R. Crim. P. 14. We review a district court's denial of
a motion for severance for abuse of discretion. Zafiro, 506 U.S. at
538-39.
In Zafiro, the Supreme Court explained that severance is mandated
"only if there is a serious risk that a joint trial would compromise a
specific trial right of one of the defendants, or prevent the jury from
making a reliable judgment about guilt or innocence." Id. at 539.
Here, Clements and Turbeville first invoke one of the specific
grounds for prejudice listed in Zafiro: They assert that they were
unfairly prejudiced by the jurors' consideration of evidence regarding
their codefendants' actions that, absent a joint trial, would not have
been admissible against them. See id.While the appellants fail to specify exactly which pieces of evi-
dence would have been inadmissible against them in a separate pro-
ceeding, we are convinced that the evidence relating to their
codefendants' actions did not prevent the jury from fairly deciding
their cases. The strongest indication that the jury carefully sorted
through the entirety of the evidence is that Clements and Turbeville
were each convicted only of those counts of the superseding indict-
ment that were based on telephone calls which, according to the
record, he had made himself. Consequently, it is manifest that any
evidence of codefendants' actions, whether or not admissible as to
Clements or Turbeville, did not prevent the jury from fairly evaluat-
ing the ultimate question of these appellants' guilt or innocence.
2.
Clements and Turbeville complain that Porter's mid-trial decision
to plead guilty, together with his ensuing testimony on behalf of the
Government, necessarily caused the jury to convict them solely
9
because of their association with Porter. Put differently, they believe
they were convicted because Porter, who had previously been their
codefendant and "in the same boat" with them, admitted his own
guilt.
We have no doubt that Porter's guilty plea and testimony dealt a
serious strategic blow to Clements's and Turbeville's defenses. How-
ever, the Supreme Court has clearly rejected the idea that trials must
be severed to prevent admission of potentially damaging testimony
from codefendants:
A defendant normally would not be entitled to exclude the
testimony of a former codefendant if the district court did
sever their trials, and we see no reason why relevant and
competent testimony would be prejudicial merely because
the witness is also a codefendant.
Zafiro, 506 U.S. at 540. Also, even before Porter chose to testify, the
jury had already heard extensive and damning testimony from Gary
Becks, who, like Porter, had been indicted with Clements and Tur-
beville. Becks also testified that he had pleaded guilty. J.A. 356.
Accordingly, we conclude that Porter's decision to plead guilty and
to give "relevant and competent" testimony for the Government did
not prejudice Clements's or Turbeville's trial rights, and that the dis-
trict court was thus well within its discretion to try both Clements and
Turbeville together with their codefendants.
B.
Clements and Turbeville next argue that the district court improp-
erly admitted the evidence seized during the search of the Chatta-
nooga apartment. More specifically, they maintain that the district
court erred in finding that the F.B.I.'s warrantless search of the apart-
ment was justified by exigent circumstances. We reject this argument.
Warrantless entries into a dwelling place are presumed unreason-
able. United States v. Turner, 650 F.2d 526, 528 (4th Cir. 1981). But
we have recognized that warrantless entries may be justified when
10
they are made under certain "exigent circumstances." Id. Such cir-
cumstances exist when agents "have probable cause to believe that
evidence of illegal activity is present and reasonably believe that it
may be destroyed or removed before they can secure a warrant."
United States v. Campbell, 945 F.2d 713, 715 (4th Cir. 1991). Where,
as here, a district court has found the existence of exigent circum-
stances justifying a warrantless search, we will not overturn that find-
ing of fact unless it is clearly erroneous. Turner, 650 F.2d at 528.
However, we review de novo any legal conclusions in the district
court's suppression ruling. United States v. McDonald, 61 F.3d 248,
254 (4th Cir. 1995).
In Turner, we identified five factors that should guide a determina-
tion of whether exigent circumstances exist in a particular case:
(1) the degree of urgency involved and the amount of time
necessary to obtain a warrant; (2) the officers' reasonable
belief that the contraband is about to be removed or
destroyed; (3) the possibility of danger to police guarding
the site; (4) information indicating the possessors of the
contraband are aware that the police are on their trail; and
(5) the ready destructibility of the contraband.
Id. In its written order on this issue, the district court found that each
of these five factors was, to a greater or lesser extent, present in this
case.
We agree with the district court's assessment of these factors, and
it is clear that the second, fourth, and fifth factors were especially
strong here. There is no question that, at the moment Burns and his
colleagues entered the Chattanooga apartment, everyone present knew
that the "police [were] on their trail." Further, Burns testified at the
hearing on the suppression motion that, based on his experience with
telemarketing operations, it would have taken only five to ten minutes
to dismantle the entire "boiler room" and to remove all relevant docu-
ments. J.A. 221. Finally, it is reasonable to assume that, if given the
chance, the six suspects in the apartment would readily have "re-
moved or destroyed" the evidence of their activities. With respect to
this factor, we have held that the Government need not produce "con-
crete proof" that evidence was about to be destroyed; it simply must
11
show that a reasonable agent would have believed that the dwelling's
occupants would attempt to destroy evidence before the agents could
return with a warrant. United States v. Grissett , 925 F.2d 776, 778
(4th Cir. 1991).
In light of the strong presence of the factors discussed above, we
cannot say that the district court clearly erred in finding that exigent
circumstances justified the F.B.I.'s warrantless search of the apart-
ment. As a result, the district court properly denied Clements's and
Turbeville's motions to suppress the fruits of that search.
C.
The next issue raised by Clements and Turbeville is whether the
district court erred in permitting the Government to reopen its case
and call Porter as a witness, all after the Government had rested. We
conclude that, however damaging Porter's testimony may have been
to his former codefendants, it was not error for the district court to
allow the Government to reopen its case.
The decision of whether to reopen a case after the close of the evi-
dence is committed to the district court's discretion. United States v.
Abbas, 74 F.3d 506, 510 (4th Cir. 1996). In exercising that discretion,
the trial court is guided by three practical factors:
(1) whether the party moving to reopen provided a reason-
able explanation for failing to present the evidence in its
case-in-chief; (2) whether the evidence was relevant,
admissible, or helpful to the jury; and (3) whether reopen-
ing the case would have infused the evidence with distorted
importance, prejudiced the opposing party's case, or pre-
cluded the opposing party from meeting the evidence.
Id. at 510-11. In this case, there is no question that the first factor
weighed heavily in favor of permitting the Government to reopen its
case: Porter's Fifth Amendment rights had prevented the Government
from calling him during its case-in-chief. There is also little doubt that
Porter's detailed testimony regarding the day-to-day operations of the
telemarketing company was relevant and helpful to the jury, and nei-
ther Clements nor Turbeville objected to its admissibility.
12
The district court also correctly applied the third factor. While Por-
ter's mid-trial decision to plead guilty and testify for the Government
must certainly have gotten the jury's attention, we do not believe it
was thereby imbued with "distorted importance." Cf. United States v.
Peay, 972 F.2d 71, 73 (4th Cir. 1992) (testimony directly contradict-
ing defendant's denial of guilt not given distorted importance even
when presented immediately before summation). As the apparent
ringleader of the operation, Porter's testimony would have been
important whenever it was given. Here, it was given before the defen-
dants' case-in-chief had begun; thus, Clements and Turbeville were
given an opportunity to meet any additional evidence Porter offered
in his testimony.
Under these circumstances the district court was well within its dis-
cretion in permitting the Government to reopen its case after it had
rested.1
III.
Clements and Turbeville also argue that the district court erred in
enhancing their sentences under U.S.S.G. § 3C1.1, based on its find-
ing that each of them committed perjury when testifying at trial. Spe-
cifically, they argue that the district court failed to make
particularized findings regarding each element of perjury, as required
by United States v. Dunnigan, 507 U.S. 87 (1993). Before a defen-
dant's sentence may be enhanced for perjury, Dunnigan requires the
district court to find "that the defendant's testimony was untruthful as
to a material matter, and that the false testimony was willful." United
States v. Queen, 132 F.3d 991, 1000 (4th Cir. 1997) (citing Dunnigan,
507 U.S. at 94-95)). While it is "preferable" for a district court to
make a separate, clear finding as to each element of perjury, its find-
ings are sufficient whenever it finds all three elements. Id._________________________________________________________________
1 Clements and Turbeville raise several additional evidentiary and pro-
cedural issues. For example, they argue that certain admitted evidence
was inadmissible hearsay as to them, that other evidence was improperly
admitted under Rule 404(b), and that the district court erred in denying
their motions for acquittal. We have carefully considered the appellants'
arguments as to each of these issues and find that they are each without
merit.
13
With respect to Clements, the district court specifically found that
he had testified falsely, that the testimony had related to a material
issue, and that the testimony constituted "a willful attempt to obstruct
justice." J.A. 1180. Likewise, the district court found all three ele-
ments present in Turbeville's testimony. J.A. 1185-86. Accordingly,
the district court's findings satisfied the Dunnigan test as to each
defendant's testimony, and its enhancement under U.S.S.G. § 3C1.1
was therefore appropriate as to the sentences of Clements and
Turbeville.2
IV.
Jones's sole argument on appeal is that the district court erred in
enhancing his sentence under U.S.S.G. § 3A1.1(b), which permits a
two-point increase in the base offense level when a defendant has
chosen his or her victims because they were vulnerable due to age.
See U.S.S.G. § 3A1.1(b). Clements and Turbeville raise the same
argument with respect to the enhancement of their own sentences.
J.A. 1174. Since the record well supports the district court's findings
with respect to this issue, this argument is also rejected.
Importantly, both Porter and Becks testified that their operation had
targeted elderly victims. J.A. 778, 1162. Further, the Government had
surveyed all of the apparent victims of the defendants' scheme, and
more than eighty-five percent of those who responded to the survey
were over seventy years old. J.A. 1159. Finally, it is simply not
believable that, after working in telemarketing for years, neither
Clements, Turbeville, nor Jones could tell that the persons to whom
they were speaking on the phone were most likely elderly. For these
reasons, we hold that the district court was correct in enhancing the
appellants' sentences pursuant to U.S.S.G. § 3A1.1(b).
_________________________________________________________________
2 Clements and Turbeville also challenge their sentences based on the
(1) district court's finding as to the amount of loss involved in the
offenses of conviction, (2) its finding that both of them had engaged in
more than minimal planning, and (3) its failure to depart downward
because they were "minor participants" under U.S.S.G. § 3B1.2. We
have reviewed these arguments with respect to both Clements and Tur-
beville, and we conclude that each of them is meritless.
14
V.
Pursuant to the foregoing, each of the appealed convictions and
sentences is hereby
AFFIRMED.
15