United States v. Scott ( 1998 )

REVISED, November 19, 1998
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-21045
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
VERSUS
WILLIAM T SCOTT; LINDA D SCOTT; RALPH BEN-SCHOTER,
Defendants - Appellants.
Appeals from the United States District Court
For the Southern District of Texas
October 29, 1998
Before REAVLEY, DAVIS, and DUHÉ, Circuit Judges
JOHN M. DUHÉ, JR., Circuit Judge:
A jury found Defendants-Appellants William T. Scott (“Mr. Scott”), Linda D. Scott (“Mrs.
Scott”), and Ralph Ben-Schoter (“Ben-Schoter”) guilty of one count of conspiracy (18 U.S.C.A. §
371), three counts of transferring false obligations of the United States (18 U.S.C.A. § 473), one
count of bank fraud (18 U.S.C.A. § 1344), two counts of wire fraud (18 U.S.C.A. § 1343), and one
count of interstate transportation of stolen money (18 U.S.C.A. § 2314). Additionally, the jury found
Ben-Schoter guilty of six counts of money laundering (18 U.S.C.A. § 1956). On this direct appeal,
they challenge the sufficiency of evidence supporting their convictions for bank fraud and transferring
false obligations and the propriety of the district court’s instruction on deliberate ignorance. They
also argue the district court incorrectly calculated their sentences and improperly denied four
challenges for cause of prospective jurors. Finally, the Defendants assert they were denied effective
assistance of counsel. We reverse the Defendants’ convictions for transferring false obligations of
the United States, affirm their remaining convictions and remand to the district court for resentencing.
I. BACKGROUND
The Defendants’ convictions arise from three “credit enhancement” transactions in which they
purported to lease United States Treasury Notes (“treasury notes”) owned by the Delmarva Timber
Trust (“Nevada Trust”) to borrowers enabling them to obtain large loans for various purposes. The
Defendants formed the Nevada Trust, of which Mrs. Scott was President and CEO and Mr. Scott and
Ben-Schoter were consultants, and created documents entitled “Registered Owner of Treasury Note
Certificates” (“Certificates”), which fraudulently reflected the Nevada Trust’s ownership of millions
of dollars in treasury notes. In reality, the Nevada Trust did not own any treasury notes. The Nevada
Trust would purport to lease the treasury notes to borrowers for a flat fee, and sometimes a
percentage of the development deal, to enhance the borrowers’ creditworthiness. The prospective
borrowers would receive the Certificates from the Nevada Trust and use them as collateral to secure
large loans.
All three transactions were real estate deals. In the first transaction, the Defendants, through
the Nevada Trust, leased the Certificates to Michael Douglass, who used them as collateral in
connection with the sale of a ranch owned by a trust benefitting a widow, Laverne Shiflett. After
Douglass defaulted on the $3,050,000 note he gave for the purchase price, Shiflett attempted to
foreclose on the treasury notes the Certificates had purportedly evidenced as collateral and failed.
In the second transaction, the Defendants, again through the Nevada Trust, leased the
Certificates to Richard Montgomery to enable him to receive a $6,000,000 loan from Citibank,
London, England to purchase an office building. Montgomery did not complete the sale because the
participants were arrested by Scotland Yard at the loan closing.
In the third transaction, the Defendants leased the Certificates in the same manner to Thomas
Brennan to enable him to obtain a loan to purchase landfills for New York City garbage. The loan
never closed because Brennan was unable to obtain financing with the Certificates.
2
The Secret Service unearthed the Defendants’ scheme through a thorough investigation.
Secret Service Agent Tim Gobble interviewed the Defendants on several occasions prior to their
indictment. During these interviews, the Defendants explained how they became involved with the
Nevada Trust and the Certificates. Ben-Schoter claimed he became involved through Don and Owen
Meddles. He explained he was a former trustee of another trust, the Delmarva Timber Trust
organized in Maryland (“Maryland Trust”), and that Don and Owen Meddles instructed him to form
the Nevada Trust to lease the Certificates. All of the Defendants asserted they relied on others in
believing that the Maryland Trust owned millions of dollars in assets and that the Maryland Trust had
granted the Nevada Trust permission to use the Certificates in these transactions.
II. DISCUSSION
A. Sufficiency of evidence
The Defendants challenge the sufficiency of the evidence to support their convictions. The
standard of review for a sufficiency of evidence claim is whether, after viewing the evidence and the
reasonable inferences which flow therefrom in the light most favorable to the verdict, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt. See United
States v. Kindig, 854 F.2d 703, 706-07 (5th Cir. 1988); see also United States v. Mulderig, 120 F.3d
534, 546 (5th Cir. 1997). We review the evidence, whether direct or circumstantial, and all
reasonable inferences drawn therefrom, in the light most favorable to the verdict. See United States
v. Salazar, 958 F.2d 1285, 1291 (5th Cir. 1992).
1. 18 U.S.C.A. § 473The Defendants challenge the sufficiency of the evidence supporting their convictions for
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transferring false obligations of the United States under § 473.1 They argue their convictions should
be reversed because the Certificates are not obligations or securities of the United States, the
Defendants never suggested to anyone that the Certificates were obligations or securities of the
United States, and none of the victims believed the Certificates were obligations or securities of the
United States. The government argues the Defendants intended to lead the victims to believe the
Certificates were issued or approved of by the United States government, and that, therefore, they
satisfy § 473.
A document is considered a counterfeit obligation or security of the United States if the
fraudulent obligation bears such a likeness or resemblance to any of the genuine obligations or
securities issued under the authority of the United States as is calculated to deceive an honest,
sensible and unsuspecting person of ordinary observation and care dealing with a person who is
supposed to be upright and honest. United States v. Turner, 586 F.2d 395, 397 (5th Cir. 1978)
(citing United States v. Smith, 318 F.2d 94, 95 (4th Cir. 1963)).
Section 473 expressly requires the involvement of an obligation or security of the United
States to support a conviction, rather than a document evidencing the ownership of that obligation
or security which is contained at another location.2 The Certificates do not say they were issued by
the United States, are not signed by a United States official, and do not bear an official seal of the
United States. The Certificates do state they were issued by an officer of the Nevada Trust who
states he received delivery of particular treasury no tes on behalf of the Nevada Trust. The
1
§ 473 provides:
Whoever buys, sells, exchanges, transfers, receives, or delivers any false, forged,
counterfeited, or altered obligation or other security of the United States, with the intent that the
same be passed, published, or used as true and genuine, shall be fined under this title or imprisoned
not more than ten years, or both.
18 U.S.C.A § 473 (West Supp. 1998)
2
The treasury notes were purportedly kept at Chemical Bank in New York or in the Cayman
Islands.
4
Certificates were meant to evidence the Nevada Trust’s ownership of treasury notes which are
actually electronic documents.
Even if the evidence did support that the Certificates purported to be approved of or issued
by the United States government, the transfer of the Certificates would not violate § 473 because the
Certificates are not the actual obligation or security. They merely represent ownership of the
obligation or security kept at another location. The government presented no evidence that any of
the victims believed these certificates were treasury notes. All of the vicitms testified they believed
the Certificates were backed by treasury notes owned by the Nevada Trust. We conclude a rational
juror could not find the government proved the essential elements of § 473, even when construing
the evidence in the light most favorable to the verdict. Therefore, we reverse the Defendants’
convictions for transfer of false obligations of the United States under § 473 and vacate their
sentences imposed for those convictions.
2. 18 U.S.C.A. 1344
The Defendants also challenge the sufficiency of the evidence supporting their convictions for
bank fraud under § 1344.3 They argue the government did not prove the Citibank’s London branch
involved in this transaction was insured by the FDIC. Proof of FDIC Insurance is an esssential
element of the crime of bank fraud, as well as essential to establish federal jurisdiction. United States
v. Schultz, 17 F.3d 723, 725 (5th Cir. 1994). Failure to prove the jurisdictional element of FDIC
Insurance requires reversal of a bank fraud conviction. Id. at 727. The government argues the
“Certificate of Proof of Insured Status” fro m FDIC officer Patti C. Fox establishes the Citibank’s
3 § 1344 provides:
Whoever knowingly executes, or attempts to execute, a scheme or artifice ---
(1) to defraud a financial institution; or
(2) t o obtain any of the moneys, funds, credits, assets, securities, or other
property owned by, or under the custody or control of, a financial institution, by means of false or
fraudulent pretenses, representations, or promises;
shall be fined not more than $1,000,000 or imprisoned more than 30 years, or both.
18 U.S.C.A § 1344 (West Supp. 1998)
5
London branch involved in this case was insured by the FDIC. The Defendants argue this certificate
merely states that Citibank, N.A. is insured by the FDIC and that Citibank, N.A. has a London branch
which is also insured by the FDIC. They argue the government introduced no evidence to prove the
branch involved in this case was, in fact, Citibank, N.A.’s London branch.
The government’s proof was uncontroverted at trial on this issue. We believe a reasonable
juror could infer from the government’s evidence that the London branch referenced in the FDIC
“Certificate of Proof of Insured Status” was the branch where this transaction took place. Therefore,
we affirm the Defendants’ conviction for bank fraud under § 1344.
B. Deliberate Ignorance Instruction
The Defendants argue the district court erred in instructing the jury on deliberate ignorance
and base their objection on four grounds: 1) there was insufficient evidence of deliberate ignorance
to support the instruction; 2) the placement of the instruction; 3) the statutes’ requirement of both
knowledge and specific intent; and 4) the government’s theory of actual knowledge. The Defendants
argued only the first ground at the trial and argued the remaining grounds for the first time in their
briefs.
The district judge instructed the jury on deliberate ignorance as follows:
You may find that a defendant had knowledge of a fact if you find that the defendant
deliberately closed his or her eyes to what would otherwise have been obvious to him or her.
Knowledge on the part of the defendant cannot be established merely by demonstrating that
the defendant was stupid, careless, negligent, or foolish. In other words, you may not find
the defendant had the requisite guilty knowledge merely by evidence that a reasonable person
would have been aware of the illegal conduct. Knowledge can be inferred, however, if the
defendant deliberately blinded himself or herself to the existence of a fact.
1. Objection to Deliberate Ignorance Made at Trial
The standard of review applied to a defendant’s claim that a jury instruction was inappropriate
is “whether the court’s charge, as a whole, is a correct statement of the law and whether it clearly
instructs jurors as to the principles of the law applicable to the factual issues confronting them.”
United States v. August, 835 F.2d 76, 77 (5th Cir. 1987). The district court “may not instruct the
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jury on a charge that is not supported by the evidence.” United States v. Ortega, 859 F.2d 327, 330
(5th Cir. 1988). Further, in determining whether the evidence reasonably supports the charge, the
evidence and all reasonable inferences that may be drawn from it are viewed in the light most
favorable to the government. United States v. Lara-Velasquez, 919 F.2d 946, 950 (5th Cir. 1990).
This standard applies to the first ground of the Defendants’ objection.
The Defendants argue the instruction was error because the government did not present
sufficient evidence of willfull blindness to support the instruction. The instruction is proper only
“when the defendant claims a lack of guilty knowledge and the proof at trial supports a reasonable
inference of deliberate ignorance.” United States v. Soto-Silva,129 F.3d 340, 345 (5th Cir. 1997)
(citing United States v. McKinney, 53 F.3d 664, 676-77 (5th Cir. 1995)). The evidence at trial must
raise two inferences: (1) the defendant was subjectively aware of a high probability of the existence
of the illegal conduct; and (2) the defendant purposely contrived to avoid learning of the illegal
conduct. Soto-Silva, 129 F.3d at 345 (citing United States v. Ojebode, 957 F.2d 1218, 1229 (5th
Cir. 1992)).
We hold the government presented sufficient evidence to support the deliberate ignorance
instruction. The Defendants claimed a lack of guilty knowledge, and the evidence presented at trial
warrants the inference of deliberate ignorance. All three Defendants claimed they relied on others
concerning the Maryland Trust’s ownership and the existence of the treasury notes. Ben-Schoter told
Secret Service Agent Tim Gobble he relied on Owen and Don Meddles assurances that the Maryland
Trust had millions of dollars in assets in Chemical Bank, that the Nevada Trust had the Maryland
Trust’s permission to use the treasury notes, and that the treasury notes existed at all. Mr. Scott told
Agent Gobble he relied on Ben-Schoter’s assurances, and Mrs. Scott told Agent Gobble she relied
on Ben-Schoter and Mr. Scott for the same issues. Although the Defendants did not testify at trial,
their statements to Agent Gobble and their attorneys’ opening and closing arugments support the
conclusion they asserted lack of guilty knowledge in these transactions.
There is also sufficient evidence allowing a reasonable inference of deliberate ignorance for
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all the Defendants. The following evidence establishes that the Defendants were subjectively aware
of a high probability of the existence of the illegal conduct : (1) Ben-Schoter was imprisoned for
contempt in a previous lawsuit for failure to produce notes involved in similar transactions with the
Maryland Trust, and both Mr. and Mrs. Scott were aware of his involvement; (2) a Dun & Bradstreet
report revealed the assets of the Maryland Trust were merely $5260.00 in cash; (3) Mr. Scott was
told he would have to sue to get the identification number for the treasury notes when Laverne
Shiflett attempted to collect on the notes as collateral; and (4) Mrs. Scott signed 112 documents
involving millions of dollars of treasury notes while they were having trouble paying their household
bills.
Additionally, the following evidence establishes the Defendants purposefully contrived to
avoid learning of the illegal conduct: (1) the Defendants never attempted to verify the existence of
the treasury notes or the millions of dollars of assets in Chemical Bank; (2) the Defendants never
attempted to verify the existence of the treasury notes with a Federal Reserve Bank; (3) and Mrs.
Scott never questioned anyone conerning her signature required on 112 documents involving millions
of dollars in treasury notes.
2. Objections to Deliberate Ignorance Made on Appeal
The remaining grounds are analyzed using a plain error standard because the Defendants did
not raise them below. We may correct forfeited errors only when the appellant shows (1) there is an
error, (2) it is clear or obvious, and (3) it affects his substantial rights. See Fed. R. Crim. P. 52(b);
see also United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc) (citing United
States v. Olano, 507 U.S. 725, 730-37 (1993)). Even when these three factors are present, the
decision whether to correct the forfeited error remains with the sound discretion of the appellate
court, which will not exercise that discretion unless the error seriously affects the fairness, integrity,
or public reputation of judicial proceedings. United States v. Hawkins, 87 F.3d 722, 730 (5th Cir.
1996) (citing Olano, 507 U.S. at 735-36).
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a. Placement of the Instruction
The Defendants argue the instruction was error because of its placement immediately before
the definition of “willfully”, requiring the defendant to have acted with the specific purpose to disobey
the law, and immediately after the requirement of the necessary intent to defraud. They argue the
placement of the instruction allowed the jury to infer not only knowledge, but intent. The
Defendants’ argument fails for two reasons. First, we find no cases, and the Defendants cite none,
which hold it is error to place a deliberate ignorance instruction as it was in the instant case. Thus,
it was not plain error to arrange the instruction in that manner.
Second, while we recognize that the deliberate ignorance instruction can create the risk that
a jury might convict the defendant on a lesser negligence st andard, this risk is not present in the
instant case. See United States v. Gray, 105 F.3d 956, 957 (5th Cir. 1997); see also United States
v. Lara-Velasquez, 919 F.2d 946, 951 (5th Cir. 1990). The instruction is appropriate despite this risk
when the evidence satisfies the McKinney two-pronged standard. Because we find the evidence
meets this standard, the instruction was proper.
b. Knowledge and Specific Intent Requirements
The Defendants also argue the instruction was improper because all of the crimes they are
convicted of require that the defendant act knowingly and with specific intent or purpose.4 The
Defendants rely on United States v. Chen, 913 F.2d 183 (5th Cir. 1990), where the court held “one
cannot be deliberately ignorant (in order to convict for the knowledge element) and still have the
purpose of engaging in illegal activities,” therefore “the [deliberate ignorance] instruction was
inappropriate for an offense which requires a specific purpose by the defendant.” Id. at 190.
4
The crime of transferring counterfeit securities or obligations of the United States requires
the intent to cheat; bank fraud requires the intent to defraud; inter state travel in furtherance of a
scheme requires the defendant to have devised a scheme to defraud and act in execution of that
scheme; wire fraud requires an intent to defraud; money laundering requires the intent to promote the
specified unlawful activity; conspiracy requires the intent to further the object of the conspiracy.
9
The government argues the instruction was proper relying on Unites States v. Investment
Enterprises, Inc., 10 F.3d 263 (5th Cir. 1993). There, the court concluded the instruction serves to
inform the jury of ignorance as circumstantial proof of guilty knowledge. Id. at 269. The court
considered the deliberate ignorance instruction a particularized circumstantial evidence instruction.
“To the extent that the instruction is merely a way of allowing the jury to arrive at the conclusion the
defendant knew the unlawful purpose of the conspiracy, it is hardly inconsistent with a finding that
the defendant intended to further the unlawful purpose.” Id.Chen held only that the instruction is error when given for § 856(a)(1).5 This case does not
involve a violation of § 856(a)(1). Additionally, the court in Chen acknowledged that the requirement
of specific intent or specific purpose in a statute does not necessarily prevent a deliberate ignorance
charge. Chen, 913 F.2d at 192 n. 11. We have consistently held the deliberate ignorance instruction
is proper when supported by sufficient evidence, including when used with many of the crimes of
which the Defendants are convicted.6 Even assuming the district court did err in giving the
instruction, it was harmless error because the government presented sufficient evidence of actual
knowledge to satisfy the knowledge and specific intent requirements for all of the Defendants. See
United States v. Soto-Silva, 129 F.3d 340, 345 (5th Cir. 1997). Because we conclude the district
court did not err in giving the instruction, the Defendants’ argument fails the plain error analysis.
c. Actual Knowledge
5
Section 856(1)(a) makes it unlawful to knowingly open or maintain any place for the purpose
of manufacturing, distributing, or using any controlled substance. 21 U.S.C.A § 856(1)(a) (West
Supp. 1998)
6
See United States v. Gray, 105 F.3d 956 (5th Cir. 1997) (mail fraud, conspiracy); see also
United States v. McKinney, 53 F.3d 664 (5th Cir. 1995) (conspiracy); see also United States v.
Cavin, 39 F.3d 1299 (5th Cir. 1994) (conspiracy); see also United States v. Faulkner, 17 F.3d 745(5th Cir. 1994) (conspiracy, wire fraud, and RICO charges); see also United States v. Wisenbaker,
14 F.3d 1022 (5th Cir. 1994) (tax evasion); see also United States v. Breque, 964 F.2d 381 (5th Cir.
1992) (conspiracy); see also United States v. Fuller, 974 F.2d 1474 (5t h Cir. 1992) (conspiracy,
money laundering).
10
Finally, the Defendants argue the district court erred in giving the instruction because the
government presented evidence of actual knowledge. This argument has no merit and fails the plain
error review. Chen held “even if the government’s case was actual knowledge, the defendant’s
testimony raised the issue of deliberate ignorance. Needless to say, the court is required to ‘instruct
the jury on all aspects of a case in order for them to reach a fair and proper verdict.’” Chen, 913 F.2d
at 192 (quoting United States v. Leon, 679 F.2d 534, 541 (5th Cir. 1982)). For the foregoing
reasons, we find the district court did not err in giving the deliberate ignorance instruction.
C. Ineffective Assistance of Counsel
The Defendants argue they were denied effective assistance of counsel because Mrs. Scott’s
attorney did not introduce evidence concerning forgery of her signature, and all of the Defendants’
attorneys did not challenge the government’s evidence that Citibank, London, England was insured
by the FDIC.
Ordinarily, we do not review a claim of ineffective assistance of counsel on direct appeal
unless the district court has addressed it. See United States v. Rosalez-Orozco, 8 F.3d 198, 199 (5th
Cir. 1993); see also United States v. Armendariaz-Mata, 949 F.2d 151, 156 (5th Cir. 1991). We will
only determine the merits of the claim on direct appeal when the record is sufficiently developed.
United States v. Freeze, 707 F.2d 132, 138 (5th Cir. 1983). “This is not merely a procedural
technicality. Unless the district court has developed a record on the defendant’s allegations, we
cannot fairly evaluate the merits of the claim.” United States v. Bounds, 943 F.2d 541, 544 (5th Cir.
1991).7
We decline to review this claim because t he Defendants did not adequately raise this issue
before the district court. Prior to trial, Mr. Scott wrote a letter to his attorney and the district court
7
Our decision not to review the Defendants’ claims of ineffective assistance of counsel does
not prejudice their right to raise the issue in a habeas corpus proceeding. See 28 U.S.C.A § 2255
(1994); see also United States v. Ugalde, 861 F.2d 802, 804 (5th Cir. 1988).
11
judge expressing his dissatisfaction with his attorney and requesting his attorney’s removal. The
district court judge briefly questioned Mr. Scott about his concerns and determined his dissatisfaction
was largely due to a personal dispute rather than ineffective representation. The record is insufficient
for review because it only contains this brief questioning by the judge and contains no discussion of
the issues raised on appeal regarding ineffective assistance of counsel.
The only other attempt to raise this issue below was by Mrs. Scott in her Motion for New
Trial based on the discovery of new evidence. The Defendants argue in their briefs that ineffective
assistance was raised in the district court because Mrs. Scott’s Motion for New Trial was based on
both grounds of discovery of new evidence and ineffective assistance of counsel. Her motion in the
record only addresses the discovery of new evidence. However, in her Reply to the Government’s
Response to Motion for New Trial, Mrs. Scott stated, “[t]he information gathered after trial is either
newly discovered evidence or evidence of ineffective assistance of counsel.” She stated further,
“[t]his approach was also strategically chosen to avoid the seven day deadline under Rule 33.” Mrs.
Scott’s motion did not raise the issue of ineffective assistance of counsel, because even if her initial
motion had raised the issue, her motion was untimely. A motion for new trial based on any other
grounds than newly discovered evidence must be made within seven days after verdict or finding of
guilty. Fed. R. Crim. P. 33. Mrs. Scott moved for a new trial on April 1, 1997, almost one year after
her guilty verdict was returned on June 12, 1996. “In this circuit, a Rule 33 motion, filed more than
seven days after the verdict and premised on ‘newly discovered evidence,’ is an improper vehicle for
raising a claim of ineffective assistance of counsel.” United States v. Medina, 118 F.3d 371, 372 (5th
Cir. 1997) (citing United States v. Ugalde, 861 F.2d 802, 807-09 (5th Cir. 1988)). We decline to
review this issue because the Defendants failed to adequately raise it at the district court level.
D. Denial of Challenges for Cause
The Defendants argue the district court abused its discretion in denying their challenges for
12
cause to excuse four prospective jurors. A prospective juror may be excluded for cause where his
or her views would prevent or substantially impair the performance of his or her duties as a juror in
accordance with his or her instructions and oath. Wainwright v. Witt, 469 U.S. 412, 423 (1985);
Nethery v. Collins, 993 F.2d 1154, 1160 (5th Cir. 1993). The Defendants must show the district
court’s conclusion that the prospective jurors in question could perform their duties as jurors was
manifest error. See United States v. Dozier, 672 F.2d 531, 547 (5th Cir. 1982).
Two of the prospective jurors in question indicated they would draw negative inferences from
a defendant’s failure to testify. Upon questioning and instruction by the court, however, both
prospective jurors indicated they would be able to put aside such inferences and consider only the
evidence presented by the government. Accordingly, the district court did not err in denying the
Defendants’ challenge for cause. Id. at 549 (district court did not err in denying challenge for cause
where prospective juror agreed to put aside prior impressions as far as “humanly possible”).
Two other prospective jurors indicated that they would tend to believe the testimony of a
government agent. Upon questioning by the court, one of the prospective jurors, Mr. Cook,
acknowledged that he did not believe someone else would be less likely to tell the truth. The other
prospective juror, Mrs. Petrowski, stated she would try to set aside her bias. Such a promise is all
that can be required of a juror. Id. (“We can ask no more of those who must assume, for the
duration of a trial, the almost superhuman posture of complete impartiality.”). Thus, the district court
did not err in denying the Defendants’ challenges for cause as to these prospective jurors.
E. Sentencing Guideline Issues
The Defendants make several arguments concerning the propriety of their sentences under
the guidelines. Because we reverse the Defendants’ convictions for transfer of false obligations of
the United States under 18 U.S.C.A. § 473 and vacate their sentences, we remand this case to the
district court for resentencing consistent with their remaining convictions and do not reach the
Defendants’ arguments concerning the sentencing guidelines.
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III. CONCLUSION
For the foregoing reaso ns, we reverse the Defendants’ conviction for the false transfer of
obligations of the Untied States under 18 U.S.C.A. § 473, affirm the remaining convictions and
remand to the district court for resentencing.
AFFIRMED in part; REVERSED in part and REMANDED.
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