United States v. Sloan, James L. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2392
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES L. SLOAN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana, New Albany Division.
No. 05 CR 18—Sarah Evans Barker, Judge.
____________
ARGUED DECEMBER 8, 2006—DECIDED JULY 9, 2007
____________
Before BAUER, FLAUM, and KANNE, Circuit Judges.
BAUER, Circuit Judge. A jury convicted James L. Sloan
of six counts of mail fraud and 26 counts of wire fraud
in violation of 18 U.S.C. §§ 1341 and 1343. The district
court sentenced Sloan to 18 months of incarceration,
followed by two years of supervised release, and ordered
him to pay $19,654.60 in restitution. Sloan now appeals
his judgment of conviction and sentence. We affirm.
I. Background
With an offer of “Free Electricity for Life! Plus—the
opportunity to make $492,000.00 per year” and other
2 No. 06-2392
similar offers, Sloan enticed at least ninety individuals
to join his organization, the Christian Freedom Founda-
tion. To take advantage of these offers advertised in the
March, April, July, and August 2001 editions of Sloan’s
Christian Freedom Chronicle, these individuals were
required to join the Christian Freedom Foundation.
A new member would join the Christian Freedom
Foundation by sending his or her application and payment
of $498.75, or up to four multiples thereof, to a post office
box located in New Trenton, Indiana, of which Sloan was
the signatory, or to a fax number subscribed to Sloan at
his residence. A new member also could join the organiza-
tion by submitting an application and a check for $49.95,
one month’s payment, which would allow Sloan to with-
draw membership fees on a monthly basis from that
person’s bank account.
Unfortunately, the offers of free electricity and the
chance to make hundreds of thousands of dollars were
too good to be true; none of the new members of the
Christian Freedom Foundation received free electricity or
any payments in excess of what they had paid to the
organization.
Sloan operated the Christian Freedom Foundation from
his home in Lawrenceburg, Indiana. He ran a different
enterprise, Christian Singles International, from an office
in Cincinnati, Ohio. Christian Singles International
published “Christian Singles News and Contacts,” which
was included as an insert in each issue of the Christian
Freedom Chronicle and of which Sloan was the editor.
A. The March 2001 Advertisement
The advertisement on the back page of the March 2001
issue of the Christian Freedom Chronicle stated that by
joining the Christian Freedom Foundation at a cost of
No. 06-2392 3
$498.75 per year, new members would receive a subscrip-
tion to the Christian Freedom Chronicle, a Free Electricity
Certificate, and the opportunity to participate in the
Christian Freedom Foundation’s “network marketing
program.” It specified that the new member would re-
ceive “a Free Electricity Certificate issued by the United
Community Services Association (UCSA) in conjunction
with the International Tesla Electric Company (ITEC).”
The new member also would have use of a 26,000 kilowatt
per year generator, when such units became available,
that would be set up on his or her property at no addi-
tional cost. According to the advertisement, there was a
waiting list for these units and “[f]irst come, first served.”
The advertisement also described the network market-
ing program. New members of the Christian Freedom
Foundation would be entered into a “3x8 Forced Matrix.”
When the new member’s matrix became full, which would
require an additional 9,840 people to join the organization,
he or she would receive $40 for each new member of the
matrix, totaling $393,600. Even better, the advertise-
ment claimed that members did not have to wait for
their matrix to become full before they would receive
payments. Additionally, members had the opportunity to
earn up to $492,000 per year by bringing just three other
people into the Christian Freedom Foundation because he
or she would receive $50 for each person in the matrix.
In smaller type, the advertisement stated that the free
electricity offer was for residential use and property
owners only. Tenants and commercial establishments,
however, were eligible to participate in the Christian
Freedom Foundation, including the business opportunity.
B. The April 2001 Advertisement
The April 2001 edition of the Christian Freedom Chroni-
cle ran a similar advertisement on its back page but with
4 No. 06-2392
minor adjustments to its offer. In this offer, members of
the Christian Freedom Foundation “have a chance” to get
free electricity for life and that “[i]f and when” the new
member’s generator is available, it would be set up on his
or her property at no cost.
C. The July 2001 and August 2001 Advertisement
The July 2001 and August 2001 editions contained
additional, significant changes. Like the April 2001
advertisement, these identical advertisements gave new
members of the Christian Freedom Foundation “a chance”
to get free electricity for life by paying to join the Christian
Freedom Foundation. They also offered the opportunity
to make $472,320 per year and contained a photograph of
the generator. Rather than merely joining a 3x8 forced
matrix, however, new members would be entered twice
into a “Double Flip-Flop 3x8 forced matrix.” The advertise-
ments stated that new members “will get commissions
from the first matrix on the 10th of the month, and from
the second one on the 25th of the month. The payments
will be $2.00 each for every person who has joined after
you—up to five levels (363 positions)—twice a month. That
totals $1452.00 per month.” The advertisements claimed
that new members who recruited additional members
would have even greater earning potential. These adver-
tisements also contained a chart that showed how the
Double Flip-Flop 3x8 matrix purportedly operated and
offered various “quick start bonuses,” including a bonus of
$15 for each person introduced by the new member to
the Christian Freedom Foundation.
These solicitations even asked the attractive question,
“Finally, how about if we GUARANTEE your income?
Guarantee that you will make at least 20% more than you
paid to join CFF? We will!” (Emphasis in original.) Readers
No. 06-2392 5
were asked to call a telephone number for an explanation
as to how the guarantee works.
In a smaller typeface, the advertisements hedged on the
guarantee, stating,
Caveat on all the numbers in this article: No one
knows for sure what anyone else’s future earnings
will be. The figures in the article and on the chart are
projections only of what is possible. What your actual
earnings will be is determined by your own efforts
and the rest of your team—those people who are above
and below you in your matrix, eight levels each way.
In an about-face, the advertisements continued: “Having
said that, there WILL BE spillover. It is a forced matrix.
You benefit from everyone else in your matrix—above
and below you.” They directed the readers to rush to
submit their applications to the Christian Freedom
Foundation by exclaiming, “First come; first served!”
Because applications were time and date stamped, the
advertisements explained, two applications received ten
minutes apart could mean that the first person would
make money sooner than the second person as a result of
their different placements in the Double Flip-Flop 3x8
forced matrix.
D. Sloan’s Use of the Mails and Wires
In December of 1993, Sloan hired Marcia Harting at
Christian Singles International. Harting assisted Sloan in
preparing the materials that were mailed out to the new
members of the Christian Freedom Foundation regarding
the free-electricity generator. These materials consisted of
two letters, “Dear Free Electricity Applicant” and “Letter
of Confirmation,” as well as a document entitled “Registra-
tion For A Free Electricity Generator on a Residence.”
Each of these documents was pre-printed. Harting com-
6 No. 06-2392
pleted each of these forms with information that Sloan
gave to her. At Sloan’s direction, she also stamped the
name “Emily Stewart” on the registration forms on the line
for the dealer; however, no one named “Emily Stewart”
worked with Harting at Christian Singles International.
Once completed, the documents were mailed to the named
individuals.
The advertisements in the Christian Freedom Chronicle
directed individuals interested in additional information
to call a telephone number subscribed to Sloan at his
residence or a telephone number subscribed to and located
at the office of Christian Singles International.
Between March 1, 2001 and September 30, 2001, the
checks and money orders sent by new members to the
Christian Freedom Foundation were transmitted by
wire communications in interstate commerce to an ac-
count held in the name of Christian Singles International.
Sloan was the signatory on the account. The payments
sent to new members from the Christian Freedom Founda-
tion were drawn from a bank account of the Christian
Freedom Foundation. Again, Sloan was the signatory on
the account.
E. District Court Proceedings
On May 25, 2005, a federal grand jury returned an
indictment that charged Sloan with six counts of mail
fraud and 26 counts of wire fraud. During the course of the
trial, eight witnesses testified to being victims of Sloan’s
advertisements: Donald Cobb, John Scholl, Frieda
Challender, Renard Carpenter, Jody Smith, Theresa Lynn
Jordan, Linda Wantland, and JoAnn Bemiller. Steve
Cannon also testified that he joined and solicited others to
join the Christian Freedom Foundation. Each of these
witnesses joined the Christian Freedom Foundation after
No. 06-2392 7
seeing the advertisements for the generator that would
produce free electricity and the opportunity to make
money. Each witness submitted an application and
payment. Cobb, Scholl, Challender, Carpenter, Smith,
Jordan, Wantland, and Bemiller testified that they
never received the generator but did receive documents
pertaining to the generator, including the registration.
Each witness also received less money in payments from
the Christian Freedom Foundation than they had paid as
members: Cobb received eight checks, totaling approxi-
mately $148, but paid $349.75; Scholl received seven
checks, totaling approximately $148, but paid $249.75;
Challender received eight checks, totaling approximately
$164, but paid $747.75; Carpenter received four checks,
totaling approximately $96, but paid $498.75; Smith
received two checks, totaling approximately $40, but paid
$190; Jordan received nine checks, totaling approximately
$207, but paid $649; Wantland received ten checks,
totaling approximately $275, but paid $400; and Bemiller
received six checks, totaling approximately $136, but
paid $498.75. These victims also testified that they
would not have paid to join the Christian Freedom Founda-
tion had they known that they would not receive the
generator or would receive less money in matrix pay-
ments than they had paid to the organization.
Cobb, Scholl, and Wantland also testified that they had
spoken with Sloan by telephone regarding the generators.
Bemiller testified that she had telephoned the Christian
Freedom Foundation on several occasions and left mes-
sages with the woman who answered the telephone but
never received a return call from Sloan.
The jury found Sloan guilty on all counts in the indict-
ment. The district court held a sentencing hearing on April
21, 2006. Over Sloan’s objections, the district court ac-
cepted the recommendations of the presentence investiga-
8 No. 06-2392
tion report (“PSR”). The PSR’s recommendations included
a three-level increase in Sloan’s offense level pursuant to
USSG § 2F1.1(b)(1)(D) because the loss was between
$10,000 and $20,000; an additional three-level increase in
the offense level pursuant to USSG § 2F1.1(b)(4)(A)
because the offense involved a misrepresentation that
Sloan was acting on behalf of a religious organization; a
two-level increase pursuant to §§ 2F1.1(b)(2)(A) and (B)
because the offense involved more than minimal planning
and a scheme to defraud more than one victim; and a two-
level increase pursuant to § 2F1.1(b)(3) because the offense
was committed through mass-marketing. Having accepted
the recommendations of the PSR, the district court sen-
tenced Sloan to 18 months’ incarceration, followed by two
years of supervised release, and ordered him to pay
$19,654.60 in restitution. Sloan filed a timely notice of
appeal on May 12, 2006.
II. Analysis
Sloan raises three issues on appeal. He argues that the
evidence presented at trial was insufficient to support a
conviction for either mail fraud or wire fraud. He also
contends that the trial court erred in failing to excuse
Juror Propes, thereby denying Sloan his right to an
impartial jury. Finally, Sloan asserts that the district court
erred in calculating the loss amount and in applying
certain enhancements to his sentence. We will address
each challenge in turn.
A. Sufficiency of Evidence
The first issue that we address is Sloan’s challenge to
the sufficiency of the evidence in support of his conviction
for mail fraud and wire fraud. Our review of a challenge
to the sufficiency of the evidence is under a highly deferen-
No. 06-2392 9
tial standard. United States v. Turner, 400 F.3d 491, 496
(7th Cir. 2005). We review the evidence in the light most
favorable to the government. United States v. Tadros, 310
F.3d 999, 1005-06 (7th Cir. 2002). We find the evidence
insufficient only if no rational trier of fact could have found
guilt beyond a reasonable doubt. Id. at 1006.
Sloan argues that the evidence was insufficient to
establish either the existence of a scheme to defraud or
an intent to defraud, both of which are required elements
of mail and wire fraud offenses. See United States v.
Leahy, 464 F.3d 773, 786 (7th Cir. 2006) (“The requisite
elements of [mail fraud and wire fraud offenses] . . . are
three: (1) a scheme to defraud; (2) an intent to defraud;
and (3) use of the mails or wires in furtherance of the
scheme.”) (citations omitted).
1. Scheme to Defraud
A scheme to defraud requires “the making of a false
statement or material misrepresentation, or the conceal-
ment of material fact.” United States v. Stephens, 421 F.3d
503, 507 (7th Cir. 2005) (quoting Williams v. Aztar Indiana
Gaming Corp., 351 F.3d 294, 299 (7th Cir. 2003)). This
concept includes both statements that the defendant
knows are false and “half truths” that the defendant knows
are misleading and on which he expects another to act to
his detriment but to the defendant’s benefit. Id. (citing
Emery v. American General Finance, Inc., 71 F.3d 1343,
1346 (7th Cir. 1995)). This Court has held that “a scheme
to defraud exists when the conduct at issue
has ‘demonstrated a departure from the fundamental
honesty, moral uprightness and candid dealings in the
general life of the community.’ ” United States v.
Henningsen, 387 F.3d 585, 589 (7th Cir. 2004) (quoting
United States v. Hammen, 977 F.2d 379, 383 (7th Cir.
10 No. 06-2392
1992)). Here, there is ample evidence to support the jury’s
finding of a scheme to defraud.
Sloan constructed each advertisement to focus the
reader’s attention on the offer of free electricity and the
opportunity to earn money. While he used some cau-
tionary language in the advertisements, such as the
“chance to get free electricity for life,” “if and when your
unit is available,” and “[n]o one knows for sure what
anyone’s future earnings will be,” implicit in the adver-
tisements was the existence of a 3x8 forced matrix, a
double flip-flop 3x8 forced matrix, and machines that
provided free electricity, e.g., “when your unit is available.”
Sloan even made explicit the implicit existence of the
generators by showing photographs of a machine in the
July and August advertisements. Not only were there no
generators, there were no matrices, whatever those were
supposed to be.1 Moreover, the June and August advertise-
ments “guaranteed” members that they would receive a
return of 20% more than they paid to join the Christian
Freedom Foundation. Yet none of the witnesses who
testified at trial even earned back the amount that they
had paid to join the organization.
Sloan also created a false sense of urgency with these
advertisements, claiming that there was a waiting list
for the generators and that they would be distributed on
a “first come, first served” basis. Additionally, the matrices
purportedly operated in such a way as to make an early
application more beneficial than a later one.
In addition to the half truths2 and fictions contained in
the advertisements, the documents sent to the new
1
During oral argument, neither party was able to explain the
3x8 forced matrix or double flip-flop 3x8 forced matrix.
2
There is a Yiddish proverb that defines a half-truth as a whole
lie.
No. 06-2392 11
members of the Christian Freedom Foundation by Sloan
misrepresented that “Emily Stewart” was the dealer of
the free-electricity machine, directing all questions about
the equipment or future dates of installation to this
fictional person.
A jury could conclude easily based on these facts that
Sloan’s solicitations to join the Christian Freedom Founda-
tion were dishonest, that they were made with the inten-
tion of inducing people to join the organization, and that
they influenced people to join the Christian Freedom
Foundation to their detriment and Sloan’s benefit. The
jury’s finding of a scheme to defraud was therefore ra-
tional and supported by the evidence.
2. Intent to Defraud
To show an intent to defraud, we require a “willful act by
the defendant with the specific intent to deceive or cheat,
usually for the purpose of getting financial gain for one’s
self or causing financial loss to another.” Leahy, 464 F.3d
at 786 (quoting United States v. Britton, 289 F.3d 976, 981
(7th Cir. 2002)). Direct evidence of an intent to defraud is
rare; a specific intent to defraud may be shown, however,
by circumstantial evidence and inferences drawn from the
scheme itself that show that the scheme was reasonably
calculated to deceive individuals of ordinary prudence and
comprehension. Stephens, 421 F.3d at 509.
Again, there is ample evidence to support the jury’s
finding. Sloan ran a series of advertisements offering free
electricity and the opportunity to make a great deal of
money simply by joining his organization. With money paid
by new members, he was able to make “matrix” payments
to existing members and to retain a portion of the pro-
ceeds for himself. Sloan continued the artifice by send-
ing out documents relating to the free-electricity generator.
12 No. 06-2392
He had these documents stamped with the name of Emily
Stewart. In this way, it was not apparent to his victims
that they were being defrauded. Had Sloan intended to
operate a legitimate organization offering a legitimate
product, he would have affixed his own name to the
registration as the dealer of the free-electricity generators.
Such evidence was sufficient to permit the jury to find an
intent to defraud beyond a reasonable doubt.
B. Juror Propes
Sloan also argues that his Sixth Amendment right to
an impartial jury was compromised by the continued
presence of Juror Ryan Propes on the jury. Before opening
statements, Juror Propes had informed the district court’s
courtroom deputy of his concerns about his ability to
remain impartial since, in his mind, the case involved
Christianity. Following opening statements and the
presentation of some evidence, the district court brought
the concerns of Juror Propes to the attention of the parties,
outside the presence of the other jurors. Juror Propes
informed the district court and the parties that he might
have a conflict of interest because of the use of the term
“Christian” in the case and his role as a deacon in his
church. In response, the district court stated its opinion
to Juror Propes that issues of Christianity were tangential
to the issues in the case. The district court then asked
Juror Propes whether he agreed with its opinion. Juror
Propes agreed. Sloan’s trial attorney did not object to the
colloquy, did not ask that Juror Propes be removed from
the jury, and did not move for a mistrial. Our review,
therefore, is for plain error only. See Fed. R. Crim. P.
52(b); United States v. Davis, 15 F.3d 1393, 1407 (7th Cir.
1994).
There is little doubt that the district court’s colloquy
with Juror Propes was leading: the district court asked
No. 06-2392 13
Juror Propes to agree with its own opinion.3 We recognize
that there is a power differential between a United States
District Court judge and a juror. Generally, a juror would
be hard-pressed to disagree with a premise stated by the
district court with which the district court asks the juror
to agree. The better practice is for the district court to ask
non-leading questions when examining a juror for bias.
3
The colloquy went as follows:
The district court: Hold on just a second and let me say out
loud what I was told; that you thought
it might—when you got to thinking
about it more, you thought it might have
been Christian, although we covered it
several ways, and you apparently were
concerned because you’re a deacon in
your church, that you might have some
conflict of interest or something?
Juror Propes: Yes, I don’t know if I just didn’t catch it
the whole time or exactly what it was,
but I have an issue with making money
with churches. I’m a member of a church,
I’m a faithful member of a church, and
I know we have different ways of acquir-
ing money, and it’s not through anything
like this. I just totally disagree with this.
The district court: All right. You can tell now from having
heard both the opening statements and
more of the evidence that the issues of
the Christian religion are really tangen-
tial to this dispute. So I don’t foresee any
way in which there would be a conflict
of interest. And I just wanted to raise
that with you and make sure that you
were of the same way of thinking, that it
shouldn’t conflict with your religious
beliefs. Do you agree with that?
Juror Propes: Yes.
14 No. 06-2392
That being said, Sloan has made no showing that he
was denied his right to an impartial jury. There was no
indication during the questioning by the district court
that Juror Propes had any bias. Juror Propes was selected
as a juror because he swore that he could be impartial and
base his verdict only on the evidence that was presented.
After expressing his concerns and having them assuaged
by the district court’s explanation, he agreed that there
was no conflict. The district court was satisfied by Juror
Propes’ response, as are we.
C. Loss Amount and Sentencing Enhancement
Finally, Sloan raises a series of challenges to his sen-
tence based on the district court’s finding of the loss
amount and its application of various sentencing enhance-
ments. We reject each challenge.
1. Loss Amount4
The district court accepted the recommendations of the
PSR as to the loss calculation. The PSR determined
4
Pursuant to Rule 28(j) of the Federal Rules of Appellate
Procedure, Sloan submitted copies of the Fourth Circuit’s
decision in United States v. Rita, No. 06-5754, which was before
the Supreme Court on the issue of what “reasonableness” pre-
sumption, if any, is to be given to sentences within a properly
constructed Guideline range. The Supreme Court recently issued
its decision in this case, holding that federal appellate courts
may apply a presumption of reasonableness to a district court
sentence that is within a properly calculated Guideline range.
___ S. Ct. ___, 2007 WL 1772146. This decision, however, does not
affect the outcome in this case because Sloan has not raised this
challenge in his appeal. While he argues that the district court
committed errors in determining the proper sentencing range,
Sloan has not argued that his sentence was “unreasonable” when
considered under the sentencing factors in 18 U.S.C. § 3553(a).
No. 06-2392 15
that the amount of loss incurred by the eight victims
named in the indictment and who testified at trial was
$2,322. Additionally, the PSR explained that postal
inspectors had identified an additional 82 victims, result-
ing in a total loss incurred by all ninety victims of
$19,654.60. The PSR recommended a three-level increase
in Sloan’s offense level pursuant to USSG § 2F1.1(b)(1)(D)
because the loss was between $10,000 and $20,000.
While Sloan raised an objection to the loss calculation,
the basis of that objection was the “legal argument” that
the jury did not find the specific amount beyond a reason-
able doubt. In support of that objection, Sloan cited to
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000), Blakely v. Washington, 542 U.S. 296,
124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States
v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621(2005). He did not argue that calculation of the loss
amount in the PSR was factually inaccurate. The district
court overruled Sloan’s objection.
The challenge that Sloan raises here is quite different.
He now argues that the district court improperly calcu-
lated the loss amount. At sentencing, Sloan stipulated to
the loss figure of $19,654.60. He did not reserve the right
to argue that the amount was less or that the calculation
was factually incorrect. Normally, our review of the district
court’s factual findings at sentencing is for clear error; and
our review of the application of those facts to the Sentenc-
ing Guidelines is de novo. United States v. Haddad, 462
F.3d 783, 793 (7th Cir. 2006). We need not go that far in
this appeal, however, because this challenge is precluded
by Sloan’s stipulation as to the loss amount. By stipulating
to the loss amount, he effectively admitted the fact that
the loss amount was $19,654.60 and waived any subse-
quent challenge to this fact. See, e.g., United States v.
Newman,148 F.3d 871, 876 (7th Cir. 1998) (stipulation
waives later denial of relevant conduct). See also United
States v. Gramer, 309 F.3d 972, 975 (7th Cir. 2002)
16 No. 06-2392
(finding that district court properly applied sentencing
enhancement pursuant to USSG § 2F1.1(b)(1) based on
defendant’s stipulation as to loss amount at sentencing
hearing). The district court credited this stipulation, and
its application of the three-level increase in Sloan’s offense
level pursuant to USSG § 2F1.1(b)(1)(D) was appropriate.
2. Enhancement for Misrepresentation Involving
a Religious Organization
Sloan next challenges the district court’s application
of the two-point sentencing enhancement pursuant to
USSG § 2F1.1(b)(4)(A), arguing that the offense did not
involve a misrepresentation that Sloan was acting on
behalf of a religious organization. At trial, JoAnn Bemiller
testified that she had joined the Christian Freedom
Foundation after attending a presentation at her sister’s
house. Her sister had told her that she would receive a
machine that would make electricity and give her a return
on her money. Ms. Bemiller further testified that she
had assumed that this was a good deal because it was a
Christian organization. Relying on this testimony, the
district court found that Sloan was trading on the religious
affiliations of the organization that he had created as part
of his scheme to defraud and that, in doing so, misrepre-
sented to his victims that there was a religious purpose
advanced by their buying into his schemes and participat-
ing in this matrix. We agree with the district court’s
finding.
USSG § 2F1.1(b)(4) states, in relevant part, “If the
offense involved (A) a misrepresentation that the defen-
dant was acting on behalf of a charitable, educational,
religious or political organization, or a government
No. 06-2392 17
agency . . . increase by 2 levels.”5 The commentary to this
section offers examples of conduct to which § 2F1.1 applies:
a defendant who “solicit[s] contributions to a non-existent
famine relief organization by mail,” or “who diverts
donations for a religiously affiliated school by telephone
solicitations to church members in which the defendant
falsely claims to be a fund-raiser for the school . . . .” The
background to this section also specifies that the “guideline
is designed to apply to a wide variety of fraud cases.”
USSG § 2F1.1 comment. (backg’d).
In United States v. Lilly, 37 F.3d 1222 (7th Cir. 1994),
this Court found the district court’s application of the two-
level enhancement pursuant to § 2F1.1(b)(4)(A) appropri-
ate where the defendant, a church pastor, sold “Certifi-
cates of Deposit,” telling potential purchasers that these
Certificates of Deposit would be used to finance the
improvement or expansion of the Church and to build a
retirement complex. Id. at 1224-25. The defendant,
however, took a significant portion of the proceeds for his
own personal use. Id. at 1225.
Admittedly, this case does not present as obvious an
application of § 2F1.1(b)(4)(A) as Lilly. Sloan was less
explicit in his offers than the defendant in Lilly; he did
not make any express promises to use the funds ob-
tained from new members to the Christian Freedom
Foundation to advance a specific, religious goal. Instead,
Sloan cloaked his fraudulent scheme with the mantle of a
religious organization. Through the placement of his
advertisements in the Christian Freedom Chronicle, which
5
The district court sentenced Sloan under the guidelines
manual effective in 2001. On November 1, 2001, the U.S.
Sentencing Commission deleted § 2F1.1 and consolidated its
provisions in a revised § 2B1.1. See USSG App. C, amendment
617. This change has no effect on Sloan’s appeal.
18 No. 06-2392
included a special section, “Christian Singles News and
Contacts,” Sloan clearly targeted a specific audience:
Christians. These advertisements were not merely for
generators or money-making opportunities, they were
solicitations for membership in a “Christian” organization,
the Christian Freedom Foundation. Thus, the advertise-
ments created the appearance that a religious organiza-
tion was involved in and party to the offer, giving the
scheme an air of legitimacy. While many of Sloan’s vic-
tims joined the Christian Freedom Foundation with the
aim of gaining free electricity and the chance to make
money for themselves, at least one of Sloan’s victims, Ms.
Bemiller, was duped by the Christian aspect of the organi-
zation into thinking that the fraudulent offer was legiti-
mate. Under these circumstances, we find that the dis-
trict court did not clearly err in applying the two-level
adjustment under § 2F1.1(b)(4)(A).
3. Enhancement for More than Minimal Plan-
ning
Sloan also challenges the district court’s application of
the two-level enhancement for “more than minimal plan-
ning” under § 2F1.1(b)(2)(A). Because Sloan did not
raise this challenge to the district court first, we will
review the district court’s application of this sentencing
enhancement for plain error. United States v.
Cunningham, 405 F.3d 497, 502 (7th Cir. 2005). Sloan
contends that there was no planning other than his
preparation and placement of the advertisements in the
Christian Freedom Chronicle and, therefore, the enhance-
ment for more than minimal planning was not applicable.
We disagree.
On a finding that the defendant engaged in “more than
minimal planning,” § 2F1.1(b)(2)(A) allows a sentencing
court to increase the defendant’s offense level by two.
No. 06-2392 19
United States v. Sonsalla, 241 F.3d 904, 907 (7th Cir.
2001). This enhancement is applicable where “criminal
acts, each of which are not purely opportune, are repeated
over a period of time.” Id. (citing United States v. Brown,
47 F.3d 198, 204 (7th Cir. 1995)).
In this case, the district court acted within its author-
ity by accepting the recommended findings of the PSR,
unchallenged by Sloan, that Sloan’s acts were not purely
opportune but rather constituted evidence of more than
minimal planning. Id. at 907-08 (citing United States v.
Mustread, 42 F.3d 1097, 1101-02 (7th Cir. 1994)). More-
over, Sloan’s fraudulent activity spanned several months,
during which time he drafted and printed four false
advertisements, withdrew money from the bank ac-
counts of his victims, and wrote and mailed checks to his
victims under the guise of matrix earnings. These actions
were deliberate and made in such a way as to conceal the
fraudulent scheme. Thus, the upward adjustment for
more than minimal planning was appropriate.
4. Enhancement for Mass-Marketing
Finally, Sloan contends that the district erred in apply-
ing the three-level, mass-marketing enhancement pursu-
ant to § 2F1.1(b)(3), arguing that this enhancement should
not apply to a previously-established newspaper. Again,
Sloan failed to raise this argument to the district court, so
we will review the application of this enhancement for
plain error. Cunningham, 405 F.3d at 502.
Application note 3 to § 2F1.1 of sentencing guidelines
define “mass-marketing” as “a plan, program, promotion,
or campaign that is conducted through solicitation by
telephone, mail, the Internet, or other means to induce a
large number of persons to (i) purchase goods or services;
(ii) participate in a contest or sweepstakes; or (iii) invest
for financial profit.” USSG § 2F1.1, comment. (n. 3).
20 No. 06-2392
Nothing in the sentencing guidelines or the applica-
tion note suggests that mass-marketing is limited to
instances involving newly-created newspapers and the
like, and we reject such a narrow interpretation. See
United States v. Magnuson, 307 F.3d 333, 334 (5th Cir.
2002) (rejecting narrow construction of “mass-marketing”
that would limit application of § 2F1.1(b)(3) to “active”
rather than “passive” solicitations). The definition of
“mass-marketing” is not limited to telephone, mail, or
Internet solicitations but includes “other means.” Sloan
used such “other means,” the Christian Freedom Chroni-
cle, to reach a large number of individuals in order to have
them pay to join the Christian Freedom Foundation.
Accordingly, the district court’s application of the mass-
marketing enhancement was appropriate.
III. Conclusion
For the foregoing reasons, Sloan’s judgment of conviction
and sentence are AFFIRMED.
FLAUM, Circuit Judge, dissenting in part. I join the
majority’s opinion with the exception of part IIC2. Be-
cause I believe that the district court erred by increasing
Sloan’s sentence under § 2F1.1(b)(4)(A), I respectfully
dissent from that section. The rationale for the enhance-
ment is that “defendants who exploit victims’ charitable
impulses or trust in government create particular social
harm.” U.S.S.G. § 2F1.1(b)(4)(A). The Guidelines com-
mentary provides examples of such conduct to which this
factor applies, including:
No. 06-2392 21
a group of defendants who solicit contributions to a
non-existent famine relief organization by mail, a
defendant who diverts donations for a religiously-
affiliated school by telephone solicitations to church
members, which the defendant falsely claims to be a
fund-raiser for the school . . . .
U.S.S.G. § 2F1.1(b)(4)(A), application note 5. In these
examples, contributions or donations are an integral
part of the fraudulent schemes that warrant the enhance-
ment.
This Court has only decided one case dealing with an
upward enhancement under § 2F1.1(b)(4)(A), and it too
involved a scheme that exploited charitable donations. In
United States v. Lilly, 37 F.3d 1222, 1228 (7th Cir. 1994),
this Court affirmed the enhancement for a defendant
church pastor who told his victims that their certificates
of deposit would be used to finance improvement of the
church when in reality he used the money for his family’s
personal expenses.
I find this case distinguishable from Lilly and the
Guidelines examples because Sloan’s scheme did not take
advantage of the victim’s charitable impulses; rather, it
took advantage of their desire to make money and receive
a free electricity generator. Indeed, the majority acknowl-
edges that the victims testified that “they would not have
paid to join the Christian Freedom Foundation had they
known that they would not receive the generator or would
receive less money in matrix payments than they had
paid to the organization.” See supra p. 7.
The majority relies on the fact that Bemiller testified
that she trusted the solicitation because the Christian
Freedom Foundation was a Christian organization.
Bemiller testified that she “wrote out the check. It
sounded good. It had ‘Christian’ on it, so I thought well,
this has got to be good.” Although Bemiller trusted the
22 No. 06-2392
scheme because it was being orchestrated by a Christian
organization, she did not subscribe to the organization
because of its Christian purpose. She, like all of the
other victims, subscribed because she thought that she
would get a free electricity generator and a financial
windfall. In my view, Sloan did not exploit his victims’
charitable impulses, and therefore I would hold that the
district court erred when it enhanced his sentence
under § 2F1.1(b)(4)(A).
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-9-07