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


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  •                             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