United States v. Melissa Christiansen ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1925
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
M ELISSA C HRISTIANSEN,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 08 CR 135—Barbara B. Crabb, Chief Judge.
A RGUED N OVEMBER 4, 2009—D ECIDED F EBRUARY 2, 2010
Before C UDAHY, FLAUM, and E VANS, Circuit Judges.
E VANS, Circuit Judge. Most sentencing appeals involve
long (or at least medium length) prison terms. So, an
appeal like the one in this case, involving a short four-
month sentence, is fairly uncommon. And although the
four-month sentence was imposed after the district court
determined that the advisory guideline range was four
to ten months based on two enhancements that are now
challenged on appeal, the sentence could have easily
2 No. 09-1925
still been a four-month term (the range would have
been zero to six months) without the two challenged add-
ons. Very interesting.
Melissa Christiansen was charged in a 16-count indict-
ment with wire fraud for defrauding several people out
of money and property by posing as an expectant
mother willing to give her child up for adoption.
Christiansen pled guilty to four counts of the indict-
ment. At sentencing, the district court applied both the
“vulnerable victim” and “mass-marketing” sentence
enhancements to Christiansen’s advisory guideline
range—in addition to a two-point reduction for acceptance
of responsibility. The district court found a total offense
level of nine with a criminal history category of one,
creating an advisory guideline of four to ten months. On
appeal, Christiansen argues that neither enhance-
ment should have applied and that the court failed to
properly consider the positive changes she has made in
her life (under the § 3553(a) factors) when imposing the
sentence.
From June 2003 until November 2006, Christiansen
pretended to be a pregnant woman looking to place
her unborn child with adoptive parents. She posted
and responded to numerous advertisements on
www.myspace.com and www.surromomsonline.com. In
December of 2006, one of Christiansen’s victims con-
tacted the Pierce County, Wisconsin, sheriff’s depart-
ment with information regarding Christiansen’s scheme
and the names of others who were in contact with her. The
resulting FBI investigation revealed four victims whose
No. 09-1925 3
communication with Christiansen affected interstate
commerce enough to allow federal prosecution.
Christiansen’s first victim, Renee Brown, responded
to an advertisement on www.surromomsonline.com.
Christiansen explained to Ms. Brown that she was preg-
nant with a boy and was planning to give him up for
adoption. Christiansen also said that the boy’s father
had agreed to give up his parental rights. After ex-
changing messages and speaking on the telephone,
Christiansen informed Ms. Brown and her husband that
she had chosen them to adopt her unborn baby boy.
Shortly thereafter, the Browns left their Texas home
and visited Christiansen in Wisconsin. Ultimately, the
Browns paid Christiansen some $1,393 to cover various
“costs” incurred. Later, Christiansen explained to the
Browns that the baby’s father refused to terminate his
parental rights. She also asked them to send her more
money for formula and diapers. They declined.
Crystal Rogers, a second victim, posted an advertise-
ment on www.surromomsonline.com explaining her
desire to adopt a child. She was unable to have a child
of her own after undergoing a hysterectomy. Christiansen
responded to the ad and the two exchanged messages.
After Rogers sent Christiansen some calling cards, they
began to talk on the phone. Rogers also gave Christiansen
two air conditioners, a $200 money order, and $200
through Western Union. Christiansen’s con began to
unravel when Rogers planned a trip to Wisconsin to
meet her at an ultrasound appointment. One day before
the alleged ultrasound she told Rogers that the baby
4 No. 09-1925
had been stillborn. Three months later, she confessed to
Rogers that she had not been pregnant.
The third victim, Jenny Sumner, lived in Virginia with
her life partner. After she responded to Christiansen’s
advertisement on www.surromomsonline.com, she and
Christiansen exchanged e-mails regarding the potential
adoption of Christiansen’s unborn child. Sumner and her
partner then traveled to meet Christiansen at an ultra-
sound appointment, but while they were on their way,
Christiansen left them a voice mail claiming she had
miscarried.
Marie Arquillo, Christiansen’s fourth victim, turned
out to be the wrong woman to scam. Christiansen re-
sponded to Arquillo’s advertisement on www.
surromomsonline.com by telling her that she was
pregnant with a girl and going to give the child up
for adoption. Arquillo spent $20,000 in legal fees trying
to formalize the adoption before realizing she had
been duped. Arquillo then created a MySpace page to
warn other potential victims of Christiansen’s con. She
also informed local law enforcement about the ploy.
Two months later, Christiansen appeared on the
Dr. Phil show where three of her victims confronted her,
and she admitted that she had lied to them. In exchange
for appearing on the show, Christiansen was able to
enroll in a 150-day drug treatment program—which she
completed. Christiansen had been an active drug and
alcohol user for over 15 years but has remained clean
since she completed the program. She continues to
attend a 12-step program on a weekly basis.
No. 09-1925 5
About two years after her last con, a grand jury indicted
Christiansen for wire fraud. In her presentence investiga-
tion report (PSR), the United States Probation Office
recommended that Christiansen’s advisory guideline
range be increased by two points for mass-marketing
and be decreased by two points for acceptance of responsi-
bility. The probation office considered a two-level
vulnerable-victim enhancement but decided it did not
apply. Christiansen objected to the inclusion of the two-
level increase for mass-marketing. The government
objected to the failure to include the two-level vulnerable-
victim enhancement. At sentencing, the district court
overruled Christiansen’s objection, sustained the gov-
ernment’s objection, and decided that both enhance-
ments applied.
We review the district court’s application of the
vulnerable-victim enhancement for clear error. See
United States v. Sims, 329 F.3d 937, 943-44 (7th Cir. 2003)
(citing United States v. Rumsavich, 313 F.3d 407, 411 (7th
Cir. 2002); United States v. Parolin, 239 F.3d 922, 926 (7th
Cir. 2001)). As we noted in United States v. Rumsavich,
vulnerability is the type of fact which the trial court is
uniquely well-positioned to assess because the trial
judge can observe the demeanor of the defendant and
witnesses and has “an opportunity to review and analyze
each of the documents and exhibits and hear the testi-
mony while observing the mental, physical, and
emotional states of the victims in order to assist him
with assessing the damages inflicted upon them.” 313
F.3d 407, 411 (7th Cir. 2002) (citing United States v.
6 No. 09-1925
White, 903 F.2d 457, 463 (7th Cir. 1990)). Applying the
vulnerable-victim enhancement is proper when “the
defendant knew or should have known that a victim
of the offense was a vulnerable victim.” U.S.S.G.
§ 3A1.1(b)(1). A “vulnerable victim” is “a person
(A) who is a victim of the offense of conviction . . . ; and
(B) who is unusually vulnerable due to age, physical
or mental condition, or who is otherwise particularly
susceptible to the criminal conduct.” U.S.S.G. § 3A1.1
Application Note 2. Adoption fraud victims, we
assume, are not unusually vulnerable because of any of
the specific attributes listed—“age, physical or mental
condition”—so they must fit under the “otherwise par-
ticularly susceptible to the criminal conduct” subset.
We need not reach the question of whether victims of
adoption fraud are vulnerable as a group because the
government only needs to prove that one victim was
vulnerable in order for the enhancement to apply.1 United
States v. Paneras, 222 F.3d 406, 414 (7th Cir. 2000). The
United States Sentencing Commission Guidelines
Manual explains when to apply the vulnerability en-
hancement: “The adjustment would apply, for ex-
1
Therefore, there is no need to distinguish United States v.
Stover—the case the defendant primarily relies upon—because
although it held that victims of adoption fraud were not
vulnerable as a group, it explained that “[w]e further recognize
that, given the proper set of facts, a person’s infertility, if
known to the defendant, might support a finding of particular
susceptibility to adoption-related fraud.” 93 F.3d 1379, 1388
(8th Cir. 1996).
No. 09-1925 7
ample, in a fraud case in which the defendant marketed
an ineffective cancer cure or in a robbery in which
the defendant selected a handicapped victim. But it
would not apply in a case in which the defendant sold
fraudulent securities by mail to the general public and
one of the victims happened to be senile.” U.S.S.G. § 3A1.1
Application Note 2. For example, the Eighth Circuit,
in United States v. Stover, found that the vulnerable
victim enhancement did not apply in part because it
found “no evidence that defendants offered their services
selectively rather than to the general public at-large.
Moreover, the evidence indicates that defendants vigor-
ously pursued the business of anyone who was willing
to pay their fees, without any genuine regard for how
unfortunate the clients’ particular circumstances were.” See
93 F.3d 1388 (8th Cir. 1996). In contrast, the particular
susceptibility of Christiansen’s victims was not merely
incidental to a scheme where she was willing to defraud
anyone who responded to her advertisements. Instead,
she became intimately familiar with her marks before
she let them continue in her scheme because she
wanted to ensure she only preyed upon the most vul-
nerable. For example, she had Arquillo’s friends and
relatives write letters of reference explaining why she
should choose Arquillo to be the adoptive mother of
her child. One of the letters chronicled the heartbreak
Arquillo felt after two of her babies died and the frustra-
tion she felt when her attempts to undergo a tradi-
tional adoption failed. After learning about Arquillo’s
particular vulnerability, Christiansen “chose” her to be
the adoptive mother of her unborn baby. In order to
8 No. 09-1925
receive what she wanted from her scheme, Christiansen
did not seek just any prospective parents, she sought
desperate prospective parents without options. She
wanted the prospective parents to need her.2
Similarly, Christiansen chose Sumner as a
victim because she was particularly susceptible. In the
first e-mail Sumner sent to Christiansen, she wrote, “For
many years we tried to have our own baby through
artificial insemination, but never succeeded. All we had
was doctors, sperm donors, medical bills, surgeries,
pills and shots to help the process along and many tears
of disappointment.” In Sumner, Christiansen again
found exactly what she wanted: someone who needed
Christiansen in order to make her dream of having a
baby come true. Therefore, since Christiansen knew that at
least two of her victims were particularly susceptible to
her fraud, the district court correctly applied the
vulnerable-victim enhancement.
U.S.S.G. § 2B1.1(b)(2)(A) calls for a two-level enhance-
ment if the underlying fraud offense “was committed
through mass-marketing.” The commentary to the mass-
marketing enhancement explains that “mass-marketing”
includes “a plan, program, promotion, or campaign that
is conducted through solicitation by telephone, mail,
2
During sentencing, Chief Judge Crabb noted, “I don’t think
you were necessarily in it for money . . . you just wanted to be
looked up to and appreciated and have people think I’m
going to be nice to this woman because she has something
that I want from her.”
No. 09-1925 9
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 finan-
cial profit.” U.S.S.G. § 2B1.1 Application Note 4(A).
Christiansen does not contest that she had a plan that
was conducted through the Internet. She argues, however,
that there is no evidence to support a finding that she
designed her scheme to induce a “large number” of
victims. But the fact that Christiansen posted an online
advertisement that was open to the public shows that
she designed her scheme to induce a large number of
victims. If she was interested in only inducing a small
number of people, she likely would have only
responded to the advertisements that already existed.
Christiansen also argues that her adoption scheme
did not fit into any of the three categories listed in the
guidelines. But her adoption scheme fits into the first
category because she was providing a service by
offering to be a surrogate mother. Additionally, she
intended to induce her victims to “purchase” that service.
To purchase means “to obtain by paying money or its
equivalent” or “to obtain by labor, danger, or sacrifice.”
Merriam-Webster’s Collegiate Dictionary 1010 (11th ed.
2004). Ostensibly, Christiansen placed advertisements to
give her child up for adoption. In reality, however, she
was not giving anything away. Instead, she was inducing
her victims to purchase her services, either by paying
money or its equivalent, or by labor or sacrifice. Brown
and her husband sent Christiansen $1,000 in cashier’s
checks. They also paid her phone bill. Rogers gave her
two air conditioners, a $200 money order, and $200
10 No. 09-1925
through Western Union. She caused Arquillo and her
husband to obtain a $20,000 second mortgage to cover
legal fees and induced Sumner and her partner to
spend money traveling to visit Christiansen, only to be
told that the baby was lost during a miscarriage. All four
of her victims attempted to purchase—through money,
labor, or sacrifice—Christiansen’s service as a surrogate
mother. So the court properly applied the mass-
marketing enhancement.
Finally, Christiansen argues that her case should be
remanded for resentencing because the court failed to
adequately consider all relevant factors under 18 U.S.C.
§ 3553(a). Christiansen is correct that a district court
must give meaningful consideration to the factors listed
in § 3553(a), which include the history and characteristics
of the defendant, the nature and circumstances of the
offense, the seriousness of the offense, the promotion of
respect for the law, just punishment for the offense, the
promotion of respect for the law, deterrence to criminal
conduct, and protection of the public from further crimes
by the defendant. United States v. Williams, 425 F.3d 478,
480 (7th Cir. 2005). Although the court is not required to
discuss every factor set forth under § 3553(a), it must
articulate the particular factors it considered in sen-
tencing. United States v. Dean, 414 F.3d 725, 729 (7th Cir.
2005). Further, “[W]hen a court has ‘passed over in silence
the principal argument made by the defendant even
though the argument is not so weak as not to merit dis-
cussion’ we do not have the assurance we need to satisfy
ourselves that the defendant’s individual circumstances
have been thoroughly considered.” United States v.
Harris, 567 F.3d 846, 854 (7th Cir. 2009).
No. 09-1925 11
In particular, Christiansen argues that the district court
did not consider her “history and characteristics” in
determining an appropriate sentence. She seized upon the
court’s statement, “[W]hat I’m sentencing for now is not
the person you are now. . . . [I]t’s intended to respond to
the very bad crime that you committed.” Christiansen
alleges that this statement shows that the court failed to
consider the positive changes Christiansen had made in
her life. As we have noted, Christiansen did make
positive changes in her life. She no longer uses drugs
and alcohol. She is married and working towards a college
degree. Indeed, the court stated, “[Y]ou have made
greater effort to change than almost anyone I’ve seen in
the courtroom . . . .” Contrary to Christiansen’s claim,
however, the court clearly considered her history and
characteristics in determining the appropriate sentence.
The court stated, “You completed inpatient substance
abuse treatment in 2007. You were married in 2008, and
you’ve enrolled in college courses . . . . However, after
considering the nature and circumstances of your
offenses of conviction, I’m not persuaded that a sentence
of probation would be sufficient to promote the
statutory purpose of sentencing.” The judge’s statement,
“what I’m sentencing for now is not the person you are
now. [I]t’s intended to respond to the very bad crime
that you committed,” simply meant that if the judge was
determining Christiansen’s sentence solely based on the
person she is now, she likely would not have received
any jail time. Instead of improperly only considering
Christiansen’s history and characteristics, however, the
judge appropriately considered her history and charac-
12 No. 09-1925
teristics along with the other relevant § 3553(a) factors,
such as the nature and circumstances of the offense and
the seriousness of the offense. Therefore, we hold that the
district court properly considered the § 3553(a) factors.
For these reasons, the judgment of the district court
is A FFIRMED.
2-2-10