United States v. Ronnanita Fluker , 698 F.3d 988 ( 2012 )


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  •                               In the
    United States Court of Appeals
    For the Seventh Circuit
    Nos. 11-1013, 11-3008 & 11-3082
    U NITED STATES OF A MERICA,
    Plaintiff-Appellee,
    v.
    R ONNANITA F LUKER, R OY F LUKER, III,
    and R OY F LUKER, JR.,
    Defendants-Appellants.
    Appeals from the United States District Court
    for the Northern District of Illinois, Eastern Division.
    Nos. 1:08-cr-00540—David H. Coar and
    Gary S. Feinerman, Judges.
    A RGUED S EPTEMBER 5, 2012—D ECIDED O CTOBER 26, 2012
    Before B AUER, M ANION, and T INDER, Circuit Judges.
    B AUER, Circuit Judge. This case proves the old adage,
    “If something sounds too good to be true, it probably
    is.” Following a three-week trial, Roy Fluker, Jr. (“Roy Jr.”),
    Roy Fluker III (“Roy III”), and Ronnanita Fluker
    (“Ronnanita”), (collectively, the “Appellants”), were found
    guilty of charges related to their participation in various
    fraudulent, Ponzi-like schemes that duped victims into
    2                         Nos. 11-1013, 11-3008 & 11-3082
    investing millions of dollars into programs that were
    destined to fail. The Appellants were sentenced to prison
    at separate sentencing hearings. In this consolidated
    appeal, Roy Jr. and Roy III challenge three of the
    district court’s evidentiary rulings that they believe
    deprived them of a fair trial. Roy III also contends that
    the district court erred in calculating his sentence under
    the United States Sentencing Guidelines (“U.S.S.G.” or
    “Sentencing Guidelines”). Ronnanita challenges the
    district court’s decision to provide the jury with an
    “ostrich” instruction, as well as the calculation of her
    sentence. We affirm all of the convictions and sentences.
    I. BACKGROUND
    From early 2005 until late 2007, Roy Jr., together with
    his son Roy III and his daughter Ronnanita, devised
    and participated in various schemes that defrauded
    thousands of people. Roy Jr. founded a company All
    Things in Common, LLC, which did business under the
    name More Than Enough, Inc. (“MTE”), in May 2005,
    and later a second company, Locust International, LLC
    (“Locust”), in January 2006. Using the MTE business, the
    Appellants created, marketed, and carried out a “Spend
    and Redeem Program” and a “Housing Program” for
    roughly eighteen months until the programs collapsed.
    Roy Jr. generally created and structured the particular
    program’s terms while Roy III and Ronnanita were re-
    sponsible for overseeing and executing the specific trans-
    actions.
    Nos. 11-1013, 11-3008 & 11-3082                         3
    The Spend and Redeem Program consisted of two
    parts. First, participants would “spend” by paying MTE
    an initial minimum payment of $500, with a maximum
    of $5,000. Then, in exchange for the participants’ initial
    payments, MTE would provide the participants with
    certificates that they could “redeem” at the monthly
    “venue” meetings (to be discussed later) for a monetary
    payment. The Spend and Redeem Program promised
    participants that they would receive a twenty-five
    percent return on their total investment every month
    for twelve consecutive months—i.e., a guaranteed 200%
    return after one year. In other words, a $500 initial pay-
    ment would entitle the participant to receive $1,500
    after twelve months; a $5,000 initial payment would
    yield a $15,000 payment after twelve months. Participants
    could contribute up to $20,000 per year to the Spend
    and Redeem Program, plus additional money for
    children under eighteen. Witnesses testified at trial that
    the Spend and Redeem Program was just a “hook;” the
    real money was made from the Housing Program.
    The Housing Program was more complex, as MTE
    offered two options within the program: the “Reverse
    Mortgage Program” and the “35 Percent Equity Pro-
    gram.” Which program an individual could participate
    in depended on the individual’s credit scores, loan bal-
    ances, and the amount of equity the individual had in
    his home.
    The Reverse Mortgage Program required the partic-
    ipant to own a minimum of seventy-five percent equity
    in his home. To participate, the participant would
    4                         Nos. 11-1013, 11-3008 & 11-3082
    refinance or sell his home and pay MTE from the
    equity proceeds an amount equal to at least seventy-
    five percent of the home’s value. In return, the
    Appellants told the participant that the equity money
    would be used to repay a traditional thirty-year loan
    in five years and that MTE would be solely re-
    sponsible for paying the lenders on behalf of the
    participant-borrowers. The Appellants also promised to
    make monthly payments to the participants in an
    amount equal to roughly one percent of the total loan
    value.
    In order to qualify for the 35 Percent Equity Program,
    participants were required to own a minimum of thirty-
    five percent equity in their homes. Like the participants
    in the Reverse Mortgage Program, to join the program,
    participants needed to pay MTE from the equity
    proceeds from the sale or refinancing of the home.
    But under this program, the amount only needed to
    be thirty-five percent of the home’s value. These partici-
    pants were told that they would not be responsible
    for making any payments during the first six months
    after the transaction. After the six-month grace period,
    the participants would be responsible for making
    monthly payments to MTE—later Locust—for the next
    fifty-four months until the loan was paid off. The Ap-
    pellants claimed these payments would be approxi-
    mately one-half of the participant’s previous mortgage
    payment. Regardless of which Housing Program
    subprogram an individual participated in, the Appellants
    essentially promised that the program would allow the
    participants to do two things: reduce their monthly
    Nos. 11-1013, 11-3008 & 11-3082                         5
    mortgage payments and own their homes mortgage-free
    within five years. The reality is that the Appellants
    were causing the participants to take out a loan with a
    high interest rate and a principal balance that was sig-
    nificantly more than the previous balance owed.
    In the event an individual was otherwise ineligible
    to participate in the Housing Program but had
    a sufficient credit score, MTE would provide an
    “A-Buyer” to facilitate the individual’s participation.
    A-Buyers were essentially straw purchasers for the
    various transactions; they were other MTE members
    who had credit scores that would allow them to qualify
    for loans. Thus, the A-Buyer would take out a loan to
    “purchase” the home of a Housing Program participant
    who was otherwise ineligible for the program, but the
    seller-participant would continue to live in the home rent
    free and simply comply with the payment terms of what-
    ever subprogram he was participating in. The terms
    usually required the seller-participants to make
    monthly payments to MTE. The Appellants assured the
    A-Buyers that MTE would accept all responsibility
    under the loan for paying the lender.
    The Appellants, in addition to Hayward Borders
    and six other individuals who became MTE’s Board
    Members, set out in June 2005, to market and promote
    the aforementioned programs. Monthly “venue” meetings
    were held at various churches and hotels throughout
    the Chicagoland area at which Roy Jr., Roy III, or another
    MTE employee explained MTE’s programs to those
    in attendance. The Appellants claimed the programs
    6                         Nos. 11-1013, 11-3008 & 11-3082
    would “develop an economy basically for the African-
    American community” and would teach individuals
    about “functional spending.” Each venue had a capacity
    of one hundred members. When a given venue reached
    its maximum capacity, the Appellants would open
    another one. New venues were opened in Wisconsin,
    Nevada, Florida, Georgia, and Texas before the Appel-
    lants’ scheme collapsed. Ronnanita’s role at the meetings
    involved assisting Roy Jr. with his presentations,
    typically by providing information from her computer
    files, and collecting cash from interested participants.
    In response to questions as to how the Appellants
    could promise such significant returns from the
    programs, Roy Jr. stated that MTE had invested in the
    foreign market exchange and had achieved significant
    returns by buying and selling currencies. Roy Jr. also
    represented to participants that he had invested in real
    estate or gold mines in Africa. When pressed for
    details, Roy Jr. claimed that the investment strategies
    could not be revealed because they were patented.
    On one occasion, Roy Jr. compared his refusal to pro-
    vide details of MTE’s investment strategies to KFC’s
    refusal to provide customers with its fried chicken rec-
    ipe. Roy III made similar misrepresentations re-
    garding MTE’s investments and claimed patents. If an
    active participant had a question about a program or
    needed something done, he would go to Ronnanita,
    who was known as being “second in command” to Roy Jr.
    As time passed, more investors were enticed into par-
    ticipating in the schemes. Although the earliest Spend
    Nos. 11-1013, 11-3008 & 11-3082                         7
    and Redeem Program participants were paid back
    millions of dollars, many of them were induced to
    reinvest much of their earnings and to encourage other
    potential participants to join.
    Around March 2006—roughly nine months after the
    scheme began—the Appellants introduced MTE’s “Presi-
    dential Club,” also known as the “Big Boys Club,” to
    about thirty of MTE’s past Spend and Redeem Program
    participants. Members of this group were required to
    invest at least $50,000, but, unlike participants in the
    original program, they would have to wait two months
    after their initial investments before they would begin
    to receive their first twenty-five percent payments.
    Each of the Appellants’ representations and promises
    to the participants were false, and the programs had
    absolutely no chance of succeeding. The money the Ap-
    pellants received was used for a multitude of expenses,
    including but not limited to the MTE Board Members’
    salaries and cars, tropical vacations, and purchasing real
    estate. Hundreds of thousands of dollars were used for
    the Appellants’ personal expenses and affairs, like pay-
    ments for Roy III’s wedding. More significantly, the
    money coming in was not kept in separate bank
    accounts, so the precise amount generated from each
    program or subprogram could not be tabulated. For
    example, equity money received from the Housing Pro-
    gram was often deposited into the same bank accounts
    as the Spend and Redeem Program proceeds. Despite
    the Appellants’ assurances that the Spend and Redeem
    Program was separate and distinct from the Housing
    8                         Nos. 11-1013, 11-3008 & 11-3082
    Program, all the monthly mortgage payments that
    MTE and Locust made to lenders on behalf of the
    Housing Program participants and A-Buyers were
    made directly from the money contributed by both
    Spend and Redeem and Housing Program participants.
    Roy Jr. had at least eighteen accounts at three different
    national banks that were used to pay whatever expenses
    were due. Money was freely transferred between the
    accounts whenever necessary, usually by Ronnanita
    at Roy Jr.’s direction.
    The scheme as a whole began to collapse in the sum-
    mer of 2006, roughly twelve months after its inception
    and three months before the banks froze the Appellants’
    accounts. As with all Ponzi schemes, the money coming
    in had to exceed the money going out. Before the
    freeze in September 2006, Grace Edwards, the MTE
    Board Member who prepared the “redeem” checks each
    month for the Spend and Redeem Program participants,
    recognized that the incoming cash flow was insufficient
    to cover the amounts due. Roy Jr. told Edwards to let
    him know how much money was needed each month
    to complete the redemptions, and she obliged. Edwards,
    who only had access to one account, then noticed
    deposits totaling hundreds of thousands of dollars
    were made to that account each month. This continued
    until the scheme’s ultimate demise. It was also around
    this time when the Appellants caused monthly mortgage
    payments made by MTE and Locust to be late. Housing
    Program participants and A-Buyers began receiving
    unexpected telephone calls from lenders advising them
    of overdue payments, and they attempted to contact
    Nos. 11-1013, 11-3008 & 11-3082                             9
    the Appellants about these issues. The Appellants rarely
    answered or returned the calls.
    The State of Illinois Attorney General served Roy Jr., as
    well as All Things in Common, on September 20, 2006,
    with an amended Temporary Order of Prohibition
    entered by the Illinois Securities Department.1 This led
    to the banks putting a hold on MTE’s accounts. Never-
    theless, the Appellants continued to operate venue meet-
    ings under the company name Wealth Creation Institute
    as well as solicit new participants for both programs.
    This time, however, the Appellants referred to the
    Spend and Redeem Program as an “educational program
    or school.”
    In order to reduce discontent among Housing
    Program participants who had heard rumors about MTE,
    Ronnanita sent letters in January 2007 explaining that
    Locust was now responsible for MTE’s mortgage
    program and that the participants had no reason to
    worry. In actuality, MTE had stopped making payments
    on the participants’ mortgages around late 2006, which
    eventually caused many of the participants to default
    on their mortgages and lose their homes to foreclosure.
    Some Housing Program participants continued making
    monthly payments to the Appellants in 2007, even after
    the Appellants were legally ordered to cease their MTE
    operations.
    1
    Neither Roy III nor Ronnanita was named in this order, and
    Ronnanita’s Presentence Investigation Report (“PSR”) con-
    cluded that the evidence did not support a finding that either
    possessed knowledge of the order.
    10                        Nos. 11-1013, 11-3008 & 11-3082
    By the time the overall scheme ended in 2007, the
    Appellants had already received more than $16 million
    from the Spend and Redeem Program and more than
    $2.6 million from the Housing Program. Over 3,000 people
    from the Spend and Redeem Program and more
    than 25 people from the Housing Program were affected
    in only eighteen months. For the scheme to have
    continued, the Appellants would have needed to
    generate $45 million over approximately the next year
    to make the Spend and Redeem Program “redeem”
    payments and at least $7 million over the next five years
    to make the required Housing Program payments. Bank
    records demonstrate that the money the Appellants
    received was never invested in any significant way in
    order for a return to have been generated. As the
    district court put it, the scheme was a “virtual impossi-
    bility.”
    Roy Jr. admitted the fraudulent nature of the Spend
    and Redeem Program in a consent order of prohibition
    signed with the Illinois Secretary of State Securities De-
    partment on October 8, 2007 (the “Consent Order”). Roy III
    signed a separate consent order of prohibition re-
    garding the Spend and Redeem Program on October 5,
    2007.
    On July 9, 2008, a Grand Jury in the Northern District
    of Illinois returned an eleven-count indictment against
    Roy Jr., Roy III, and Ronnanita for their conduct vio-
    lating 
    18 U.S.C. §§ 1341
    , 1343—mail and wire fraud. The
    Appellants were tried together and, after a three-week
    jury trial, convicted on May 25, 2010. Roy Jr. was
    convicted on all eleven counts. Roy III was found guilty
    Nos. 11-1013, 11-3008 & 11-3082                             11
    on five counts of wire fraud, and Ronnanita was found
    guilty on five counts of wire fraud and three counts of
    mail fraud. The Appellants each filed post-trial motions,
    which the district court denied in their entirety.
    At sentencing for Ronnanita on December 16, 2010,
    the district court accepted the PSR’s findings, but also
    acknowledged that “Roy Fluker, Jr., is the person who
    is most responsible for what happened.” Accordingly,
    even though the Sentencing Guidelines called for a sen-
    tencing range of 210 to 262 months’ imprisonment,
    the district court sentenced Ronnanita to ninety-six
    months’ incarceration, plus restitution in the amount of
    $10,783,960.45.2 On August 16, 2011, the district court
    sentenced Roy III to ninety-six months’ imprisonment
    with restitution in the amount of $7,336,957.49. Roy Jr.
    was sentenced on August 25, 2011, to 180 months’ impris-
    onment plus $7,336,957.49 restitution. This consolidated
    appeal followed.
    II. DISCUSSION
    A. Evidentiary Rulings
    Roy Jr. and Roy III challenge the admission of three
    pieces of evidence. They assert that this evidence was
    2
    Ronnanita was sentenced by Judge David H. Coar, who
    presided over the Appellants’ trial. On January 1, 2011, before
    Roy Jr. and Roy III were sentenced, Judge Coar took inactive
    status, and the case was reassigned to Judge Gary S. Feinerman,
    who subsequently sentenced Roy Jr. and Roy III.
    12                          Nos. 11-1013, 11-3008 & 11-3082
    improperly admitted and its admission denied them a
    fair trial. We review the admission of this evidence
    for abuse of discretion. United States v. Chapman, No. 11-
    2951, 
    2012 U.S. App. LEXIS 18379
    , at *11 (7th Cir. Aug. 30,
    2012).
    1. Roy Jr.’s Consent Order 3
    Roy Jr. signed the Consent Order on October 8, 2007,
    after the Attorney General of the State of Illinois initiated
    a civil action against him because of the fraudulent
    nature of the Spend and Redeem Program. In the Con-
    sent Order, Roy Jr. acknowledged that he failed to
    disclose the following material facts to Spend and
    Redeem Program participants:
    (a) MTE had no substantive investments capable
    of producing returns sufficient to repay Investors;
    (b) MTE was using Investors’ funds to meet MTE
    and [Wealth Creation Institute’s] obligations to
    repay prior Investors; and
    (c) MTE’s ability to repay Investors was dependent
    on MTE’s continuing to fraudulently raise funds
    from future Investors.
    Roy Jr. also acknowledged that “he had the opportunity
    to consult with an attorney regarding this matter;” the
    3
    Roy III originally challenged the admission of the consent
    order he signed but later stipulated that the Government
    could present a redacted form of his consent order to the jury.
    Nos. 11-1013, 11-3008 & 11-3082                               13
    “Stipulation [was] entered into freely and voluntary;”
    and he was not promised anything with regard to “civil
    or criminal liability arising from the facts underlying
    this matter.”
    Roy Jr. filed a motion in limine to exclude the Consent
    Order. The parties discussed the motion during a
    status hearing on June 30, 2009, and the district court
    stated, “[A]s to the general notion that none of this
    comes in, that’s not going to happen.” Proceeding in
    light of the district court’s comment, Roy Jr. entered into
    a stipulation with the Government that the Consent
    Order would either be admitted in its entirety or with
    certain portions redacted. The district court instructed
    the parties that “there should be an instruction at the
    end, and there should also be an instruction when this
    evidence comes in[,] that it’s only to be used for the
    person who signed the consent and no other defendant.”
    At trial, the entire Consent Order was admitted
    without redaction, accompanied by an instruction ad-
    monishing the jury to consider the Consent Order
    only against Roy Jr.
    The brief and reply brief for Roy Jr. and Roy III
    are unclear as to who exactly is challenging the admissi-
    bility of the Consent Order, Roy Jr. alone or Roy Jr. and
    Roy III.4 Either way, the limiting instruction, coupled
    4
    Roy Jr. and Roy III filed a consolidated brief and reply brief.
    In the sections discussing the admissibility of the Consent
    Order, the parties are inconsistent, first stating that “Roy
    (continued...)
    14                          Nos. 11-1013, 11-3008 & 11-3082
    with the fact the Consent Order did not contain any
    references to Roy III, sufficiently removed any unfair
    prejudice to Roy III, see United States v. Javell, No. 11-3044,
    
    2012 U.S. App. LEXIS 18377
    , at *9-11 (7th Cir. Aug. 30,
    2012) (explaining that the admission of a co-defendant’s
    confession is permissible at trial if the admission is ac-
    companied by a limiting instruction and does not
    facially incriminate the defendant), and we, thus, move
    on to Roy Jr.’s argument.
    Roy Jr. maintains that the Consent Order he signed
    should not have been admitted because it was highly
    prejudicial and unnecessarily confusing to the jury,
    inserting state civil procedure issues into a federal
    criminal trial. The Government contends the informa-
    tion was relevant, as it contained factual admissions
    related to the fraud allegations, and not unfairly prejudi-
    cial. We find that Roy Jr. has waived his ability to
    contest the Consent Order’s admission.
    “To preserve an issue for appellate review, a party
    ‘must make a proper objection at trial that alerts the
    court and opposing party to the specific grounds for the
    objection.’ ” Naeem v. McKesson Drug Co., 
    444 F.3d 593
    ,
    610 (7th Cir. 2006) (quoting United States v. Wynn, 
    845 F.2d 1439
    , 1442 (7th Cir. 1988)). “When a party fails
    to timely and properly object at trial to the admission of
    4
    (...continued)
    Fluker Jr. and Roy Fluker III” were deprived of a fair trial
    and, later, that “Mr. Roy Fluker Jr.” previously argued that
    the Consent Order’s admission was improper.
    Nos. 11-1013, 11-3008 & 11-3082                           15
    evidence, the party is deemed to have waived the issue
    on appeal.” Christmas v. City of Chi., 
    682 F.3d 632
    , 640
    (7th Cir. 2012) (quoting Jones v. Lincoln Elec. Co., 
    188 F.3d 709
    , 727 (7th Cir. 1999)).
    The Government and Roy Jr. stipulated to the
    Consent Order’s admission. When the Government
    asked at trial to publish portions of it to the jury, Roy
    Jr.’s counsel stated that he had no objection. By
    entering into a stipulation with the Government and
    failing to object at trial to the Consent Order’s admission,
    Roy Jr. made a strategic decision to abandon his
    challenge of the Consent Order’s admissibility. See
    United States v. Gaona, No. 12-2039, 
    2012 U.S. App. LEXIS 20787
    , at *11 (7th Cir. Oct. 5, 2012) (“The touchstone
    of waiver is a knowing and intentional decision.”
    (quoting United States v. Jaimes-Jaimes, 
    406 F.3d 845
    , 848
    (7th Cir. 2005))). This decision precludes our review of
    the issue on appeal.
    2.   Roy Jr.’s Prior Felony Convictions
    Roy Jr. was convicted of larceny by conversion (failure
    to return a rental car) on April 29, 1997, and “uttering
    and publishing” a forged check (forgery) sometime in
    2003. He filed a motion in limine, citing Rule 609(1), to
    bar the admission of these convictions. At a pretrial
    hearing, the district court ruled that the Government
    could question Roy Jr. regarding the larceny conviction
    if he testified at trial but deferred its ruling as to the
    forgery conviction. At the next status date, the parties
    discussed the forgery conviction and whether the Gov-
    16                           Nos. 11-1013, 11-3008 & 11-3082
    ernment intended to introduce it during its case-in-chief.
    The Government stated it did not, to which Roy Jr.’s
    counsel responded, “End of the problem.” The district
    court offered no further instructions regarding the
    forgery conviction.
    Roy Jr. contends these determinations amount to
    an abuse of discretion because the offenses were
    unduly prejudicial, but he encounters an insur-
    mountable hurdle. During the Government’s case-in-
    chief, the Government did not publish to the jury or
    question any witnesses about either of Roy Jr.’s convic-
    tions.5 It was not until Roy Jr. testified on direct exam-
    ination that the jury heard about the two convictions.
    Roy Jr. alone was responsible for putting the informa-
    tion before the jury, and the Supreme Court has
    provided us guidance for such a situation: “[A] defendant
    who preemptively introduces evidence of a prior con-
    viction on direct examination may not on appeal claim
    that the admission of such evidence was error.” Ohler
    v. United States, 
    529 U.S. 753
    , 760 (2000). Roy Jr.’s intro-
    duction of his prior convictions during his direct exam-
    ination may have removed their “sting,” but it also pre-
    5
    The Consent Order contained a reference to Roy Jr.’s forgery
    conviction and his failure to disclose it to participants of the
    Spend and Redeem Program. The fact that the Consent Order
    was admitted during the Government’s case-in-chief does
    not, however, affect our analysis because the Government
    did not publish to the jury, or question anyone about, the
    section of the Consent Order concerning Roy Jr.’s forgery
    conviction until Roy Jr. testified.
    Nos. 11-1013, 11-3008 & 11-3082                          17
    cluded him from appealing the district court’s decision
    to admit the evidence as well. See Clarett v. Roberts, 
    657 F.3d 664
    , 670 (7th Cir. 2011).
    3. Haywood Borders’ Emails
    The Government introduced a number of emails at
    trial to rebut Roy III’s defense that a mortgage
    transaction was a personal undertaking that did not
    involve MTE or the Housing Program. The group of
    emails at issue includes five separate emails sent to, and
    received by, Melvin and Jean Norwood—A-Buyers for a
    Housing Program transaction—at their personal email
    account. The emails were sent by a “Hayward Borders”
    at “mte_123@hotmail.com,” and dated August 22,
    2007; August 28, 2007; September 6, 2007; September 7,
    2007; and September 10, 2007. The first email says that
    MTE’s bank accounts will be unfrozen on January 1, 2008,
    and, acknowledging the Norwood’s $108,000 equity
    payment, gives the Norwoods four options they can
    pursue regarding their participation in the Housing
    Program. The second email says the Norwoods’ “account
    and options” in the A-Buyer program are being
    reviewed, while the third email discusses the Norwoods’
    current status and rights under the A-Buyer program.
    The fourth email asks for the Norwoods’ full participa-
    tion regarding how to deal with the “renter” of the prop-
    erty (collect rent from her or tell her she faces evic-
    tion), and the fifth email explains how the “renter” will be
    evicted. Roy III attacks the emails’ admissibility on
    two grounds: (1) the emails were not properly authenti-
    cated, and (2) the emails contained inadmissible hearsay.
    18                         Nos. 11-1013, 11-3008 & 11-3082
    Rule 901(a) provides that email evidence is admissible
    if authenticated by “evidence sufficient to support a
    finding that the item is what the proponent claims it
    is.” Fed. R. Evid. 901(a). “Authentication can be estab-
    lished in a variety of ways, including by ‘testimony of
    [a] witness with knowledge . . . that a matter is what
    it claimed to be[,]’ Rule 901(b)(1), and by distinctive
    characteristics such as ‘appearance, contents, substance,
    [or] internal patterns . . . taken in conjunction with cir-
    cumstances[,]’ Rule 901(b)(4).” United States v. Dumeisi,
    
    424 F.3d 566
    , 574 (7th Cir. 2005) (alterations in original).
    Only a prima facie showing of genuineness is required;
    the task of deciding the evidence’s true authenticity
    and probative value is left to the jury. United States
    v. Harvey, 
    117 F.3d 1044
    , 1049 (7th Cir. 1997).
    Borders purportedly authored the emails. At trial,
    neither Borders nor anyone who saw Borders author the
    emails testified that the emails were actually sent by
    Borders. Authentication under Rule 901(b)(1) was, there-
    fore, impossible. See Mark D. Robins, Evidence at the
    Electronic Frontier: Introducing E-Mail at Trial in Com-
    mercial Litigation, 29 R UTGERS C OMPUTER & T ECH. L.J.
    219, 226 (2003) (“Where a written communication such
    as an e-mail message is transmitted, only the author of
    the e-mail message or anyone who saw the author
    compose and transmit the message will truly ‘know’ the
    message’s authorship, and be able to authenticate
    it.” (citing 2 JOHN W. S TRONG, ET AL., M C C ORMICK ON
    E VIDENCE § 219(a), 687-88 (5th ed. 1989))). Accordingly,
    the Government attempted to authenticate the emails
    using circumstantial evidence, which we think was suf-
    ficient.
    Nos. 11-1013, 11-3008 & 11-3082                         19
    Our conclusion is supported by a number of factors
    present in the record. The emails sent to the Norwoods
    had the email address “mte_123@hotmail.com,” with the
    author identified as “Hayward Borders.” Even though
    Melvin Norwood testified that he had never met
    Borders before receiving the emails, the uncontroverted
    testimony established that Borders was an MTE Board
    Member. It would be reasonable for one to assume that
    an MTE Board Member would possess an email address
    bearing the MTE acronym and have the capacity to
    send correspondence from such an address. Moreover,
    the Norwoods’ email address, the address Borders’
    emails were sent to, was the same address to which
    Roy III had previously sent his email correspondence
    regarding the Housing Program. It would also be rea-
    sonable to assume that another MTE Board Member, in
    this case Borders, would have the ability to discover
    and send emails to the email addresses of Housing Pro-
    gram participants.
    The context of the emails further demonstrates
    the emails’ author had significant knowledge of the
    Norwoods’ involvement with the Housing Program
    and MTE. The emails discuss MTE’s frozen bank
    accounts, the purchased property being part of the A-
    Buyer program, and the $108,900 of equity from the
    Norwoods’ home that MTE received from the transaction.
    This is all information Borders would be in a position
    to know and discuss with the Norwoods. The Eleventh
    Circuit has found these types of factors to be sufficient
    to satisfy Rule 901(a)’s authentication requirements
    for email evidence, see United States v. Siddiqui, 
    235 F.3d 20
                               Nos. 11-1013, 11-3008 & 11-3082
    1318, 1322-23 (11th Cir. 2000), and we agree. Roy III’s
    challenge to the authentication of the emails fails.
    Directing our focus to Roy III’s contention that the
    emails constituted inadmissible hearsay, this argument
    is equally unavailing. He contends the emails were
    “offered to show that Borders made [certain] assertions,”
    but the touchstone of hearsay is that the evidence is
    being used to prove the truth of the matter asserted. See
    Fed. R. Evid. 801(c)(2); Smith v. Bray, 
    681 F.3d 888
    , 902
    (7th Cir. 2012). These emails actually contained a
    number of false assertions, so they were not offered
    for their truth. 6 We concur with the Government that
    these emails were offered to provide context and rebut
    Roy III’s argument at trial that the Norwood transaction
    was a personal undertaking; one that was separate and
    apart from MTE. Therefore, the emails were properly
    admitted.
    B. Ostrich Instruction
    Ronnanita challenges the district court’s decision to
    provide the jury with an ostrich instruction. The
    district court instructed the jury:
    6
    The email dated Friday, September 7, 2007, contained a
    reference to a conversation that Hayward Borders had with
    Roy III. The district court concluded that this reference consti-
    tuted inadmissible hearsay and ordered that the reference to
    Roy III be redacted, which the Government did before pub-
    lishing the email to the jury.
    Nos. 11-1013, 11-3008 & 11-3082                         21
    You may infer knowledge from a combination of
    suspicion and indifference to the truth. If you find
    that a person had a strong suspicion that things
    were not what they seemed or that someone had
    withheld some important facts, yet shut his or her
    eyes for fear of what he or she would learn, you
    may conclude that he or she acted knowingly, as
    I have used that word. You may not conclude that
    the defendant had knowledge if he or she was
    merely negligent in not discovering the truth.
    Ronnanita contends the record did not contain the
    requisite evidence to support the instruction’s use. We
    review a decision to give an ostrich instruction for an
    abuse of discretion, viewing all evidence in the light
    most favorable to the Government. United States v.
    Green, 
    648 F.3d 569
    , 582 (7th Cir. 2011).
    An ostrich instruction is provided to “explain that the
    law expands the definition of ‘knowledge’ for purposes
    of determining whether a defendant committed a
    specific act. It equates actual knowledge with the
    deliberate avoidance of knowledge.” United States v.
    Craig, 
    178 F.3d 891
    , 896 (7th Cir. 1999) (internal citation
    omitted). In other words, a defendant may not escape
    criminal liability simply by pleading ignorance “if he
    knows or strongly suspects he is involved in criminal
    dealings but deliberately avoids learning more exact
    information about the nature or extent of those deal-
    ings.” United States v. Garcia, 
    580 F.3d 528
    , 536 (7th Cir.
    2009) (quoting Craig, 
    178 F.3d at 896
    ). An ostrich instruc-
    tion may be given when: “(1) a defendant claims to
    22                          Nos. 11-1013, 11-3008 & 11-3082
    lack guilty knowledge, i.e., knowledge of her conduct’s
    illegality, and (2) the government presents evidence
    from which a jury could conclude that the defendant
    deliberately avoided the truth.” Green, 
    648 F.3d at 582
    (emphasis removed) (quoting Garcia, 
    580 F.3d at 536
    ).
    Deliberate avoidance may involve physical effort,
    United States v. Pabey, 
    664 F.3d 1084
    , 1092-93 (7th Cir.
    2011), or be purely psychological—e.g., “a cutting off
    of one’s normal curiosity by an effort of will.” United
    States v. Giovannetti, 
    919 F.2d 1223
    , 1228-29 (7th Cir. 1990).
    Ronnanita has maintained throughout that she had
    no knowledge of the scheme being a sham; element one
    is easily satisfied. The testimony presented at trial
    satisfied the second element as well: Ronnanita was
    described as being “second in command” to Roy Jr. and
    the person to go to with questions or concerns. She was
    intimately familiar with the 200% returns promised to
    participants as well as MTE’s expenses, both necessary
    (rent) and extravagant (trips and cars). Ronnanita
    opened bank accounts for Roy Jr. and MTE and made
    monetary transfers between the accounts. She also
    knew when the Housing Program had difficulties
    meeting its payment obligations. Based on Ronnanita’s
    access to this information, she could have chosen at
    any point to investigate what investments MTE was
    making and what returns MTE was generating. This
    would have immediately demonstrated the fraudulent
    nature of the schemes. Ronnanita claims she simply
    followed Roy Jr.’s orders, but her failure to inquire
    further in light of the information she possessed is evi-
    dence that could lead a reasonable jury to conclude she
    Nos. 11-1013, 11-3008 & 11-3082                              23
    deliberately avoided learning the truth about MTE’s
    programs. See Craig, 
    178 F.3d at 897-98
    ; see also United
    States v. Leahy, 
    464 F.3d 773
    , 796 (7th Cir. 2006) (holding
    that “red flags” and a failure to ask questions
    about them demonstrates deliberate avoidance). This is
    precisely the type of situation that warrants an ostrich
    instruction. See United States v. Paiz, 
    905 F.2d 1014
    , 1022
    (7th Cir. 1990) (“Such a scenario, one in which ‘the de-
    fendant acknowledges [her] association with the group
    but, despite circumstantial evidence to the contrary,
    denies knowledge of the group’s illegal activity,’ is a
    paradigm case for use of the ‘ostrich’ instruction.” (quoting
    United States v. Diaz, 
    846 F.2d 544
    , 550 (7th Cir. 1988))). We
    find the district court appropriately gave the ostrich
    instruction.
    C. Sentencing Calculations 7
    Having addressed the Appellants’ complaints about the
    trial, we turn our attention to Ronnanita and Roy III’s
    sentencing objections. We review the district court’s
    application of the Sentencing Guidelines de novo and
    its findings of fact for clear error. United States v. McCauley,
    
    659 F.3d 645
    , 652 (7th Cir. 2011). Findings of fact are
    clearly erroneous only when, “after considering all the
    evidence, the reviewing court is left with the definite
    and firm conviction that a mistake has been made.”
    7
    The Appellants’ PSR offense level calculations were deter-
    mined pursuant to the November 2009 edition of the Guide-
    lines Manual.
    24                          Nos. 11-1013, 11-3008 & 11-3082
    United States v. Rice, 
    673 F.3d 537
    , 540 (7th Cir. 2012)
    (quoting United States v. Cruz-Rea, 
    626 F.3d 929
    , 938
    (7th Cir. 2010)).
    1.        Ronnanita
    Over Ronnanita’s objection, the district court accepted
    the PSR’s findings, which included several sentencing
    enhancements. After the application of these enhance-
    ments, the district court determined Ronnanita’s final
    offense level to be 36 and her criminal history category
    to be II, resulting in an advisory Guidelines range of
    210 to 262 months’ imprisonment. The district court
    went below the advisory range and sentenced
    Ronnanita to 96 months’ imprisonment and two years’
    supervised release on each count to be served concur-
    rently. Ronnanita challenges her sentence, contending it
    would have been less had her guideline range been lower.
    a.    Role in the Scheme Enhancement
    Ronnanita first argues that the district court erred
    in applying U.S.S.G. § 3B1.1(b), which calls for a three-
    level enhancement if “the defendant was a manager or
    supervisor . . . and the criminal activity involved five
    or more participants or was otherwise extensive[.]” (em-
    phasis added). The Sentencing Guidelines define “partici-
    pant” as “a person who is criminally responsible for the
    commission of the offense, but need not have been con-
    victed.” § 3B1.1 cmt. n.1. We have explained that this
    means a participant “could have been charged,” even if only
    Nos. 11-1013, 11-3008 & 11-3082                          25
    as an accessory; but “mere knowledge of a conspiracy” is
    insufficient to establish that a person was “criminally re-
    sponsible.” United States v. Pabey, 
    664 F.3d 1084
    , 1097 (7th
    Cir. 2011). Ronnanita claims five people were not “crimi-
    nally responsible” for the scheme, so the three-level
    enhancement was inappropriate.
    The parties agree that the Appellants were each “partici-
    pants” in the scheme; that makes three. The dispute
    between them focuses on whether other individu-
    als—Jacqueline Hawkins and Jennifer Washington
    (MTE employees) and Phillip Rowe, Eric Blount, and
    Clarence Jones (mortgage company employees)—qualify
    as participants under Section 3B.1(b). We decline
    to decide whether these other individuals qualify as
    participants because we believe the entire scheme
    easily satisfies the “otherwise extensive” provision, so
    the number of “participants” does not matter. See
    United States v. Hussein, 
    664 F.3d 155
    , 162 (7th Cir. 2011).
    Section 3B1.1, commentary note 3 states, “In assessing
    whether an organization is ‘otherwise extensive,’ all
    persons involved during the course of the entire offense
    are to be considered. Thus, a fraud that involved only
    three participants but used the unknowing services of
    many outsiders could be considered extensive.” In deter-
    mining whether a scheme is otherwise extensive, we
    have considered: (1) the monetary benefits obtained
    during the scheme; (2) the length of time the scheme
    continued; (3) the number of people utilized to operate
    the scheme; and (4) the scheme’s geographic scope. See,
    e.g., United States v. Figueroa, 
    682 F.3d 694
    , 696 (7th Cir.
    26                         Nos. 11-1013, 11-3008 & 11-3082
    2012); Pabey, 
    664 F.3d at 1097
    ; Hussein, 
    664 F.3d at 162
    ;
    United States v. Knox, 
    624 F.3d 865
    , 874 (7th Cir. 2010).
    We have also held that a scheme is otherwise extensive
    if the number of participants plus outsiders who unwit-
    tingly advance a conspiracy is greater than five. See, e.g.,
    United States v. Tai, 
    41 F.3d 1170
    , 1174-75 (7th Cir. 1994).
    At the bare minimum, the participation of the Appel-
    lants, plus at least Hawkins, Washington, and one other
    MTE Board Member, satisfies this “greater than five”
    standard, regardless of whether Hawkins and Wash-
    ington were “criminally responsible.” See Pabey, 
    664 F.3d at
    1097 (citing Tai, 
    41 F.3d at 1174-75
    ). This number does
    not even include the additional MTE Board Members,
    the other MTE employees who helped organize venue
    meetings in numerous states, the mortgage company
    employees, or the numerous A-Buyers used to further
    the Housing Program. We believe the scheme was also
    extensive with respect to the amount of money obtained
    (over $18 million), the intended geographic scope (at
    least six states), the number of people affected (over
    3,000), and the overall complexity (using straw buyers
    to facilitate Housing Program transactions). Thus, the
    scheme qualifies as “otherwise extensive” under U.S.S.G.
    § 3B.1(b), and the three-level enhancement was correct.
    b. Assignment of Criminal History Category
    Ronnanita next contests the district court’s calculation
    of her criminal history category. The PSR assessed one
    criminal history point to Ronnanita pursuant to U.S.S.G.
    § 4A1.1(c) for a conviction of larceny by conversion
    Nos. 11-1013, 11-3008 & 11-3082                          27
    on July 18, 2005. Ronnanita received a twelve-month
    probation sentence, plus a fine, for that conviction.
    Section 4A1.1(d) states that two points should be added
    “if the defendant committed the instant offense while
    under any criminal justice sentence, including proba-
    tion[.]” Accordingly, the PSR applied two additional
    criminal history points because Ronnanita’s criminal
    charges were committed while Ronnanita was still on
    probation for the larceny conviction, which she was not
    discharged from until May 15, 2006. A criminal history
    category II was thus designated, which corresponds to
    the three criminal history points assigned to Ronnanita.
    Ronnanita claims this criminal history category was
    incorrect because four of the eight counts on which she
    was convicted occurred after she was discharged from
    probation on May 15, 2006. We first note Ronnanita’s
    failure to object to her criminal history calculation in
    the district court, so we only review for plain error. See
    United States v. Vasquez, 
    673 F.3d 680
    , 684 (7th Cir. 2012).
    But regardless of the standard applied, Ronnanita’s
    argument easily fails because all that is required under
    U.S.S.G. § 4A1.1(d) is for “any relevant conduct” of the
    offense to have been committed while the defendant
    was on probation, see § 4A1.1 cmt. n.4, not the instant
    offense “in its entirety” as Ronnanita claims. Therefore,
    because the evidence at trial established that Ronnanita’s
    participation in the overall scheme began in early 2005
    and continued at least into 2007, Ronnanita engaged in
    conduct related to her convictions while on probation,
    and the district court did not err in calculating her
    criminal history category.
    28                         Nos. 11-1013, 11-3008 & 11-3082
    c.   Loss Calculation
    Ronnanita also contests the district court’s calculation
    of the loss attributable to her offenses. The PSR calculated
    the loss suffered by the individuals involved in the
    Spend and Redeem Program and the Housing Program
    to be between $8,579,052 and $10,783,961. Under the
    Sentencing Guidelines, a loss in excess of $7,000,000
    but less than $20,000,000 corresponds to a twenty-level
    increase in the defendant’s offense level, see U.S.S.G.
    § 2B1.1(b)(1)(K); Ronnanita’s offense level was, therefore,
    increased by twenty levels.
    Ronnanita did not provide the Probation Office or
    the district court with any information regarding a
    loss figure. Her challenge to the calculation is nonethe-
    less two-fold: (1) her participation and responsibilities
    were almost entirely related to the Housing Program,
    so she should only be attributed losses related to the
    Housing Program (roughly $2,600,000); and (2) the losses
    attributed to Roy III at his sentencing hearing on
    August 16, 2011, eight months after she was sentenced,
    were only $7,336,957.49, so the amount attributed to
    her was approximately $3,400,000 too high. We address
    each argument in turn.
    From the outset, Ronnanita’s argument that the
    evidence demonstrated she only had “tangential conduct
    with the Spend and Redeem Program” is completely
    without merit. As discussed above, Ronnanita actively
    facilitated participation in both the Spend and Redeem
    Program and the Housing Program. She was “second in
    command” and the person to go to with problems. She
    Nos. 11-1013, 11-3008 & 11-3082                          29
    also transferred money between numerous accounts,
    and that money was connected to both programs. The
    evidence presented at trial established that Ronnanita
    was fully involved with both the Spend and Redeem
    Program and the Housing Program; the district court
    properly attributed the losses of both programs to her.
    Generally, because Ronnanita did not raise her second
    contention—that the losses attributed to Roy III for the
    same programs were $3,400,000 less—until her reply
    brief, her argument would be waived. See Griffin v. Bell,
    No-11-3389, 
    2012 U.S. App. LEXIS 18599
    , at *9 (7th Cir.
    Sept. 4, 2012) (“[A]rguments raised for the first time in
    a reply brief are deemed waived.”). However, we have
    stated that “exceptional circumstances” may allow us to
    consider arguments that would otherwise be waived. See
    In re Busson-Sokolik, 
    635 F.3d 261
    , 268-69 (7th Cir. 2011).
    This issue is one of those rare situations. Ronnanita
    filed her amended brief with this Court on June 1, 2011;
    Roy III was not sentenced until August 16, 2011. It
    would have been impossible for Ronnanita to know
    what the loss amount attributed to Roy III would be two
    months into the future, so we will reach the merits of
    Ronnanita’s second contention.
    Ronnanita correctly points out that the loss amounts
    attributed to her and Roy III were inconsistent, but she
    fails to explain why this difference is consequential. Even
    if we assume that Ronnanita had been sentenced on the
    same day as Roy III and the district court accepted the
    same loss calculation given to Roy III ($7,336,957.49), that
    amount is still greater than the $7,000,000 threshold of
    30                          Nos. 11-1013, 11-3008 & 11-3082
    U.S.S.G. § 2B1.1(b)(1)(K). Ronnanita’s loss calculation
    would still result in a twenty-level increase of her
    offense level. “To find clear error we must be persuaded
    that the sentencing court made a fundamental error
    which resulted in a complete miscarriage of justice.”
    United States v. Schaefer, 
    384 F.3d 326
    , 332 (7th Cir. 2004)
    (quoting United States v. Hatchett, 
    31 F.3d 1411
    , 1423-24
    (7th Cir. 1994)). Ronnanita has not put forth any
    support for the proposition, and we perceive no reason
    to believe, that this difference had any effect on the ad-
    ministration of justice, so we find that no clear error
    occurred.
    d. Calculation of Victims
    The PSR concluded that approximately 3,000 indi-
    viduals participated in the programs and approximately
    1,900 individuals lost money in the scheme. Pursuant
    to U.S.S.G. § 2B1.1(b)(2)(C), the PSR applied a six-level
    increase because the offense involved more than
    250 victims. Ronnanita again claims the number of
    victims apportioned to her is erroneous because she
    was only actively involved in the Housing Program. For
    the same reasons we believe the losses allocated to
    her were correct, we believe the calculation of victims
    was also appropriate.
    2.    Roy III
    The district court accepted a loss calculation of
    $7,336,957.49 before it sentenced Roy III to, among other
    Nos. 11-1013, 11-3008 & 11-3082                         31
    conditions, ninety-six months’ imprisonment. Roy III
    contends he did not have “the requisite mens rea” to be
    held liable for the losses from either the Spend and
    Redeem Program or the Housing Program because he
    was fooled just like the investors. In his eyes, he should
    not be held accountable for any of the losses. The
    problem for Roy III is the evidence demonstrates that
    the overall scheme he was convicted of participating
    in included both programs. As the district court stated
    at Roy III’s sentencing, “[The Spend and Redeem and
    Housing Programs] were not two separate operations.
    They were interrelated components of the same MTE,
    More Than Enough, operation.” We think the evidence
    regarding Roy III’s participation at venue meetings,
    involvement with the Norwood transaction, and knowl-
    edge of the “inherent implausibility” of the promised
    returns (for both programs) amply support a finding
    that Roy III knew both programs were fraudulent, yet
    continued to actively participate in their operation.
    There was no error in the calculation of the losses attrib-
    uted to Roy III.
    III. CONCLUSION
    Finding that the Appellants’ contentions lack merit,
    we A FFIRM the Appellants’ convictions and sentences.
    10-26-12
    

Document Info

Docket Number: 11-1013, 11-3008, 11-3082

Citation Numbers: 698 F.3d 988, 89 Fed. R. Serv. 1006, 2012 U.S. App. LEXIS 22219, 2012 WL 5275244

Judges: Bauer, Manion, Tinder

Filed Date: 10/26/2012

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (24)

United States v. Sam Paiz, Douglas Rector, Dick Selby, ... , 905 F.2d 1014 ( 1990 )

United States v. Guy Giovannetti and Nicholas Janis , 919 F.2d 1223 ( 1990 )

Sally Naeem v. McKesson Drug Company and Dan Montreuil , 444 F.3d 593 ( 2006 )

Ohler v. United States , 120 S. Ct. 1851 ( 2000 )

United States v. McCauley , 659 F.3d 645 ( 2011 )

United States v. Pabey , 664 F.3d 1084 ( 2011 )

United States v. John J. Leahy, William E. Stratton, James ... , 464 F.3d 773 ( 2006 )

United States v. Knox , 624 F.3d 865 ( 2010 )

Clarett v. Roberts , 657 F.3d 664 ( 2011 )

United States v. Roderick T. Harvey , 117 F.3d 1044 ( 1997 )

United States v. Chong W. Tai , 41 F.3d 1170 ( 1994 )

terry-jones-v-lincoln-electric-co-hobart-brothers-inc-westinghouse , 188 F.3d 709 ( 1999 )

Busson-Sokolik v. Milwaukee School of Engineering (In Re ... , 635 F.3d 261 ( 2011 )

United States v. Ronald Wynn , 845 F.2d 1439 ( 1988 )

United States v. Ronald T. Schaefer , 384 F.3d 326 ( 2004 )

United States v. Khaled Abdel-Latif Dumeisi , 424 F.3d 566 ( 2005 )

United States v. Bertha Craig , 178 F.3d 891 ( 1999 )

United States v. Hussein , 664 F.3d 155 ( 2011 )

United States v. Cruz-Rea , 626 F.3d 929 ( 2010 )

United States v. Rene Jaimes-Jaimes , 406 F.3d 845 ( 2005 )

View All Authorities »