United States v. Suzanne Wonderly ( 1995 )

____________
No. 94-2551
____________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska
Suzanne Wonderly, *
*
Appellant. *
____________
Submitted: December 13, 1994
Filed: December 5, 1995
____________
Before McMILLIAN, Circuit Judge, JOHN R. GIBSON, Senior Circuit
Judge, and SHAW,* District Judge.
____________
McMILLIAN, Circuit Judge.
Suzanne Wonderly appeals from a final judgment entered in the United
States District Court1 for the District of Nebraska, upon a jury verdict
finding her guilty on one count of conspiracy to commit wire fraud, 18
U.S.C. § 371, and four counts of wire fraud, 18 U.S.C. § 1343. The
district court sentenced defendant to thirty-three months imprisonment,
three years supervised release, a special assessment of $250, and payment
of restitution in the amount of $202,683. For reversal, defendant argues
that (1) the evidence was insufficient as a matter of law to support the
jury's
*The Honorable Charles A. Shaw, United States
District Judge for the Eastern District of
Missouri, sitting by designation.
1
The Honorable Lyle E. Strom, United States District Judge for
the District of Nebraska.
verdict; (2) the district court abused its discretion in admitting Rule
404(b) evidence at trial; (3) the district court committed plain error in
making certain statements to the jury concerning scheduling matters; and
(4) her sentence under the guidelines was based upon clearly erroneous
findings by the district court. For the reasons discussed below, we
affirm.
Background
Defendant started a business called Executive Finance & Leasing which
purported to provide services to persons seeking commercial financing.
According to the government's evidence at trial, during the late 1980s,
defendant used false documentation and oral misrepresentations to persuade
five individuals to wire her a total of $320,000, which she said she would
use to purchase and resell discounted prime bank notes, or to engage in
letter of credit transactions, at substantial profits to the investors.
Defendant promised these individuals that their funds would not be lost and
that, in fact, their investments would generate millions of dollars -- in
some instances, doubling in as little as seventy-two hours. In persuading
them to invest their money, defendant represented that she had a 100%
success rate investing funds for prior clients. Each time she targeted one
of the investors, she claimed to have a specific investment opportunity for
which time was of the essence. After receiving their money, defendant
would provide them with fictitious reports regarding the progress of their
investments, holding them at bay for weeks or sometimes months. Oftentimes
the investors received communications from individuals other than
defendant, including a man named Allen Bestmann, regarding the status of
their investments. After a while, however, the investors would find it
difficult, if not impossible, to reach defendant. On a few occasions, some
of the funds were partially returned. However, the majority of the money
was never seen again by the investors.
-2-
On June 18, 1992, defendant and Bestmann were indicted in the
District of Nebraska on one count of conspiracy to commit wire fraud in
violation of 18 U.S.C. § 371 and five separate counts of wire fraud in
violation of 18 U.S.C. § 1343. Bestmann pleaded guilty to the conspiracy
charge and, upon the government's motion, the remaining counts against him
were dismissed. Defendant entered pleas of not guilty to all counts. Her
case proceeded to trial on January 24, 1994. At trial, defendant testified
in her own defense. She denied having made the representations described
by the government's witnesses, but did admit to having very little actual
experience with the type of investments she had purportedly discussed with
the investors. She essentially portrayed her role as that of an
intermediary between Bestmann and the investors. She maintained that she
had always believed her representations to be truthful and always acted in
good faith. At the close of evidence, upon the government's motion, the
district court dismissed Count VI of the indictment. The case was
submitted to the jury on February 3, 1994. The next day, February 4, 1994,
the jury returned a verdict of guilty on the five remaining counts.
In calculating defendant's total offense level under the sentencing
guidelines, the district court found, among other things, that the offense
involved more than minimal planning or a scheme to defraud more than one
victim, U.S.S.G. § 2F1.1(b)(2); that defendant was an organizer, leader,
manager, or supervisor of the criminal conspiracy, id. § 3B1.1(c); that she
had obstructed justice by perjuring herself at trial, id. § 3C1.1; and that
she had not accepted responsibility within the meaning of § 3E1.1.
Defendant was sentenced under the guidelines to thirty-three months
imprisonment, three years supervised release, a special assessment of
$250.00, and payment of restitution in the amount of $202,683. This appeal
followed.
-3-
Discussion
Sufficiency of the evidence
Defendant first argues that the evidence was insufficient as a matter
of law to support the jury's verdict. She maintains that the jury could
not infer from the evidence that she intended to defraud the investors or
that she entered into an agreement to commit wire fraud. At best, she
argues, the evidence merely established that she acted as an intermediary
for Bestmann.
In reviewing the sufficiency of the evidence, this court must view
the evidence in the light most favorable to the government, resolving all
conflicts in the government's favor. United States v. Clausen, 792 F.2d
102, 105 (8th Cir.), cert. denied, 479 U.S. 858 (1986). "Intent to defraud
need not be shown by direct evidence; rather, it may be inferred from all
the facts and circumstances surrounding the defendant's actions." Id.
Upon review of the evidence, including the testimony of the government's
witnesses and defendant herself, we hold that the jury could reasonably
have inferred both that defendant had intended to defraud her investors and
that an agreement existed among defendant and others, including Bestmann,
to carry out a fraudulent scheme. Accordingly, we hold that the evidence
was sufficient to support the jury's verdict.
Rule 404(b) evidence
Defendant next argues that the district court abused its discretion
in admitting evidence, pursuant to Fed. R. Evid. 404(b), of other wrongful
acts committed by defendant. The evidence challenged by defendant includes
the testimony of two individuals who invested a total of $130,000 through
defendant. These
-4-
investments were made after the dates charged in the indictment.2 The two
witnesses testified that defendant persuaded them to invest substantial
sums of money by claiming to have specific opportunities to invest their
funds in transactions involving prime bank notes and letters of credit,
which would yield tremendous short-term profits. In each instance, they
testified, they never saw their money again.
Prior to trial, the district court held an evidentiary hearing on
defendant's motion in limine seeking to exclude evidence of other wrongful
acts. Upon review of the government's proffer of Rule 404(b) evidence, the
district court held that the evidence now being challenged on appeal was
admissible to prove absence of mistake or accident because defendant's
anticipated defense theory was that she acted in good faith as an
intermediary for Bestmann. Defendant now argues, however, that her defense
at trial was based upon a denial of the acts charged in the indictment and,
thus, the issues of mistake and accident were not relevant to her guilt or
innocence. She further argues that, even if the evidence were relevant,
the unfair prejudice and confusion of issues created by the evidence
substantially outweighed its probative value. Fed. R. Evid. 403. We
disagree.
Upon review of the evidence presented at trial, including defendant's
own testimony, we note that defendant's theory of defense was not merely
a denial of the conduct alleged by the government but was primarily a good
faith defense. See, e.g., transcript at 890. For example, she stated that
she never intended for the investors to lose their money. Id. at 864-65.
She also
2
The fact that the challenged testimony refers to defendants'
actions after the events that are the subject of the indictment
does not alone render the evidence inadmissible. United States v.
Riley, 657 F.2d 1377, 1388 (8th Cir. 1981) (citing McConkey v.
United States, 444 F.2d 788, 790 (8th Cir.) (per curiam), cert.
denied, 404 U.S. 885 (1971)).
-5-
maintained that the representations she made to investors originated with
Bestmann, that she assumed those representations were truthful, and that
she believed the operation was legitimate. Id. at 822, 825-29. In other
words, she described herself as the innocent messenger for Bestmann. The
challenged Rule 404(b) evidence was therefore relevant to show absence of
mistake because, even after the five investors lost virtually all of their
money, defendant continued to engage in the same practice of seeking out
investors and persuading them to turn over tens of thousands of dollars
upon the promise of high-yield investment opportunities which she claimed
were virtually risk-free. These subsequent acts belie her claim that she
merely spoke for Bestmann and that she believed she was being truthful when
she claimed a 100% success rate and virtually no risk in the investment
opportunities she was presenting. Accordingly, we hold that the district
court did not abuse its discretion in admitting the Rule 404(b) evidence.
Comments to the jury
Defendant next argues that her due process rights were violated as
a result of certain comments made by the district court to the jury
concerning scheduling matters. The comments to which defendant objects
began with the district court's inquiry as to whether it would be a problem
for members of the jury to begin the proceedings each day at 8:30 a.m. The
court stated:
Would it be alright if we started at 8:30 next
Monday morning? Would that create a problem for
anybody?
We may start at 8:30 every morning we can.
The court then continued:
One of the reasons that I have to [interrupt] our
days once in a while, under the present budget cutting
procedures in Washington, the United States Marshal's
-6-
Service budget has been cut about 40%, which is, as you
can imagine, very substantial.
That means that if I tried to start something in
a criminal matter with a defendant who is in custody,
the marshal's service has to pay overtime to get that
person here before 9:00 o'clock in the morning.
And in order to avoid putting the burden on the
marshal's service, if a person is in custody, I try to
schedule it over the noon hour, although many of my noon
hours are filled with other commitments, or I have to do
it at 9:00 o'clock in the morning. Next week we will
try to start at 8:30 and I will keep you advised.
We may shorten our noon hours a couple of days in
an effort to try to move along a little more rapidly.
Transcript at 399.
Defendant argues that prejudicial error occurred as a result of these
comments because the jury could have inferred that defendant was in custody
when, in fact, she had been released on her own recognizance;
alternatively, defendant contends, the jury could have inferred that
defendant was serving a sentence for another crime. In light of the
district court's failure to give any curative instructions, defendant
argues, she is entitled to a new trial.
In response, the government notes that defendant failed to object to
the district court's comments in a timely manner and thus the standard of
review on appeal is plain error. The government argues that the district
court's comments constituted neither error nor plain error. The government
suggests that the district court's comments quite clearly indicated that,
due to budgetary problems affecting the United States Marshal's Service,
it would generally not be possible for criminal defendants in custody to
arrive at the courthouse before 9:00 a.m.; as a consequence, any matters
involving such defendants which the court needed to entertain would be
scheduled either over the noon hour or at 9:00 a.m.; if the
-7-
court were to have such a 9:00 a.m. hearing, then, on that day, defendant's
trial would begin afterward. The government thus argues that it would be
logically inconsistent for the jury to have inferred that defendant was in
custody because the court had just indicated its intention to start the
trial proceedings at 8:30 a.m. each day, whereas those defendants who were
in custody could not be brought to the courthouse until 9:00 a.m.
We agree with the government that the standard of review on this
issue is plain error. Upon review, we hold that the district court's
statements did not prejudice defendant in any way. Accordingly, we hold
that the district court did not commit error, much less plain error, as a
result of its comments to the jury.
Sentencing issues
Defendant also raises several sentencing issues on appeal. She
claims that the district court erred in finding that (1) the offense
involved more than minimal planning or a scheme to defraud more than one
victim, U.S.S.G. § 2F1.1(b)(2); (2) defendant was an organizer, leader,
manager, or supervisor of the criminal conspiracy, id. § 3B1.1(c); (3) she
had obstructed justice by perjuring herself at trial, id. § 3C1.1, and (4)
she had not accepted responsibility for her unlawful conduct and therefore
was not entitled to the applicable downward adjustment, id. § 3E1.1. As
to all of these sentencing determinations, defendant maintains that the
district court's relevant findings are not supported by the record and are
clearly erroneous. As to her perjury claim, defendant additionally argues
that the enhancement is invalid under United States v. Ransom, 990 F.2d
1011, 1014 (8th Cir. 1993), because "the court failed to make the necessary
findings that she committed perjury, failed to address one of the
government's proposed bases for the finding of perjury and placed undue
emphasis
-8-
on the jury's disbelief of [defendant's] testimony." Brief for Appellant
3
at 26-27.
In response, the government first argues that, as a result of
defendant's failure to object to the two-level increase under
§ 2F1.1(b)(2), as recommended in the presentence investigation report, the
district court's findings that the offense involved more than minimal
planning and that it involved a scheme to defraud more than one victim may
not be reversed "unless a gross miscarriage of justice would otherwise
result." Brief for Appellee at 38-39 (citing United States v. Williams,
994 F.2d 1287, 1294 (8th Cir. 1993)). In any case, the government
maintains, the district court's finding that the offense involved more than
minimal planning or more than one victim is well supported by the record.
As to defendant's arguments addressing her role in the offense and
obstruction of justice, the government maintains that the district court's
relevant findings are also well supported in the record and not clearly
erroneous. On the perjury finding, the government notes that, while the
Supreme Court and this court have expressed a preference for specific
findings of false statements, the absence of such specific findings does
not necessarily render the enhancement invalid, provided the district court
sufficiently indicated that it considered the trial testimony in light of
the factual predicates for a perjury finding. Brief for Appellee at 44-45
(citing United States v. Dunnigan, 507 U.S. 87, __, 113 S. Ct. 1111, 1117
(1993); United States v. Turk, 21 F.3d 309, 313
3
United States v. Ransom, 990 F.2d 1011 (8th Cir. 1993), is
distinguishable from the present case because, in that case, the
district court admitted at sentencing that it was not familiar with
the transcript of the grand jury testimony which was the basis of
its perjury finding. In reversing the application of the
enhancement for obstruction of justice, this court noted that "the
[district court's] lack of familiarity with the transcript is
especially important in this case, given that no trial was
conducted which would have provided the judge with an opportunity
to gauge the defendant's actions and testimony while on the witness
stand." Id. at 1014.
-9-
(8th Cir. 1994)). As to the finding that defendant was an organizer,
supervisor, manager, or leader, the government emphasizes that, from the
victims' perspective, defendant was the key person involved in the
conspiracy -- she was the one who solicited their business and she made the
false representations that convinced them to turn over their funds. Even
assuming that she later withdrew from the transactions, this fact does not
diminish her leadership role in the conspiracy. Brief for Appellee at 41-
42 (citing United States v. Pierce, 907 F.2d 56, 57 (8th Cir. 1990)).
Finally, as to the district court's failure to find that defendant had
accepted responsibility, the government notes that the standard of review
on appeal is one of particularly great deference and this court will not
reverse the sentencing court's determination "unless it is without
foundation." Brief for Appellee at 48 (citing United States v. Big Crow,
898 F.2d 1326, 1330 (8th Cir. 1990) (quoting U.S.S.G. § 3E1.1 commentary,
application note 5)). In any case, the government argues, a finding that
defendant accepted responsibility for her fraudulent behavior would be
wholly inconsistent with the evidence at trial, the procedural history of
this case, and defendant's continued insistence upon her innocence.
Upon careful review of the record in this case and the arguments on
appeal, we hold that the factual findings challenged by defendant are all
well supported by the record and not clearly erroneous. Accordingly, we
hold that there is no basis for finding reversible error in the sentencing
process.
Conclusion
For the foregoing reasons, the judgment of the district court is
affirmed. See 8th Cir. R. 47B.
-10-
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-11-