United States v. Arthur Lee Burns Jr. ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 01-1986
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Arthur Lee Burns, Jr., *
*
Appellant. *
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Submitted: September 14, 2001
Filed: January 10, 2002
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Before BOWMAN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.
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MORRIS SHEPPARD ARNOLD, Circuit Judge.
A jury convicted Arthur Lee Burns of conspiring to commit credit card fraud,
see 18 U.S.C. § 1029(a)(2), (b)(2), and (c). He appeals, contending that the district
court1 erred in admitting certain evidence at trial and in calculating the loss
attributable to the offense for sentencing purposes. We affirm.
1
The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri.
I.
Mr. Burns maintains that his due process rights were violated when the district
court admitted testimony that he failed to respond to a question during his post-arrest
interrogation and that he eventually declined to answer further questions. Mr. Burns
relies on Doyle v. Ohio, 426 U.S. 610, 611, 619 (1976), in which the Supreme Court
held that the government's reliance on a defendant's post-arrest silence to cross-
examine him at trial violated his right to due process. In Doyle, 426 U.S. at 618, the
Court reasoned that the Miranda warnings, see Miranda v. Arizona, 384 U.S. 436,
444-45 (1966), given to the defendant carried an implicit assurance that the
government would not penalize him by using his post-arrest silence against him.
Here, however, Mr. Burns specifically waived his Miranda rights, including
his right to remain silent, and he responded to post-arrest questioning regarding a
scheme to obtain checks fraudulently through Western Union by the unauthorized use
of credit card information. At trial, a United States Secret Service agent testified that
during the questioning that occurred after he waived his rights Mr. Burns admitted
that he had cashed checks, but that when asked whether he had recruited others to
cash checks he did not respond and "just looked" at those questioning him.
According to the agent, after failing to answer that question, Mr. Burns responded to
additional inquiries, and when Mr. Burns eventually indicated that he did not want
to answer any more questions, the interrogation stopped. On appeal, Mr. Burns notes
that the written Miranda waiver that he signed stated that he had "been told that" he
could "stop talking at any time."
We do not believe that the admission of Mr. Burns's silence in response to one
question posed to him in the midst of his interrogation was a violation of the Supreme
Court's holding in Doyle. Initially, we observe that a defendant's equivocal conduct
generally is not sufficient to invoke his or her fifth amendment right to remain silent.
See Simmons v. Bowersox, 235 F.3d 1124, 1131 (8th Cir. 2001), cert. denied,
122 S. Ct. 280 (2001), and we do not believe that Mr. Burns invoked this
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constitutional right when he was silent in response to a question. In addition, we
have held that where the accused initially waives his or her right to remain silent and
agrees to questioning, but "subsequently refuses to answer further questions, the
prosecution may note the refusal because it now constitutes part of an otherwise
admissible conversation between the police and the accused." United States v.
Harris, 956 F.2d 177, 181 (8th Cir. 1992), cert. denied, 506 U.S. 827 (1992); see also
United States v. Collins, 652 F.2d 735, 739 (8th Cir. 1981), cert. denied, 455 U.S.
906 (1982). Similarly, we believe that Mr. Burns's silent response to one inquiry
during the interrogation and eventual refusal to respond to further questioning were
"part of an otherwise admissible conversation" and that the admission of the
conversation in its entirety did not violate his due process rights.
Even if it was error to admit the testimony regarding Mr. Burns's silence,
moreover, we believe that the error was harmless beyond a reasonable doubt. See
Fields v. Leapley, 30 F.3d 986, 991 (8th Cir. 1994) (standard of review). Although
the district court did not attempt to cure the alleged error, the government neither
used Mr. Burns's silence when it cross-examined him at trial nor referred to it during
closing argument. Instead the government emphasized to the jury that the account of
the events that Mr. Burns actually offered when he was first questioned differed
markedly from his trial testimony. Furthermore, we believe that the defendant's
exculpatory evidence was " 'transparently frivolous,' " and that the documentary and
testimonial evidence supporting the jury's verdict was overwhelming. See Fields,
30 F.3d at 991 (quoting Chapman v. United States, 547 F.2d 1240 (5th Cir. 1977),
cert. denied, 431 U.S. 908 (1977)).
II.
Mr. Burns also contends that his Sixth Amendment right to confront the
witnesses against him was violated when the district court, over his objection,
admitted testimony regarding the statements of Diane Evans, an alleged co-
conspirator, who failed to appear at trial in response to a subpoena. At trial, a witness
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who was not involved in the crime testified that she gave Ms. Evans a ride and
noticed at the time that she was carrying several bags, including a duffel bag filled
with papers from a rental car company and from Western Union. The witness further
testified over the defendant's objection that when she asked Ms. Evans what she was
doing with these papers, Ms. Evans responded that Mr. Burns and another co-
conspirator, Samuel Brooks, "would be in a lot of trouble" if the police found out
about the contents of the bags. The witness also stated that Ms. Evans told her that
"they were getting money out of an account and then Western Unioning it back to
where the people wouldn't actually know it and asking somebody to go sign for the
Western Union."
The government contends, among other things, that the statements were
admissible under Fed. R. Evid. 801(d)(2)(E). Under this rule an out-of-court
statement from a co-conspirator that incriminates the defendant is "not hearsay if ...
[it] is offered against a party and is ... a statement by a coconspirator of a party during
the course and in furtherance of the conspiracy." See Fed. R. Evid. 801(d)(2)(E); see
also United States v. Whitehead, 238 F.3d 949, 951 (8th Cir. 2001). We find it
unnecessary to resolve this matter because we conclude that any error in admitting the
hearsay evidence was "harmless beyond a reasonable doubt," Chapman v. California,
386 U.S. 18, 24 (1967), because, as we have already said, the government submitted
overwhelming evidence of Mr. Burns's guilt, including numerous documents and the
testimony of his co-conspirator, Mr. Brooks. See United States v. Wright, 932 F.2d
868, 880 (10th Cir. 1991) (standard of review), cert. denied, 502 U.S. 962 and
502 U.S. 972 (1991); see also Delaware v. Van Arsdall, 475 U.S. 673, 681-84 (1986)
(applying harmless error analysis to violation of confrontation clause).
III.
We address, finally, Mr. Burns's argument that the district court erred in
sentencing him. According to Mr. Burns, the court should not have included in its
loss calculation the losses resulting from fraudulent credit card transactions that
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involved Leon Timmons and John Tate and those individuals whom they recruited.
Mr. Burns asserts that Mr. Timmons and Mr. Tate were involved in different
conspiracies with Mr. Brooks from the one of which he was a member, or, in the
alternative, that even if they were involved in the same conspiracy, he did not "jointly
undertake[] criminal activities" with them as that phrase is used in
U.S.S.G. § 1B1.3(a)(1)(B). Mr. Burns also contends that, contrary to the finding of
the presentence investigation report, he did not introduce Mr. Timmons and Mr. Tate
to Mr. Brooks.
Under the United States Sentencing Guidelines, the offense level in fraud cases
may be increased depending upon the loss attributed to the offense committed. See
U.S.S.G. § 2F1.1(b) (1995) (deleted by consolidation with U.S.S.G. §2B1.1, Nov. 1,
2001). The government has the burden of proof on the amount of the loss. See
United States v. Berndt, 86 F.3d 803, 811 (8th Cir. 1996). To determine what conduct
should be considered when calculating the relevant loss, a sentencing court looks to
U.S.S.G. § 1B1.3, which deals with relevant conduct. See e.g., United States. v.
Stover, 93 F.3d 1379, 1388 (8th Cir. 1996).
Where, as here, the sentencing judge also presided over the trial, the judge may
rely on evidence submitted at trial to support the sentence imposed. See United States
v. Jimenez-Villasenor, 270 F.3d 554, 562-63 (8th Cir. 2001). The district court at
sentencing found that Mr. Burns's situation was "a classic example of 'In for a penny,
in for a pound,'" and stated that Mr. Burns was "involved in this thing throughout,"
and the fact that he did not benefit from some of the transactions did not "diminish
his participation." We conclude that there was sufficient evidence from which the
district court could have found that Mr. Burns was a part of the same conspiracy that
involved Mr. Tate and Mr. Timmons and their recruits, that he actually assisted in
bringing about the contested criminal activities, and that he was therefore directly
accountable at sentencing for the transactions because he "aided [or] abetted" them,
see § 1B1.3(a)(1)(A).
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The government offered evidence at trial that when Mr. Brooks arrived in
Kansas City he was knowledgeable about credit card fraud, and that he shared this
knowledge with Mr. Burns in return for living at Mr. Burns's residence. Mr. Brooks
testified that Mr. Burns obtained completed forms from a car-rental company for use
in a scheme; the forms included the renters' credit card numbers and other identifying
information. Mr. Brooks and Mr. Burns worked closely together. For example, they
used the car-rental information to purchase merchandise and to obtain checks through
Western Union written to Mr. Burns. Mr. Burns and Mr. Brooks also recruited others
to cash checks obtained in the same way through Western Union. According to
uncontested findings in the PSR and the government's evidence at trial, Mr. Timmons
and Mr. Tate and others whom they recruited became involved in the scheme after
Mr. Burns, and they used information from the forms to obtain funds through Western
Union transfers. There was also evidence that Mr. Brooks told Mr. Burns to give
Mr. Timmons some of the information for his use.
We believe that there was sufficient evidence from which the district court
could conclude that there was but one conspiracy. "A single conspiracy may exist
even if the participants and their activities change over time, and even if many
participants are unaware of, or uninvolved in, some of the transactions." United
States v. Roach, 164 F.3d 403, 412 (8th Cir.1998), cert. denied, 528 U.S. 845 (1999).
All conspirators need not even know each other. See United States v. Rosnow,
977 F.2d 399, 405 (8th Cir. 1992) (per curiam), cert. denied, 507 U.S. 990 (1993).
For a single conspiracy to exist, " 'it is sufficient that ... the co-conspirators were
aware of the general nature and scope of the conspiracy and knowingly joined in the
overall scheme.' " United States v. Pullman, 187 F.3d 816, 821 (8th Cir. 1999)
(quoting United States v. Zimmerman, 832 F.2d 454, 457 (8th Cir.1987) (per
curiam)). We believe that the district court could have found on the evidence before
it that Mr. Burns, Mr. Timmons, and Mr. Tate were sufficiently aware through
Mr. Brooks of the general nature and scope of the conspiracy, and that Mr. Burns was
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aware of the manner in which the information from the rental car applications was
being used.
Under the sentencing guidelines, a defendant is accountable for the offense
conduct that he "aided [or] abetted." U.S.S.G. § 1B1.3(a)(1)(A). We believe that the
evidence was sufficient to allow the district court to find that Mr. Burns by providing
the rental applications to Mr. Brooks to be used in the fraudulent scheme knowingly
aided and abetted in the challenged transactions. Because we conclude based on
§ 1B1.3(a)(1)(A) of the sentencing guidelines that there was evidence from which the
district court could have found that the direct conduct of Mr. Burns himself justified
the sentence he received, we need not address his contention that the losses resulting
from the conduct of others was wrongly attributed to him because that conduct was
not "in furtherance of ... jointly undertaken criminal activity" under § 1B1.3(a)(1)(B).
IV.
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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