United States v. Glenn Benton Finck ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3876
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Glenn Benton Finck, also known as *
Beau Lee DuBois, *
*
Appellant. *
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Submitted: September 14, 2004
Filed: May 11, 2005
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Before BYE, BOWMAN, and MELLOY, Circuit Judges.
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BYE, Circuit Judge.
Defendant-Appellant Glenn Benton Finck appeals his 63-month sentence for
crimes arising from a scheme to fraudulently acquire motor vehicles. Finck argues
that the district court1 improperly enhanced his sentence for obstruction of justice and
use of sophisticated means, and he challenges his sentence under United States v.
Booker, 125 S. Ct. 738 (2005), for plain error. He also argues that the district court’s
1
The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
use of the name “Glenn Benton Finck” in the judgment rather than “Beau Lee
DuBois,” which he contends is his true name, amounts to a due process violation.
The district court had jurisdiction to hear this case under 18 U.S.C. § 3231.
This court has jurisdiction over the appeal under 28 U.S.C. § 1291. We affirm in all
respects.
I.
On April 4, 2003, Finck was charged in a seven-count indictment with crimes
arising from a scheme to fraudulently acquire motor vehicles. Count 1 alleged
violation of 18 U.S.C. § 2312 (interstate transportation of stolen vehicles); counts 2,
4, and 6 alleged violation of 18 U.S.C. § 2314 (causing an individual to travel in
interstate commerce in furtherance of a scheme to defraud); count 3 alleged violation
of 18 U.S.C. § 1343 (wire fraud); count 4 alleged violation of 18 U.S.C. § 1341 (mail
fraud); and count 7 alleged violation of 18 U.S.C. § 2314 (causing a forged
counterfeit security to travel in interstate commerce). He pled guilty to all counts of
the indictment.
At sentencing, the district court found, over Finck’s objections, that sentence
enhancements for obstruction of justice, U.S.S.G. § 3C1.1, and use of sophisticated
means, U.S.S.G. § 2B1.1(b)(1)(8)©), were warranted.
The relevant facts are as follows.2 Finck obtained several vehicles from
Reliable Imports and RV (“Reliable”) in Springfield, Missouri. He told the Reliable
salesperson that he owned stock in a California wine company and would pay for the
vehicles by arranging for wire transfers to Reliable’s Bank of America account.
2
The facts are based on those provided in the Presentence Investigation Report
(PSR). Finck did not object to any facts in the PSR that are relevant to sentencing.
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Before each purchase, Reliable received a fax showing that money had been wired
to its Bank of America account. Sometimes, Reliable also received a phone call from
someone claiming to be from Bank of America confirming that the wire transfer funds
had been deposited. Of course, no money was ever wired to Reliable’s account.
In all, Finck obtained seven vehicles from Reliable: a Rage’n trailer, a
Coachmen RV, a Mazda 6, a Mazda Miata, a Hyundai Tiburon, a Mercedez Benz
C230, and a Ford Thunderbird.3 Some vehicles were picked up from Reliable, and
some were delivered to him at an address in Round Rock, Texas. After fraudulently
obtaining these vehicles, he sold two of them. He sold the Coachmen RV to North
Bay Ford/Lincoln/Mercury car dealership (“North Bay”) in Santa Cruz, California for
$100,000, and he sold the Mazda Miata to Roger Beasley Mazda (“Beasley”) in
Austin, Texas for $16,500. He used the proceeds from the sale of these fraudulently
obtained vehicles to purchase a Ford Harley Davidson truck, a motorcycle trailer, and
a Lexus SUV.
After Reliable received a fax indicating that payment had been received for the
transaction involving the Hyundai Tiburon, the Mercedez Benz C230, and the Ford
Thunderbird, a Reliable employee contacted Bank of America to confirm that the
funds had been received and learned that they had not. When Reliable expressed
concern, Finck arranged to pay for the vehicles with a cashier’s check. He presented
Reliable with a COMCHECK from DuBois Winery in Lodi, California. After
Reliable determined that the COMCHECK was fraudulent, it contacted Bank of
America and learned that all of Finck’s previous wire transfers were also fraudulent.
Law enforcement arranged to have the titles to the Mercedez Benz and the Ford
Thunderbird mailed to him at a prearranged location in Texas. Texas law
3
Finck returned the Rage’n trailer to Reliable in exchange for the Coachmen
RV.
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enforcement officers set up surveillance at this location, but Finck changed the
delivery destination while the package was in transit.
Finck was arrested in Austin, Texas while he was attempting to trade in the
Mercedez Benz. During an interview with a Secret Service agent, he provided a
written statement outlining his fraudulent activity. When questioned about the
Coachmen RV, he denied selling the vehicle and told the agent that he drove the
Coachmen RV to Lodi, California in December 2002 and left it at an address on
Kettleman Lane. As a result of his statement, the Secret Service contacted California
authorities to request that they locate the vehicle. After eight days of investigation
involving California and Arizona authorities, the Secret Service learned that Finck
actually sold the Coachmen RV to North Bay and that North Bay then sold the
vehicle to RV Trailer Land in Reno, Nevada.
Also during the interview, Finck stated that he purchased two of his non-
Reliable vehicles—the Ford Harley Davidson truck and the motorcycle trailer—with
cash that he had saved. A review of documents obtained during a consensual search
of his residence revealed, however, Finck did not pay for the Harley Davidson truck
and the motorcycle trailer with his savings. Rather, he paid for them (as well as the
Lexus SUV) with proceeds from the sale of the fraudulently obtained Coachmen RV.
Authorities then attempted to seize these vehicles. In the meantime, however,
Finck sold the Harley Davidson truck to Thomas Bonding for $21,000 to post bond
on local Missouri fraud charges.4 Because bond was set at $10,000, the bondsman
secured a bank loan with the Harley Davidson truck, and he remitted the remaining
$11,000 to Finck’s former attorney. As a result, the bondsman no longer had title to
the truck, which made it complicated for law enforcement to seize.
4
Law enforcement was able to seize the Lexus SUV and the motorcycle trailer
without incident.
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After adjustments for obstruction of justice and use of sophisticated means,
Finck was sentenced at offense level 19 and criminal history category VI. The
sentencing range was 63 to 78 months for counts 1, 2, 5, 6, and 7, and 60 months for
counts 3 and 4. The district court sentenced him to 63 months custody on counts 1,
2, 5, 6, and 7, and 60 months custody for counts 3 and 4, to be served concurrently
for a total of 63 months. The district court also imposed a 3-year term of supervised
release and ordered him to pay $148,572.40 in restitution.5 He appeals his sentence
and the form of the judgment.
II.
The district court’s factual findings at sentencing are reviewed for clear error,
and the district court’s application of the sentencing guidelines to the facts is
reviewed de novo. United States v. Hart, 324 F.3d 575, 579 (8th Cir. 2003). Finck
does not challenge any of the facts underlying the obstruction of justice enhancement.
As a result, our review is limited to the district court’s application of sentencing
guideline section 3C1.1 to undisputed facts. United States v. Thompson, 367 F.3d
1045, 1047 (8th Cir. 2004). He also does not challenge any of the facts underlying
the sophisticated means enhancement. We therefore review de novo “whether the
district court correctly applied the guidelines when it determined those facts
constituted sophisticated means.”6 Hart, 324 F.3d at 579.
5
In a Supplemental Brief filed on January 9, 2004, Finck argues that the district
court erred in failing to consider his ability to pay restitution. However, 18 U.S.C.
§ 3664(f)(1)(A) states that “the court shall order restitution to each victim in the full
amount of each victim’s losses as determined by the court and without consideration
of the economic circumstances of the defendant.
6
We note that other panels have reviewed district courts’ finding of whether a
fraudulent scheme qualifies as “sophisticated” for clear error. See United States v.
Anderson, 349 F.3d 568, 570 (8th Cir. 2003); United States v. Brooks, 174 F. 3d 950,
958 (8th Cir. 1999) (“We review the factual finding of whether a [fraud] scheme
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A. Obstruction of Justice
Sentencing guideline section 3C1.1 provides for a two-level sentence
enhancement if the defendant “willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice during the course of the investigation
. . . of the instant offense.” Application note 4(g) states that a defendant obstructs
justice if he provides “a materially false statement to a law enforcement officer that
significantly obstructed or impeded the official investigation or prosecution of the
instant offense.”
During the investigation, Finck made two materially false statements to law
enforcement officials: (1) he stated that he left the Coachmen RV in Lodi, California
when he actually sold the vehicle to North Bay, and (2) he stated that he paid for a
Harley Davidson truck and a motorcycle trailer with his savings when he actually
paid for them with proceeds from the sale of the Coachmen RV. These statements led
law enforcement astray and allowed him to further his fraudulent scheme during the
investigation.
Finck believes that the eight-day delay and resources expended in multiple
jurisdictions to locate the Coachmen RV were not a result of his false statement, but
of law enforcement’s inability to quickly determine that his statement was false.
Because he confessed to stealing the Coachmen RV and law enforcement officials
qualifies as ‘sophisticated’ for clear error.”).
We believe the precedent in our circuit to be clear that the application of the
guidelines to the facts is reviewed de novo, and we cannot see how whether a scheme
was sophisticated is “‘essentially a question of fact.’” Anderson, 349 F.3d at 570 n.1
(quoting United States v. Hunt, 25 F.3d 1092, 1097 (D.C. Cir. 1994)). We therefore
follow the panel decision in Hart and conduct a de novo review of the guidelines to
the facts. We note that our analysis would not differ were we conducting a review for
clear error.
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almost simultaneously discovered a receipt for a wire transfer from North Bay to
Finck for $99,000 during a consensual search of his house, he believes that law
enforcement officials should have been able to deduce that he sold the Coachmen RV
to North Bay despite his statement to the contrary. Regardless of what law
enforcement may have been capable of deducing, however, they did not find the
physical evidence to immediately contradict his statement, and they expended
significant time and resources to locate the Coachmen RV.
We have previously found error in obstruction of justice enhancements where
the government failed to provide evidence that the false statement actually impeded
the investigation. United States v. Banks, 347 F.3d 1266, 1271 (8th Cir. 2003);
United States v. Williams, 288 F.3d 1079, 1081 (8th Cir. 2002). Here, however, the
government provided testimony during sentencing to establish how Finck’s false
statement regarding the location of the Coachmen RV caused law enforcement to
expend unnecessary resources. See Sentencing Tr. at 12. We believe that the eight-
day delay materially and significantly impeded the investigation. See United States
v. Thomas, 86 F.3d 263, 263-64 (1st Cir. 1996) (finding a significant hindrance where
government provided evidence that defendant’s false statement caused prosecution
to shift its resources and attention from federal adult to state juvenile proceedings).
Finck’s second false statement, that he paid for a Harley Davidson truck and
a motorcycle trailer with cash that he had saved, also materially and significantly
impeded the investigation. By the time law enforcement officials determined he had
in fact purchased the Harley Davidson truck and the motorcycle trailer with proceeds
from the Coachmen RV sale, making those vehicles seizable, he had sold the Harley
Davidson truck to his bail bondsman. The bondsman took out a bank loan to remit
the surplus money to his former attorney and thus did not have title to the vehicle,
making it more difficult to seize. The false statement about the source of payment for
the Harley Davidson truck by itself, and more so when combined with the false
statement about the sale of the Coachmen RV, bought him additional time to further
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his fraudulent scheme, thus significantly impeding the investigation and prosecution
of this case. See United States v. Luca, 183 F.3d 1018, 1023 (9th Cir. 1999) (finding
obstruction where defendant submitted false documents to state agency to forestall
fraud investigation, thus securing additional time to find other victims). The district
court did nor err in finding his false statements to warrant a two-level enhancement
for obstruction of justice.
Finck also challenges the sufficiency of the district court’s findings relating to
the obstruction adjustment. “[B]efore imposing an enhancement under § 3C1.1, a
district court ‘must review the evidence and make independent factual findings
necessary to establish a willful impediment to, or obstruction of, justice.’” United
States v. Brooks, 174 F.3d 950, 958 (8th Cir. 1999) (quoting United States v.
Dunnigan, 507 U.S. 87, 95 (1993)). We believe that the district court’s reference to
his false statements and the “result with the[e] truck,” Sentencing Tr. at 20, are
“sufficiently specific to provide this court with a basis for meaningful appellate
review.” United States v. Molina, 172 F.3d 1048, 1058 (8th Cir. 1999).
B. Sophisticated Means
Sentencing guideline section 2B1.1(b)(1)(8) provides for a two-level sentence
enhancement if the offense involved “sophisticated means.” Application note 7(B)
gives some guidance: “‘[S]ophisticated means’ means especially complex or
especially intricate offense conduct pertaining to the execution or concealment of an
offense. For example, in a telemarketing scheme, locating the main office of the
scheme in one jurisdiction but soliciting operations in another jurisdiction ordinarily
indicates sophisticated means. Conduct such as hiding assets or transactions, or both,
through the use of fictitious entities, corporate shells, or offshore financial accounts
also ordinarily indicates sophisticated means.”
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Finck argues that his scheme was successful not because it was particularly
sophisticated, but because the victim, Reliable, had poor bookkeeping techniques and
was thus unsophisticated. He also believes that any fraudulent scheme involves an
inherent level of complexity, and he used means no more sophisticated than what is
expected of a scheme to defraud. Finally, he points out that during the execution of
his scheme, he always used the name Beau Lee DuBois, which made it relatively easy
for law enforcement to locate him at his home in Texas.
While Finck did not use sophisticated means to conceal his criminal activity,
we find that he used sophisticated means to execute his scheme. Repetitive and
coordinated conduct, though no one step is particularly complicated, can be a
sophisticated scheme. See United States v. Jackson, 346 F.3d 22, 25 (2d Cir. 2003)
(finding an identity theft scheme to be sophisticated although each step of obtaining
information about the victim was relatively simple because “the total scheme was
sophisticated in the way all the steps were linked together so that [the defendant]
could perceive and exploit different vulnerabilities in different systems in a
coordinated way”), vacated on other grounds sub nom., Lauersen v. United States,
125 S. Ct. 1109 (2005); United States v. Rettenberger, 344 F.3d 702, 709 (7th Cir.
2003) (finding that husband and wife’s faking of husband’s disability to collect
insurance money, though consisting of simple lies, was sophisticated because
“[c]areful execution and coordination over an extended period enabled the
[defendants] to bilk more insurers and reduce the risk of detection”). He caused
Reliable to receive fax and telephone confirmations that money had been wired to its
Bank of America account; he had mail re-routed to make interception difficult; and
he transacted business in multiple states. Additionally, he created a story about
owning stock in the DuBois winery, which caused Reliable to later accept a
COMCHECK from the winery when it realized that the wire transfers had not gone
through.
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While fraud does involve some level of inherent sophistication, Finck pled
guilty to more than simply fraud. He pled guilty to transportation of a stolen vehicle
in interstate commerce—an offense that can be as simple as stealing a car and driving
it across state lines. He engaged in a repetitive and coordinated scheme to obtain
vehicles from Reliable. The district court did not err in finding his offense conduct
to be sophisticated.
III.
Because Finck was sentenced under the sentencing guidelines before the
Supreme Court deemed them advisory, he challenges his sentence under United States
v. Booker, 125 S. Ct. 738 (2005). Because he did not preserve this objection before
the district court, we review his sentence for plain error. United States v. Olano, 507
U.S. 725, 731 (1993). “The plain error principle applies even when, as here, the error
results from a change in the law that occurred while the case was pending on appeal.”
United States v. Pirani, No. 03-287, slip op. at 6 (8th Cir. Apr. 29, 2005). He has the
burden of proving plain error. Olano, 527 U.S. at 389.
Plain error review is subject to a four-part test. “[T]here must be (1) error, (2)
that is plain, and (3) that affects substantial rights. If all three conditions are met, an
appellate court may then exercise its discretion to notice a forfeited error, but only if
(4) the error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Johnson v. United States, 520 U.S. 461, 466-67 (1997). As in our en
banc Pirani decision, it is obvious the first two plain error factors are met here. The
district court committed Booker error by applying the guidelines as mandatory, and
such error is clear and obvious at this time. See Pirani, No. 03-287, slip op. at 8. He
however, fails to satisfy the third plain error factor because he has not shown “a
‘reasonable probability,’ based on the record as a whole, that but for the error he
would have received a more favorable sentence.” Id. at 11.
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Finck has pointed to nothing in the record to suggest a reasonable probability
that the district court would have imposed a lesser sentence absent Booker error.7
Therefore, he has not carried his burden of demonstrating plain error under Olano,
and we do not need to evaluate the fourth plain error factor. Contrary to the argument
in his Supplemental Brief regarding plain error, the sentence itself is not illegal under
the advisory guideline regime mandated by Booker. See Pirani, No. 03-287, slip op.
at 13.
IV.
Finally, Finck argues that the district court’s use of the name “Glenn Benton
Finck” in the judgment rather than “Beau Lee DuBois” is a due process violation.
Whether his due process rights have been violated is a constitutional question that we
review de novo. Flores v. Ashcroft, 354 F.3d 727, 729-30 (8th Cir. 2003).
Finck was charged under the name “Glenn Benton Finck”; however, at all
times during the commission of these crimes, he claimed to be “Beau Lee DuBois.”8
The district court agreed to add “also known as Beau Lee DuBois” to the caption.
Finck asserts that he has endured hardship amounting to a due process violation
as a result of the district court entering judgment against him as “Glenn Benton
Finck” because the Bureau of Prisons now refuses to recognize the name “Beau Lee
DuBois,” under which he has previously served time in federal custody. Thus, for
example, he has been required to retake a training course that he has already taken
under the name “Beau Lee DuBois.”
7
In his Supplemental Brief regarding plain error, Finck challenges the district
court’s ability to calculate the amount of loss. We note that he did not object to the
amount of loss at sentencing.
8
The PSR indicates that Finck has used fifty-three aliases.
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We find the caption’s mention of “Beau Lee DuBois” as an alias sufficient to
inform the Bureau of Prisons that Finck and DuBois are the same person. Cf. United
States v. Bealey, 978 F.2d 696, 699 (Fed. Cir. 1992) (finding that changing the name
on a judgment does not enlarge the time for filing an appeal because “the addition of
Bealey’s other name did not alter Bealey’s rights or obligations under the prior
judgment . . . . The result of the judgment is the same, the rationale supporting the
judgment is the same, and the actual parties to the judgment are the same, although
one party’s pseudonyms have now been added.”).
V.
For the reasons provided above, we affirm the decision of the district court in
all respects.
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