United States v. Kevin Williams , 693 F.3d 1067 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 11-30118
Plaintiff-Appellee,
v.  DC No.
CR 09-5465
KEVIN W. WILLIAMS,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, Senior District Judge, Presiding
Argued and Submitted
April 12, 2012—Seattle, Washington
Filed September 7, 2012
Before: Procter Hug, Jr., A. Wallace Tashima, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Tashima
10729
10732 UNITED STATES v. WILLIAMS
COUNSEL
David Reese Jennings and Aravind Swaminathan (argued),
Assistant United States Attorneys, Seattle, Washington, for
the plaintiff-appellee.
Phil Brennan, Seattle, Washington, for the defendant-
appellant.
OPINION
TASHIMA, Circuit Judge:
Defendant-Appellant Kevin Williams appeals his jury con-
viction and sentence for three counts of wire fraud, two
counts of possession of an unregistered firearm, and one count
each of extortion, making a false statement, destruction of a
letter box, and possession of a firearm not identified by a
serial number. Williams contends that the district court erred
in grouping his offenses for purposes of sentencing and in
applying five sentencing enhancements. We affirm the district
court’s imposition of two of the sentencing enhancements at
issue, but otherwise vacate Williams’ sentence and remand
for resentencing.1
1
In a memorandum disposition filed concurrently with this opinion, we
address Williams’ remaining contentions and affirm his conviction.
UNITED STATES v. WILLIAMS 10733
I. FACTUAL BACKGROUND
In 2006, the FBI began investigating an Atlanta-based
Ponzi scheme known as the International Management Asso-
ciates (“IMA”) fraud. The approximately 300 victims of the
scheme lost a total of $86 million. Kirk Wright was the princi-
pal defendant in the federal prosecution that followed. Bill
Perkins was appointed by the Securities and Exchange Com-
mission as receiver for IMA’s assets and an investors’ com-
mittee, made up of the seven largest IMA investors, was
formed to represent the fraud victims. Mark Kaufman was
appointed as counsel for the investors’ committee.
In July 2007, Williams began calling Kaufman, Perkins,
and FBI Special Agent William Cromer, who was investigat-
ing the case. Williams told them that he was a private investi-
gator, and that he had been doing his own investigation into
the IMA fraud, and he asked for payment for his information.
At no point did Williams provide any evidence that he pos-
sessed any relevant information. During this time, Williams
lived in Chehalis, Washington. State records show that Wil-
liams never reported income as an investigator and no pay-
ments were made to him by others for such services. His bank
accounts also did not reflect any expenses for investigative
work. In August 2007, he changed the name of his bank
account to the “E.F.E. Foundation.” His telephone answering
machine also included a message explaining that the E.F.E.
Foundation specialized in fundraising and investigative work.
Williams’ housemate, Dean Hanson, testified that in Octo-
ber 2007, Williams decided to blow up his own mailbox in
order to bolster his efforts to get a share of the IMA money.
Williams built a pipe bomb and set it off on October 21. At
Williams’ direction, Hanson cleaned up and disposed of the
bomb’s parts and called the sheriff to report the bombing.
Melissa Nacht, Hanson’s girlfriend, testified that Williams
staged the explosion so that “Agent Cromer would think that
other people believed Mr. Williams about having this infor-
10734 UNITED STATES v. WILLIAMS
mation and would take him more seriously.” During the ensu-
ing investigation of the bombing, Williams provided a
recorded statement to Postal Inspectors in which he said that
the explosion occurred when he reached his hand into the
mailbox to collect mail and that the bombing probably
occurred because of his private investigation work on an
Atlanta fraud case.
Postal Inspector Rod Stephens later explained that the
Postal Service was “extremely nervous” about the mailbox
bombing; local postmasters were worried about sending their
letter carriers out to deliver mail because they feared harm,
which could damage the integrity of the mail system. On
October 24, 2007, Postal Inspectors and ATF Agents visited
Williams’ residence to investigate the bombing, accompanied
by a dog trained to detect explosives. When the investigators
arrived at his house, Williams greeted them with an assault
rifle in his hands. Alarmed, Postal Inspector Stephens asked
him if he had any other weapons. Williams responded by list-
ing his firearms, including one he described as a “zip gun.”
Williams’ use of that term caught Stephens’ attention,
because a zip gun is a homemade pen or flashlight gun that
is concealable and well-known to be illegal. The investigators
received Williams’ consent to enter his house and retrieved a
fully-assembled zip gun with ammunition attached to its con-
tainer.
In October 2007, Kaufman received another phone call
from Williams, in which Williams told him that people were
“hounding” him and listening in on his communications.
Kaufman thought that Williams was trying to convey that his
information was of value. On January 22, 2008, Williams sent
an email to Steve Atwater, a member of the investors’ com-
mittee, asking for $172,000 in exchange for Williams’ infor-
mation. Atwater forwarded the message to the rest of the
committee.
On January 24, 2008, Williams sent an email to Kaufman
and the members of the investors’ committee, as well as a
UNITED STATES v. WILLIAMS 10735
number of other individuals working on the IMA case. In the
email, which included many typographical errors, Williams
introduced himself as the owner of an investigative company
and wrote that he had investigated the IMA case for two years
and across six states. He implied that he had information indi-
cating that individuals other than Kirk Wright were involved
in hiding the IMA money and mentioned that his mailbox had
been blown up by someone who was scared of his informa-
tion.
Ryan O’Neal, a member of the investors’ committee,
emailed Williams in January to express his interest in Wil-
liams’ information. Williams replied, explaining that he had
spent 2400 hours of his time and over $69,000 investigating
the IMA case. The two began communicating by phone; Wil-
liams asked O’Neal for $250,000 in payment and O’Neal
offered to meet Williams at the Portland airport to discuss
Williams’ information. When they met at the airport, Wil-
liams described to O’Neal a conspiracy theory that people
close to the IMA case were hiding the missing money. Wil-
liams showed O’Neal an accounts payable ledger, which
O’Neal’s lawyer subsequently determined was not indicative
of any conspiracy.
On February 9, 2008, Williams sent O’Neal another email.
The email, which included a number of typographical errors
and expletives, expressed frustration that he had not yet been
paid for his investigation and again mentioned the mailbox
bomb as evidence that “obviously I have what somebody else
wants.” He asked O’Neal to wire $250,000 to an account in
order for the E.F.E. Foundation to begin releasing its informa-
tion. He closed the email by stating that as of February 12, his
investigation would stop and his “distributing” would begin.
Williams followed up with another email on February 10, full
of misspellings and foul language, railing against O’Neal as
untrustworthy and closing by saying, “Here at the E.F.E., the
right people love us, the right people respect us, and the right
people fear us.” Williams wrote again on February 11, stating
10736 UNITED STATES v. WILLIAMS
that if O’Neal had trusted E.F.E. from the beginning, “we
would both already have our money.”
On February 18, 2008, Williams emailed the investors’
committee. He claimed that the government and other individ-
uals involved with the investigation, including attorneys and
members of the committee, already had Williams’ informa-
tion about the IMA fraud and were covering it up. He wrote
that he had been shot, that his mailbox had been blown up,
and that he was getting calls from a computer-generated voice
at night. He complained that all he had ever asked for were
his expenses back. He closed the email with expletive-filled
invective, stating, “I wont [sic] wait for karma to come to you,
I’ll be bringing it to you my-self immediately. So you all bet-
ter start paying attention to everything around you because
hell is soon to be in full session.” A number of the recipients
of this email took it to be a threat of physical harm.
In late April 2008, Williams drove to Atlanta to attend Kirk
Wright’s trial. Williams was arrested at the federal courthouse
and a search of his van revealed guns, ammunition, blasting
caps, other explosives, a copy of the Anarchist Cookbook on
a floppy disk, and a walking cane altered to be used as a fire-
arm. Williams pled guilty to firearms charges in the Northern
District of Georgia in August of 2008 and was sentenced to
probation.
II. PROCEDURAL BACKGROUND
In a Superseding Indictment returned June 17, 2010, in the
Western District of Washington, Williams was charged with:
Counts 1-3, wire fraud, in violation of 18 U.S.C. § 1343,
based on the emails Williams sent on January 24, February 9,
and February 18; Count 4, transmitting interstate communica-
tions with intent to extort, in violation of 18 U.S.C. § 875(b),
based on the February 18 email; Count 5, possession of an
unregistered firearm (the mailbox pipe bomb), in violation of
26 U.S.C. §§ 5841, 5861(d), and 5871; Count 6, destruction
UNITED STATES v. WILLIAMS 10737
of a letter box, in violation of 18 U.S.C. § 1705; Count 7,
making a false official statement, in violation of 18 U.S.C.
§ 1001; Count 8, possession of an unregistered firearm (the
zip gun), in violation of §§ 5861(d) and 5871; and Count 9,
possession of a firearm without a serial number (the zip gun),
in violation of §§ 5861(i) and 5871. Williams was tried before
a jury and found guilty on all nine counts.
The district court sentenced Williams to 96 months’ impris-
onment. Following the recommendations in the Pre-Sentence
Investigation Report (“PSR”), it grouped Williams’ offenses
into two groups: (1) Counts 1 through 7; and (2) Counts 8 and
9. The PSR recommended that Counts 1 through 7, which
included the convictions for wire fraud, extortion, possession
of the pipe bomb used to blow up the mailbox, destruction of
a letter box, and the false statement made in connection with
the mailbox explosion, be grouped together because they rep-
resented “a common scheme.” Counts 8 and 9, the two zip
gun convictions, were grouped together in the PSR because
they were unrelated to the extortion scheme, but were related
to each other. The district judge stated at sentencing that he
agreed with the PSR’s grouping, because “[t]his whole mail-
box blowing up business was a part of the fraud charges. I
don’t think you can properly separate that out by time or any-
thing else in the way that the defense has suggested.” The dis-
trict court also applied a number of sentencing enhancements
discussed in further detail below. Williams timely appealed
his conviction and sentence.
III. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a). We review de novo the district court’s decisions
regarding the grouping of convictions for purposes of sentenc-
ing. United States v. Melchor-Zaragoza, 351 F.3d 925, 927
(9th Cir. 2003). We review the district court’s interpretation
of the Sentencing Guidelines de novo, its application of the
Guidelines to the facts for abuse of discretion, and its factual
10738 UNITED STATES v. WILLIAMS
findings for clear error. United States v. Franco-Flores, 558
F.3d 978, 980 (9th Cir. 2009) (quoting United States v.
Alvarez-Hernandez, 478 F.3d 1060, 1063 (9th Cir. 2007)).
IV. DISCUSSION
A. Grouping of Charges
[1] U.S.S.G. § 3D1.2 provides that for purposes of sen-
tencing, “[a]ll counts involving substantially the same harm
shall be grouped together into a single Group.” Williams con-
tends that Counts 1 through 4, the wire fraud and extortion
charges, should be grouped together and that Counts 5
through 7, the charges related to the mailbox bombing, should
be grouped separately. The government argues that Counts 1
through 7 involve “substantially the same harm” because they
“involve the same victim and two or more acts or transactions
connected by a common criminal objective or constituting
part of a common scheme or plan.” U.S.S.G. § 3D1.2(b).2
Williams responds that the victims of his mailbox-related
offenses and his wire fraud and extortion offenses were dis-
tinct, and so the counts should not have been grouped
together. We agree.
2
At oral argument, the government raised the new contention that
U.S.S.G. § 3D1.2(c) could justify the district court’s decision to group
Counts 1 through 7 together for sentencing purposes. That section pro-
vides that counts should be grouped together “[w]hen one of the counts
embodies conduct that is treated as a specific offense characteristic in, or
other adjustment to, the guideline applicable to another of the counts.”
Because the government failed to raise this contention until oral argument,
Williams was not provided “a fair opportunity to respond comprehen-
sively to [the] claim” and this Court was deprived “of the benefit of a
robust debate informed by zealous advocacy.” Outdoor Media Grp., Inc.
v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007). We therefore find
the new argument waived, although the Government is free to reargue its
merits before the district court on remand. See United States v. Riley, 335
F.3d 919, 930 n.6 (9th Cir. 2003).
UNITED STATES v. WILLIAMS 10739
[2] As Williams correctly points out, to satisfy the require-
ments of § 3D1.2(b), it is not enough that Counts 1 through
7 were all part of a single scheme to defraud. We must instead
specifically consider whether the fraud, extortion, and mail-
box explosion counts all represent one common scheme with
the same victim. See United States v. Boos, 127 F.3d 1207,
1209-13 (9th Cir. 1997) (holding that even though there was
a common scheme to distribute child pornography, there was
not a single common victim because multiple girls were
depicted and so grouping was not appropriate). Neither the
PSR nor the district court examined this question.
[3] Application Note 2 to § 3D1.2 explains:
The term “victim” is not intended to include indirect
or secondary victims. Generally, there will be one
person who is directly and most seriously affected by
the offense and is therefore identifiable as the victim.
For offenses in which there are no identifiable vic-
tims (e.g. drug or immigration offenses, where soci-
ety at large is the victim), the “victim” for purposes
of subsection (a) and (b) is the societal interest that
is harmed. In such cases, the counts are grouped
together when the societal interests that are harmed
are closely related.
Note 2 further states that ambiguities should be resolved in
accordance with the purpose of § 3D1.2, which is to identify
counts involving substantially the same harm. We conclude
that the interest most directly damaged by Williams’ letter
box explosion was the societal interest in protecting the integ-
rity of the mail system. Accordingly, the primary harm of the
mailbox incident was to local law enforcement, the Postal
Service, and residents of Williams’ town who were placed in
fear because of the bombing.
The statute criminalizing malicious destruction of a letter
box, 18 U.S.C. § 1705, supports this conclusion. See Boos,
10740 UNITED STATES v. WILLIAMS
127 F.3d at 1210-11 (considering which individual or group
Congress thought to be the primary victim protected by stat-
utes criminalizing distribution of child pornography). When a
letter box is designated an “authorized depository” of the
mail, “it becomes an essential part of the Postal Service’s
nationwide system for the delivery and receipt of mail,” and
that letter box is provided with “the protection of the federal
statutes prohibiting the damaging or destruction of mail
deposited therein.” U.S. Postal Serv. v. Council of Green-
burgh Civic Ass’ns, 453 U.S. 114, 123, 128 (1981). Section
1705 is therefore primarily designed to protect the integrity of
the postal system, in society’s general interest.
[4] It is undoubtedly true that the IMA investors were ulti-
mately also victims of Williams’ decision to blow up his own
mailbox; he mentioned the destruction of his mailbox a num-
ber of times in his emails to the investors in an attempt to bol-
ster his claim that he was in possession of vital information.
The Guidelines specifically provide, however, that indirect or
secondary victims are not meant to be included in the term
“victim” under § 3D1.2(b). Williams did not mention the
mailbox bombing to the IMA investors until three months
after it took place, although he clearly had his fraudulent
scheme in mind when he planned the explosion.
[5] The effect of the bombing on the community of Che-
halis, Washington, was much more immediate. Section
3D1.2(b) is intended to capture and group “counts that are
part of a single course of conduct with a single criminal
objective and represent essentially one composite harm to the
same victim.” § 3D1.2 cmt. n.4. In this case, there was a sig-
nificant and distinct additional harm to the community of
Chehalis that would be unaccounted for in Williams’ sentence
if his mailbox offenses were grouped with his extortion and
fraud offenses. Accordingly, we conclude that the IMA inves-
tors can only be considered indirect or secondary victims of
the mailbox bombing.
UNITED STATES v. WILLIAMS 10741
[6] Similarly, the primary victim of Williams’ possession
of a pipe bomb and his false statement is society in general,
rather than the IMA investors, who were only indirectly
affected by Williams’ acts at his home in Washington. See
United States v. Gastelum-Almeida, 298 F.3d 1167, 1175 (9th
Cir. 2002) (determining that false statement statutes protect a
societal interest in the provision of truthful information to law
enforcement); United States v. Nanthanseng, 221 F.3d 1082,
1084 (9th Cir. 2000) (explaining that the societal interest most
directly threatened by the possession of firearms is preventing
the loss of personal safety resulting from the violent physical
assaults that are facilitated by the proliferation of unregistered
weapons).
[7] As a result, the primary victim of the mailbox-related
charges, society in general, was distinct from the primary vic-
tim of the extortion and wire fraud charges, the IMA inves-
tors, even though all of the acts were ultimately linked as part
of Williams’ common scheme to defraud the IMA investors.
We therefore reverse the district court’s decision to group
Counts 1 through 7 together and remand for regrouping and
resentencing.
B. Sentencing Enhancements
Williams appeals five sentencing enhancements imposed
by the district court. We conclude that three of these enhance-
ments were imposed in error and remand for recalculation of
Williams’ sentencing range.
1. Enhancement Under U.S.S.G. § 2B3.2(b)(1)
Williams first challenges a two-level enhancement that the
district court imposed under U.S.S.G. § 2B3.2(b)(1). Wil-
liams’ base offense level for his first group of offenses
(Counts 1-7) was determined by § 2B3.2, which deals with
offenses of extortion by force, threat of force, or serious dam-
age. Section 2B3.2(b)(1) provides for an increase of two
10742 UNITED STATES v. WILLIAMS
levels if the offense “involved an express or implied threat of
death, bodily injury, or kidnapping[.]” Williams argues that
because § 875(b) already only applies to extortion based on
threats of injury or kidnapping, the district court’s application
of the § 2B3.2(b)(1) enhancement constituted improper dou-
ble counting. He also argues that there was insufficient proof
that he threatened specific harm to any recipient of his Febru-
ary 18 email.
“Double counting” occurs where the Guidelines use the
same conduct more than once to increase the severity of a
sentence. United States v. Parker, 136 F.3d 653, 654 (9th Cir.
1998). As this court explained in United States v. Reese:
[T]he use of a single aspect of conduct both to deter-
mine the applicable offense guideline and to increase
the base offense level mandated thereby will consti-
tute impermissible double counting only where,
absent such conduct, it is impossible to come within
that guideline. If, on the other hand, it is possible to
be sentenced under a particular offense guideline
without having engaged in a certain sort of behavior,
such behavior may be used to enhance the offense
level, for in this situation, the guideline’s base
offense level will not necessarily have been set to
capture the full extent of the wrongfulness of such
behavior.
2 F.3d 870, 895 (9th Cir. 1993). The latter situation exactly
describes the circumstances in this case. As Application Note
2 makes clear, § 2B3.2 applies if there was any threat that rea-
sonably could be interpreted as one to injure a person or phys-
ically damage property, or any comparably serious threat.
Section 2B3.2 is thus applicable to crimes such as 18 U.S.C.
§ 1030(a)(7) (threats to impair the operation of a computer),
which do not require any threat of bodily injury or kidnap-
ping. As a result, Williams’ double counting claim fails.
UNITED STATES v. WILLIAMS 10743
[8] Furthermore, there was certainly sufficient evidence to
apply the § 2B3.2(b)(1) enhancement in Williams’ case,
because Jury Instruction 18 specifically required that the jury
find there was a threat made with the intent of placing a per-
son in fear of bodily harm or death. Because the jury found
Williams guilty of a § 875(b) offense, the district court was
justified in relying on its findings in applying the
§ 2B3.2(b)(1) enhancement.
2. Enhancement Under U.S.S.G. § 2B3.2(b)(2)
[9] Williams also contends that the district court erred in
applying the sentencing enhancement provided for in
§ 2B3.2(b)(2), which allows for an increase in sentence if the
amount demanded as a part of the extortion crime exceeds a
given amount. The district court found that it was established
beyond a reasonable doubt that the defendant had demanded
more than $50,000 from IMA investors. This factual finding
was not clearly erroneous. The government’s evidence
showed that Williams had asked O’Neal for $250,000 on
many occasions and had asked Atwater for $172,000 before
he made his threat in the February 18 email. The district court
therefore did not err in applying this enhancement based on
the amount of money Williams demanded.
3. Firearm Enhancement Under U.S.S.G.
§ 2B3.2(b)(3)(iii)
Section 2B3.2(b)(3)(iii) provides for a five level enhance-
ment “if a firearm was brandished or possessed[.]” The dis-
trict court applied this enhancement to the extortion offense
because the government proved that Williams possessed a
destructive device and other guns at the time he destroyed his
mailbox. Williams argues that there was no evidence that he
possessed a firearm at the time he sent the extortionate email
and so the § 2B3.2(b)(3)(iii) enhancement does not apply.
In determining offense characteristics and adjustments, the
district court can take into account both the offense of convic-
10744 UNITED STATES v. WILLIAMS
tion and all “relevant conduct,” as defined in U.S.S.G.
§ 1B1.3. The particular offense of conviction being consid-
ered by the district court in applying the firearm enhancement
was extortion, because it provided the baseline offense level.
Because no firearm was used during the transmission of the
extortionate email, in order to determine if the district court
appropriately applied the firearm enhancement, we must con-
sider whether the mailbox bombing constitutes “relevant con-
duct” to the extortion offense under § 1B1.3.
Relevant conduct includes, inter alia, all acts and omissions
committed, aided, abetted, counseled, commanded, induced,
procured, or willfully caused by the defendant “that occurred
during the commission of the offense of conviction, in prepa-
ration for that offense, or in the course of attempting to avoid
detection or responsibility for that offense[.]”
§ 1B1.3(a)(1)(A). The mailbox bombing took place months
before the extortionate email was sent, and so cannot be char-
acterized as occurring during the commission of the offense
of extortion. The key question, then, is whether the mailbox
bombing occurred “in preparation for” the extortion offense.
[10] We conclude that it did not. Williams bombed his
mailbox in order to convince the IMA victims that he had
valuable information, and so the mailbox bombing was likely
committed “in preparation” for his fraud offenses. But there
is no indication that in October of 2007, Williams was already
preparing to threaten the IMA investors’ committee as he did
in his February 18, 2008, email. Williams’ destruction of his
own mailbox did nothing to bolster the credibility of his
extortionate threat and so cannot be considered to have been
committed in preparation for that offense. The mailbox bomb-
ing is thus not “relevant conduct” under § 1B1.3 and cannot
be considered for purposes of enhancing Williams’ extortion
sentence. As a result, the district court erred in enhancing
Williams’ sentence based on the use of a firearm.
UNITED STATES v. WILLIAMS 10745
4. Leadership Adjustment Under U.S.S.G. § 3B1.1(c)
[11] The district court enhanced Williams’ sentence for
extortion pursuant to U.S.S.G. § 3B1.1(c) because the court
determined that it had been proven beyond a reasonable doubt
that Williams was the leader of a group of three people at the
time of the mailbox bombing. For the same reasons laid out
above, the mailbox offense was not “relevant conduct” for
purposes of sentencing for extortion and so cannot be taken
into account in determining whether Williams was eligible to
receive a leadership enhancement for his extortion offense.
The district court’s decision to enhance Williams’ sentence
based on his leadership role was therefore also in error.
5. Obstruction of Justice Adjustment
The district court added a two-point adjustment to Wil-
liams’ extortion sentence because he was convicted of making
a false statement to law enforcement. U.S.S.G. § 3C1.1 allows
such an enhancement if the defendant willfully obstructed or
impeded, or attempted to obstruct or impede, the administra-
tion of justice with respect to the investigation, prosecution,
or sentencing “of the instant offense of conviction” or if the
obstructive conduct related to the offense of conviction, any
relevant conduct, or a closely related offense, such as that of
a co-defendant.
[12] For the same reasons laid out above, Williams’ false
statements made in connection with the mailbox explosion are
not part of the instant offense of conviction, extortion, and are
not “relevant conduct.” See also United States v. Ford, 989
F.2d 347, 352 (9th Cir. 1993) (“[T]he language of section
3C1.1 does not encompass any and all obstructive conduct
that a defendant may have attempted or committed, but
instead applies only to willful attempts to obstruct or impede
the administration of justice [in relation to] the instant
offense.”) (internal quotation marks omitted). The district
10746 UNITED STATES v. WILLIAMS
court’s imposition of an obstruction enhancement was there-
fore also in error.
V. CONCLUSION
For the foregoing reasons, we vacate Williams’ sentence
and remand for regrouping and resentencing in conformity
with this opinion.
Sentence VACATED and REMANDED.