United States v. Sims, Donald

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-2092 & 02-2781
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DONALD SIMS and DAVID LAMBERTSEN,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 01 CR 4—Robert L. Miller, Jr., Chief Judge.
____________
ARGUED APRIL 2, 2003—DECIDED MAY 29, 2003
____________
Before BAUER, EASTERBROOK, and WILLIAMS, Circuit
Judges.
BAUER, Circuit Judge. A jury convicted Defendants
Donald Sims and David Lambertsen of conspiracy to
commit mail fraud after acquitting them of the underlying
charges of mail fraud. The district court sentenced Sims to
fifty-five months’ imprisonment and Lambertsen to sixty
months’ imprisonment and ordered both to pay restitution.
Sims appeals only the supplemental jury instruction issued
by the district court concerning the proper standard of in-
tent for conspiracy to commit mail fraud. Lambertsen joins
Sims in appealing that issue and also appeals the district
court’s imposition of three sentencing enhancements un-
2 Nos. 02-2092 & 02-2781
der the United States Sentencing Guidelines Manual
(“USSG”)—vulnerable victims (§ 3A1.1(b)(1)); obstruction of
justice (§ 3C1.1); and abuse of a position of trust (§ 3B1.3).
For the following reasons, we affirm the district court.
BACKGROUND
Sims’ and Lambertsen’s association began through busi-
ness ventures they joined in the Northern Indiana area
during the late 1990s, none of which ever became success-
ful. The initial venture was launched by Pat Ballinger and
two other individuals in 1995 under the names “Genstar”
and “Auto Plus.” That program offered a Mastercard credit
card to individuals who bought a car from a particular
dealer. After that venture failed, Ballinger, Sims, and
Lambertsen created “Dealer Direct,” a program aimed at
securing investments primarily from elderly clients through
brokers in Ohio. The brokers induced victims, to whom the
brokers had often sold medicare or nursing home insurance,
to invest in so-called nine-month promissory notes issued
by Dealer Direct.
In the course of defrauding these investors, Dealer Direct
and its officials made false and materially misleading state-
ments, orally, and in writing that passed through the
United States mail. The notes were designed to look im-
pressive and to resemble an insurance document or a stock
certificate; in fact, they were nothing of the kind. Sims’ and
Lambertsen’s signatures, along with other Dealer Direct of-
ficials’ signatures, appeared on the notes. The notes falsely
represented that they were insured by specific car titles or
loans, a coalition of major insurance companies, and United
States Treasury bonds. The notes purported to pay the in-
vestor eleven and one-half percent interest at the end of
nine months. Investors also had the option of renewing the
investment with a new promissory note at that time.
Nos. 02-2092 & 02-2781 3
Dealer Direct raised money from new investors to pay in-
terest to old investors, and corporate officials used investor
money for payroll and operating expenses as well as person-
al gain. Sims brought in the initial investors, and new
investors were hand-picked by brokers in Ohio because they
had savings accounts, were less sophisticated, and made
“an easier sale.” In fact, seventy-nine percent of the inves-
tors were over the age of seventy, some with health prob-
lems and some residing in assisted-living facilities. The
brokers told investors that their money was safe and that
the investment was a “sure thing.” Some victims even fell
for the scheme more than once.
Sims joined Genstar in early 1997, after being recruited
by Ballinger because Sims represented that he had several
insurance clients who might be good candidates for the
nine-month promissory notes. Lambertsen joined the busi-
ness in the fall of 1997, eventually succeeding Ballinger as
President of the company in July or August of 1998. Prior
to joining Dealer Direct, Lambertsen understood that
Ballinger’s previous business venture (Genstar) had been
shut down because it failed. As the President of Dealer
Direct, Lambertsen possessed hiring and firing power and
maintained the company’s financial records. He established
a new bank account for the company, giving Sims and
others access to the account.
When he took over as President, Lambertsen was aware
of the manner in which brokers in Ohio solicited invest-
ments from elderly victims. He and Ballinger met with
three brokers, Dixie Grinnell and Alan and Wiley Welton,
approximately every two weeks to report on the financial
condition of the business. The brokers, of course, earned a
commission for each sale of a nine-month note. Lambertsen
claimed that he made the brokers aware of the lack of in-
surance and security for the notes and that he was attempt-
4 Nos. 02-2092 & 02-2781
ing to obtain financing to pay all of the notes.1 As part of
that effort, Lambertsen purchased stock with investor mon-
ey without disclosing the purchase to investors. When
called as a witness for Lambertsen, however, Grinnell testi-
fied that Lambertsen never directed her to inform investors
of the risk and that had she known the business was
floundering, or that the investment brochure contained
false representations, she would not have suggested that
her clients invest.
At trial, Lambertsen acknowledged that Dealer Direct’s
revenues never exceeded its expenses and that the business
was clearly floundering by late 1997. In fact, the business
closed its doors in December 1998, shortly after Lambertsen
stepped down as President. Lambertsen, however, contin-
ued to solicit and receive investors’ money by issuing prom-
issory notes as late as April 30, 1999, well after the busi-
ness was defunct.
In February 2001, a grand jury returned a forty-nine
count indictment against Sims, Lambertsen, Ballinger, and
Michael Kline, another Dealer Direct employee. Sims and
1
On cross-examination, the following exchange took place
between Lambertsen and the prosecution regarding the fraudu-
lent brochures:
Lambertsen: I instructed both Dixie Grinnell and Alan
Welton to not distribute that material, that
sales material.
Prosecutor: Okay. And did you also tell her, “Oh, and by
the way, tell the investors that what we’re
doing with the money is very risky?”
Lambertsen: Yes, I did tell her that, in so many words.
Prosecutor: You told Dixie Grinnell, “Tell your investors
this is risky.” Is that your testimony?
Lambertsen: Yes, it is my testimony.
(emphasis added).
Nos. 02-2092 & 02-2781 5
Lambertsen were each charged with multiple counts of mail
fraud, and aiding and abetting therein, in violation of 18
U.S.C. §§ 1341 and 1342, while all four were charged with
conspiracy to commit mail fraud, and aiding and abetting
therein, in violation of 18 U.S.C. §§ 371 and 372. Ballinger
and Kline reached plea agreements with the government
and testified against Sims and Lambertsen.
The trial in the district court took place in early Novem-
ber 2001, with final jury instructions being issued to the ju-
ry on November 13, to which neither Sims nor Lambertsen
objected. During deliberations, the jury propounded three
questions to the district court. One question raised an issue
regarding the proper standard of intent that the govern-
ment must prove in order to convict Sims and Lambertsen
of conspiracy to commit mail fraud. Noting that intent to
defraud must be proven to convict on the underlying
charges of mail fraud, the jury asked, “[I]s the intent to de-
fraud also a proposition the government must prove in the
charge conspiracy to commit mail fraud?”
Sims’s counsel urged the district court to reply in the
affirmative and objected to the district court’s decision to
reiterate and expand slightly on the initial instruction.
Lambertsen’s counsel, however, made no objection to the
supplemental instruction. The district court responded to
the jury’s question by redefining a conspiracy, reiterating
the elements of conspiracy to commit mail fraud from the
final jury instructions, and heavily emphasizing that the
jury should give equal consideration and weight to each
instruction and that no single instruction was more impor-
tant than the others.2
2
Specifically, the district court stated the following:
In an attempt to answer your question, I’m going to focus on
one of the instructions. And in doing that, I want to be sure
(continued...)
6 Nos. 02-2092 & 02-2781
The jury finished its deliberations and returned not guilty
verdicts for Sims and Lambertsen on the underlying mail
fraud charges but convicted them of conspiracy to commit
mail fraud. Sims and Lambertsen immediately moved for
new trials arguing that the district court’s supplemental
instruction was erroneous. The district court acknowledged
Sims’ earlier objection to the supplemental instruction but
denied both requests for a new trial. The court later sen-
tenced Sims to fifty-five months’ imprisonment, followed by
2
(...continued)
that you understand that all of these instructions are equally
important. No one instruction is more important than others,
and you may find other instructions bear upon the answer to
your question.
***
A conspiracy is an agreement between two or more persons to
accomplish an unlawful purpose. In this indictment, the
unlawful purpose alleged is that of mail fraud. . . . To sustain
the charge of conspiracy with respect to either defendant, the
government must prove the following propositions with
respect to that defendant. First, that the conspiracy existed.
And that means the conspiracy to commit mail fraud alleged
in the indictment. Government must prove that the conspir-
acy existed. Second, that the defendant knowingly became a
member of the conspiracy with an intention to further that
conspiracy, that conspiracy being conspiracy to commit mail
fraud alleged in the indictment. And third, that an overt act
was committed by at least one conspirator in furtherance of
that conspiracy.
Again, I repeat that all of the instructions are equally
important. None is more important than any other. I have
focused on [the conspiracy to commit mail fraud instruction]
because I think that’s the best—the best I can do to answer
your question, to focus on that. But please bear in mind that
all of the instructions that you have received are equally
important.
Nos. 02-2092 & 02-2781 7
three years of supervised release, and ordered him to pay
$2,063,024.15 in restitution and a $100.00 special assess-
ment. The district court then sentenced Lambertsen to
sixty months in prison, followed by three years of super-
vised release, and ordered him to pay $1,521,801.30 in res-
titution and a $100.00 special assessment. In sentenc-
ing Lambertsen, the district court applied three enhance-
ments under the USSG—1) vulnerable victims under
§ 3A1.1(b)(1), 2) obstruction of justice under § 3C1.1, and 3)
abuse of a position of trust under § 3B1.3. This appeal
ensued.
ANALYSIS
A. Supplemental Jury Instruction
The first issue we consider is whether the supplemental
instruction was proper. When a defendant objects to the is-
suance of such an instruction, we review the district court’s
decision for an abuse of discretion. In the absence of an ob-
jection, our review is limited to plain error. United States v.
Young, 316 F.3d 649, 661 (7th Cir. 2002); United States v.
Skidmore, 254 F.3d 635, 639 (7th Cir. 2001); see also FED.
R. CIV. P. 51 (2003) (“No party may assign as error the giv-
ing or the failure to give an instruction unless that party
objects thereto before the jury retires to consider its verdict,
stating distinctly the matter objected to and the grounds of
the objection.”). The plain error standard is designed to
correct particularly egregious errors that would amount to
a miscarriage of justice, implying that the defendant would
not have been convicted but for the error. Skidmore, 254
F.3d at 639. Because Sims objected to the language of the
district court’s supplemental instruction, we will review his
claim for an abuse of discretion and review Lambertsen’s
claim for plain error.
We have held that the district court retains broad dis-
cretion in deciding how to respond to a question propounded
8 Nos. 02-2092 & 02-2781
from the jury and that the court has an obligation to dispel
any confusion quickly and with concrete accuracy. Young,
316 F.3d at 661. Issuing a supplemental instruction to the
jury is an acceptable means of addressing jury confusion.
Id. When examining the appropriateness of the language in
a supplemental instruction, we consider: 1) whether the
instruction as a whole fairly and adequately treated the
issue; 2) whether the supplemental instruction was a
correct statement of law; and 3) whether the district court
answered the jury’s question specifically. Id. at 662.
Here, the jury specifically sought clarification of the prop-
er standard of intent for conspiracy to commit mail fraud.
Neither Sims nor Lambertsen objected to the district court’s
decision to issue a supplemental instruction. Sims objected
only to the language of the instruction; Lambertsen made
no such objection and agreed to the language of the supple-
mental instruction.
In framing the language, the district court did not abuse
its discretion in choosing not to instruct as Sims urged.
Conspiracy to commit mail fraud requires that the govern-
ment prove these elements: 1) that the conspiracy to com-
mit mail fraud existed; 2) that the defendant became a
member of the conspiracy to commit mail fraud with an in-
tention to further that conspiracy; and 3) that an overt act
was committed by at least one conspirator in furtherance of
the conspiracy to commit mail fraud. See United States v.
Shelton, 669 F.2d 446, 450-51 (7th Cir. 1982);3 United
States v. Craig, 573 F.2d 455, 486 (7th Cir. 1977).
3
We also note that Shelton demonstrates that it must also be
reasonably foreseeable that the mails will be used in furtherance
of the conspiracy. Shelton, 669 F.2d at 451. Here, there is no
argument that Sims and Lambertsen contemplated using the
mails to further this conspiracy.
Nos. 02-2092 & 02-2781 9
The supplemental instruction was not an abuse of dis-
cretion for two reasons. First, the court addressed the exact
question propounded by the jury and carefully reminded
the jury that each instruction was important and that no
single instruction should be considered in isolation, thereby
fairly and adequately treating the issue as a whole. Second,
the supplemental instruction correctly stated the legal
standard of intent for conspiracy to commit mail fraud.
Which, of course means that there was no plain error in
giving the instruction. Accordingly, neither Sims nor
Lambertsen prevails on this issue.
B. Vulnerable Victims Enhancement
The second issue is whether the district court committed
clear error by imposing a sentence enhancement under
USSG § 3A1.1(b)(1) because Lambertsen defrauded “vulner-
able victims.” We review the district court’s factual de-
termination that Lambertsen’s victims were vulnerable
within the meaning of § 3A1.1(b)(1) for clear error. United
States v. Rumsavich, 313 F.3d 407, 411 (7th Cir. 2002);
United States v. Parolin, 239 F.3d 922, 926 (7th Cir. 2001).
Section 3A1.1(b)(1) provides for a two-level increase in the
defendant’s sentence if “the defendant knew or should have
known that a victim of the offense was a vulnerable victim.”
USSG § 3A1.1(b)(1) (2003).
Application Note 2 to § 3A1.1 provides that,
[f]or purposes of subsection (b), “vulnerable victim”
means a person (A) who is a victim of the offense of con-
viction and any conduct for which the defendant is ac-
countable . . . and (B) who is unusually vulnerable due
to age, physical or mental condition, or who is other-
wise particularly susceptible to the criminal conduct.
USSG § 3A1.1, cmt. n.2. The government need only estab-
lish that a single victim was vulnerable in order for the
10 Nos. 02-2092 & 02-2781
enhancement to apply. Parolin, 239 F.3d at 926. Further,
no other factor need accompany age so long as the victim’s
vulnerability is related to the victim’s age. See United
States v. Williams, 258 F.3d 669, 672-73 (7th Cir. 2001).
Elderly victims satisfy the requirements of § 3A1.1(b)(1),
especially when their financial investments and financial
security are at issue. See United States v. Seward, 272 F.3d
831, 841 (7th Cir. 2001); United States v. Stewart, 33 F.3d
764, 770-71 (7th Cir. 1994); United States v. Haines, 32
F.3d 290, 293 (7th Cir. 1994).
There is no doubt that age was central to Lambertsen’s
scheme to defraud investors in Dealer Direct; as the district
court aptly found, many of the victims were in the “twilight
of their lives.” In fact, seventy-nine percent of the victims
were over the age of seventy and some resided in assisted-
living facilities. Lambertsen admitted that Dealer Direct’s
brokers chose their victims, many of whom they had pre-
viously sold medicare or nursing home insurance, because
they had savings accounts, were less sophisticated in finan-
cial matters, and “made an easier sale.” These victims were
often induced to invest money earmarked for retirement
purposes, and this fact was known to Lambertsen. The
district court did not commit clear error by applying the
§ 3A1.1(b)(1) enhancement to Lambertsen’s sentence be-
cause his criminal conduct targeted vulnerable victims.
C. Obstruction of Justice Enhancement
Next, we consider whether the district court properly ap-
plied a sentence enhancement to Lambertsen under USSG
§ 3C1.1 for obstruction of justice. As before, we review the
application of this enhancement for clear error. United
States v. Griffin, 310 F.3d 1017, 1022 (7th Cir. 2002). USSG
§ 3C1.1 authorizes a two-level enhancement if the defen-
dant wilfully obstructs or impedes the administration of
justice during the investigation, prosecution, or sentencing
Nos. 02-2092 & 02-2781 11
of a crime and that obstructive conduct is related to the of-
fense for which the defendant was convicted. USSG § 3C1.1
(2003). Application Note 4 to § 3C1.1 provides that this
enhancement is intended to apply, inter alia, to “commit-
ting, suborning, or attempting to suborn perjury.” USSG
§ 3C1.1, cmt. n.4.
This Court has, therefore, held that the obstruction of jus-
tice enhancement can be applied to defendants who commit
perjury on the witness stand. United States v. Jefferson,
252 F.3d 937, 942-43 (7th Cir. 2001); United States v.
Robinson, 30 F.3d 774, 787-88 (7th Cir. 1994). A defendant
perjures himself if he “ ‘gives false testimony concerning a
material matter with the willful intent to provide false tes-
timony, rather than as a result of confusion, mistake, or
faulty memory.’ ” Jefferson, 252 F.3d at 942-43 (quoting
United States v. Dunnigan, 507 U.S. 87, 94 (1993)). If the
defendant objects to the application of this enhancement,
the district court must make a specific finding that the de-
fendant committed perjury. Robinson, 30 F.3d at 787-88.
In Lambertsen’s case, the district court specifically found
that Lambertsen committed perjury by wilfully providing
false testimony concerning statements he made to Dixie
Grinnell. At trial, Lambertsen testified that he told Grin-
nell to inform investors that the promissory notes were a
risky investment. When called as a witness for Lambertsen,
however, Grinnell denied being told that information by
Lambertsen. The district court found Grinnell’s testimony
more credible given her continued use of the fraudulent bro-
chures and the sheer number of investors. The court noted
that on cross-examination Lambertsen initially answered
that he had given Grinnell the disclaimer “in so many
words,” but when pressed further, Lambertsen unequivo-
cally responded that he told her to inform investors of the
risk.
The court also determined that Lambertsen’s testimony
was material and a point on which Lambertsen was not
12 Nos. 02-2092 & 02-2781
likely to be mistaken or confused. Accordingly, the district
court found that Lambertsen wilfully gave false testimony,
knowing that he never directed Grinnell to inform investors
of the risk. Given those findings and the fact that
Lambertsen argues only that the district court should not
have believed Grinnell over him, we see no reason to dis-
turb the district court’s decision and certainly do not find
clear error with the application of the § 3C1.1 enhancement.
D. Abuse of a Position of Trust
Finally, we deal with whether the district court properly
applied an enhancement to Lambertsen’s sentence under
USSG § 3B1.3 for abusing a position of trust. Our review of
the district court’s application of this enhancement is like-
wise for clear error. United States v. Mabrook, 301 F.3d 503,
510 (7th Cir. 2002). A two-level increase in a defen-
dant’s sentence under USSG § 3B1.3 is authorized if he
abused a position of public or private trust “in a manner
that significantly facilitated the commission or concealment
of the [underlying] offense.” USSG § 3B1.3 (2003).
Generally, individuals entrusted with professional or
managerial discretion constitute persons holding a position
of trust because they are subject to significantly less super-
vision. USSG § 3B1.3, cmt. n.1. We have held that this
enhancement applies to defendants who serve as corporate
officers, utilize fraudulent documents to induce investors,
and employ the corporate form to conduct their criminal
activities. Mabrook, 301 F.3d at 510; see also United States
v. Boyle, 10 F.3d 485, 489 (7th Cir. 1993) (applying § 3B1.3
enhancement to president of company, in part, because he
acts as agent of client-victims). In United States v. Mabrook,
the defendant used his position as the owner of a company
to lure investors and conceal his fraudulent activities.
Mabrook, 301 F.3d at 510. The Mabrook court also found
that the defendant assumed a fiduciary duty to his inves-
Nos. 02-2092 & 02-2781 13
tors by virtue of his position as the owner, further occupy-
ing a position of trust under § 3B1.3. Id.
Lambertsen does not argue that, as the President of
Dealer Direct, he did not occupy a position of trust, but only
states that he did not utilize that position to facilitate a
crime. Given the nature of his power as the President of
Dealer Direct, his knowledge of the manner in which bro-
kers chose their victim-investors, his creation of and access
to corporate bank accounts, his purchase of speculative
stock without investors’ knowledge, and his issuance of
fraudulent promissory notes as late as April 1999 (well
after the business was defunct), there was no clear error in
the application of this enhancement to Lambertsen’s sen-
tence. Clearly, he abused a position of trust with respect to
Dealer Direct’s investors in order to facilitate the conspiracy
to commit mail fraud.
Accordingly, the decision of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-29-03