United States v. Patterson

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

____________

No. 98-40839 ____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES EDWARD PATTERSON, and SHARON ANNELLA McENTIRE, a.k.a. SHARON A. PATTERSON,

Defendants-Appellants.

Appeals from the United States District Court for the Eastern District of Texas (6:97-CR-51-1)

September 13, 1999

Before DUHÉ, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

James Patterson appeals his conviction for five counts of mail fraud, 18 U.S.C. § 1341,

conspiracy to commit mail fraud, 18 U.S.C. § 371, conspiracy to commit money laundering, 18

U.S.C. § 1956(h), and filing a false claim for pensions, 18 U.S.C. § 289. Sharon McEntire appeals her conviction for conspiracy to commit money laundering, 18 U.S.C. § 1956(h). We affirm.

I

Patterson argues that the court erred in denying his motion of a judgment of acquittal. A

motion for a judgment of acquittal challenges the sufficiency of the evidence to convict. See

United States v. Medina, 161 F.3d 867, 872 (5th Cir. 1998), cert. denied, __ U.S. __, 119 S. Ct.

1344, 143 L. Ed. 2d 507 (1999). We review de novo the denial of this motion.

A

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Patterson challenges his conviction for mail fraud, contending that his scheme could not

have constituted mail fraud, as a matter of law, because no reasonable person would have fallen

for the scheme. He then challenges the sufficiency of the victims’ trial testimony, arguing that

they were not persons of “ordinary prudence and comprehension” because they believed the

scheme. He concedes, however, that the Fifth Circuit has held that mail fraud exists even when

the scheme would have been believed by only the most credulous. See United States v. Kreimer,

609 F.2d 126, 132 (5th Cir. 1980). Based on Kreimer, the district court did not err in finding that

“the victim’s negligence is not a defense to criminal conduct.” Id.

B Patterson raises several challenges to the sufficiency of the evidence supporting the jury’s

verdict. In reviewing challenges to the sufficiency of the evidence, we consider the evidence, all

reasonable inferences drawn from it, and all credibility determinations in the light most favorable

to the Government. See United States v. Brito, 136 F.3d 397, 408 (5th Cir.), cert. denied, __ U.S.

__, 118 S. Ct. 2389, 141 L. Ed. 2d 754 (1998). “[W]e determine only whether the jury made a

rational decision, not whether its verdict was correct on the issue of guilt or innocence.” United

States v. Miller, 146 F.3d 274, 280 (5th Cir. 1998). We affirm if a rational juror could find the

offense’s essential elements beyond a reasonable doubt. See Brito, 136 F.3d at 408.

Patterson argues first that the evidence is insufficient to support the five counts of mail

fraud. To prove mail fraud under 18 U.S.C. § 1341, the Government must prove beyond a reasonable doubt that there was (1) a scheme or artifice to defraud; (2) a specific intent to commit

a fraud; and (3) use of the mails for the purpose of executing the scheme to defraud. See United

States v. Moser, 123 F.3d 813, 819 (5th Cir.), cert. denied, __ U.S.__, 118 S. Ct. 642, 139 L. Ed.

2d 620 (1997). Patterson argues that the evidence does not prove that he possessed the intent to

commit mail fraud, because he believed his scheme. See Kreimer, 609 F.2d at 128 (stating that a

mail fraud conviction requires proof that the defendant had a “conscious knowing intent to

defraud”). As the Government points out, however, certain evidence suggests that Patterson did

-2- have a fraudulent intent. Patterson did not respond to an investor’s inquiries about the

unsubstantiated nature of Patterson’s claims. Patterson sought to conceal the proceeds of his

scheme, and he never filed the claims for the victims. A rational juror could find beyond a

reasonable doubt that Patterson had the intent to defraud the scheme’s victims.

Patterson challenges the sufficiency of the evidence to support both conspiracy

convictions. A conviction for conspiracy under 18 U.S.C. § 371 requires (1) an agreement

between two or more persons, (2) to commit any offense against the United States, and (3) an

overt act in furtherance of the agreement committed by one of the conspirators. See 18 U.S.C. §

371; United States v. Krenning, 93 F.3d 1257, 1262 (5th Cir. 1996). A conviction for conspiracy to launder money under 18 U.S.C. § 1956(h) requires that (1) there is a conspiratorial agreement,

(2) to commit money laundering, and (3) one conspirator knowingly commits an overt act. See

18 U.S.C. § 1956(h); United States v. Fierro, 38 F.3d 761, 768 (5th Cir. 1994). Patterson argues

that the evidence does not support the existence of a co-conspirator, because the jury acquitted

McEntire, the only named conspirator, of the conspiracy charge. Although the indictment only

named McEntire, a rational juror could conclude, based on the evidence, that there were other

conspirators. Thus, McEntire’s acquittal on the conspiracy charge does not require reversal of

Patterson’s conspiracy conviction. Patterson argues also that the indictment did not identify overt

acts by the other conspirators. However, the Government need not prove overt acts by other co-

conspirators; proof of an overt act by Patterson is enough. See Krenning, 93 F.3d at 1262; Fierro, 38 F.3d at 768.

Patterson raises a second challenge to the sufficiency of the evidence to support his money

laundering conspiracy conviction. To prove a violation of 18 U.S.C. § 1956, the Government

must prove that Patterson conducted or attempted to conduct a financial transaction knowing that

the property involved was the proceeds of mail fraud and knowing that the transaction was

designed in whole or in part to conceal the nature, location, source, ownership, or control of the

proceeds of the mail fraud. See 18 U.S.C. § 1956; United States v. Willey, 57 F.3d 1374, 1383

-3- (5th Cir. 1995). Patterson argues that there is insufficient evidence that he laundered money

because he did not conceal the funds. He claims that he put the money into trusts for his clients

because “he believed the money belonged to his clients,” yet he readily admits that he used trust

money to pay his personal expenses and operating expenses for the bogus company. Although

Patterson used trust money to pay his expenses, he represented to the Department of Veteran

Affairs (“VA”) that he had no bank accounts. A rational juror could conclude beyond a

reasonable doubt that Patterson created the trusts in part to conceal the ownership of the

proceeds of the mail fraud.

Patterson claims further that there is insufficient evidence that he filed a false claim with the VA for a pension. The Government was required to prove that Patterson knowingly and

willfully presented a false and fraudulent affidavit or declaration concerning a claim for pension.

See 18 U.S.C. § 289. Patterson sent the VA an affidavit in which he stated that he had no cash or

bank accounts, and in which he claimed that his income had not changed. Patterson actually had

several bank accounts. He asserts that he should not be held liable for the misinformation because

he volunteered the information, the information was irrelevant to the VA, and because they

requested only information on his income. A juror could conclude beyond a reasonable doubt that

Patterson knowingly and willfully presented a fraudulent affidavit to the VA.

C Finally, Patterson challenges his sentence, opposing four increases in his base offense

level. Our review of a sentence under the Sentencing Guidelines (“Guidelines”) is confined to

whether a sentence was imposed in violation of law, as a result of an incorrect application of the

Guidelines, or is outside the range of the applicable Guideline and is unreasonable. See 18 U.S.C.

§ 3742(e); United States v. Matovsky, 935 F.2d 719, 721 (5th Cir. 1991). We review de novo the

district court’s application of the Guidelines. See United States v. Sanders, 942 F.2d 894, 897

(5th Cir. 1991). “Factual findings regarding sentencing factors are entitled to considerable

-4- deference and will be reversed only if they are clearly erroneous.” United States v. Watson, 966

F.2d 161, 162 (5th Cir. 1992). A pre-sentence report (“PSR”) generally bears sufficient indicia of

reliability to be considered as evidence by the trial judge in making the factual determinations

required by the Guidelines. See Sanders, 942 F.2d at 897. The defendant has the burden of

showing that the information in the PSR relied on by the district court is materially untrue. See

United States v. Valencia, 44 F.3d 269, 274 (5th Cir. 1995).

Patterson first challenges the eight-level increase in his base offense level for the amount

of the loss. See U.S. SENTENCING GUIDELINES MANUAL § 2F1.1(b)(1)(I) (1997). He contends

that the amount involved in the mail fraud should not include amounts from the sale of trusts. He concedes that, if the selling of trusts was integral to the scheme as a whole, then the trust sales

may be counted. We find that the trust sales were integral to the scheme, and thus we conclude

that the district court did not clearly err by including the amounts from the trust sales in the

amount of loss.

Patterson argues that the court erred by adding two levels for purporting to act on behalf

of a government or charitable organization. See U.S.S.G. § 2F1.1(b)(3)(A). The PSR

recommended adding two levels because Patterson claimed to be acting on behalf of the

government. He claims that he never purported to represent a government agency. Patterson

stated on numerous occasions, however, that he was acting on the authority of President Bush

and of the Supreme Court. Thus, Patterson has failed to show that the material in the PSR is materially untrue. We conclude that the district court did not clearly err in increasing Patterson’s

base offense level under § 2F1.1(b)(3)(A)

Patterson raises two other objections that he failed to assert below. Thus, we review these

objections for plain error. See United States v. Calverley, 37 F.3d 160, 162-63 (5th Cir. 1994).

He asserts that the court improperly increased his base offense level by four levels because it

incorrectly calculated the amount of the pension over-payments. See U.S.S.G. § 2F1.1(b)(1)(E).

The PSR found that the overpayment was $23,381.00, and recommended adding four levels to his

-5- base offense level for filing a false claim for a pension. Patterson claims that this amount

erroneously included the entire amount of the pension that was paid, rather than the incremental

amount that resulted from any misrepresentation. Patterson does not offer evidence to support

his allegation that the information in the PSR is materially untrue. Patterson also claims on appeal

that the court improperly increased his base offense level by two levels, because his false pension

claim did not involve more than minimal planning. See U.S.S.G. § 2F1.1(b)(2)(A). The PSR

recommended increasing the base offense level by two, because Patterson submitted false claims

on two occasions over a period of time. See U.S.S.G. § 1B1.1, comment. (n.1.f) (explaining that

“more than minimal planning” is deemed present in any case involving repeated acts over a period of time). Patterson has failed to show that the information in the PSR is materially untrue. We

conclude that the district court did not commit plain error by increasing Patterson’s offense level

under § 2F1.1(b)(1)(E) and § 2F1.1(b)(2)(A).

II

McEntire challenges the denial of her motion of a judgment of acquittal, which we review

de novo. See Medina, 161 F.3d at 872. McEntire argues that her conviction for conspiracy to

launder money under 18 U.S.C. § 1956(h) must be reversed, as a matter of law, because she was

acquitted of the mail fraud counts, the offenses that formed the basis of the money laundering

conspiracy count. Patterson was convicted of these offenses, however, and thus this case is

distinguishable from United States v. Truesdale, 152 F.3d 443, 449 (5th Cir. 1998) (acquitting a defendant of a conspiracy conviction where there was no proof of the underlying unlawful

activity). Hence, McEntire’s acquittal of the mail fraud charges does not necessitate reversal of

the conviction for conspiracy to launder money.

McEntire also challenges the sufficiency of the evidence to support her conviction for

conspiracy to launder money. According to McEntire, the only evidence tying her to the money

laundering is the fact that she was a signatory on four accounts, and she asserts that she never

wrote a check on those accounts nor deposited money into the accounts. Considering all of the

-6- evidence, however, suggests a more involved role. McEntire entered data on the company’s

computers, handled inquires about the status of claims, assured callers that the claims would be

paid, and sold a trust. A juror could infer that McEntire knew of the unlawful nature of the

scheme. A juror could conclude beyond a reasonable doubt that McEntire agreed with Patterson

to conduct financial transactions that involved the proceeds of the mail fraud. See Brito, 136 F.3d

at 408. Thus, the evidence is sufficient to support McEntire’s conviction for conspiracy to

launder money.

III

For the foregoing reasons, we conclude that the district court did not err in denying the motions of Patterson and McEntire for a judgment of acquittal. Accordingly, we AFFIRM the

judgment of the district court.

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