IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_____________________
No. 97-20889 _____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROGER MICHAEL REISSIG; JAY ALAN BRAMLETT; LAVONNE O. LAMBERT BAKER; KIMBERLY LYNN HOLICK; HARVEY SCOTT BAKER,
Defendants-Appellants. _________________________________________________________________
Appeal from the United States District Court for the Southern District of Texas _________________________________________________________________
Before POLITZ, JOLLY, and DUHÉ, Circuit Judges.
PER CURIAM:
This case involves a telemarketing operation outside Houston,
Texas, called American Land Liquidators (“ALL”). Two of the
defendants, Harvey S. Baker and Jay A. Bramlett, organized the
operation as an advertising service for landowners interested in
selling their land. The defendants also include Roger Reissig and
Kimberly Holick, who were managers of the telemarketers, and
Lavonne Baker, who was the office manager. The defendants were
convicted of using ALL to carry out a fraudulent telemarketing
scheme.
The defendants raise numerous objections to their conviction
on appeal. Because the defendants have raised three issues of some
merit, we write briefly to address them. Those issues are (1) whether there was sufficient evidence to support the defendants’
conviction, (2) whether the district court erred in delivering a
deliberate ignorance instruction (the issue for which publication
of this opinion is merited), and (3) whether the district court
erred when it enhanced Bramlett’s sentence, finding that he was an
organizer of the scheme. Ultimately, however, we find no error on
the part of the district court and affirm the convictions and
sentences of each of the defendants.
We now turn to addressing each of the three issues.
I
The defendants argue that they were conducting a legitimate
business and that there is insufficient evidence of wrongdoing to
support the convictions against them. They argue that their
service was just like a dating service. For a fee, they would
enter into their computer system information about a particular
plot of land that was for sale. They would then advertise to
buyers that they could provide, free of charge, listings of plots
of land that were for sale in specific areas. When a buyer
contacted them, they would record the buyer’s preferences, match
the buyer’s preferences to plots of land on their system and then
send the relevant “matches” to the buyer. The buyer would then
contact the sellers with whom he wished to deal.
Because the defendants were not involved in the actual
negotiations between buyer and seller, the record is not
particularly clear with respect to how many actual purchases
2 resulted from matches being sent to buyers. It is clear, however,
that some matches were sent out to prospective buyers and that, in
some instances, buyers did purchase land listed in the defendants’
database.
The government argued at trial, however, that the defendants’
telemarketing business amounted to a sham designed to get money
from sellers without providing any real advertising service. To
get sellers to purchase the advertising, the defendants sent
postcards to them claiming that they had a designated department
that was specifically designed to advertise for the particular area
where the seller owned land. It is clear that, in fact, they did
not. Once a seller called in, the seller would be subjected to a
high-pressure sales pitch by a telemarketer hired and managed by
the defendants. The government produced multiple examples of
misleading or factually incorrect statements made by the
telemarketers during these sales pitches. Furthermore, the
government introduced testimony that supports the conclusion that
the defendants were not only aware of the conduct of the
telemarketers but devoted their energies to generating income
through the telemarketers’ pitches. For instance, the government
introduced evidence that Scott Baker told a dubious employee “not
to worry about [advertising], they just needed to be able to tell
their clients they advertised.” The government further
demonstrated that a disproportionate amount of the operating
expenses incurred by the defendants’ company went toward generating
3 contacts with sellers (i.e., generating new business) than went
toward attracting potential buyers who could be interested in the
packets of information they sent out.
The defendants make an argument that any fraudulent activity
amounts to nothing more than the individual acts of a specific
telemarketer. A reasonable juror, however, could certainly look at
the evidence presented by the government and conclude that ALL was
a sham and that the defendants used it to perpetrate fraudulent
telemarketing scheme. In sum, the arguments made by the defendants
on appeal are arguments that interpret the potentially
incriminating evidence in their favor. Such arguments are for the
jury and not this appellate panel. We therefore find this evidence
sufficient to support the defendants’ convictions.
II
All of the defendants take issue with a deliberate ignorance
instruction given to the jury.1 In general, deliberate ignorance
instructions run the risk of encouraging the jury to convict on a
lesser standard. We have held that the instruction should
nonetheless be given when the evidence raises two inferences: “(1)
1 The instruction reads:
You may find that a defendant had knowledge of a fact if you find that the defendant deliberately closed his eyes to what would otherwise be obvious to him. While knowledge on the part of the defendant cannot be established merely by demonstrating that the defendant was negligent, careless or foolish, knowledge can be inferred if the defendant deliberately blinded himself to the existence of a fact.
4 the defendant was subjectively aware of a high probability of the
illegal conduct; and (2) the defendant purposely contrived to avoid
learning of the illegal conduct.” United States v. Gray, 105 F.3d
956, 967 (5th Cir. 1997).
In this case, the government concedes that the instruction is
only applicable to Bramlett. Although Bramlett was a part owner of
the venture and both funded and organized it, he did not play much
of a role in the day-to-day activities.2 Because the instruction
is not appropriate with respect to any of the other defendants,
they argue that its effect was prejudicial.
We are presented, then, with the question of how a district
court should proceed when a deliberate ignorance instruction is
appropriate only with respect to one of a group of co-defendants.
It is true that giving the instruction generally, without naming a
specific defendant, may prejudice the co-defendants with respect
to whom the evidence does not call for the instruction. On the
other hand, however, singling out the defendant who merits the
instruction, based, perhaps, on disputed or equivocal evidence, may
be unfairly prejudicial to that defendant. The district court’s
proposed solution was to give the instruction and indicate that the
instruction may not apply to all of the defendants. This is the
approach followed by the First Circuit in United States v. Brandon,
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_____________________
No. 97-20889 _____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROGER MICHAEL REISSIG; JAY ALAN BRAMLETT; LAVONNE O. LAMBERT BAKER; KIMBERLY LYNN HOLICK; HARVEY SCOTT BAKER,
Defendants-Appellants. _________________________________________________________________
Appeal from the United States District Court for the Southern District of Texas _________________________________________________________________
Before POLITZ, JOLLY, and DUHÉ, Circuit Judges.
PER CURIAM:
This case involves a telemarketing operation outside Houston,
Texas, called American Land Liquidators (“ALL”). Two of the
defendants, Harvey S. Baker and Jay A. Bramlett, organized the
operation as an advertising service for landowners interested in
selling their land. The defendants also include Roger Reissig and
Kimberly Holick, who were managers of the telemarketers, and
Lavonne Baker, who was the office manager. The defendants were
convicted of using ALL to carry out a fraudulent telemarketing
scheme.
The defendants raise numerous objections to their conviction
on appeal. Because the defendants have raised three issues of some
merit, we write briefly to address them. Those issues are (1) whether there was sufficient evidence to support the defendants’
conviction, (2) whether the district court erred in delivering a
deliberate ignorance instruction (the issue for which publication
of this opinion is merited), and (3) whether the district court
erred when it enhanced Bramlett’s sentence, finding that he was an
organizer of the scheme. Ultimately, however, we find no error on
the part of the district court and affirm the convictions and
sentences of each of the defendants.
We now turn to addressing each of the three issues.
I
The defendants argue that they were conducting a legitimate
business and that there is insufficient evidence of wrongdoing to
support the convictions against them. They argue that their
service was just like a dating service. For a fee, they would
enter into their computer system information about a particular
plot of land that was for sale. They would then advertise to
buyers that they could provide, free of charge, listings of plots
of land that were for sale in specific areas. When a buyer
contacted them, they would record the buyer’s preferences, match
the buyer’s preferences to plots of land on their system and then
send the relevant “matches” to the buyer. The buyer would then
contact the sellers with whom he wished to deal.
Because the defendants were not involved in the actual
negotiations between buyer and seller, the record is not
particularly clear with respect to how many actual purchases
2 resulted from matches being sent to buyers. It is clear, however,
that some matches were sent out to prospective buyers and that, in
some instances, buyers did purchase land listed in the defendants’
database.
The government argued at trial, however, that the defendants’
telemarketing business amounted to a sham designed to get money
from sellers without providing any real advertising service. To
get sellers to purchase the advertising, the defendants sent
postcards to them claiming that they had a designated department
that was specifically designed to advertise for the particular area
where the seller owned land. It is clear that, in fact, they did
not. Once a seller called in, the seller would be subjected to a
high-pressure sales pitch by a telemarketer hired and managed by
the defendants. The government produced multiple examples of
misleading or factually incorrect statements made by the
telemarketers during these sales pitches. Furthermore, the
government introduced testimony that supports the conclusion that
the defendants were not only aware of the conduct of the
telemarketers but devoted their energies to generating income
through the telemarketers’ pitches. For instance, the government
introduced evidence that Scott Baker told a dubious employee “not
to worry about [advertising], they just needed to be able to tell
their clients they advertised.” The government further
demonstrated that a disproportionate amount of the operating
expenses incurred by the defendants’ company went toward generating
3 contacts with sellers (i.e., generating new business) than went
toward attracting potential buyers who could be interested in the
packets of information they sent out.
The defendants make an argument that any fraudulent activity
amounts to nothing more than the individual acts of a specific
telemarketer. A reasonable juror, however, could certainly look at
the evidence presented by the government and conclude that ALL was
a sham and that the defendants used it to perpetrate fraudulent
telemarketing scheme. In sum, the arguments made by the defendants
on appeal are arguments that interpret the potentially
incriminating evidence in their favor. Such arguments are for the
jury and not this appellate panel. We therefore find this evidence
sufficient to support the defendants’ convictions.
II
All of the defendants take issue with a deliberate ignorance
instruction given to the jury.1 In general, deliberate ignorance
instructions run the risk of encouraging the jury to convict on a
lesser standard. We have held that the instruction should
nonetheless be given when the evidence raises two inferences: “(1)
1 The instruction reads:
You may find that a defendant had knowledge of a fact if you find that the defendant deliberately closed his eyes to what would otherwise be obvious to him. While knowledge on the part of the defendant cannot be established merely by demonstrating that the defendant was negligent, careless or foolish, knowledge can be inferred if the defendant deliberately blinded himself to the existence of a fact.
4 the defendant was subjectively aware of a high probability of the
illegal conduct; and (2) the defendant purposely contrived to avoid
learning of the illegal conduct.” United States v. Gray, 105 F.3d
956, 967 (5th Cir. 1997).
In this case, the government concedes that the instruction is
only applicable to Bramlett. Although Bramlett was a part owner of
the venture and both funded and organized it, he did not play much
of a role in the day-to-day activities.2 Because the instruction
is not appropriate with respect to any of the other defendants,
they argue that its effect was prejudicial.
We are presented, then, with the question of how a district
court should proceed when a deliberate ignorance instruction is
appropriate only with respect to one of a group of co-defendants.
It is true that giving the instruction generally, without naming a
specific defendant, may prejudice the co-defendants with respect
to whom the evidence does not call for the instruction. On the
other hand, however, singling out the defendant who merits the
instruction, based, perhaps, on disputed or equivocal evidence, may
be unfairly prejudicial to that defendant. The district court’s
proposed solution was to give the instruction and indicate that the
instruction may not apply to all of the defendants. This is the
approach followed by the First Circuit in United States v. Brandon,
2 Bramlett argues that, under Gray, the deliberate ignorance instruction should not have been given to him. The evidence in the record, however, supports both Gray inferences as applied to Bramlett.
5 17 F.3d 409, 453 (1st Cir. 1994). We agree both with the district
court and the First Circuit that this is the best solution to this
issue. We therefore find no error on the part of the district
court.
III
Finally, Bramlett argues that the district court erred by
enhancing Bramlett’s sentence under U.S.S.G. § 3B1.1(a). There has
been a bit of confusion about the argument here because Bramlett’s
initial brief misstated which section of the guidelines the
district court applied. According to the brief, the enhancement is
pursuant to § 3B1.1(b). The government’s brief continued the
error, also making an argument about § 3B1.1(b). In his reply
brief, Bramlett corrected the error, stating that his argument was
that the enhancement under § 3B1.1(b) (3 points for management)
applied to him, not the enhancement under § 3B1.1(a) (4 points for
organizing or leading). Bramlett has since filed a motion to
correct his brief, which has been granted.
Bramlett’s argument is essentially that he never controlled or
supervised anyone. However, as comment 4 to § 3B1.1 illustrates,
Bramlett’s activity clearly fits into the role of a leader or
organizer. He was a part owner of the business, which entitled him
to a larger share of the fruits of the crime. He also exercised a
degree of control and authority over the venture. We therefore
find that the district court did not err when it enhanced
6 Bramlett’s sentence for organizing or leading the telemarketing
IV
For the foregoing reasons, the judgment of the district court
is
A F F I R M E D.