IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 00-11210 Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
TEDDY WAYNE SOLOMON,
Defendant-Appellant.
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Appeal from the United States District Court for the Northern District of Texas (3:98-CR-299-1-X)
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September 21, 2001
Before JONES, SMITH, and Teddy Solomon appeals his convictions of EMILIO M. GARZA, Circuit Judges. mail and wire fraud under 18 U.S.C. §§ 1341 and 1343 (2001). Finding no error, we affirm.
PER CURIAM:* I.
Based on complaints concerning Solomon’s investment program, the FBI, the Securities
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and Exchange Commission (“SEC”), and the Pursuant to 5TH CIR. R. 47.5, the court has Texas State Securities Board conducted an determined that this opinion should not be investigation of Quantum Group, which listed published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. Solomon as its president and CEO. After 47.5.4. being questioned by undercover agents about
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his investment program, Solomon represented III. that investments with Quantum would yield a Solomon argues that the court erred in al- 900% return over three months. lowing the government to include his prior conviction in the indictment,2 because that The agents then revealed their identities and conviction was not a necessary element of the questioned Solomon about his investment offense as charged. We review only for abuse scheme. He admitted that he had made false of discretion the decision whether to strike representations and that he falsely had told allegations from an indictment. United States investors that Quantum had made profits v. Hernandez-Guevara, 162 F.3d 863, 869 through its trading programs. The agents told (5th Cir. 1998); United States v. Graves, 5 Solomon that the trading programs he had ad- F.3d 1546, 1550 (5th Cir. 1993). vertised did not exist, that he was not authorized to offer securities, and that he needed to Rule 7(d), FED R. CRIM P., provides that cease operations. Solomon, however, contin- “[t]he Court on motion of the defendant may ued to do business at Quantum, even after the strike surplusage from indictment or inforfederal district court had issued a temporary mation.” To strike surplusage, the language in restraining order to cease operations. the indictment must be “irrelevant, inflammatory , and prejudicial.” Graves, 5 F.3d at 1550 At trial, one of Solomon’s employees tes- (citing United States v. Bullock, 451 F.2d 884, tified as a government witness concerning false 888 (5th Cir. 1971)). Because this standard is representations Solomon had made during the strict, a court rarely grants such a motion. See course of his scheme. Several investors Bullock, 451 F.2d at 888; United States v. testified about the money they lost. FBI agent Oakar, 111 F.3d 146, 157 (D.C. Cir. 1997); Brian Hurst testified that some investors had see also 1 CHARLES A. WRIGHT, FEDERAL received money back as part of a Ponzi PRACTICE AND PROCEDURE § 127, at 639 (3d scheme and that Solomon had used the in- ed. 1999). vestor deposits for personal expenditures, including purchases of luxury automobiles and Where information in an indictment is sufhad used none of the disbursements for ficiently relevant to the charged offense, the legitimate trading programs. Phil Offil of the SEC testified about the fraudulent nature of
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Solomon’s trading program and described the The indictment alleged as follows: operation as a Ponzi scheme. Investors deposited approximately $4 million in Quantum’s Also, as part of the scheme and artifice bank accounts between May and October to defraud Defendant Solomon and Stevens 1997. failed to notify investors that Defendant Solomon was convicted in 1994 on federal charges of mail fraud and possession of a II. forged security, and that he had been A jury found Soloman guilty. The court sentenced to twenty-four (24) months in departed upward from the sentencing guide- prison followed by three years of supervised lines and assessed 293 months’ imprisonment, release. The defendants were required to five years’ supervised release, $2,357,701.94 make these disclosures to potential investors in restitution, and a fine of $150,000. as a condition of offering and selling securities to the public.
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court should not strike it, no matter how 177, 191 (5th Cir.), cert. denied, 531 U.S. 826 prejudicial it may be. United States v. Scarpa, (2000). 913 F.2d 993, 1013 (2d Cir. 1990); United States v. Edwards, 72 F. Supp. 2d 664, 667 A mail or wire fraud indictment must allege (M.D. La. 1999), appeal dismissed, 206 F.3d that the defendant made false representations 461 (5th Cir. 2000). The mere fact that infor- that were material. Neder, 527 U.S. at 25. A mation in an indictment does not constitute an matter is material if element of the charged offense does not require that it be stricken. Id. (citation omitted). (a) a reasonable man would attach importance to its existence or nonexistence Solomon’s prior conviction was sufficiently in determining his choice of action in the relevant to the mail and wire fraud indict- transaction in question; or (b) the maker ments.3 Thus, the court did not abuse its of the representation knows or has discretion. reason to know that its recipient regards or is likely to regard the matter as IV. important in determining his choice of Solomon contends that the indictment was action, although a reasonable man defective because it failed to allege the mate- would not so regard it. riality element required for establishing mail and wire fraud. He reasons that the indictment Id. at 22 n.5 (quoting RESTATEMENT failed to “tie a particular mailing or wire (SECOND) OF TORTS § 538 (1977)). transfer to any specified false representation (s).” Normally, we review the sufficien- In determining the sufficiency of an incy of an indictment de novo. United States v. dictment, the law does not compel “a ritual of Fitzgerald, 89 F.3d 218, 221 (5th Cir. 1996). words.” Richards, 204 F.3d at 191. Though Because Solomon did not raise this objection the indictment did not contain the word “matein the district court, however, we review this riality,” it did allege many specific material issue giving “maximum liberality” to the in- omissions and misrepresentations made by dictment. United States v. Richards, 204 F.3d Solomon. In a mail fraud indictment that does not specifically allege materiality, allegations of specific facts may be sufficient to warrant 3 Materiality of falsehood is an element of the the inference of materiality. Richards, 204 mail and wire fraud offenses. Neder v. United F.3d at 192; United States v. McGough, 510 States, 527 U.S. 1, 25 (1999). One can demon- F.2d 598, 603 (5th Cir. 1975). Solomon’s strate fraud by a material misrepresentation or indictment alleged specific facts by plainly statomission . United States v. Finney, 714 F.2d 420, ing that the investment scheme relied on 423 (5th Cir. 1983). The government contends misrepresentations and that “as a result of the that Solomon was required to disclose his prior conviction as an SEC licensing requirement. Beaforementioned scheme and artifice to defraud, cause we conclude that Solomon’s convictions investors . . . lost in excess of $1 million.” were sufficiently relevant to be included in the indictment, we express no view on the issue of V. whether Solomon’s failure to disclose his prior Solomon avers that the district court erred conviction to investors constituted a material by allowing him to go to trial with the lawyers omission for the offenses of wire and mail fraud.
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he chose. The court allowed him to substitute spective juror for cause. counsel on the eve of trial; he does not aver that the court erred in denying a continuance. A court may excuse for cause any juror Instead, he contends that the court should who is incapable, by reason of mental or have advised him of the risks of proceeding physical infirmity, to render satisfactory serwith substitute, unprepared counsel. Because vice. 28 U.S.C. § 1865(b)(4) (2001). A court Solomon did not challenge these matters in the has broad discretion to determine whether to district court, we review for plain error. See excuse a juror for cause. United States v. United States v. Richardson, 168 F.3d 836, Gonzalez-Balderas, 11 F.3d 1218, 1222 (5th 839 n.9 (5th Cir.), cert. denied, 526 U.S. 1145 Cir. 1994). Thus, we reverse only for abuse of (1999). discretion. Id. The court properly exercised its discretion in concluding that the prospec-
Solomon cites no authoritySSand we know tive juror’s mental condition prevented him of noneSSrequiring a court to advise a criminal from rendering satisfactory service. This defendant of the perils of proceeding with determination finds substantial support in the substitute counsel after the court has granted record. a motion for substitution of counsel. Having made the motion for substitution, Solomon VII. should have realized the risks inherent in Solomon contends that the court violated substituting counsel.4 the Sixth Amendment by unduly restricting his lawyer’s cross-examination of Lisa Stevens, VI. Solomon’s co-defendant. We review restric-
Solomon argues that the court abused its tions on cross-examination for abuse of discrediscretion by granting the government’s chal- tion. United States v. Freeman, 164 F.3d 243, lenge of a juror for cause. The prospective 249 (5th Cir.), cert denied, 526 U.S. 1105 juror suffered from an obsessive compulsive (1999). If we find abuse, we employ the disorder that he said affected him adversely harmless error doctrine. United States v. from time to time. To alleviate this condition, Townsend, 31 F.3d 262, 268 (5th Cir. 1994). the juror took medication and received treat- To obtain relief for an unduly limited crossment from a psychiatrist. The court asked the examination, “a defendant must show that the juror whether he would be able to focus suf- restrictions were [plainly] prejudicial, based on ficiently on the case. He responded that the overall strength of the prosecution’s case, “[t]here’s no way to know. Most of the time, the circumstances surrounding the challenged yes, I’d be able to focus on the case.” The testimony, the importance of that testimony, government successfully challenged that pro- and its corroboration or contradiction elsewhere at trial.” United States v. Gray, 105 F.3d 956, 965 (5th Cir. 1997) (quotation 4 Cf. United States v. Kizzee, 150 F.3d 497, marks omitted).
500 (5th Cir. 1998) (concluding that there was a fair trial after the court let defendant assume his During cross-examination, Solomon’s lawown defense); United States v. Jackson, 50 F.3d yer asked Stevens why her sentencing had 1335, 1340 n.6 (5th Cir. 1995) (declining to find a been postponed. Counsel intimated that the Fifth Amendment due process violation where government had postponed sentencing because lawyer had seven days to prepare for trial).
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it did not trust her until she had testified. She mit fraud.”5 Specific intent concerns willful responded that her pregnancy had caused the and knowing engagement in criminal behavior, delay. At that point, the court stated that the while general intent concerns willful and question was wholly conjectural and told knowing acts. United States v. Berrios-Cencounsel to ask a question for which Stevens teno, 250 F.3d 294, 298-99 (5th Cir. 2001). would know the answer. In another instance, Because its instruction made plain that a find- Solomon’s lawyer attempted to question ing of guilt required the conclusion that Solo- Stevens regarding her involvement in a mon intended to commit the criminal act of separate business entity. The government ob- fraud, the court did not commit plain error in jected on relevance grounds, but the court formulating the jury instruction. allowed Solomon to proceed “for a little bit” before ending that inquiry. IX.
Solomon contends that the upward depar-
We are hard-pressed to find abuse of dis- ture from the sentencing guidelines was uncretion in limiting the cross-examination. Both reasonable. We review an upward departure lines of questions constituted nothing more for abuse of discretion. Koon v. United States, than “fishing expeditions.” The court allowed 518 U.S. 81, 98 (1996); United States v. Solomon’s lawyer to cross-examine Stevens in Nevels, 160 F.3d 226, 229 (5th Cir. 1998). a manner consistent with the Sixth Federal sentencing guidelines establish ranges Amendment. Pursuant to its discretion, how- of criminal sentences. Koon, 518 U.S. at 85. ever, the court placed limitations on cross- A court must impose a sentence within the examination to prevent irrelevant discussion. applicable guideline range if it finds the case to See, e.g., United States v. Perez, 217 F.3d be typical of the sort envisioned by the 323, 330 (5th Cir.), cert. denied, 531 U.S. 973 guidelines. Id. Should the court find the case (2000). Solomon does not show how the to be atypical because of “aggravating or miticourt ’s instruction to his lawyer to conduct a gating circumstance[s] of a kind, or to a derelevant and timely cross-examination done gree, not adequately taken into consideration was “[plainly] prejudicial.” Gray, 105 F.3d at by the Sentencing Commission in formulating 965. the guidelines,” the court may depart from the guidelines and impose a sentence that is great-
VIII. er than what the guidelines prescribe. 18 Solomon argues that the court erred by not U.S.C. § 3553(b) (2001).
giving a definition of the term “specific intent” as part of the jury instruction. Because In Koon, the Court outlined the questions a Solomon did not object, we review for plain error. Richardson, 168 F.3d at 839 n.9. Though it did not present a definition of “spe- 5 The court defined “knowingly” as an act cific intent,” the court instructed the jury that, “done voluntarily and intentionally, not because of to find Solomon guilty, it would have to find mistake or accident.” The court defined “intenthat he acted with “the specific intent to com- tionally” to mean “that the act was committed voluntarily and purposefully” and that it is “reasonable to draw the inference and find that a person intends the natural and probable consequences of acts done or knowingly omitted.”
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court should address in considering a de- X. parture: Solomon avers that the district court impermissibly “double counted” when it assessed an 1) what features of this case take upward departure and sentencing enhanceit outside of the guidelines’ ments for mass marketing, use of sophisticated “heartland” and make of it a means, more than minimal planning, and abuse special or unusual case? of a position of trust. We note, initially, that the court did not apply the mass marketing and 2) has the sentencing commission abuse-of-position-of-trust-enhancements.
forbidden departures based on Thus, these two enhancements did not those features? constitute double counting. We normally review a court’s interpretation of sentencing 3) if not, has the commission en- guidelines de novo. United States v. Loe, 248 couraged departures based on F.3d 449, 463 (5th Cir.), clarified, 255 F.3d those features? 228 (5th Cir. 2001). Solomon did not object to the mo re-than-minimal-planning 4) if not has the commission dis- enhancement or the use-of-sophisticatedcouraged departures based on means enhancement. Accordingly, we review those features? the application of these enhancements for plain error. Richardson, 168 F.3d at 839 n.9.
Koon, 518 U.S at 95. Should the court depart from the guidelines, it must state “the specific Double counting is permissible where reason for the imposition of a sentence outside “[e]ach enhancement targets different aspects the guideline range.” § 3553(c)(2). of a defendant’s behavior.” United States v.
Scurlock, 52 F.3d 531, 540 (5th Cir. 1995).
The court elaborated on the features that Solomon’s conduct involved more than minitook this case outside the guidelines’ “heart- mal planning, because it entailed repeated acts land,” noting that Solomon’s prior convictions over a period of time and numerous victims. were similar to the current conviction, which Solomon’s conduct involved sophisticated indicated a great likelihood of recidivism. meansSSshell companies, offshore bank ac- Solomon’s conduct involved violating the trust counts, supposed international securities tradof numerous victims and swindling them of ers, Ponzi transactions, and professionally demillions of dollars. He violated a court order signed offering documents. The challenged to cease and desist from engaging in fraud, enhancements and departures may overlap in continued to operate his scheme even after his some regards. When one compares the exarrest and conviction, and made veiled threats planations given for each application, however, to the prosecutor after his conviction. The it is apparent that they measure different court did not abuse its discretion in granting an aspects of Solomon’s behavior. Accordingly, upward departure.6 the court did not commit plain error.
AFFIRMED.
6 See Nevels, 160 F.3d at 229-30; United States v. Rosogie, 21 F.3d 632 (5th Cir. 1994).