United States v. Trammell ( 1998 )


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  •                           UNITED STATES COURT OF APPEALS
    Tenth Circuit
    Byron White United States Courthouse
    1823 Stout Street
    Denver, Colorado 80294
    (303) 844-3157
    Patrick J. Fisher, Jr.                                                         Elisabeth A. Shumaker
    Clerk                                                                     Chief Deputy Clerk
    January 23, 1998
    TO: ALL RECIPIENTS OF THE CAPTIONED OPINION
    RE: 97-3045, United States v. Trammell
    January 12, 1998
    Please be advised of the following correction to the opinion:
    On page 5, in the first sentence of the last paragraph that begins “On January
    18, 1996, Trammell was indicted . . .” there is a typographical error. The name of
    the former Assistant United States Attorney referenced in the sentence should not
    read “Robert Schodorf.” The correct name is “Richard Schodorf.”
    Please make the appropriate correction to your copy of the opinion.
    Very truly yours,
    Patrick Fisher, Clerk
    Keith Nelson
    Deputy Clerk
    F I L E D
    United States Court of Appeals
    Tenth Circuit
    PUBLISH
    JAN 12 1998
    UNITED STATES COURT OF APPEALS
    PATRICK FISHER
    Clerk
    TENTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                        No. 97-3045
    MICHAEL W. TRAMMELL,
    Defendant-Appellant.
    Appeal from United States District Court
    for the District of Kansas
    (D.C. No. 96-CR-10010)
    Steven K. Gradert, Assistant Federal Public Defender (David J. Phillips, Federal
    Public Defender, with him on the brief), Wichita, Kansas, for the appellant.
    Stephen K. Lester, Assistant United States Attorney (Jackie N. Williams, United
    States Attorney, and Richard L. Schodorf, Assistant United States Attorney, with
    him on the brief), Wichita, Kansas, for the appellee.
    Before TACHA, McKAY, and BRISCOE, Circuit Judges.
    BRISCOE, Circuit Judge.
    Michael W. Trammell appeals his convictions for two counts of mail fraud,
    in violation of 
    18 U.S.C. § 1341
    , one count of wire fraud, in violation of 
    18 U.S.C. § 1343
    , and two counts of money laundering, in violation of 
    18 U.S.C. § 1957
    . He also challenges the district court’s enhancement of his sentence for
    abusing a position of trust pursuant to U.S.S.G. § 3B1.3. We exercise jurisdiction
    under 
    28 U.S.C. § 1291
    , and affirm his convictions and his sentence.
    I.
    This case involves Trammell’s misappropriation of investors’ funds.
    Trammell, a licensed insurance agent who operated under the corporate name of
    Senior Insurance Strategies, Inc., solicited funds from investors under the guise of
    selling annuities issued by American Investors Life Insurance Company, Inc., and
    Financial Benefit Life Insurance Company. In reality, Trammell used all but
    $100,000 of the funds for unrelated personal and business expenses. His contract
    with American Investors required that he instruct investors to make checks
    payable directly to the insurance company instead of to the agent or the agent’s
    company. American Investors terminated its contract with Trammell on February
    7, 1991, because he failed to follow this policy. Trammell then entered into an
    agent agreement with Financial Benefit on March 6, 1991. This agreement also
    required that Trammell instruct investors to make checks payable directly to the
    company.
    -2-
    On December 14, 1990, Leslie Oberhelman gave Trammell three checks
    payable to Senior Insurance Strategies, totaling $200,000, for American Investors
    annuities. Trammell forwarded Oberhelman’s completed annuity applications to
    American Investors, but did not include the associated $200,000 premium.
    American Investors wrote to Trammell on three occasions asking him to forward
    the funds so that the annuity applications could be processed. Finally, on January
    30, 1991, American Investors wrote a letter to Oberhelman’s daughter, the
    proposed annuitant, informing her premiums had not been received and the
    company was closing its file.
    On March 19, 1991, after his termination from American Investors,
    Trammell sent two annuity applications for Oberhelman to Financial Benefit. On
    March 29, Larry Sawyer, an employee of Senior Insurance Strategies, sent two
    applications to Oberhelman’s daughter for her signature. Sawyer told
    Oberhelman that $150,000 of Oberhelman’s money was being used to purchase
    annuities from Financial Benefit, when in fact, as the government’s financial
    analyst demonstrated at trial, Trammell had spent all of Oberhelman’s money by
    February 5, 1991. Trammell eventually purchased a $100,000 annuity for
    Oberhelman from Financial Benefit by wiring money from another investor’s
    account. American Investors later settled a civil lawsuit with Oberhelman for
    $100,000.
    -3-
    On February 15, 1991, Carl and Dixie McWhorter gave Trammell a check
    for $17,325, and on April 8, 1991, they gave him an additional check for
    $32,514.50. Trammell told the McWhorters to make the checks payable to Senior
    Insurance Strategies. These checks were to be used to purchase a $60,000
    annuity. Sawyer wrote to the McWhorters’ daughter on April 9, 1991, asking for
    additional information and that she sign the annuity application. Trammell
    forwarded the completed application to Financial Benefit, but sent no money. In
    fact, as the government’s financial analyst demonstrated at trial, Trammell had
    spent nearly all of the funds from the first check by February 28, 1991, and nearly
    all of the funds from the second check by May 1, 1991. The McWhorters never
    received an annuity and settled a civil lawsuit with Financial Benefit for $30,000.
    Marcella Storey gave Trammell a check for $139,661.42 on June 3, 1991, to
    purchase an annuity from Financial Benefit. Trammell deposited the check in a
    Lawrence, Kansas, bank and, on June 7, 1991, he wired $100,000 of the funds to
    Financial Benefit for Oberhelman’s annuity. Trammell forwarded an application
    for a $118,918.84 annuity to Financial Benefit for Storey, but did not send the
    required premium. The government’s financial analyst demonstrated at trial that
    Trammell had spent all of Storey’s money by June 17, 1991. In July, Storey
    received a $22,500 annuity issued by Presidential Life Insurance Company.
    Storey filed a civil lawsuit against Trammell, Senior Insurance Strategies, and
    -4-
    Financial Benefit and settled with Financial Benefit for $58,000.
    Trammell was indicted in Kansas state court on December 6, 1991, for
    three counts of failing to pay insurance premiums by an insurance agent, in
    violation of 
    Kan. Stat. Ann. § 40-247
    . Joseph Kisner, supervised by Richard
    Schodorf, prosecuted the case for the state. On March 25, 1992, after a jury was
    impaneled and an opening statement was presented by the prosecutor, the district
    court granted Trammell’s motion for judgment of acquittal based on an ambiguity
    in the statute. Specifically, the court found § 40-247, which punishes an
    insurance agent for failing to pay a premium after negotiating or renewing a
    “contract of insurance,” does not cover an agent who fails to pay a premium after
    negotiating or renewing a contract for an annuity. The state appealed under 
    Kan. Stat. Ann. § 22-3602
    (b)(1) and (3), and the Kansas Supreme Court limited the
    appeal to a question reserved under § 22-3602(b)(3). While the appeal was
    pending, the Kansas legislature amended 
    Kan. Stat. Ann. § 40-247
     to include
    contracts for annuities. After the legislature amended the statute, the court
    dismissed the appeal pursuant to State v. Hodges, 
    734 P.2d 1161
     (Kan. 1987), as
    the court’s answer to the reserved question was no longer of statewide interest or
    vital to uniform administration of the criminal law.
    On January 18, 1996, Trammell was indicted in federal court and Richard
    Schodorf, then an Assistant United States Attorney, represented the government.
    -5-
    Trammell was convicted of two counts of mail fraud, one count of wire fraud, and
    two counts of money laundering. He was sentenced to forty-one months’
    imprisonment and three years’ supervised release. In addition, he was ordered to
    pay $282,661.42 in restitution.
    II.
    Trammell argues his convictions should be reversed because (1) his federal
    prosecution violated the Double Jeopardy Clause; (2) his due process rights were
    violated by preindictment delay; (3) there was insufficient evidence to sustain his
    convictions for mail fraud and wire fraud; (4) there was insufficient evidence to
    establish federal jurisdiction over the money laundering charges; and (5) the
    district court failed to use a special verdict form. In addition, Trammell argues
    his sentence should not have been enhanced pursuant to U.S.S.G. § 3B1.3 for
    abuse of a position of trust.
    Double Jeopardy
    Trammell contends his federal prosecution was barred by the Double
    Jeopardy Clause because he was previously prosecuted and acquitted in state
    court. A defendant bears the burden of proving double jeopardy. United States v.
    Rodriguez-Aguirre, 
    73 F.3d 1023
    , 1025 (10th Cir. 1996). This court reviews a
    district court’s factual findings underlying a double jeopardy claim for clear error.
    
    Id. at 1024-25
    . However, we review de novo the court’s legal determination
    -6-
    regarding double jeopardy. 
    Id. at 1025
    .
    The Double Jeopardy Clause of the Fifth Amendment states “no person . . .
    shall . . . be subject to the same offense to be twice put in jeopardy of life or
    limb.” U.S. Const. amend. V. It is well established that “prosecutions undertaken
    by separate sovereign governments, no matter how similar they may be in
    character, do not raise the specter of double jeopardy as that constitutional
    doctrine is commonly understood.” United States v. Guzman, 
    85 F.3d 823
    , 826
    (1st Cir.), cert. denied, 
    117 S. Ct. 537
     (1996). The dual sovereignty doctrine rests
    upon the notion that “laws of separate sovereigns are indeed separate and that one
    act may violate the laws of each; accordingly, prosecution by each cannot be for
    the same offense.” United States v. Raymer, 
    941 F.2d 1031
    , 1037 (10th Cir.
    1991).
    Despite the general dual sovereignty rule, there is a limited exception
    commonly referred to as the “sham prosecution” exception. See Bartkus v.
    Illinois, 
    359 U.S. 121
    , 123-24 (1959). In Bartkus, the court rejected a double
    jeopardy claim, noting:
    [The record did] not support the claim that the State of Illinois in
    bringing its prosecution was merely a tool of the federal authorities,
    who thereby avoided the prohibition of the Fifth Amendment against
    a retrial of a federal prosecution after an acquittal. [The record also]
    does not sustain a conclusion that the state prosecution was a sham
    and a cover for a federal prosecution, and thereby in essential fact
    another federal prosecution.
    -7-
    
    Id.
     The implication from this statement is that when one sovereign is acting as
    “merely a tool” of the other, and the second prosecution is merely a “sham and
    cover” for a previously unsuccessful prosecution, the second prosecution violates
    the Double Jeopardy Clause. Although frequently noted, this exception is “an
    extremely narrow one” and is rarely applied. United States v. Paiz, 
    905 F.2d 1014
    , 1024 (7th Cir. 1990); see also United States v. Rector, 
    111 F.3d 503
    , 507
    (7th Cir. 1997) (noting the exception “has been discussed by courts in the process
    of rejecting its application ever since [it was created]”); Guzman, 
    85 F.3d at 827
    (“[Bartkus exception] limited to situations in which one sovereign so thoroughly
    dominates or manipulates the prosecutorial machinery of another that the latter
    retains little or no volition in its own proceedings”).
    The “sham prosecution” exception has been discussed by this court but has
    never been applied to grant a defendant relief. See Raymer, 
    941 F.2d at 1036-38
    .
    In fact, since its articulation in 1959, the exception has been applied in only one
    reported federal case, see United States v. Belcher, 
    762 F.Supp. 666
    , 670-71
    (W.D. Va. 1991), which has led some courts to question its continued validity.
    See Raymer, 
    941 F.2d at 1037
     (“possible exception to the dual sovereignty rule
    might exist”); Paiz, 
    905 F.2d at 1024
     (doubting existence of “very narrow”
    exception and explaining court has “uniformly rejected” its use).
    A defendant attempting to persuade a court to apply the “sham prosecution”
    -8-
    exception faces the “substantial burden of proving one sovereign is so dominated
    by the actions of the other that the former is not acting of its own volition.”
    Raymer, 
    941 F.2d at 1037
    . This burden is not satisfied by merely showing the
    state has conducted the majority of the investigation relied upon by the
    government in federal prosecution of the defendant. See United States v.
    Bernhardt, 
    831 F.2d 181
    , 183 (9th Cir. 1987) (“[S]ufficient independent federal
    involvement . . . save[s] the prosecutions from th[e] exception.”); see also United
    States v. Johnson, 
    973 F. Supp. 1102
    , 1108 (D. Neb. 1997) (“It is perfectly
    permissible for federal authorities to prosecute cases investigated almost
    exclusively by state officers.”). It is also irrelevant that a state prosecutor, after
    unsuccessfully prosecuting a defendant, encourages or requests federal authorities
    to prosecute the defendant. See United States v. Tirrell, 
    120 F.3d 670
    , 677 (7th
    Cir. 1997) (“state merely requested the United States to prosecute Mr. Tirrell a
    second time”). Moreover, a defendant is not entitled to application of the
    exception simply because the same attorney represented both the state and the
    United States in the two prosecutions against the defendant. See Raymer, 
    941 F.2d at 1038
    ; United States v. Padilla, 
    589 F.2d 481
    , 484-85 (10th Cir. 1978); see
    also United States v. Pena, 
    910 F. Supp. 535
    , 540 (D. Kan. 1995) (“Every circuit
    to date that has considered this issue has held that the cross-designation of a state
    district attorney as a federal attorney to assist or even to conduct a federal
    -9-
    prosecution does not by itself bring the case within the Bartkus exception.”). At
    least one court has held this to be true even when the state prosecutor later served
    as a specially appointed Assistant United States Attorney for the express purpose
    of prosecuting defendant a second time and was compensated by the state to
    prosecute defendant in federal court. See Bernhardt, 
    831 F.2d at 183
    .
    Trammell has not satisfied his substantial burden to fall within the very
    limited “sham prosecution” exception. At most, Trammell has demonstrated
    Schodorf, the Assistant United States Attorney who prosecuted his federal case,
    also supervised the attorney who prosecuted his state case. However, Schodorf
    testified he was not directly involved in the state prosecution and was not even
    familiar with the state prosecution until after Trammell was acquitted.
    Specifically, he stated the state prosecution of Trammel “was [Kisner’s] case and
    I paid no attention to it.” R. Suppl. I at 56. Moreover, he submitted an affidavit
    explaining the only reason he prosecuted the federal case was that it was
    reassigned to him after another Assistant United States Attorney resigned. Based
    on this testimony, the court found “Schodorf acted as the nominal supervisor of
    the attorney who brought the previous state criminal charges, but that he was not
    significantly involved in either the decision to bring those charges or the handling
    of the case.” R. I, doc. 39 at 4. This finding is not clearly erroneous. Schodorf’s
    tangential involvement does not demonstrate the federal government was so
    -10-
    dominated by the actions of the state that the federal government was “not acting
    of its own volition.” See Raymer, 
    941 F.2d at 1038
    . Contrary to Trammell’s
    characterization, the government has established it conducted substantial
    independent investigation into Trammell’s activities. An agent for Internal
    Revenue Service performed an extensive analysis and examination of Trammell’s
    financial and banking records, and this analysis was presented to the jury as an
    exhibit.
    Finally, Trammell makes much of the fact that the witnesses and evidence
    used in the state prosecution were the same witnesses and evidence used in the
    federal prosecution. Even if this is true, it simply does not demonstrate the
    federal prosecution was a sham. The witnesses and exhibits that are key to the
    prosecution will not change merely because the prosecution moves from state to
    federal court. Further, numerous individuals who were not included on the state
    witness list testified during the federal trial.
    Trammell has clearly not sustained his heavy burden of proving the
    government was so dominated by the actions of the state that it was “not acting of
    its own volition.” Trammell’s federal prosecution did not violate the Double
    Jeopardy Clause.
    Due Process
    Trammell contends his due process rights were violated by the
    -11-
    government’s three year and nine month delay in indicting him after he was
    acquitted in state court. Whether Trammell’s due process rights were denied by a
    delay in bringing an indictment is a question of fact, which this court reviews for
    clear error. See United States v. Engstrom, 
    965 F.2d 836
    , 838 (10th Cir. 1992).
    “[T]he Due Process Clause has a limited role to play in protecting against
    oppressive [pre-indictment] delay.” United States v. Lovasco, 
    431 U.S. 783
    , 789
    (1977). “Preindictment delay is not a violation of the Due Process Clause unless
    the defendant shows both that the delay caused actual prejudice and that the
    government delayed purposefully in order to gain a tactical advantage.” United
    States v. Johnson, 
    120 F.3d 1107
    , 1110 (10th Cir. 1997). Vague and conclusory
    allegations of prejudice resulting from the passage of time and the absence of
    witnesses are insufficient to constitute a showing of actual prejudice. Defendant
    must show definite and not speculative prejudice, and in what specific manner
    missing witnesses would have aided the defense. United States v. Jenkins, 
    701 F.2d 850
    , 855 (10th Cir. 1983).
    Trammell argues the government’s delay prejudiced his case because two of
    his victims died before testifying at his federal trial and because he testified
    during an intervening civil suit without exercising his rights under the Fifth
    Amendment. He does not specifically allege how the witnesses’ testimony would
    have been of benefit to his case. Further, there is no indication in the record that
    -12-
    the government actually used his deposition testimony from the civil suit in his
    federal prosecution.
    Trammell has completely failed to establish the government’s failure to
    indict him sooner was an intentional ploy to gain a tactical advantage. Schodorf
    testified the delay was because of a backlog of cases and a shortage of attorneys
    in his office. He testified that cases are often filed near the end of the applicable
    statute of limitations period. Schodorf testified the government’s own
    presentation in the case suffered from the death of the witnesses. In denying
    Trammell’s motion to dismiss, the district court explained the inability to call the
    two victims as witnesses would not be a significant disadvantage to Trammell,
    and there was “no indication that the delay was undertaken with the purpose of
    working injury to the ability of Trammell to defend the action.” R. I, doc. 39 at 3.
    This finding is not clearly erroneous.
    Sufficiency of Evidence to Support Mail and Wire Fraud Convictions
    Trammell contends the evidence was not sufficient to support his
    convictions for mail and wire fraud. Specifically, he argues (1) the government
    presented no evidence that he devised or intended to devise a scheme to defraud;
    (2) there was no proof he used the mails or caused the mails to be used; and (3)
    the government failed to prove the mailings were in execution of the fraudulent
    scheme.
    -13-
    In reviewing a challenge to sufficiency of the evidence, we must determine
    whether “any rational trier of fact could have found the essential elements of the
    crime beyond a reasonable doubt. In answering this question, we may neither
    weigh conflicting evidence nor consider the credibility of witnesses.” United
    States v. Pappert, 
    112 F.3d 1073
    , 1077 (10th Cir. 1997) (citations omitted). This
    court must consider the evidence and all reasonable inferences in a light most
    favorable to the government. See United States v. Reddeck, 
    22 F.3d 1504
    , 1507
    (10th Cir. 1994).
    Scheme to defraud
    To prove mail fraud under 
    18 U.S.C. § 1341
    , the government must establish
    (1) a scheme or artifice to defraud or obtain money by false pretenses,
    representations, or promises; and (2) use of the mails to execute the scheme. To
    prove wire fraud under 
    18 U.S.C. § 1343
    , the government must establish (1) a
    scheme or artifice to defraud or obtain money by false pretenses, representations,
    or promise; and (2) use of interstate wire communications to facilitate the scheme.
    A scheme to defraud is conduct intended to or reasonably calculated to deceive
    ordinary people. Reddeck, 
    22 F.3d at 1507
    . Evidence of the “schemer’s
    indifference to the truth of statements can amount to [evidence of] fraudulent
    intent.” 
    Id.
    -14-
    The jury was instructed that a “scheme to defraud” means “any deliberate
    plan of action or course of conduct by which someone intends to deceive or cheat
    another or by which someone intends to deprive another of something of value.”
    R. I, doc. 62, instr. 15. Under this definition, it is clear the government presented
    sufficient evidence for the jury to conclude Trammell created a “scheme to
    defraud.” See, e.g., Reddeck, 
    22 F.3d at 1506-08
     (sufficient evidence of
    defendant’s scheme to defraud despite claim actions were result of delusional
    disorder).
    Trammell signed brokerage agreements with American Investors and
    Financial Benefit that required him to collect premiums from investors made
    payable only to the companies. Unfortunately, apparently to obtain personal
    access to investors’ funds, Trammell instructed investors to make their checks
    payable to Senior Insurance Strategies instead of to the companies. Sawyer
    testified that Trammell instructed him to have investors make their checks payable
    to Senior Insurance Strategies. All of the investors involved here made their
    checks payable to Senior Insurance Strategies, and the government presented an
    extensive analysis of how Trammell systematically spent the investors’ money for
    unrelated business and personal expenses. With the exception of one annuity
    purchased for Oberhelman, none of the money given to Trammell by the investors
    was used to purchase annuities. A jury could easily conclude Trammell created a
    -15-
    deliberate plan of action or course of conduct to deceive or cheat another or
    deprive another of something of value.
    Use of mails
    The record also reflects the government presented ample evidence that
    Trammell caused the mails to be used in the execution of his scheme to defraud.
    Oberhelman’s daughter testified she received a letter from Trammell and she sent
    a letter back to Trammell through the postal system. The McWhorters’ daughter
    testified that she received a letter from Trammell through the mail. Sawyer
    testified that he “sent” both letters at the direction of Trammell. A jury could
    easily conclude Trammell caused the mails to be used.
    Trammell argues the letters sent to Oberhelman’s daughter and the
    McWhorters’ daughter did not further his alleged scheme because he had already
    obtained money from Oberhelman and the McWhorters when the letters were sent.
    The letters in question requested the recipient to complete the enclosed form, sign
    the form, and return it to Senior Insurance Strategies. “In a mail fraud case it is
    not necessary that the mailing predate the defendant’s receipt of the money.”
    United States v. Kelley, 
    929 F.2d 582
    , 585 (10th Cir. 1991). Mailings sent after
    the defendant has obtained the victim’s money are considered “in furtherance of
    the scheme” for purposes of 
    18 U.S.C. § 1341
     if they facilitate concealment of the
    -16-
    scheme. 
    Id.
     These mailings are commonly referred to as “lulling letters.” See
    United States v. Massey, 
    48 F.3d 1560
    , 1566 (10th Cir. 1995) (“Lulling letters
    can further a fraudulent scheme for the purposes of the mail fraud statute.”). The
    Supreme Court has defined a “lulling letter” as a mailing that is “designed to lull
    the victims into a false sense of security, postpone their ultimate complaint to the
    authorities, and therefore make the apprehension of the defendant[] less likely
    than if no mailings had taken place.” United States v. Maze, 
    414 U.S. 395
    , 403
    (1974). “To be part of the execution of the fraud . . . the use of the mails need
    not be an essential element of the scheme. It is sufficient for the mailing to be
    ‘incident to an essential part of the scheme’ or a ‘step in the plot.’” Schmuck v.
    United States, 
    489 U.S. 705
    , 710-11 (1989) (citations omitted) (quoting Badders
    v. United States, 
    240 U.S. 391
    , 394 (1916)).
    The letters here were obviously designed to lull Oberhelman and the
    McWhorters into believing Trammell was working with the insurance companies
    to procure annuities for them, when in fact at the time the letters were written he
    had already spent all of the money they had entrusted to him. Sawyer testified
    that Trammell told him to tell the McWhorters “the delay was caused by the
    paperwork not all being completed for the annuity application.” R. III at 110.
    Moreover, both letters were sent before Trammell obtained any money from
    Storey. Trammell surrendered his insurance license on June 13, 1991. If he had
    -17-
    not placated Oberhelman and the McWhorters throughout the spring of 1991 by
    continuing the impression he was working to obtain their annuities, they would
    have likely reported their frustrations to the insurance commission sooner. This
    might have prevented Storey’s loss. A jury could easily conclude that by sending
    the letters, Trammell furthered his fraudulent scheme.
    Sufficiency of Evidence to Establish Federal
    Jurisdiction over Money Laundering Charges
    Trammell contends his money laundering conviction should be reversed
    because the government failed to establish his activities affected interstate
    commerce. The requirement that a transaction be “in or affecting interstate
    commerce” is both jurisdictional and an essential element of the charge of money
    laundering under 
    18 U.S.C. § 1957
    . United States v. Allen, 
    129 F.3d 1159
    , 1163
    (10th Cir. 1997) (petition for reh’g pending). To confer jurisdiction in federal
    court, the government must present a minimal amount of evidence that
    demonstrates the defendant engaged in a transaction involving interstate
    commerce. Kelley, 
    929 F.2d at 586
    . We have held this requirement is satisfied
    when the government presents evidence that defendant engaged in transactions
    involving financial institutions insured by the FDIC. See United States v.
    Kunzman, 
    54 F.3d 1522
    , 1527 (10th Cir. 1995). We have also held that when a
    defendant has money wired from one state to another, that transaction affects
    interstate commerce. See United States v. Lovett, 
    964 F.2d 1029
    , 1038-39 (10th
    -18-
    Cir. 1992). Moreover, since the requirement that a transaction be “in or affecting
    interstate commerce” is an essential element of the crime, the government is
    required to prove to the jury that defendant’s transactions actually had at least a
    minimal effect on interstate commerce. Allen, 
    129 F.3d at 1163
    ; see also United
    States v. Leslie, 
    103 F.3d 1093
    , 1101 (2d Cir.), cert. denied 
    117 S. Ct. 1713
    (1997).
    The record reveals Trammell accepted checks from financial institutions
    insured by the FDIC in the course of his fraudulent scheme. The record also
    shows he wired money from his account in a Lawrence, Kansas, bank to a bank in
    Ft. Lauderdale, Florida, on June 5, 1991. Therefore, Trammell’s transactions
    sufficiently affected interstate commerce to confer the federal court with
    jurisdiction over the money laundering charges. Moreover, the record establishes
    the government proved Trammell’s actions had at least a minimal effect on
    interstate commerce. The jury was presented with the evidence discussed above
    and was instructed on the government’s burden to establish Trammell’s
    transactions affected interstate commerce. The jury’s verdict indicates it found
    Trammell’s conduct affected interstate commerce, and there is sufficient evidence
    in the record to support the jury’s conclusion.
    -19-
    Special Verdict Form
    Trammell contends his conviction should be reversed because the district
    court failed to use a special verdict form so the jury could identify which of the
    two forms of fraud identified in 
    18 U.S.C. §§ 1341
     and 1343 served as a basis for
    its verdict. Trammell states he requested that the jury be asked to indicate on its
    verdict form for each count of mail or wire fraud whether Trammell’s actions
    constituted a scheme to defraud or a scheme to obtain money by false pretenses,
    but the district court rejected the request and instructed the jury on both types of
    fraud. Although his argument is somewhat unclear, Trammell is apparently
    arguing each of the mail and wire fraud counts is duplicitous and the court was
    required to use a special verdict form for each count to cure the problem.
    We review de novo the question of whether an indictment is duplicitous.
    United States v. Wiles, 
    102 F.3d 1043
    , 1061 (10th Cir. 1996). A duplicitous
    indictment charges the defendant with two or more separate offenses in the same
    count. United States v. Haddock, 
    956 F.2d 1534
    , 1546 (10th Cir. 1992). Here,
    Trammell is asserting each of the mail and wire fraud counts charged him with
    two crimes, one based upon a scheme to defraud and another based upon a scheme
    to obtain money by false pretenses. “The dangers of duplicity are three-fold: (1)
    A jury may convict a defendant without unanimously agreeing on the same
    offense; (2) A defendant may be prejudiced in a subsequent double jeopardy
    -20-
    defense; and (3) A court may have difficulty determining the admissibility of
    evidence.” Wiles, 
    102 F.3d at 1061
    . 1
    Trammell’s duplicity argument rests on the holding in United States v.
    Cronic, 
    900 F.2d 1511
     (10th Cir. 1990), that “[a]lthough largely overlapping, a
    scheme to defraud, and a scheme to obtain money by means of false or fraudulent
    pretenses, representations, or promises, are separate offenses.” 
    Id. at 1513
    (emphasis added). Relying on this statement, Trammell argues that under
    principles of duplicity, the government is required to charge a defendant with the
    two types of mail fraud in § 1341 in separate counts of an indictment. 2 Even if
    Trammell’s indictment was duplicitous under Chronic, “[a] challenge to an
    indictment based on duplicity must be raised prior to trial . . . . Raising the
    objection at the close of the government’s case is too late.” United States v.
    Hager, 
    969 F.2d 883
    , 890 (10th Cir. 1992). However, a defendant can raise a late
    challenge to a duplicitous indictment “if cause is shown that might justify the
    granting of relief from the waiver.” 
    Id.
    1
    The Sixth Circuit has also noted, in addition to these problems, a
    duplicitous indictment may give a defendant improper notice of the charges
    against him, prejudice the defendant in sentencing, and limit the scope of the
    defendant’s appeal. See United States v. Blandford, 
    33 F.3d 685
    , 699 n.17 (6th
    Cir. 1994).
    2
    Since the language of 
    18 U.S.C. § 1341
     and 
    18 U.S.C. § 1343
     are
    identical in this regard, the analysis applies to both the mail fraud and the wire
    fraud statutes.
    -21-
    The record does not reflect exactly when Trammell first advanced his
    argument that the jury should be instructed that the two types of mail fraud were
    two separate offenses. During the jury instruction hearing, Trammell’s counsel
    stated: “I want to make sure on the record that the Court [is] aware from our
    previous discussions of our suggestion that perhaps the Cronic case and the
    Migliaccio case that I cited, because these are two separate and distinct offenses,
    that there is this duplicity problem.” R. IX at 366 (emphasis added). It is not
    clear when Trammell’s counsel and the court had “previous discussions” about
    the problem of duplicity. Trammell’s proposed jury instructions seem to reflect
    an awareness of the holding in Cronic; however, the proposed instructions were
    filed on October 25, 1996, and trial started October 22, 1996. In addition, the
    docket sheet does not reflect a challenge to the indictment based on duplicity.
    Thus, Trammell waived his duplicity challenge by failing to object to the
    indictment until after trial started. Moreover, he has not presented this court with
    any cause to justify his failure to challenge his indictment before trial. Because
    he did not timely challenge his indictment on duplicity grounds, he waived any
    later challenge based on a failure to use a special verdict form to avoid the
    alleged duplicity problem.
    Even if the issue were properly before us, any possible error was cured by
    the district court’s instructions. “One cure for an otherwise duplicitous
    -22-
    indictment is to give an augmented instruction requiring unanimity on one or the
    other of the acts charged within a count that otherwise appear to constitute
    separate offenses.” United States v. Duncan, 
    850 F.2d 1104
    , 1112 n.8 (6th Cir.
    1988); see also Wiles, 
    102 F.3d at 1062
    .
    The district court clearly provided a unanimity instruction:
    The government has alleged the defendant’s actions
    constituted: (1) a scheme to defraud, and/or (2) a scheme whereby
    defendant attempted to obtain money by false pretenses. In order to
    find defendant guilty of this offense, you must find the government
    has proven beyond a reasonable doubt the defendant pursued either
    (1) a scheme to defraud, or (2) a scheme whereby defendant
    attempted to obtain money by false pretenses. Furthermore, should
    you so decide, you must unanimously agree as to whether there was a
    scheme to defraud, or whether there was a scheme whereby
    defendant attempted to obtain money by false pretenses.
    R. I, doc. 62, instr. 15 (emphasis added). Further, when discussing the charge of
    wire fraud, the district court instructed the jury that “[t]he law relating to a
    ‘scheme to defraud’ and taking by ‘false pretenses’ was discussed in the
    preceding instruction.” 
    Id.,
     instr. 16. This court has held jury instructions which
    are far more general than those provided here counteract problems created by a
    duplicitous indictment. See Haddock, 
    956 F.2d at 1546
    ; see also Wiles, 
    102 F.3d at 1062
    ; United States v. Sasser, 
    971 F.2d 470
    , 477-78 (10th Cir. 1992) (court
    refused to give specific unanimity instruction).
    Sentence Enhancement
    Trammell argues the district court erred in enhancing his sentence for
    -23-
    abusing a position of trust because he did not occupy a “formal position of trust”
    and did not create an impression that he occupied such a position. This court
    reviews the question of whether an individual occupied a position of trust in a
    particular transaction for clear error. See United States v. Queen, 
    4 F.3d 925
    , 928
    (10th Cir. 1993).
    A defendant’s sentence should be enhanced when “the defendant abused a
    position of public or private trust, or used a special skill, in a manner that
    significantly facilitated the commission or concealment of the offense.” U.S.S.G.
    § 3B1.3. “The primary concern of § 3B1.3 is to penalize defendants who take
    advantage of a position that provides them freedom to commit or conceal a
    difficult-to-detect wrong.” United States v. Koehn, 
    74 F.3d 199
    , 201 (10th Cir.
    1996). The existence of a fiduciary or personal trust relationship sometimes
    justifies imposition of a § 3B1.3 enhancement. See United States v. Brunson, 
    54 F.3d 673
    , 677 (10th Cir. 1995). However, “[n]ot every misuse of a fiduciary
    relationship will justify the enhancement under § 3B1.3. . . . To invoke § 3B1.3,
    the defendant must either occupy a formal position of trust or must create
    sufficient indicia that he occupies such a position of trust that he should be held
    accountable as if he did occupy such a position.” Queen, 
    4 F.3d at
    929 n.3
    (citation omitted). The guideline enhancement requires more than a mere
    showing that the victim had confidence in defendant. Brunson, 
    54 F.3d at
    678 (§
    -24-
    3B1.3 does not apply in arm’s length transaction). The question of whether an
    individual occupied a position of trust is evaluated from the victim’s perspective.
    Queen, 
    4 F.3d at 929
    .
    As a licensed insurance agent, Trammell clearly held a “formal position of
    trust.” See Brunson, 
    54 F.3d at 678
     (“Unlike a personal investment
    advisor/investor relationship, . . . no trust relationship exists between the two
    principals.”); Queen, 
    4 F.3d at 929
     (“There is no question that, had the defendant
    actually been an investment advisor/broker as he represented to his victims, he
    would have occupied a position of trust.”); see also United States v. Stewart, 
    33 F.3d 764
    , 770 (7th Cir. 1994) (defendant occupied position of trust within
    meaning of § 3B1.3 in selling annuities to senior citizens as licensed insurance
    broker and diverting funds for personal use); United States v. Nelson, 
    29 F.3d 261
    , 262 (7th Cir. 1994) (defendant did not even challenge court’s conclusion that
    as an insurance broker he occupied position of trust within meaning of § 3B1.3).
    Trammell used his formal position as an insurance agent to solicit funds
    from investors by representing he would purchase annuities for them. He then
    spent the funds for his own personal benefit. After he had spent the money
    entrusted to him, he attempted to conceal his fraud by continuing to correspond
    with proposed annuitants and continuing to tell the investors they would receive
    their annuities as soon as the paperwork was completed. Trammell’s conduct
    -25-
    committed while acting as an insurance agent was plainly an abuse of trust by a
    fiduciary. See United States v. Lowder, 
    5 F.3d 467
    , 473 (10th Cir. 1993); Queen,
    
    4 F.3d at 928-29
    . The district court properly enhanced Trammell’s sentence for
    abusing a position of trust.
    III.
    Trammell’s convictions and sentence are AFFIRMED.
    -26-