United States v. Palermo , 88 F. App'x 656 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4942
ELIZABETH PALERMO,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4222
ELIZABETH PALERMO,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CR-01-375-PJM)
Submitted: September 29, 2003
Decided: March 1, 2004
Before LUTTIG and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
2 UNITED STATES v. PALERMO
COUNSEL
Robert C. Bonsib, MARCUS & BONSIB, Greenbelt, Maryland, for
Appellant. Thomas M. DiBiagio, United States Attorney, Gina L.
Simms, Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Elizabeth Palermo appeals the district court’s orders sentencing her
for ten counts of mail fraud, in violation of 18 U.S.C. § 1341 (2000),
and the resulting order of restitution. We have reviewed the record
and find no reversible error.
First, Palermo argues that the district court improperly used the
"mass marketing" enhancement of United States Sentencing Guide-
lines Manual § 2F1.1 (2000) to increase her sentence. She contends
that because the enhancement was intended for use in cases of open-
ended solicitations of unknown individuals, her solicitation of approx-
imately 158 existing clients over a two-month period did not consti-
tute mass marketing. We review a district court’s legal interpretation
of a sentencing guideline de novo and its factual determinations for
clear error. See United States v. Daughtrey, 874 F.2d 213, 217 (4th
Cir. 1989). We find Palermo’s argument to be without merit.
The sentencing guidelines define mass marketing as a "plan, pro-
gram, promotion, or campaign that is conducted through solicitation
by telephone, mail, the Internet, or other means to induce a large
number of persons to . . . purchase goods or services. . . ." USSG
§ 2F1.1, Comment, (n.3). Thus, all that is required is that any solicita-
tion reach a large number of persons. See United States v. Magnuson,
UNITED STATES v. PALERMO 3
307 F.3d 333, 334 (5th Cir. 2002), cert. denied, 123 S. Ct. 1008(2003). We find that Palermo’s scheme to defraud clients concerning
various pieces of art, in order to raise sufficient funds to purchase
some of the very pieces she claimed to already have in her possession,
falls squarely within the definition of mass marketing. Furthermore,
contrary to Palermo’s contention, there is no distinction made
between soliciting known and unknown individuals. We further find
that 158 people is a sufficiently large number of individuals to qualify
for the enhancement. Thus, we find that the district court did not
clearly err by applying the mass marketing enhancement to increase
Palermo’s sentence.
Next, Palermo argues that the district court erred in its calculation
of restitution owed to certain alleged victims of her fraudulent con-
duct. We review a district court’s order of restitution for abuse of dis-
cretion. See United States v. Vinyard, 266 F.3d 320, 325 (4th Cir.
2001), cert. denied, 536 U.S. 922 (2002) (citing United States v.
Henoud, 81 F.3d 484, 490 (4th Cir. 1996)). We find that because the
Government proved the amounts of loss with regard to each victim by
a preponderance of the evidence, see Henoud, 81 F.3d at 490, the dis-
trict court’s restitution order does not constitute an abuse of discre-
tion.
Lastly, Palermo argues that the district court erred by declining to
instruct the jury on the definition of reasonable doubt as requested.
We review the denial of a proposed jury instruction for abuse of dis-
cretion. See United States v. Seidman, 156 F.3d 542, 551 (4th Cir.
1998). For the following reasons, we conclude Palermo’s argument
fails.
We have expressed disapproval of attempts by district courts to
define the term "reasonable doubt." See United States v. Najjar, 300
F.3d 466, 486 (4th Cir.), cert. denied, 537 U.S. 1094 (2002); United
States v. Oriakhi, 57 F.3d 1290, 1300 (4th Cir. 1995). Moreover, we
have held that a district court should not attempt to define reasonable
doubt absent a specific jury request. See Oriakhi, 57 F.3d at 1300 (cit-
ing United States v. Headspeth, 852 F.2d 753, 755 (4th Cir. 1988)).
Here, there is no indication that the jury asked the court to define rea-
sonable doubt. Palermo concedes that controlling law counsels
against her position, but asks this court to reevaluate its position. We
4 UNITED STATES v. PALERMO
have never questioned the law as it currently stands. In fact, we have
been clear that reasonable doubt instructions tend to create confusion
instead of dispel it. Thus, we decline to reevaluate our position and
find that the district court did not abuse its discretion by declining to
give Palermo’s requested instruction.
For the foregoing reasons, we find that the district court did not err
in applying the mass marketing enhancement to increase Palermo’s
sentence, in calculating the amount of restitution owed to certain vic-
tims of her fraudulent scheme, or in declining to instruct the jury on
the definition of reasonable doubt as requested. Accordingly, we
affirm the district court’s orders. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED