United States v. Yates , 353 F.3d 490 ( 2003 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 United States v. Nos. 02-1662/1673/1700/1703/
ELECTRONIC CITATION: 2003 FED App. 0455P (6th Cir.) Anderson, et al. 1736/1769/1771
File Name: 03a0455p.06
Before: GUY and GILMAN, Circuit Judges; REEVES,
District Judge.*
UNITED STATES COURT OF APPEALS
_________________
FOR THE SIXTH CIRCUIT
_________________ COUNSEL
UNITED STATES OF AMERICA , X ARGUED: Lawrence J. Phelan, HAEHNEL & PHELAN,
Plaintiff-Appellee, - Grand Rapids, Michigan, Kevin M. Schad, SCHAD &
- COOK, Indian Springs, Ohio, Richard E. Zambon,
- Nos. 02-1662/ MITCHELL & ZAMBON, Grand Rapids, Michigan, Daniel
v. - 1673/1700/1703/ R. Fagan, DANIEL R. FAGAN & ASSOCIATES, Grand
> 1736/1769/1771 Rapids, Michigan, John M. Karafa, Grand Haven, Michigan,
,
JOAN MARIE ANDERSON for Appellants. Donald A. Davis, ASSISTANT UNITED
-
(02-1662); FRANCIS ALBERT STATES ATTORNEY, Grand Rapids, Michigan, for
-
SAGORSKI (02-1673); RODGER - Appellee. ON BRIEF: Lawrence J. Phelan, HAEHNEL &
PHELAN, Grand Rapids, Michigan, Kevin M. Schad,
BRUCE YATES (02-1700); - SCHAD & COOK, Indian Springs, Ohio, Richard E.
ARTHUR HENRY - Zambon, MITCHELL & ZAMBON, Grand Rapids,
-
MODDERMAN (02-1703); Michigan, Daniel R. Fagan, DANIEL R. FAGAN &
-
SUSAN ELAINE SLOBODA ASSOCIATES, Grand Rapids, Michigan, John M. Karafa,
-
(02-1736); ROBERT LEE Grand Haven, Michigan, Anthony J. Valentine, TWOHEY
- MAGGINI, PLC, Grand Rapids, Michigan, Keith W. Turpel,
GOODWIN , JR. (02-1769); - Kalamazoo, Michigan, for Appellants. Donald A. Davis,
RUTH ELAINE SHRIVER - ASSISTANT UNITED STATES ATTORNEY, Grand
(02-1771), - Rapids, Michigan, for Appellee.
-
Defendants-Appellants. -
_________________
N
Appeal from the United States District Court OPINION
for the Western District of Michigan at Grand Rapids. _________________
No. 01-00175—Robert Holmes Bell, Chief District Judge.
PER CURIAM. These seven consolidated appeals by
Argued and Submitted: December 2, 2003 defendants Joan Marie Anderson, Arthur Henry Modderman,
Decided and Filed: December 23, 2003
*
The Honorable Danny C. Reeves, United States District Judge for
the Eastern District of Kentucky, sitting by designation.
1
Nos. 02-1662/1673/1700/1703/ United States v. 3 4 United States v. Nos. 02-1662/1673/1700/1703/
1736/1769/1771 Anderson, et al. Anderson, et al. 1736/1769/1771
Rodger Bruce Yates, Francis Albert Sagorski, Ruth Elaine conspiracy to include the creation and offering of 193
Shriver, Susan Elaine Sloboda, and Robert Lee Goodwin, Jr., fictitious sight drafts purporting to be drawn on the United
raise various challenges to their respective convictions and/or States Treasury with an aggregate face value of more than
sentences. The 73-count Superceding Indictment in this case $550 million and the use of IRS Form 8300 to falsely report
charged 14 defendants with conspiracy both to defraud and to that 113 transactions occurred with third parties with an
commit offenses against the United States in violation of aggregate value of more than $490 million. In addition,
18 U.S.C. § 371 (count 1); substantive offenses relating to the defendants refused to appear before or cooperate with the
making and offering of fictitious “sight drafts” purporting to grand jury, its subpoenas, or the federal district court.
be actual financial instruments issued under the authority of Defendants also filed frivolous “notices” (including criminal
the United States in violation of 18 U.S.C. § 514(a)(2) (counts complaints) against prosecutors, law enforcement and judicial
2-24); and substantive offenses involving the making and officers involved in the investigation and prosecution of this
subscribing, or aiding, assisting or counseling the making and case.
subscribing of false reports of cash transactions to the IRS on
Form 8300 in violation of 26 U.S.C. § 7206(1) and In 1998, defendant Rodger Yates was serving a sentence in
(2) (counts 25-73). Two defendants pleaded guilty and the federal prison for activities involving the “Montana Freemen”
remaining twelve defendants were convicted by a jury on all at the same time that defendant Jerry Allen Chase was serving
charges following a joint trial. After review of the record and a sentence for violating income tax laws. Chase testified that
the defendants’ respective challenges to their convictions Yates told him that he and Roger Elvick were perfecting a
and/or sentences, we affirm in all respects. scheme using false financial instruments that appeared to be
drawn on the United States. Yates enlisted the aid of
I. individuals outside prison; namely, Joan Anderson, her
common law husband Arthur Modderman, and Phillip Leroy
The indictment alleged that beginning in late 1998 and (a.k.a. PJ) Hammond (who has not appealed). Yates, who
continuing through July 2001, the defendants joined in a was in prison for having used earlier forms of fictitious
single conspiracy with multiple objectives: namely, to defraud instruments, told Chase that the new “sight draft” theory was
the United States by impeding, impairing, obstructing, and “more sound” than earlier schemes.
defeating the lawful government functions of the IRS and
other federal agencies; and to commit offenses against the During that same time frame, defendants Ruth Shriver
United States with respect to both the fictitious sight drafts (Shriver) and her husband Jack Shriver (who has not
and the false reports of cash transactions to the IRS.1 The appealed) were in financial trouble with the IRS. The
indictment described the “means and methods” of the Shrivers communicated with Elvick and his partner, Roger
Knutt, both of whom had recently been released from prison
and claimed to have recovered their farm using false sight
1
drafts. In late summer 1998, PJ Hammond ordered thousands
A bank representative, Paul Wegener, contrasted a check with a of blank sight drafts from a commercial printing company.
sight draft. A check is payable on demand when presented to a bank, The drafts were paid for by someone named “Ruth.” On
while the maker or drawer of a sight draft instructs the drawee to pay a
third party. A sight draft is not deposited in an account like a check, but
September 9, 1998, the Shrivers sent the IRS a sight draft
must be pro cessed through the collection de partm ent. appearing to be drawn on the United States Treasury in the
Nos. 02-1662/1673/1700/1703/ United States v. 5 6 United States v. Nos. 02-1662/1673/1700/1703/
1736/1769/1771 Anderson, et al. Anderson, et al. 1736/1769/1771
amount of $1.75 million. Although the IRS initially credited belonged to Modderman.2 Most of the false 8300s reported
the Shrivers in that amount, the credit was reversed. Within nonexistent transactions involving a number of judges,
a week of the first sight draft, six other codefendants each prosecutors, attorneys, public officials, and law enforcement
wrote similar sight drafts to the IRS (including appellants and corrections officers. The forms were filled out to indicate
Sagorski, Hammond, Anderson, and Modderman). that the target had refused to give his or her social security
number, which automatically caused the IRS to send a stern
Sight drafts made payable to the IRS were written by all but form letter to the target demanding compliance with the law.
two defendants, Sloboda and Goodwin, and formed the basis
for the substantive charges in counts 2 through 24. As A total of eight defendants were charged with making false
referenced earlier, numerous other sight drafts were presented declarations under penalty of perjury by signing a false IRS
to state and local governments, credit card companies, banks Form 8300, in violation of § 7206(1); including appellants
and credit unions, brokerages, and were also used for personal Modderman (counts 37-45), Sagorski (counts 46-47), Sloboda
expenses. Part of the scheme was the hope that some (counts 48-49), and Goodwin (counts 28-30). The remaining
financial institutions had such sloppy computer systems that charges for aiding, assisting, counseling, or advising others to
at least some sight drafts would be accepted and the credits make false declarations on the 8300s in violation of § 7206(2)
could be spent or used to eliminate other debts. were brought against Yates (counts 50-53) and Anderson
(counts 50-73).
Another aspect of the conspiracy involved the filing of false
returns with the IRS that reported cash transactions of over The evidence showed that Anderson and Modderman
$10,000, when no transaction had in fact occurred, in order to explained the “redemption theory” and instructed others how
intimidate and harass the individual identified as having to write the sight drafts and fill out the false 8300s. One
participated in the nonexistent transaction. Under federal law, witness, Diana Arndt-Mammen (Arndt), testified that
a return, Form 8300, must be filed with the IRS when a Anderson and Modderman offered the sight-draft scheme as
person engaged in a trade or business receives over $10,000 a way for her to resolve her severe financial problems,
in a cash transaction. 26 U.S.C. § 6050I. Form 8300 includes showed her how to fill out the sight drafts and false 8300s,
a jurat, stating that: “Under penalties of perjury, I declare that and asked if she had filed false 8300s against those who
to the best of my knowledge the information I have furnished rejected the sight drafts. Another coconspirator, Herbert
above is true, correct, and complete.” Lawrence, testified that Anderson and Modderman instructed
him on how to use the false 8300s to “bring the IRS down” on
Targets of the false 8300s included individuals who officials and other individuals to harass them. Anderson and
rejected sight drafts and both public officials and private Modderman also told Lawrence to avoid lawyers, that he did
individuals against whom a defendant bore a grievance. For
example, four members of the Westveld family were targeted
because one of them had purchased property that had once
2
An emp loyee o f a cred it union was targeted by Hammond, and a
disabled worker in the mailroom of a credit card company was targeted
after op ening an app lication fro m de fendant Carney.
Nos. 02-1662/1673/1700/1703/ United States v. 7 8 United States v. Nos. 02-1662/1673/1700/1703/
1736/1769/1771 Anderson, et al. Anderson, et al. 1736/1769/1771
not have to obey the corrupt court system, and that he would Anderson, Modderman, Yates, Sagorski, Sloboda, Goodwin
be protected if he recited their “shield” or “mantra.”3 and Shriver.
Use of the mantra was taught as part of the scheme and was II.
recited by various defendants through all stages of the
proceedings. It was part of the refusal to cooperate with the With the exception of Sloboda and Shriver, defendants
grand jury and in contempt proceedings, which resulted in appeal from the denial of judgment of acquittal with respect
obstruction of justice enhancements at sentencing. to some or all of their convictions. On appeal, “the relevant
Handwriting exemplars were ultimately provided to the grand question is whether, after viewing the evidence in the light
jury, but not until after defendants were held in contempt of most favorable to the prosecution, any rational trier of fact
court. At trial, each of the defendants—except for Sagorski, could have found the essential elements of the crime beyond
Dewey Metcalf, Sr., and Dewey Metcalf, Jr.—disrupted the a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
trial by standing and reciting the mantra. (1979). This standard applies to both direct and
circumstantial evidence, and all reasonable inferences must be
This disruption involved several defendants rising together, drawn in favor of the government. United States v. Searan,
repeatedly reciting the mantra and being removed from the 259 F.3d 434, 441 (6th Cir. 2001).
courtroom. The first time, seven defendants were removed.
The next day, a total of nine defendants were removed.4 With A. Form 8300
that, the district court decided, after consulting with counsel,
that the nine defendants would be allowed to return only if Challenging their convictions for violations of 26 U.S.C.
they gave assurances that they would not disrupt the § 7206(1) and (2), as well as the portion of the conspiracy
proceedings any further. Unwilling to give any assurances, charge relating to these offenses, Anderson, Yates,
none of the nine were present in the courtroom for the rest of Modderman, Sagorski, and Goodwin argue first that these
the trial. Although the defendants do not challenge the convictions must be reversed because there is no duty to file
district court’s handling of the situation, it was the basis for Form 8300 for nonexistent transactions. Defendants reason
upward departures at sentencing as well as Sagorski’s motion that if there is no duty to file a return, there can be no
for severance or mistrial. prosecution for filing a form containing false information
either because it cannot be a “willful” violation or because the
Defendants were convicted on all counts and, after falsity cannot be “material.” While there are apparently no
sentencing, timely notices of appeal were filed on behalf of cases addressing this argument, we are satisfied that it is the
novelty of the defendants’ conduct that accounts for this fact
and not the inapplicability of § 7206 to this situation.
3
The mantra consisted of the following three questions and demand:
“What is your name ? D o you have a claim against me? Do you know of Defendants emphasize that most cases involving the
any others that have a claim against me? I request the order of the Court currency transaction report required by 26 U.S.C. § 6050I are
be released to me immediately.” prosecutions for willful failure to file the return under 26
4 U.S.C. § 7203. That may be, and, in those cases, proof of a
Ruth Shriver also rose and stepped toward someone near the duty to file a return may be required for conviction since
podium, but was intercepted by security and removed from the courtroom.
Nos. 02-1662/1673/1700/1703/ United States v. 9 10 United States v. Nos. 02-1662/1673/1700/1703/
1736/1769/1771 Anderson, et al. Anderson, et al. 1736/1769/1771
§ 7203 refers to any person “required to make a return.” We Taking a slightly different tack, Modderman argues that the
have no difficulty concluding, however, that proof of a duty falsity of the information on the 8300s was not “material”
to file a return is not required to establish a violation of because in the absence of any reportable transaction there was
§ 7206(1) or (2) for filing reports of nonexistent transactions. no duty to file the 8300s and no tax to be computed by the
See United States v. Tarwater, 308 F.3d 494, 504 (6th Cir. IRS. Of course, the failure to report income or other items
2002) (describing § 7206 as a perjury statute criminalizing necessary to the computation of tax is material. Tarwater,
lying on any document filed with the IRS). 308 F.3d at 505. In general, however, “a false statement is
material if it has ‘a natural tendency to influence, or [is]
“Willfulness” for purposes of the tax laws connotes “‘a capable of influencing, the decision of the decisionmaking
voluntary, intentional violation of a known legal duty.’” body to which it was addressed.’” Neder v. United States,
Cheek v. United States, 498 U.S. 192, 200 (1991) (citation 527 U.S. 1, 16 (1999) (alteration in original) (citation
omitted). The relevant duty for purposes of willfulness is the omitted). We reject defendants’ contention that it is
duty imposed by the provision of the statute or regulation the immaterial as a matter of law to falsely report a transaction on
defendant is accused of violating. Id. at 201-02. Under Form 8300 when no transaction has in fact occurred.
§ 7206(1), the government must show the defendant willfully
made and subscribed “any return, statement, or other B. Sight Drafts
document, which contains or is verified by a written
declaration that it is made under the penalties of perjury, and The convictions for violation of 18 U.S.C. § 514(a)(2), as
which he does not believe to be true and correct as to every well as the portion of the conspiracy charge relating to those
material matter.” The companion section, § 7206(2), makes offenses, are challenged on appeal by Modderman (counts 1,
it a felony for any person to willfully aid, assist, procure, 15-17), Yates (counts 1 and 24), Sagorski (counts 1, 18-22),
counsel, or advise the preparation or presentation under the and Goodwin (count 1).6 Defendants make three main claims:
internal revenue laws a return, affidavit, claim or other that the sight drafts are not “fictitious” obligations; that they
document which is fraudulent or false as to any material do not appear to be “actual” financial instruments; and that
matter. The clear import of these provisions is that when one there was no evidence of an intent to defraud because they did
makes and subscribes a return, or aids and counsels the not attempt to get a refund from the IRS. None of these
preparation and presentation of a return, an obligation arises claims have merit.
that the return not be false as to any material matter. This
duty arises with the making of the return, without regard to Added in 1996, § 514(a)(2) makes it a felony to pass,
whether there was an obligation to file one in the first place.5 present, offer, issue, attempt or cause the same, or possess,
with intent to defraud,
5
Although Anderson claims error in the failure to give a requested 6
instruction on willfulness, the record shows that the jury was instructed Anderson does not appeal her convictions for violation of
concerning “willfulness.” The district court denied a request that § 514(a)(2) (counts 2-3), or her conviction on the conspiracy charge
“willfully” be added to the verdict form. (count 1).
Nos. 02-1662/1673/1700/1703/ United States v. 11 12 United States v. Nos. 02-1662/1673/1700/1703/
1736/1769/1771 Anderson, et al. Anderson, et al. 1736/1769/1771
any false or fictitious instrument, document, or other by any of the recipients, we agree with the court in Howick
item appearing, representing, purporting, or contriving that because the “very purpose of the statute is to supplement
through scheme or artifice, to be an actual security or the preexisting counterfeit laws by criminalizing bogus
other financial instrument issued under the authority of obligations that are not copies of any actual obligation” the
the United States, a foreign government, a State or other term “actual” in § 514(a)(2) cannot be given its most natural
political subdivision of the United States, or an meaning. 263 F.3d at 1067 (emphasis in original). Instead,
organization[.] it should be interpreted to encompass the idea of
“verisimilitude”—the quality of appearing to be true or real.
The legislative history of this provision indicates that it was Id.7
intended to cover “fictitious” instruments, as opposed to
“counterfeit” instruments, in order to close a loophole in the Recognizing the infinite range of financial instruments,
criminal statutes. United States v. Howick, 263 F.3d 1056, both genuine and fictitious, the court in Howick interpreted
1066-67 (9th Cir. 2001), cert. denied, 535 U.S. 946 (2002). the phrase “‘actual security or other financial instrument’” to
The court in Howick articulated the distinction between mean “one that appears to be ‘actual’ in the sense that it bears
counterfeit and fictitious documents as follows, id. at 1067: a family resemblance to genuine financial instruments” or, in
other words, “include[s] enough of the various hallmarks and
A “counterfeit” obligation is a bogus document contrived indicia of financial obligations so as to appear to be within
to appear similar to an existing financial instrument; a that class.” 263 F.3d at 1068. In this case, the government
“fictitious” obligation is a bogus document contrived to presented testimony from William Kerr of the Office of the
appear to be a financial instrument, where there is in fact Comptroller describing the sight drafts as having good
no such genuine instrument, and where the fact of the physical quality (including microencoding, microprinting, a
genuine instrument’s nonexistence is presumably colored background, and an artificial watermark), and noting
unknown by, and not revealed to, the intended recipient that their invalidity would not necessarily be apparent just
of the document. from looking at them.
In this case, there was testimony that although there is a Finally, defendants assert that there was insufficient
legitimate financial instrument known as a sight draft, the evidence of an intent to defraud because they made no
United States Treasury has not used sight drafts in modern attempt to obtain a refund from the IRS. As the government
history. Moreover, the United States Treasury maintains no points out, however, it was not necessary to prove defendants
depository accounts against which an individual could draw requested a refund in order to establish that the sight drafts
a check, draft, or any other financial instrument. The sight were presented with intent to defraud. Intent may be proven
drafts at issue here were properly charged as fictitious through circumstantial evidence, and there was evidence from
instruments under § 514(a)(2).
Yates asserts, without elaboration or citation to authority, 7
that it was obvious from the face of the sight draft that it was In contra st with counterfeit statutes, § 514(a)(2) cannot be
not an “actual” financial instrument within the meaning of interpreted to includ e a “similitude” requirement; that is, that the
§ 514(a)(2). While the sight drafts were not in fact accepted document bear such likeness to genuine curren cy as is calculated to
deceive an honest unsuspecting person of ordinary observation.
Nos. 02-1662/1673/1700/1703/ United States v. 13 14 United States v. Nos. 02-1662/1673/1700/1703/
1736/1769/1771 Anderson, et al. Anderson, et al. 1736/1769/1771
which the jury could infer that defendants knowingly sent on 11 false 8300s directed at judicial officers, police, and
worthless sight drafts drawn on the United States Treasury attorneys that collectively reported over $140 million in
with the intention that they be accepted for value. financial transactions which never occurred. Goodwin also
refused to cooperate with the grand jury, sent notices to court
C. Sufficiency officers, and joined with those who acted to disrupt the trial.
Defendants Goodwin and Sagorski argue that the evidence Sagorski signed 34 false sight drafts totaling $49 million
was insufficient to support their convictions under 26 U.S.C. and filed 16 false 8300s reporting nonexistent transactions
§ 7206(1) (counts 28-30 and 46-47). Sagorski specifically with employees of financial institutions, as well as judges,
relies on the fact that the document examiner was unable to lawyers, and court officers. Special Agent Robert Walker
identify him as having signed the 8300s that bore his name. testified that Sagorski admitted to having prepared the 8300s
The witness did testify, however, that Sagorski authored all and sight drafts bearing his name and insisted that the IRS
other entries on the form and that no conclusion could be was a fictitious entity with no right to collect taxes. In
made about the signatures because Sagorski’s handwriting addition, Sagorski was responsible for bringing Lawrence and
exemplar was “very quickly executed and partially illegible.” Arndt into the conspiracy.8
Goodwin, on the other hand, relies on the fact that the
document examiner could only identify him as the “probable Finally, Goodwin argues that it was error to have admitted
preparer” of the 8300s bearing his name. another piece of evidence, the only sight draft purportedly
written by him, because it preceded the conspiracy. To the
In addition to the expert witness testimony, the jury was contrary, the sight draft was dated May 21, 1999, and was
entitled to consider both circumstantial evidence as well as endorsed on the reverse side to Jerry M. Beurkens on July 13,
the rebuttable presumption afforded by 26 U.S.C. § 6064, 1999; well within the period of the conspiracy. Beurkens, a
which provides that the fact that an individual’s name is city attorney, testified that he had prosecuted Goodwin on a
signed to the return is prima facie evidence that the return was traffic ticket several years earlier; received several documents
signed by him. We have no difficulty finding that when the
evidence and inferences are viewed in the light most
favorable to the prosecution, there was sufficient evidence
from which a rational trier of fact could conclude that
Sagorski and Goodwin signed the false 8300s that bore their 8
Sago rski, a customer in Lawrence’s muffler shop, heard Lawrence’s
names. anger at police and the court system and arranged for him to m eet with
Anderson and M odderman at their home. Sagorski also gave Lawrence
Next, defendants Sagorski and Goodwin challenge the some audio tapes that included anti-government rhetoric. Under
And erson ’s direction, Lawrence signed false 83 00s that were filed with
sufficiency of the evidence tying them to the charged the IRS reporting transactions with individuals against whom Lawrence
conspiracy. Both defendants argue first that they never joined bore grievances. Arndt, who worked for Sagorski, had severe financial
the conspiracy to defraud the United States by obstructing the problems arising from her son’s use of her credit cards. Sagorski referred
IRS. Not only does this ignore that the conspiracy had her to Anderson and Modderman and provided her with sight drafts on
multiple objectives, but also disregards the evidence one occasion. Arndt sent more than 50 sight drafts and filed false 830 0s.
concerning their participation. Goodwin’s name was signed She introduced her son and sister to the schem e and they, in turn, also
wrote worthless sight drafts.
Nos. 02-1662/1673/1700/1703/ United States v. 15 16 United States v. Nos. 02-1662/1673/1700/1703/
1736/1769/1771 Anderson, et al. Anderson, et al. 1736/1769/1771
from Goodwin, including the sight draft; and was the target of joint trial.” Moore, 917 F.2d at 221. We adhere to the view
a false Form 8300 filed with the IRS.9 that the jury must be presumed capable of sorting out the
evidence against each defendant separately. Id. at 220.
III.
In denying Sagorski’s motion, the district court observed at
Sagorski claims error in the denial of his motion for the outset that there had been a noticeable difference in the
severance or mistrial on the grounds that he was prejudiced appearance, demeanor, and attentiveness of the three
by the disruptive behavior of his codefendants. Whether defendants who did not disrupt the proceedings (who were
properly articulated as a question of prejudicial joinder also on bond) as compared to the nine defendants who
requiring severance, or a motion for mistrial resulting from engaged in the disruptive behavior. The three nondisruptive
prejudicial joinder, the record reflects that the district court defendants were also physically separated from the others,
addressed the appropriate considerations for determining due to the configuration of the tables in the small courtroom.
whether the defendant could demonstrate he was prejudiced. In addition, the court noted that much of the evidence related
See United States v. Moore, 917 F.2d 215, 220 (6th Cir. to the sight drafts or 8300s allegedly prepared by the various
1990). Our review of a district court’s decision on a motion individuals.
for severance or for mistrial is for abuse of discretion. United
States v. Lloyd, 10 F.3d 1197, 1215 (6th Cir. 1993) Finally, in considering the impact of the disruptive
(prejudicial joinder); United States v. Chambers, 944 F.2d behavior, the court indicated that the outbursts were short and
1253, 1263 (6th Cir. 1991) (mistrial).10 the defendants were quickly escorted out of the courtroom.
In fact, the court suggested that Sagorski’s good behavior
Relief from prejudicial joinder is required “only if there is may have served to impress the jury and differentiate him
a serious risk that a joint trial would compromise a specific from the disruptive defendants. No further disruptions
trial right of one of the defendants, or prevent the jury from occurred, as the nine defendants were unwilling to give the
making a reliable judgment about guilt or innocence.” Zafiro necessary assurances. Moreover, the jury was properly
v. United States, 506 U.S. 534, 539 (1993). A trial court’s instructed to separately consider the evidence as to each
limiting instructions may “cure” such prejudice. Id. The defendant. United States v. Stull, 743 F.2d 439, 447 (6th Cir.
defendant bears the burden of making a “strong showing of 1984). We find no abuse of discretion in the denial of
factually specific and compelling prejudice resulting from a Sagorski’s motion for severance or mistrial.
IV.
9
Go odw in also argues that this sight draft was neither the subject of
a substantive charge nor listed as an overt act in furtherance of the Several evidentiary claims are raised by defendants
conspiracy. The government may offer proof of overt acts not listed in Anderson, Modderman, Sagorski, and Goodwin. We review
the indictm ent. United States v. Henson, 848 F.2d 1 374 (6th Cir. 1988). the district court’s decisions concerning the admission of
The government also notes that this exhibit was admitted twice without evidence for abuse of discretion. United States v. Middleton,
objection from Goo dwin. 246 F.3d 825, 836 (6th Cir. 2001). Even if an abuse of
10 discretion has occurred, “[a]ny error, defect, irregularity, or
At trial, counsel for Sagorski agreed with the district court’s
chara cterization that the motio n was in essence one fo r mistrial.
Nos. 02-1662/1673/1700/1703/ United States v. 17 18 United States v. Nos. 02-1662/1673/1700/1703/
1736/1769/1771 Anderson, et al. Anderson, et al. 1736/1769/1771
variance that does not affect substantial rights must be allow a defendant to thwart prosecution by sending damaging
disregarded.” FED . R. CRIM . P. 52(a). material to the prosecutor. This is an unusual case in that the
letters and notices were relevant to the conspiracy charge and
Anderson, joined by Modderman, claims error occurred were not themselves of an inflammatory nature. Moreover,
when Agent Jon Street was allowed to testify concerning a defendants have not identified any questioning or argument
box of documents which consisted of correspondence by the prosecutor relating to the correspondence that would
received from the defendants and addressed to individuals tend to inflame the jury.11
including judges, prosecutors, and IRS investigators (the
“Gateway” box). The essence of Anderson’s claim on appeal Sagorski claims that the district court erred in allowing
is twofold: that it was an abuse of discretion to allow Agent Steven Baker to testify concerning items seized from
testimony concerning the entire collection of documents the Anderson-Modderman residence. Specifically, defendant
without admitting all of the documents; and that it was points to testimony about a letter from a bank in response to
unfairly prejudicial because it allowed the jury to speculate correspondence from Sagorski; a copy of the alert from the
about the voluminous “collective misdeeds” of the Comptroller’s Office to financial institutions about the
defendants. We reject these contentions as meritless. fictitious sight drafts; excerpts from a book called “Accepted
for Value”; portions of pamphlets outlining the use of the
The record reflects that Street testified generally concerning mantra; and literature referencing the “Kingdom of Heaven”
the contents of the box to explain how the documents were group and other teachings. Defendant argues that the
accumulated and organized, but did not include specifics evidence was hearsay, and claims it was irrelevant and highly
about documents that were not admitted into evidence. In prejudicial because it branded the defendants as “anti-
addition, the box was present so that it would be available for government” and because some of the references might have
defense counsel to use in cross-examination. From the box, called to mind similarly named cults. There is no indication,
Street selected documents sent by various defendants that however, that an objection was made on either basis. As
contained the same or very similar captions or verbiage. such, our review is for plain error. United States v. Thomas,
Those selected documents were offered as exhibits to show 11 F.3d 620, 629-30 (6th Cir. 1993).
the existence of and participation in the conspiracy. To the
extent that the voluminous number of documents reflected This evidence was relevant to the question of the
badly on defendants, it was not unfairly prejudicial. There defendants’ knowledge and intent and would not have been
was no claim that the box did not contain the kind of offered for the truth of the matter asserted. Moreover, this
documents that the exhibits represented. At least one was hardly the only evidence of “anti-government” sentiment
defendant was able to clarify on cross-examination that none
of the selected documents were sent by him.
11
In a related argum ent, Good win asserts that do cuments received by
Anderson and Modderman contend that it was an improper the government during trial, including a letter prepared by Goodwin from
plea for sympathy to mention that defendants directed notices the holding cell and handed to a Deputy United States Marshal, were
and other harassing correspondence to the prosecutor irrelevant, outside the scope of the conspiracy, and unduly prejudicial.
personally. In overruling objections to such evidence, the The documents, and especially Goodwin’s letter, were relevant to the
alleged conspiracy as they supported the contention that there was
district court observed that to exclude the evidence would concerted action by the defendants.
Nos. 02-1662/1673/1700/1703/ United States v. 19 20 United States v. Nos. 02-1662/1673/1700/1703/
1736/1769/1771 Anderson, et al. Anderson, et al. 1736/1769/1771
on the part of the defendants. Finally, it would be pure This determination is not challenged on appeal. To be
speculation to conclude that references to the “Kingdom of included as an intended loss, the district court must find the
Heaven” group might have led the jurors to associate defendant intended the loss; it was possible for the defendant
defendants, specifically Anderson and Modderman, with a to cause the loss; and the defendant completed or was about
cult known by a similar name. We find no reversible error. to complete, but for interruption, all of the acts necessary to
bring about the loss. Watkins, 994 F.2d at 1196.
V.
Consequently, the district court categorically excluded the
Five defendants—Anderson, Shriver, Sloboda, Goodwin, value of all the 8300s, leaving a base offense level of 6 for the
and Sagorski—appeal from certain aspects of the district § 7206 offenses. The court then discriminated between sight
court’s calculation of their adjusted offense level under drafts that would be counted as intended losses, excluding
United States Sentencing Guidelines Manual (USSG) § 2F1.1 those for more than $100,000 and including those that related
(2000). This guideline applies to both the group of offenses to an existing debt or an attempt to obtain credit. In this way,
relating to the sight drafts and those relating to the false the district court determined that Anderson and Sagorski
8300s, and provides for a base offense level of 6. USSG would each receive a 12-level increase in the offense level
§ 2F1.1(a). The guideline applicable to the conspiracy relating to their convictions under § 514(a)(2) for intended
charge, USSG § 2X1.1(a), incorporates this base offense level losses of more than $1.5 million and less than $2.5 million
and any specific offense characteristics for intended conduct under § 2F1.1(b)(1)(M). Anderson and Sagorski claim that
that can be established with reasonable certainty. Because a this was error.
broad range of offenses are covered by USSG § 2F1.1, the
guidelines include a number of specific offense characteristics A. Intended Loss and § 514(a)(2) Offenses
– the most significant of which is the incremental increase of
up to 18 levels based on the value of the loss or intended loss. At the outset, Anderson argues that no sight drafts should
USSG § 2F1.1(b)(1).12 have been included as intended losses because they were so
obviously bogus that it was impossible for the scheme to
Although the probation department recommended that the succeed in causing a loss. In Khan, we explained that the
offense level be increased based on the face value of all the incremental increases for intended losses “assume a
sight drafts and 8300s attributable to each defendant, the fraudulent scheme that would have created some actual loss
district court rejected that approach as inconsistent with this but for the interruption of the scheme by detection or failure
court’s precedent concerning the calculation of intended to carry out all the steps necessary to succeed.” 969 F.2d at
losses. United States v. Watkins, 994 F.2d 1194 (6th Cir. 221. This limitation applies when the impossibility of
1993); United States v. Khan, 969 F.2d 218 (6th Cir. 1992). pecuniary loss is “entirely unrelated to the fraud or its
discovery.” Id. at 220. See United States v. Ly, No. 98-3783,
1999 WL 196573 (6th Cir. Mar. 29, 1999) (unpublished
12
USSG § 2F1.1 was repealed and amende d provisions were
consolidated in USSG § 2B1.1, effective November 1, 2001. See USSG
§ App. C, amendment 617. Although defendants were sentenced after the
effective d ate, the o ld provision was used in order to avoid ex po st facto
prob lems.
Nos. 02-1662/1673/1700/1703/ United States v. 21 22 United States v. Nos. 02-1662/1673/1700/1703/
1736/1769/1771 Anderson, et al. Anderson, et al. 1736/1769/1771
decision). While no sight drafts were accepted for value in culpable for the conduct of Arndt and Boerma because “one
this case, it is because the fraud was detected.13 can say without a shadow of a question that he knew what
[Arndt] and her son Boerma were doing, and the amounts that
Anderson and Sagorski both claim the district court erred they defrauded and intended to defraud are culpable to him as
by holding them accountable for sight drafts written by a co-conspirator because it was clearly foreseeable within that
others. To be considered “relevant conduct,” the conduct portion of the conspiracy.” Because Sagorski has not
must have been (1) reasonably foreseeable to the defendant demonstrated that the district court’s findings were either
and (2) undertaken in furtherance of the jointly undertaken inadequately individualized or clearly erroneous, we find no
criminal activity. USSG § 1B1.3(a)(1)(B) and comment. error in the 12-level adjustment in the offense level under
(n.2) (2000); United States v. Orlando, 281 F.3d 586, 600 § 2F1.1.
(6th Cir.), cert. denied, 537 U.S. 947 (2002). The district
court must make individualized findings regarding these Anderson was held accountable for intended losses of
requirements in order to differentiate between coconspirators. $2,205,749, of which only $31,000 was attributable to sight
281 F.3d at 600. drafts she wrote herself. This resulted in a 12-level increase
in the offense level for the § 514(a)(2) convictions. Anderson
Sagorski does not contest the amount of losses representing argues, as she did at sentencing, that it was not reasonably
sight drafts he wrote himself, to the tune of about $820,000, foreseeable that her “students” would write these sight drafts.
but only disputes the inclusion of sight drafts written by She claims she merely explained the redemption theory and
Arndt and her son, Chad Boerma, on the grounds that the the use of the sight drafts and could not control what her
court failed to make particularized findings concerning the “students” did with that “knowledge.” The issue, however, is
foreseeability of their conduct and the scope of the joint not control but foreseeability.
activity. The record shows, however, that the district court
made the requisite findings.14 We find no error in the finding that it was reasonably
foreseeable to Anderson that her coconspirators would write
The district court found that Sagorski recommended the the sight drafts in question. She explained how the sight
scheme to Arndt, and arranged for Anderson and Modderman drafts could be used to escape debts and secure credit, showed
to teach her. Arndt explained the theory to her son, who, with them how to fill out the sight drafts, and encouraged the filing
prompting from Sagorski, wrote a series of sight drafts. The of false 8300s against those who rejected the sight drafts. The
district court concluded that Sagorski should be found only coconspirator Anderson did not personally instruct was
Boerma. Not only did Anderson fail to object to those sight
drafts, but any error in the inclusion of the $156,000 in sight
13
The amendments abandon this circuit’s interpretation of intended drafts written by Boerma would be harmless because even
loss and clarify that intended loss “includes intended pecuniary harm that
would have b een impossible or unlikely to occur.” USSG § 2B1.1,
comment. (n.2) (eff. Nov. 1, 2001 ).
14
The addition of these amounts to the defendant’s intended losses
“bum ps” the increase in the base offense level from 11 levels (for losses
of more than $800,000) to 12 levels (for losses of more than $1.5 million).
Nos. 02-1662/1673/1700/1703/ United States v. 23 24 United States v. Nos. 02-1662/1673/1700/1703/
1736/1769/1771 Anderson, et al. Anderson, et al. 1736/1769/1771
without it the intended losses would still greatly exceed $1.5 Anderson appeals from the 3-level enhancement imposed
million.15 under USSG § 3A1.2(a), which applies if “the victim was a
government officer or employee . . . and the offense of
B. Enhancements under USSG § 3B1.1 and § 3A1.2 conviction was motivated by such status.” This enhancement
was added to the offense level for the § 7206(2) offenses
Shriver received a two-level enhancement under USSG relating to the false 8300s. Although Anderson challenges the
§ 3B1.1(c) for her role in the offense as “an organizer, leader, enhancement on the grounds that the target was really the
manager, or supervisor” of the criminal activity. To qualify government, rather than government officials, the district
for this adjustment, the defendant must have exerted control court did not clearly err in finding that the targets of the false
over at least one other participant in a supervisory, 8300s covered individual government officials who were
managerial, leadership, or organizational capacity. United targeted because of their positions. For example, individuals
States v. Caseslorente, 220 F.3d 727, 734-35 (6th Cir. 2000). targeted included an officer who issued a ticket to a defendant
Although the district court did not identify an individual over and a judge who presided over a court matter involving a
whom Shriver exerted control, we can infer the necessary defendant. Conceding that about half of the 8300s that were
finding from the district court’s explanation that she had a the subject of her convictions under § 7206(2) targeted federal
leadership role in that she secured the sight drafts, met with or state employees, Anderson argues that it was error to apply
and connected people, and had a leadership role both pretrial the enhancement to all of those counts. However, the § 7206
and at trial. United States v. Dupree, 323 F.3d 480, 494 (6th convictions were grouped together without objection.
Cir. 2003); see also Caseslorente, 220 F.3d at 736 (although
preferable, it is not required that the district court state the C. Upward Departures under USSG § 5K2.0 and
specific facts relied on in applying § 3B1.1 enhancement). § 5K2.716
The record indicates that Shriver was an organizer in the
conspiracy and an instigator among the defendants at trial. We have reviewed a district court’s decision to depart
The government notes that there can be little doubt that she upward or downward from the sentencing guideline range
exerted control with respect to the participation of her under an abuse of discretion standard. United States v.
husband. It was not clearly erroneous for the district court to Chance, 306 F.3d 356, 393 (6th Cir. 2002). Recent
find the enhancement applied to Ruth Shriver. amendments to 18 U.S.C. § 3742(e) require de novo review
of whether a departure was based on proper factors, but
16
15
In a novel claim, Anderson argues that although proper notice was
Anderson also questions the accuracy of some of the figures sent regarding possible departure under § 5K2.7, the district court had an
included by the district court and complains that the adding machine tape obligation to amend that notice to advise her regarding the possibility of
referenced by the district court is not part of the record. Inviting this court departure under § 5K2.0. We find no error, however, because the
to remand to expand the record, Anderson asserts that there are gove rnment’s prehearing motio n for departure ad equately disclosed that
discrepancies in the totals of the sight drafts written by Arndt and Boerma. departure under § 5K 2.0 was at issue. Burns v. United States, 501 U.S.
Anderson did not object to or ask for c larification conc erning the amounts 129, 138 (1991) (notice is required before the district court may depart
that were being included in the loss calculation, and we find no plain upward “on a ground not identified as a ground for departure in the
error. presentence report or in a prehearing submission by the Government”).
Nos. 02-1662/1673/1700/1703/ United States v. 25 26 United States v. Nos. 02-1662/1673/1700/1703/
1736/1769/1771 Anderson, et al. Anderson, et al. 1736/1769/1771
review of the extent of such a departure continues to be for governmental function, the court may increase the sentence
abuse of discretion. See PROTECT Act of 2003, § 401(d), above the authorized guideline range to reflect the nature and
Publ. L. No. 108-21, 117 Stat. 650 (2003). Because we extent of the disruption and the importance of the
would affirm the upward departures under either standard, we governmental function affected.” The district court found that
need not decide whether this modification applies to appeals the disruptions during trial represented significant disruption
pending as of the effective date of the PROTECT Act. of a governmental function for which upward departures
would be warranted in calculating the offense levels for both
The applicable guidelines allow for upward departures the § 514(a)(2) and § 7206 offenses. Anderson, Sloboda, and
when “there exists an aggravating . . . circumstance of a kind, Shriver appeal from these departures.
or to a degree, not adequately taken into consideration by the
Sentencing Commission in formulating the guidelines.” 1. Shriver
18 U.S.C. § 3553(b); see USSG § 5K2.0 (2000). When a
factor being considered is an encouraged factor, the court may Convicted of one count each of conspiracy and violating
depart if the applicable guideline does not already take the § 514(a)(2), Shriver had an adjusted offense level of 10 prior
factor into consideration, or, if already taken into account, it to any departure. The district court found this offense level
is present to a degree that makes the case different from the did not accurately reflect the seriousness of her conduct and
ordinary case in which it is present. Koon v. United States, granted an 8-level upward departure under USSG § 5K2.0. In
518 U.S. 81, 95-96 (1996). explaining the reasons for this departure, the court noted that
the one sight draft at issue for $1.75 million was sent to the
Once the district court excluded all of the false 8300s and IRS at a time when Ruth and Jack Shriver had a tax obligation
many of the sight drafts from the loss calculations, the offense of $114,000. Given the amount of the sight draft, however,
level could not be increased under USSG § 2F1.1(b)(1) for the district court did not increase the base offense level to
any of the convictions under § 7206, or for Ruth Shriver’s account for intended losses. Nonetheless, the court found that
conviction under § 514(a)(2). Granting the government’s the sight draft sent to the IRS was obviously designed to
motion for upward departures under USSG § 5K2.0, the commit fraud and the tax liability related to her own anti-
district court found that without additional increases the government animus. The district court also found that, in
offense level would not reflect the seriousness of the addition to the enhancement under USSG § 3B1.1(c), the
defendants’ conduct. As the commentary to USSG § 2F1.1 extent of her participation in the larger conspiracy had not
explains: “In cases in which the loss determined under been taken into account. In deciding to upwardly depart 8
subsection (b)(1) does not fully capture the harmfulness and levels, the district court observed that a loss of $114,000
seriousness of the conduct, an upward departure may be would alone result in a 6-level increase in the offense level
warranted.” USSG § 2F1.1, comment. (n.11). Shriver, under USSG § 2F1.1(b)(1).17
Anderson, Sloboda, and Goodwin challenge these departures.
In addition, the district court provided defendants with 17
notice of its intention to consider upward departure under The court later rejected the government’s request for further
USSG § 5K2.7, which provides, in part, that “[i]f the enhancement for more than minimal planning under USSG § 2F1.1(c)
because Shriver’s overall participation in the conspiracy was factored into
defendant’s conduct resulted in a significant disruption of the USSG § 5K2 .0 departure.
Nos. 02-1662/1673/1700/1703/ United States v. 27 28 United States v. Nos. 02-1662/1673/1700/1703/
1736/1769/1771 Anderson, et al. Anderson, et al. 1736/1769/1771
Turning then to the question of departure under USSG loss calculation does not reflect the harmfulness and
§ 5K2.7, the district court explained that additional upward seriousness of the conduct. Anderson also argues that this
departure was “absolutely necessary” because Shriver was departure resulted in double counting when combined with
one of the leaders of the disruptive behavior and because she the official-victim enhancement under USSG § 3A1.2. In
repeatedly engaged in the disruptive behavior, all of which particular, she emphasizes that more than half of the targets
demonstrated contempt for the process and everyone from of the false 8300s were government officials. However, the
judge to jury. As a result, the district court found Shriver’s district court explained the departure as warranted because the
conduct warranted an additional 6-level increase in the base offense level of 6 did not take into account the large
offense level. She contends that this departure was an abuse number of false 8300s that Anderson had aided, assisted, or
of discretion because her behavior during trial was adequately counseled others to file. This is distinct from the
taken into account by the 2-level enhancement for obstruction enhancement based on the status of the targets themselves.
of justice. The district court found otherwise, emphasizing The USSG § 5K2.0 departure did not result in double
that the significant disruption of the trial was separate from counting of the same factor. Sloboda and Goodwin, who join
the obstruction of the grand jury and contempt proceedings. in this argument, also received a 6-level departure under
We agree.18 USSG § 5K2.0 based on the number of false 8300s they each
filed in an attempt to subvert the IRS and harass the targets
2. Anderson (in each case a dozen).20
The district court granted a 6-level upward departure under Appealing the 4-level upward departures under USSG
USSG § 5K2.0 with respect to Anderson’s § 7206 offenses § 5K2.7, Anderson argues, as she did at sentencing, that they
only, after finding that the base offense level of 6 did not constituted double counting of the same conduct addressed by
account for the seriousness of her conduct. In addition, she the 2-level enhancement for obstruction of justice. As with
received a 4-level upward departure in the offense level for Shriver, however, it is clear that these departures addressed
both the § 514(a)(2) offenses (counts 2-3) and the § 7206(2) separate conduct from the obstruction of justice enhancement.
offenses (counts 50-73) under USSG § 5K2.7.19 Alternatively, Anderson suggests the USSG § 5K2.7
departures were error because the trial court could have
Taking issue with the USSG § 5K2.0 departure, Anderson exercised its contempt powers during trial.
mistakenly asserts that such a departure must relate to a
financial loss. This assertion is refuted by the earlier quoted The district court considered this possibility, but found it
commentary to USSG § 2F1.1 authorizing departure when the inappropriate because to bring criminal contempt charges at
trial could have “anointed these people with martyrdom.”
18
W ith a total offense level of 24 and a criminal history score of 0,
the guideline range was 51 to 60 months. Shriver was sentenced to 60
mon ths’ imprisonm ent on each count, to run co ncurrently. 20
Sloboda was sentenced to concurre nt terms of 37 m onths’
19
imprisonment on the conspiracy count and 36 months on each of the two
Anderson was sentenced to 6 0 mo nths on the conspiracy cou nt, § 720 6 conviction s. Goodw in received concurrent terms o f 46 months’
120 months on the § 514(a)(2) convictions, and 36 months on the § 7206 imprisonment on the conspiracy count and 36 months each on his two
convictions, to run concurrently. § 7206 co nvictions.
Nos. 02-1662/1673/1700/1703/ United States v. 29
1736/1769/1771 Anderson, et al.
The district court also explained that “this is not all about
contempt. This whole trial, this whole issue, redemption
theory, . . . was illustrative of contempt for all authority. Not
just judicial authority, but all authority. This contempt for
judicial authority was just one aspect of the contempt for
governmental authority within a democracy.” We find no
error in the determination that upward departures were
appropriate under USSG § 5K2.7.
In a related “piling on” argument, Anderson suggests the
departures were not necessary because removing her and the
others from the trial was punishment enough. That was a
question of courtroom management, with defendants being
invited to return to the courtroom twice every day, and was
not adequately reflected in the sentencing calculations absent
the departure. Finally, Anderson challenges the extent of the
departures as unreasonable. We cannot say that the 4-level
departures under USSG § 5K2.7 represent an abuse of
discretion. In particular, the district court emphasized that the
conduct involved multiple incidents of disruptive conduct that
significantly disrupted an important judicial function.21
AFFIRMED.
21
Sloboda, who ad opts And erson’s argum ents on this issue, also
received a 4-level upward departure under USSG § 5K2.7 for the same
reasons.