United States v. Michael Levine, 983 F.2d 165, 10th Cir. (1992)
United States v. Michael Levine, 983 F.2d 165, 10th Cir. (1992)
United States v. Michael Levine, 983 F.2d 165, 10th Cir. (1992)
2d 165
Background
2
never delivered. The proceeds from the scheme were divided equally between
Mr. Levine, his salespersons and the government purchasing agents. Defendant
fraudulently invoiced various governmental entities on at least fifty-six
occasions between 1985 and 1988.
Discussion
I. Bill of Particulars
3
Defendant first contends that the district court erred in denying his motion for a
bill of particulars, because he did not receive sufficient information to defend
himself. He argues that the government accused him of supplying "false"
products, without defining what constitutes "real" products.
The denial of a motion for a bill of particulars is left to the district court's
discretion. United States v. Sturmoski, 971 F.2d 452, 460 (10th Cir.1992). The
denial will not be disturbed unless defendant shows "that he was 'actually
surprised at trial and thereby incurred prejudice to his substantial rights.' "
United States v. Dunn, 841 F.2d 1026, 1029 (10th Cir.1988) (quoting United
States v. Cole, 755 F.2d 748, 760 (11th Cir.1985)). " 'The purpose of a bill of
particulars is to inform the defendant of the charge against him with sufficient
precision to allow him to prepare his defense....' " Dunn, 841 F.2d at 1029
(quoting Cole, 755 F.2d at 760).
The indictment described Mr. Levine's scheme in detail, setting forth all of the
instances of mail fraud. Mr. Levine also had access to the government's file
prior to trial. A bill of particulars is not necessary if "the indictment sets forth
the elements of the offense charged and sufficiently apprised the defendant of
the charges to enable him to prepare for trial." Dunn, 841 F.2d at 1030 (citing
United States v. Kendall, 665 F.2d 126, 134 (7th Cir.1981) cert. denied, 455
U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 140 (1982)). "Since the defendant is 'not
entitled to know all the evidence the government intends to produce, but only
the theory of the government's case,' the district court [does] not abuse its
discretion in denying defendant's motion for a bill of particulars" where
defendant has been served with a sufficient indictment. Id. (quoting United
States v. Giese, 597 F.2d 1170, 1181 (9th Cir.) cert. denied, 444 U.S. 979, 100
S.Ct. 480, 62 L.Ed.2d 405 (1979)). Given the full disclosure here, the district
court's denial was appropriate, and certainly not an abuse of discretion. See
Sturmoski, 971 F.2d at 460.
Defendant next argues that the district court erred in denying his motion to
sever the mail fraud counts from the bank fraud counts included in the
indictment. Defendant contends that joinder was improper under Fed.R.Crim.P.
8(a), or, alternatively, that the trial court abused its discretion in denying
severance under Fed.R.Crim.P. 14. Although the bank fraud charges were
dismissed by the trial court at the close of the government's case, the jury heard
testimony as to both.
However, "even in the absence of a misjoinder under Rule 8(a), the court may
order the separate trials of counts '[i]f it appears that a defendant ... is
prejudiced by a joinder of offenses.' " Hollis, 971 F.2d at 1456 (quoting
Fed.R.Crim.P. 14). Severance is left to the trial court's discretion, and the
defendant bears a heavy burden in showing abuse of discretion in this context.
Hollis, 971 F.2d at 1456. " 'Neither a mere allegation that defendant would
have a better chance of acquittal in a separate trial, nor a complaint of the
'spillover effect' ... is sufficient to warrant severance.' " United States v. Bailey,
952 F.2d 363, 365 (10th Cir.1991) (quoting United States v. Cardall, 885 F.2d
656, 667-68 (10th Cir.1989)). Defendant contends that selling fake chemicals
and lying to a bank are not "the same or similar" charges and that prejudice
resulted. We disagree. Both charges stemmed from the alleged defrauding of
victims through false documents, related to the operation of his business.
may be harmless. Id. We find that the magnitude of evidence supporting the
fifty-six counts on which he was convicted is sufficient to render harmless any
possible prejudice resulting from the evidence presented on the two counts
which were dismissed.
III. Sentence Enhancement
10
Finally, Mr. Levine contests the district court's four point enhancement under
the Sentencing Guidelines for being an organizer or leader of more than five
people. See U.S.S.G. 3B1.1(a). Defendant argues that the court erred in
counting legitimate employees as criminal accomplices, and that each act of
fraud should be considered separately as between two or three persons. The
government counters that defendant, as the head of the company, organized
some seventeen people who knowingly engaged in the fraudulent activity, and
that the scheme should be considered in its entirety.
11
We will not disturb the district court's findings under 3B1.1 unless clearly
erroneous. United States v. Bernaugh, 969 F.2d 858, 862 (10th Cir.1992). To
find that a defendant was an organizer or leader under 3B1.1, we consider
defendant's recruitment of accomplices, control over accomplices, organizing
the enterprise and exercising decision-making authority. Id.; United States v.
Litchfield, 959 F.2d 1514, 1522 (10th Cir.1992). The district court found that
defendant ran the business and solicited the participation of over five
employees and purchasing agents in the scheme, noting that "clearly Mr.
Levine was their leader." VIII R. 522. A participant "is a person who is
criminally responsible for the commission of the offense, but need not have
been convicted." U.S.S.G. 3B1.1, comment. (n. 1). The defendant is included
among the participants. United States v. Reid, 911 F.2d 1456, 1464 (10th
Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 990, 112 L.Ed.2d 1074 (1991).
The evidence shows that four of defendant's salesmen pled guilty to similar
charges, and that Mr. Levine recruited them and instructed them in the scheme.
That alone is sufficient to satisfy 3B1.1(a). Furthermore, four of the
municipal purchasing agents also pled guilty to mail fraud or bribery charges as
a result of being drawn into the scheme by Mr. Levine. There may have been
other employees, such as secretaries and warehouse workers, who were not
criminally responsible, but we do not need to include them to satisfy
3B1.1(a). The district court's findings are not clearly erroneous.
12
AFFIRMED.
The Honorable Robin J. Cauthron, United States District Judge for the Western
The Honorable Robin J. Cauthron, United States District Judge for the Western
District of Oklahoma, sitting by designation