In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-4305

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARK P. HEATH,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 04-CR-44-C-01—Barbara B. Crabb, Chief Judge.

____________

ARGUED JANUARY 13, 2006—DECIDED MAY 15, 2006

____________

Before RIPPLE, KANNE, and ROVNER, Circuit Judges.

KANNE, Circuit Judge. Mark Heath was convicted of

various charges relating to a scheme to defraud by using

counterfeit checks to purchase automobiles from individual

sellers; Heath got the vehicles and the sellers got worthless

pieces of paper. Heath now raises several issues regarding

his conviction, none of which are meritorious, and we

therefore affirm as to his conviction. His sentence (given

during the period between the Supreme Court’s decisions in

Blakely and Booker), however, is more troublesome. It is

vacated and we remand for resentencing.
2 No. 04-4305

1 The note read as follows: “Just a reminder, 20-25 units for sure,

10 more if you can. As I had mentioned you will receive a 100.00

bonus for over 20 units. Please deliver to old Menard’s parking lot

at the west end (on 9-19-99). Use the check that fits best. The

purchase price get them as cheap as possible and please remember they can write you a check for the difference. Also, please

make sure to cash these check and put the cash and titles in an

envelope and put under drivers seat. I will need keys under the

seat also but please, not in envelope. I will see you next week.

Sincerely, Bob Meyer.”

I. HISTORY

Heath owned a used car business in Eau Claire, Wisconsin. During the summer of 1999 Heath started to create

counterfeit checks using as a template a legitimate bank

check given to him as payment for a used car. In July 1999,

Jerry Wendt purchased a car from Heath and eventually

began doing odd jobs for Heath as well. The relationship

between the two further blossomed when they began a

short-lived conspiracy to defraud by purchasing cars with

Heath’s worthless counterfeit checks.

One of Wendt’s early duties was to write out a note,

dictated by Heath, and signed with the alias “Bob Meyer,”

which might be described as a handbook for potential

members of the conspiracy.1

 This note was created in midSeptember 1999 and within a matter of days it was discovered, along with thirty counterfeit checks, at the home of

Heath’s brother.

Over the course of three days in late September 1999,

Heath and Wendt fraudulently purchased three vehicles

and a trailer. The victims were discovered through newspaper advertisements and then contacted by phone. Wendt

was the front man. Posing as Bob Meyer, he passed the

counterfeit checks. Heath was never too far away from the

sale (though he never personally met the sellers), and on
No. 04-4305 3

one occasion when Wendt was completing a transaction at a

gas station Heath was caught on tape by the station’s

surveillance camera. After the purchases were completed,

the vehicles were driven back to Heath’s used car lot.

The last vehicle purchased was an all-terrain vehicle

(“ATV”). This sale netted Heath and Wendt not only the

ATV, but also a personal check in the amount of $2,050

made out to Bob Meyer, which the trusting seller agreed to

give Wendt to cover the difference between the counterfeit check tendered as payment for the ATV ($4,750) and

the asking price ($2,700). Wendt drove the ATV to Heath’s

used car business and parked it.

The scheme unraveled as quickly as the counterfeit

checks began to bounce. The seller of the ATV learned from

his local bank that the check he had received was no good.

That bank then took the prudent measure of informing its

employees to be on the lookout for anyone trying to cash the

seller’s personal check. Two days after the sale of the ATV,

Wendt and Heath pulled into the bank’s drive-up window

attempting to do just that. A quick-thinking teller immediately recognized the check and notified her supervisor.

While the teller stalled, the president of the bank grabbed

a cell phone and headed for his car to keep an eye on the

suspected thieves. The teller refused to cash the check

without proper identification, and Wendt and Heath drove

away. The bank president followed while calling 911.

After being stopped by the police, Wendt first attempted

to evade arrest by providing an alias, and then went weak

at the knees and fell to the ground. Having little appetite

for prison, Heath tried to eat the counterfeit checks he

had on his person. Both suspects were arrested. A search of

Heath uncovered a number of counterfeit checks, including

one in the amount of $4,500 that had been partially eaten.

At Heath’s home and used car business, officers found

more evidence of the scheme: counterfeit checks, a check
4 No. 04-4305

2 The handwritten note stated: “Just a Reminder. 20 United for

Sure. 10 More If You Can Find the Time. 100.00 Bonus for Each

Car over the 20. Deliver to the Old Menard’s Parking Lot at the

West End. Use the Check That Best Fits the Purchase Price

Get Them as Cheap as Possible and Remember They Can Write

You a Check for the Difference. And Make Sure to Cash These

Check and Put the Cash and Titles in an Envelope and Put

under Drivers Seat. And Put Keys Under Seat Also Don’t Put

Keys in the Envelope. See You next Week.”

printing machine, newspapers with the victim’s advertisements highlighted, and a handwritten note that was nearly

identical to the note transcribed by Wendt earlier.2

 The

officers also discovered the ATV and the two other trucks

which had been fraudulently obtained.

Wendt cut a deal requiring him to testify against

Heath at trial. Chief Judge Crabb allowed Heath to impeach Wendt as to nine convictions Wendt had from the

previous ten years, but refused to allow reference to several

other convictions that occurred outside the ten-year window. Over Heath’s objection, the government was allowed

to introduce the counterfeit checks and note found at

Heath’s brother’s home. Heath was convicted on all counts

but one.

Heath was sentenced on December 17, 2004. A

Presentence Investigation Report (“PSR”) computed two

alternative guideline calculations: one that assumed the

judge must base the sentence solely on facts found by the

jury; and one that assumed the judge was still allowed to

make factual findings, which in this case related to a loss

amount greater than that found by the jury and obstruction.

If the judge were able to make factual findings (and made

findings consistent with the PSR’s recommendation), the

resultant guideline range was 41 to 51 months’ imprisonment. If the judge were bound solely by the jury’s factual
No. 04-4305 5

determinations, the PSR computed a range of 27 to 33

months.

Attempting to deal with the fallout from the Supreme

Court’s decision in Blakely v. Washington, 542 U.S. 296

(2004), Judge Crabb, based upon her opinion that the

Guidelines were unconstitutional and not severable, decided

not to apply a sentence under the Guidelines because the

jury was not asked to find facts pertaining to all possible

sentencing adjustments. Instead, the judge quite presciently

chose to use the Guidelines “as suggestive, but not binding”

and fashion a sentence that took “into consideration the

purpose of sentencing as set out in” 18 U.S.C. § 3553(a). The

judge then noted that under the “applicable guidelines”

Heath’s sentencing range would have been 41 to 51 months,

but never formally adopted the PSR or made any other

factual findings. Considering his prior criminal record and

the relevant aspects of his instant offense, Judge Crabb

concluded that a term of 48 months’ imprisonment was

sufficient to punish Heath and to reflect the seriousness of

his crime.

II. ANALYSIS

Heath’s appeal requires us to resolve the following four

issues: whether it was error to exclude under Federal

Rule of Evidence 609(b) reference to any of Wendt’s convictions that were more than ten years old; whether it

was error under Rule 404(b) to allow into evidence the

note and counterfeit checks found at Heath’s brother’s home

as evidence “inextricably related” to the charged crime;

whether a jury instruction was plain error; and, whether

resentencing is required.

We need not linger long on Heath’s two challenges to

evidentiary rulings, which we review for an abuse of

discretion. United States v. Gray, 410 F.3d 338, 344 (7th

Cir. 2005) (citation omitted); United States v. Lane, 323
6 No. 04-4305

F.3d 568, 585 (7th Cir. 2003) (citation omitted). As to

Wendt’s stale convictions, Heath starts off on the wrong foot

by relying on the standard set forth in Rule 609(a) to argue

that the convictions should have been admitted because

their probative value outweighed any prejudice. The rule

that applies is 609(b), and it requires more: a conviction

older than ten years is only admissible if its probative value

“supported by specific facts and circumstances substantially

outweighs its prejudicial effect.” Fed. R. Evid. 609(b)

(emphasis added). Heath points to no specific facts and

circumstances regarding the stale convictions except to

generally describe them as pertaining to theft. What Heath

ignores is that Wendt had several convictions of that type

(theft and passing bad checks) within the ten-year window—all of which Heath used for impeachment. It is hard

to see what probative value a few additional theft convictions would have when the jury was already presented with

extensive evidence that Wendt was a thief and a cheat. In

any event, it was not an abuse of discretion for the judge to

rule that the probative value of those stale convictions did

not substantially outweigh the prejudicial effect of presenting cumulative evidence. See Gray, 410 F.3d at 346 (finding

no abuse of discretion for excluding stale perjury conviction

where other serious felony convictions less than ten-years

old existed).

Heath’s second argument, brought under 404(b), attacking the admission of the evidence found at his brother’s

home, fares no better. That rule prohibits admission of other

acts used to show propensity, but it does not prohibit

“[e]vidence of acts that are joined with the crime itself.”

United States v. Senffner, 280 F.3d 755, 764 (7th Cir. 2002).

The “inextricably intertwined doctrine” is used to distinguish between “other acts” and those acts which are part of

the crime. Id. Acts are sufficiently connected to the charged

crime to be admitted under that doctrine when, among

other circumstances, “they are so blended or connected that
No. 04-4305 7

they incidentally involve, explain the circumstances

surrounding, or tend to prove any element of, the charged

crime.” Id. The counterfeit checks and the note found at

Heath’s brother’s home fit this criteria as they tend to prove

an element of the charged crime—that Heath possessed

counterfeit checks and engaged in a scheme to defraud by

using those checks to purchase vehicles. The checks found

at the brother’s home, the ones possessed (and eaten) by

Heath, and the ones used by Wendt as payment were all

made from the same template. The note was also nearly

identical to the one dictated by Heath to Wendt. And both

the checks and note are closely connected temporally to the

charged crimes as they were discovered within the same

month of the criminal activity for which Heath was convicted. This evidence was properly admitted.

As to the third issue, Heath argues for the first time on

appeal, after making no objection below, that there was

error in a jury instruction. We review for plain error. United

States v. Castillo, 406 F.3d 806, 819-20 (7th Cir. 2005)

(citations omitted). The district court provided the following

instruction, which tracks Seventh Circuit Pattern Jury

Instruction 3.13, Witnesses Requiring Special Caution:

You have heard testimony from Jerry Wendt who

states that he was involved in the commission of

the alleged crimes charged against the defendant

and has pleaded guilty to a crime arising out of the

same charges. You may give the testimony of this

witness such weight as you think it deserves,

keeping in mind that it must be considered with

great caution and great care. Moreover, the guilty

plea of this witness cannot be considered as evidence against the defendant.

Heath finds error in the district court’s decision to omit

from this instruction subsection (b) of 3.13, which, if

included, would have told the jury that Wendt “received
8 No. 04-4305

3 A general credibility instruction was given to Heath’s jury.

benefits from the government with this case” and allowed

the judge to specifically describe the benefits. Pattern Crim.

Fed. Jury Instructions for the Seventh Cir. 3.13 (1998). The

judge apparently thought subsection (b) inapplicable

because Wendt merely expected to receive assistance from

the government but had not actually received it at the time

of trial. That reasoning may not be correct, as the point of

this particular instruction is to caution the jury as to an

informant’s incentive to lie, and that incentive may be even

greater for a witness who is hoping to curry favor with a

prosecutor than for a witness who has already received a

benefit. See Comm. Comment to Instruction 3.13 (“[T]he use

of informers ‘may raise serious questions of credibility. To

the extent that they do, a defendant is entitled to . . . have

the issues submitted to the jury with careful instructions.’”

(quoting On Lee v. United States, 343 U.S. 747, 757 (1952))).

But, in any event, instructions specifically noting an

informant’s credibility problems are not required. United

States v. Cook, 102 F.3d 249, 253 (7th Cir. 1996) (“Given the

pervasiveness of reliability problems, we think it adequate,

in the main, to give a general credibility instruction referring to the possibility of bias, which coupled with crossexamination and closing argument by counsel will put the

subject before the jury for decision.”).3

 Whether to give such

an instruction is left to the discretion of the district court,

id. at 252, and reversal on the basis of an erroneous jury

instruction only occurs if the defendant can show prejudice,

United States v. Reed, 227 F.3d 763, 771 (7th Cir. 2000)

(citing United States v. Smith, 131 F.3d 685, 688 (7th Cir.

1997)). Heath cannot show prejudice, much less plain error,

even assuming the instruction was erroneous. Both he and

the government made the jury well aware of the benefits

Wendt hoped to receive by testifying: the government raised

Wendt’s deal on direct and in closing; and defense counsel

had the opportunity, which he used, to attack Wendt’s
No. 04-4305 9

4 Pursuant to Federal Rule of Appellate Procedure 28(j) the

government submitted United States v. Cunningham, 429 F.3d

673 (7th Cir. 2005) in support of its position that no error occurred

in sentencing, but we find it inapposite. Cunnigham dealt with the

extent to which a district court is required to provide explanation

for rejecting arguments brought under § 3553(a) that a properly

computed Guidelines sentence is unreasonable, see id. at 676,

whereas here the issue is the proper computation of the underlying Guidelines sentence.

credibility on this basis during cross-examination and

closing argument. Under these circumstances, reversal is

not appropriate. See Reed, 227 F.3d at 771; United States v.

Braxton, 877 F.2d 556, 565 (7th Cir. 1989).

Finally, we come to Heath’s sentence. While Judge Crabb

did a remarkable job of predicting the eventual outcome

of United States v. Booker, 543 U.S. 220 (2005), she did

not adopt the PSR or make any other factual findings. After

oral argument in this case occurred, we found plain error

and remanded for resentencing in a different case where

this same sentencing procedure was applied. United States

v. Hawk, 434 F.3d 959 (7th Cir. 2006) (finding plain error

and remanding for resentencing where the judge treated the

Guidelines as advisory but failed to adopt the PSR or make

any findings of fact). In that case, we explained that “[e]ven

in the post-Booker era, the first step in imposing a sentence

is properly to calculate a Guidelines range,” and that

findings of fact about relevant conduct are reviewed for

clear error. Id. at 962 (citations omitted). As in Hawk, we

have no findings—not even an adoption of the

PSR—concerning the loss amount or obstruction apparently

attributed to Heath, and, therefore, “we cannot evaluate

whether [the district court’s] decision was proper or constituted clear error.” Id.

4
10 No. 04-4305

III. Conclusion

For the foregoing reasons, we AFFIRM Heath’s conviction

and VACATE his sentence and REMAND for resentencing.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-15-06