2000 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-14-2000

United States v Helbling

Precedential or Non-Precedential:

Docket 99-5051

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Recommended Citation

"United States v Helbling" (2000). 2000 Decisions. Paper 55.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/55
Filed March 14, 2000 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 99-5051 

UNITED STATES OF AMERICA 

v. 

WILLIAM F. HELBLING, 

 Appellant 

On Appeal from the United States District Court 

for the District of New Jersey 

(D.C. Criminal No. 96-cr-00740) 

District Judge: Honorable William G. Bassler 

Argued September 9, 1999 

Before: BECKER, Chief Judge, ROTH, and RENDELL, 

Circuit Judges 

(Filed: March 14, 2000) 

 Tonianne J. Bongiovanni, Esq. 

 (ARGUED) 

 Office of Federal Public Defender 

 972 Broad Street 

 Newark, NJ 07102 

 Counsel for Appellant 

 George S. Leone, Esq. 

 Elizabeth S. Ferguson, Esq. 

 (ARGUED) 

 Office of United States Attorney 

 970 Broad Street, Room 700 

 Newark, NJ 07102 

 Counsel for Appellee 

OPINION OF THE COURT 

RENDELL, Circuit Judge. 

William F. Helbling appeals from his conviction and

sentence. A jury found that Helbling embezzled funds from 

a profit sharing plan covered by the Employee Retirement 

Income Security Act ("ERISA") to pay the operating 

expenses of three failing companies he owned, and engaged 

two lawyers to help him by creating false documents
indicating that the withdrawals had been part of a lawful 

Employee Stock Ownership Plan ("ESOP") conversion. 

Helbling's appeal raises numerous issues relating to the 

timeliness of his indictment, the sufficiency of the evidence 

presented at trial, and the calculation of his sentence.1 We 

will affirm his conviction and sentence in all aspects. An 

understanding of the facts of the case is a necessary 

foundation for a discussion of the issues he raises. 

I. 

On December 18, 1996, a federal grand jury returned a 

thirty-five count indictment against Helbling. The 

indictment included: (1) one count of conspiracy to

embezzle employee pension plan funds and falsify ERISA 

documents (18 U.S.C. S 371); (2) four counts of 

_________________________________________________________________ 

1. We have jurisdiction over Helbling's appeal over his conviction under 

28 U.S.C. S 1291 and his sentence under 18 U.S.C. S 3742. We gave 

Helbling leave to file a supplemental pro se brief and a reply brief and 

leave to the government to respond. We have considered both his 

counseled and pro se submissions. We have denied Helbling's motions to 

file further supplemental briefs and appendices. 

 2 

embezzlement of employee pension plan funds from an

ERISA covered plan (18 U.S.C. S 664); (3) eighteen counts of 

falsifying documents required by ERISA (18 U.S.C.S 1027); 

(4) six counts of wire fraud (18 U.S.C. S 1343); and (5) six 

counts of mail fraud (18 U.S.C. S 1341). The mail fraud 

counts were dismissed during trial.2 The jury convicted 

Helbling of twenty-seven of the remaining twenty-nine 

counts. 

Before trial, Helbling filed a motion to dismiss the 

indictment on the basis that the indictment was not timely. 

On July 22, 1996, Helbling had signed an agreement 

waiving his statute of limitations defense. However, Helbling 

argued to the District Court that the waiver was invalid 

because he had been coerced into signing it by fraud and 

misconduct. Helbling also argued that the government had 

failed to investigate allegations he had made about third 

parties to a degree Helbling says he believed the waiver 

agreement required. The waiver agreement specifically 

allowed Helbling "to present for investigation" his

allegations which included claims that a number of 

individuals purposely injured his companies. After an 

evidentiary hearing, the District Court denied the motion in 

part by finding that the government had fulfilled its part of 

the bargain. The Court found that on October 15, 1996, 

government agents met with Helbling and accepted from 
him documents he believed supported his claims. Before 

ceasing their investigative activities, the agents reviewed the 

documents and spoke with another agent who had 

previously investigated related complaints. 

Trial commenced on May 13, 1998. At trial, the 

government offered proof that Helbling illegally withdrew 

money from the profit sharing plan covered by ERISA, used 

the funds to pay the operating costs of three companies he 

owned, and had two lawyers help him withdraw the money 

and legitimize the withdrawals by creating backdated 

documents to reflect that the plan had been lawfully 

converted into an ESOP. Helbling did not contest many of 

_________________________________________________________________ 

2. The District Court granted Helbling's motion to exclude the documents 

charged in the indictment. The United States filed a superseding 

indictment on May 20, 1998. 

 3 

the background facts presented at trial including his 

control of the three companies, his administration of the 

plan, or the financial transactions themselves. Helbling 

instead argued that the government failed to establish that 

he had acted with the requisite criminal intent, and that 

the government witnesses were lying. In his pro se brief, 

Helbling explains that he acted on the advice of counsel 

who told him that he could withdraw funds from the plan 

and document the ESOP conversion later as long as he had 

secured the consent of the company's board of directors. 

To prove its case, the United States presented numerous 

documents and several witnesses. The witnesses included 

Helbling's alleged co-conspirators, the two lawyers, Gerald 

S. Susman and Stephen Sokolic, who testified to the false 

ESOP conversion, Laura Scurko, who testified about the 

financial transactions and explained that ERISA covered 

the plan, Barry Penn, Susan Kramer and Donald Mayle, 

who testified to the forgery of two important documents, 

and John Grikis and Barry Katz who managed the plan

investments at NatWest Bank and Oppenheimer & Co. 

Several of the plan participants also testified. 

The witnesses explained that Helbling was the president, 

chief executive officer, and sole shareholder of three 

companies, Micro-Technology Co. (and its subsidiary MicroProducts Engineering Co.), Scranton Electronics, Inc., and 

Yardley Group, Inc., which Helbling ran as one company, 

and the administrator of Micro-Products Engineering

Company Profit Sharing Retirement Plan. The plan was 

funded exclusively by Micro-Products. Ed Wisniewski, a 

plan participant and long-time employee, testified that the 
plan was established by a previous owner in 1965 to

provide retirement income as an incentive to salaried 

employees to remain with the company. Laura Scurko, an 

attorney who was appointed trustee of the plan in a civil 

suit brought by the plan participants, testified as a lay 

witness and explained that the plan was covered by ERISA. 

She pointed out that the plan documents stated that the 

plan was amended and restated in 1976 to comply with the 

Employee Retirement Income Security Act of 1974. As of 

March 1991, the plan had assets of approximately 

$625,000 and covered ten salaried employees. The plan's 

 4 

assets were held by NatWest Bank which also acted as 

trustee to the plan. 

Helbling's companies were manufacturing companies that 

relied heavily upon military contracts. In May 1990, at 

Helbling's direction, the companies filed for Chapter 11 

reorganization. In February 1992, the Bankruptcy court 

converted the Chapter 11 bankruptcy proceedings into a 

Chapter 7 liquidation because the companies failed to 

provide the Court with the required monthly filings. The 

companies subsequently ceased business. While in 

bankruptcy, the companies continued to struggle because 

they lacked sufficient cash flow and were unable to procure 

new military contracts. 

In February 1991, Helbling directed John Grikis, then a 

trust officer at NatWest, to transfer the plan's assets to 

Oppenheimer & Co. Helbling's companies had been 

contacted by Barry Katz, an Oppenheimer fund manager, in 

late 1990. The funds were transferred on March 13, 1991 

after Grikis received a letter sent by Katz indicating that 

Oppenheimer would assume responsibility for the funds. 

The day after the transfer to Oppenheimer, Helbling moved 

$125,000 to an account at Farmers & Mechanics Bank and 

used it to pay operating expenses. In July, after 

conversations with Katz during which Helbling explained 

that he wanted to remove more money, Helbling converted 

the account to a margin account and borrowed $350,000 

against the plan's assets. Katz approved the conversion 

after receiving a fax supposedly signed by Barry Penn, a 

lawyer, indicating that Micro-Product's plan permitted the 

company to borrow against the plan's assets. The money 

was again used to pay operating expenses. At trial, Penn 

and his secretary, testified that the letter was a forgery. 

They explained that Helbling, who had been Penn's client, 

twice asked Penn to write the opinion letter, first in person 

and later by fax, but that Penn refused because he was not 

familiar with pension law or the profit sharing plan. 

Subsequently, Helbling instructed Katz to close the account 
and sent Katz a letter, dated August 29, 1991, which 

confirmed that the plan had been converted into an ESOP. 

Helbling subsequently withdrew money from the account in 

the form of a check for $55,300 on September 6, 1991, and 

 5 

a wire transfer for $29,700 on September 16, 1991. 

Helbling withdrew a final amount of $3,500 on January 3, 

1992. 

Attorneys Gerald Susman and Stephen Sokolic were the 

government's two key witnesses. Both testified pursuant to 

plea agreements. Susman testified first. He explained that 

he first spoke with Helbling in the early part of 1990 after 

Helbling had been referred to him by Arnold Kaminer, who 

provided health insurance for Helbling's companies, to help 

Helbling establish a trust to hold his life insurance. During 

the summer of 1990, Susman completed some estate 

planning work for Helbling. Kaminer confirmed that he 

referred Helbling to Susman for estate planning, and also 

testified that he mentioned the possibility of an ESOP in a 

conversation with Helbling in February of 1991. 

Susman testified that Helbling called him again in March, 

and July, of 1991. During the conversation in March, 

Helbling asked Susman if he knew of any sources of 

financing because his companies were having financial 

trouble. During the conversation in July, Helbling asked 

Susman about withdrawing money from a profit sharing 

plan. Sometime around August, 20, Helbling called Susman 

again. This time, according to Susman, Helbling told him 

that he had made the large March and July withdrawals 

from the Micro-Products plan. 

Susman testified that he "was flabbergasted" when 

Helbling told him in August of the large withdrawals. 

Susman had thought that Helbling had been asking about 

removing money from his own personal stake in a plan 

when he answered Helbling's questions in July. Susman 

immediately told Helbling that he could not remove funds 

from the plan unless he had an ESOP and explained that 

to have an ESOP, Helbling needed a valid resolution of the 

board of directors that predated the distribution, and an 

appraisal of the stock. Susman testified further that he 

explained that since the companies were in bankruptcy, the 

stock was worthless. When Helbling asked if Susman would 

prepare the required resolution, Susman refused. When 

Helbling asked if they could still go ahead with the ESOP, 

Susman said that he would look into the matter and get 

back to him. Helbling and Susman met the next day, and 

 6 
Helbling provided Susman with several documents 

including a copy of the plan. 

Susman subsequently sought advice from Stephen 

Sokolic, an attorney with more experience with ERISA, to 

find out whether they could document what had been done 

as an ESOP. Susman testified that after talking with 

Sokolic, he felt that the documentation could legitimately 

be completed. Subsequently, Susman reviewed Helbling's 

August 29, 1991 letter to Katz that said that the ESOP had 

been converted into an ESOP under Susman's direction. 

The letter also authorized the liquidation of the account. 

Both Susman and Sokolic testified that they reviewed the 

documents Helbling gave them and met with Helbling on 

September 11, 1991. During that meeting, Susman and

Sokolic explained to Helbling that the withdrawals were 

prohibited transactions under ERISA. However, after the 

meeting, Susman and Sokolic prepared a retainer 

agreement which Helbling later signed. The retainer

agreement stated explicitly that the loan Helbling took from 

the plan was prohibited by ERISA, and that there could be 

a subsequent Department of Labor investigation and 

possibly fines because the transactions might violate 

Department of Labor regulations. However, on crossexamination both Susman and Sokolic testified that while 

they told Helbling the withdrawals had been prohibited 

transactions under ERISA, they did not tell Helbling that 

the withdrawals or the creation of the backdated ESOP 

could be the basis for criminal prosecution. 

Susman and Sokolic testified that on October 14, 1991 

they met again with Helbling who was accompanied by

Donald Mayle, an employee of Helbling's companies. In 

preparation for this meeting, Susman and Sokolic drafted 

most of the documents needed to achieve the ESOP 

conversion. At the meeting, Helbling signed the employee 

stock ownership plan and the ESOP trust agreement. Both 

documents were backdated to July 25, 1991. He also 

signed the stock purchase agreement, which purported to 

transfer 12.5% of the stock to the plan for $500,000, which 

was backdated to March 1, 1991.3 Mayle witnessed 

_________________________________________________________________ 

3. The ESOP conversion was limited to $500,000 to avoid the need for 

filing with the SEC. 

 7 

Helbling's signatures. A promissory note for $85,000, 

representing the additional funds withdrawn from the 
Oppenheimer account in September, was signed by 

Helbling in November, and backdated to September 8,

1991. The conversion was made dependent upon a later 

appraisal of the companies validating the stock price. 

Both Susman and Sokolic testified that they were 

originally unwilling to backdate the ESOP plan document 

and the trust agreement, but gave in to Helbling's demand 

during the meeting. Sokolic, however, testified that he 

backdated the stock purchase agreement and the stock 

certificates to coincide with Helbling's withdrawals before 

the meeting. In response to questions from Helbling's 

bankruptcy attorneys in December of 1991, Susman and 

Sokolic drafted an opinion letter with Helbling's input that 

Susman and Sokolic testified was misleading and false. 

Ronald Santora, Helbling's bankruptcy attorney, 

subsequently presented the letter to the Bankruptcy Court. 

When asked why he agreed to create the documents, 

Susman testified that "he wanted the fee." On crossexamination, Susman testified that he did not intend to 

steal from the plan participants and did not conspire with 

Helbling to steal money. Susman testified that after he first 

met with Sokolic he thought the ESOP conversion could be 

completed legally, and that he first understood that he had 

committed a crime in November of 1991. He did, however, 

admit that earlier, in August, he had committed a crime 

because he had participated in Helbling's illegal activities 

by reviewing a draft of Helbling's August 29 letter to Katz 

which confirmed that the plan had been converted into an 

ESOP and authorized the liquidation of the Oppenheimer 

account. 

Sokolic corroborated much of Susman's testimony, 

particularly the meetings with Helbling, the retainer 

agreement, and the backdating of documents. Sokolic

testified that he realized that he had committed a crime in 

"hindsight," explaining that he originally believed that he 

was serving his client to the best of his ability by 

documenting the ESOP, and that it was not until November 

and December of 1991 that he first began to reconsider the 

legality of his acts. Sokolic, however, also conceded 

 8 

repeatedly that his actions were illegal because he created 

false or misleading documents that were required by

ERISA. Sokolic explained his initial view by saying that he 

had understood that Helbling intended to create the ESOP 

in March of 1991, as indicated by the board of directors' 

consent dated March 8, 1991, and that he had felt he was 

simply documenting that transaction. 
Sokolic said that he first saw the consent sometime

between the September and October meetings with 

Helbling. At trial, Donald Mayle, who along with Helbling 

supposedly signed the consent, testified that his signature 

was forged. Susman testified that Helbling brought the 

consent to the October 14 meeting. Susman also testified 

that Helbling had asked him to create a board of directors' 

consent during the first August conversation. 

The government also presented witnesses who testified 

that Helbling gave them specific directions on how to refer 

to the infusions of cash in reports to the Bankruptcy Court 

and in certain letters. Donald Mayle testified that Helbling 

directed him to record the money as receipts and inventory 

in reports filed with the Bankruptcy Court. Thomas Taylor, 

former sales manager and later vice-president of sales at 

Scranton Electronics, testified that Helbling directed him to 

sign two letters intended to help Helbling's companies 

obtain a Certificate of Competence from the Small Business 

Association stating that Helbling had personally injected 

$350,000 into the companies. Obtaining a certificate would 

have made it easier for Helbling's companies to procure 

military contracts. 

Throughout the period, the plan participants requested 

information from Helbling about the plan. After the money 

was moved from NatWest, NatWest stopped providing the 

plan participants with monthly statements. Helblingfirst 

told the participants about the conversion in October. After 

two meetings during which plan participants protested the 

conversion, they filed a lawsuit. The record from the 

sentencing hearing reflects that Helbling had sent the 

participants letters blaming them for the companies' 

difficulties and threatening them with unemployment, 

sought to file retaliatory and harassing civil suits against 

them, falsely informed the state of New Jersey that they 

 9 

were responsible for approximately $240,000 in back taxes 

due to the ESOP conversion, and refused to comply with 

the order entered at the end of the civil proceedings. As a 

consequence of the civil lawsuit, Lauren Scurko was

appointed trustee. In her role as trustee, Scurko recovered 

less than $24,000 of the original amount. 

At the end of the government's case, Helbling offered no 

witnesses on his behalf. Helbling moved to dismiss the 

conspiracy count arguing that the government failed to 

establish that either Susman or Sokolic entered into an 

agreement with Helbling. The District Court denied the 

motion. After closing arguments were heard, Helbling 
moved for a new trial based upon alleged misconduct of the 

prosecutor for making impermissible statements in the 

opening and closing arguments, and for reconsideration of 

his statute of limitations argument. The District Court also 

denied both motions. 

Helbling was sentenced on January 25, 1999. The 

District Court increased Helbling's offense level under 

S 3B1.1 of the Sentencing Guidelines for Helbling's role in 

the offense and under S 3C1.1 for obstruction of justice 

based on Helbling's efforts to pressure Susman, Sokolic 

and Mayle to lie during the investigation. The District Court 

also departed upwards under S 5K2.3 for extreme 

psychological damage to the victims of Helbling's 

embezzlement. 

Helbling now appeals the District Court's sentencing 

decisions. He also seeks a new trial based on statements 

made in the prosecutor's opening and closing statements, 

the insufficiency of the evidence presented at trial, 

allegations of prosecutorial misconduct, and the District 

Court's decision on the validity of the statute of limitations 

waiver. We will address all of these issues beginning with 

the statute of limitations waiver. 

II. 

Helbling argues that the District Court erred by 

upholding the validity of his waiver of the statute of 

limitations. His primary contention is that the waiver must 

be invalidated because the government failed to fulfill its 

 10 

part of the bargain, which required the government to allow 

Helbling "to present for investigation" charges he had 

leveled against individuals he felt sabotaged his companies.4 

He urges that the government was obligated to complete a 

full and thorough investigation of his allegations. He alleges 

that the District Court erred in rejecting this contention 

because it failed to inquire into what Helbling reasonably 

understood the waiver to mean. We will affirm the District 

Court's decision because, even if Helbling is correct to 

assert that we must compare the government's actions to 

what Helbling "reasonably understood" it had promised to 

do,5 we cannot conclude, on the basis of the language of the 

waiver or the record in front of us, that Helbling reasonably 

understood the waiver to require an investigation any 

broader than he actually received. 

_________________________________________________________________ 

4. The relevant portion of the agreement, with the added rider, stated: 
 In order to allow ample time for me to confer with representatives 

of 

 the U.S. Attorney's Office,* I hereby knowingly, voluntarily and 

 expressly waive the right of defense provided by any statute of 

 limitations with regard to the above criminal statutes of the 

United 

 States Code based upon the failure of the U.S. Attorney's Office to 

 obtain an indictment for violations of those during the period from 

 July 22, 1996 through December 31, 1996. 

 * and to present for investigation by the FBI and the Department of 

 Labor those allegations which I have set forth in my letter to the 

 U.S. Attorneys Office dated July 13, 1996, specifically paragraph 

#3. 

5. The parties do not direct us to any controlling authority where we 

have actually considered whether the government had breached a 

statute of limitations waiver in a criminal case. Helbling argues that we 

should use the same standard here as we use to determine whether a 

plea agreement has been complied with. See, e.g., United States v. NolanCooper, 155 F.3d 221, 236 (3d Cir. 1998) (considering "whether the 

government's conduct is inconsistent with what was reasonably 

understood by the defendant when entering the plea of guilty."); see also 

United States v. Levine, 658 F.2d 113, 124, 124 n.17 (3d Cir. 1981) 

(noting that waivers of statutes of limitations have been viewed as being 

similar to guilty pleas). We decide neither that this standard is 

necessarily applicable to waivers, nor that defendants who sign waiver 

agreements should always receive the same protections as those who 

sign plea agreements. Rather, even assuming the standard does apply, 

Helbling cannot succeed. 

 11 

The District Court addressed this specific contention, 

along with others, in a written opinion, after holding an 

evidentiary hearing into the circumstances surrounding the 

signing of the waiver agreement. Finding the government's 

witnesses credible, the District Court addressed each of 

Helbling's allegations as to why the waiver was fraudulently 

coerced and rejected each of them.6 Importantly for this 

discussion, the District Court found that Helbling knew and 

understood the implications of waiving the statute of 

limitations, was not unduly pressured into signing the 

waiver since he engaged in extensive negotiations regarding 

the waiver provision, and was repeatedly advised to retain, 

or request, counsel. 

Addressing whether the government fulfilled its bargain, 

the District Court noted that the provision itself did not 

clearly describe the extent of investigation required, and 

stated that Helbling had not introduced any evidence 

showing that a particular meaning had been agreed upon. 
The District Court proceeded on the basis that the 

agreement imposed a duty on the government to investigate 

and found that the government had done enough to satisfy 

_________________________________________________________________ 

6. Considering Helbling's allegations that he was coerced into signing the 

waiver by threats and by misrepresentations, and that he was not 

represented during the negotiations, the District Court determined that 

the government was ready to indict Helbling when the waiver was signed 

so it did not coerce him into signing the waiver by falsely threatening 

immediate indictment, and that Helbling realized, or should have 

realized, that the waiver would provide the government more time to 

investigate, as well as provide him more time to prepare, and, therefore, 

the government did not misrepresent the effect of the waiver. 

In his pro se brief, Helbling alleges that the prosecutor conspired with 

Susman's lawyer to coerce Helbling to sign the waiver, and states that 

Department of Labor investigator Daphne Rich testified that Susman and 

Sokolic had agreed to cooperate with the government before Helbling 

signed his statute of limitations waiver. However, Susman's lawyer's 

testified at the hearing, and the District Court rejected Helbling's 

argument that he was coerced by him. The District Court also found that 

Susman's plea agreement came months after Helbling signed the waiver. 

The Court's factual findings are not clearly erroneous, and we agree with 

its legal conclusions. Therefore, to the extent that Helbling asserts 

these 

arguments as separate grounds to invalidate the waiver, we reject them. 

We find no evidence in the record to support Helbling's other allegations. 

 12 

its obligation and, therefore, the waiver was valid. We apply 

the clearly erroneous standard of review to the District 

Court's finding of facts and review the District Court's legal 

conclusion that the government fulfilled the terms of the 

agreement under the plenary standard of review. See United 

States v. Moscahlaidis, 868 F.2d 1357, 1360 (3d Cir. 1989) 

(reviewing a district court's determination that the 

government did not breach a plea agreement). 

The difficulty with Helbling's argument on appeal is that 

his assertion -- that the government promised to engage in 

a full scale investigation -- cannot be squared with the 

record evidence, or the language of the waiver itself. 

Helbling argues in effect that he reasonably understood 

that the government would complete a full scale 

investigation because he would not have agreed to the 

waiver without such a promise. However, even if we were to 

step beyond the language of the provision which only 

requires the government to allow him to "present for 

investigation" -- a promise the government clearly fulfilled 

-- we cannot find support for his assertion because at the 
pre-trial hearing a government agent testified that she told 

Helbling that the government would not agree to more than 

a promise to evaluate Helbling's evidence. 

Helbling signed the waiver agreement on July 22, 1996. 

According to testimony presented at the hearing, and which 

the District Court found credible, SA Donald Wadsworth 

had spoken to Helbling on July 19, and Helbling advised 

him that he wanted Wadsworth to perform an expansive 

investigation and include Helbling's allegations against 

others in his review. When Helbling, thereafter, told 

Department of Labor investigator Daphne Rich that 

Wadsworth had promised him that if he signed the waiver, 

the government would investigate his charges, Rich said 

that the government would only evaluate the evidence he 

gave to Wadsworth and Rich. Thereafter, that day, Helbling 

signed the waiver in the presence of two other FBI agents. 

Therefore, we conclude that Helbling's belief that the waiver 

required the government to fully investigate his claims was 

unreasonable. 

Furthermore, we note that the government did indeed do 

more than permit Helbling to "present" his allegations. 

 13 

Reviewing the evidence, the District Court found that, 

before the government ceased its investigation into

Helbling's allegations, government agents met with Helbling 

and discussed his allegations, reviewed the documents 

Helbling gave them, and culled out those which the 

government already had, those that were new and those 

that were related to a prior investigation. The agents also 

spoke to Robert Connolly, the Chief of the Antitrust 

Division of the Department of Justice in Philadelphia, who 

had already investigated allegations related to many of 

Helbling's complaints of sabotage in a protracted 

investigation from 1989-1992, and reviewed the documents 

with him. 

Accordingly, we find the waiver to have been valid.

III. 

Next, Helbling challenges the sufficiency of the evidence 

supporting all the counts of his conviction. Helbling argues 

that the government failed: (1) to establish an agreement 

necessary for a conspiracy; (2) to establish a scheme to 

defraud required by the wire fraud convictions; or (3) to 

establish that ERISA covered the Micro-Products plan, as 

required by the embezzlement and false documents 

convictions.7 Our standard of review is highly deferential. 

"We determine whether there is substantial evidence that, 
when viewed in the light most favorable to the government, 

would allow a rational trier of fact to convict." Government 

of the Virgin Islands v. Charles, 72 F.3d 401, 410 (3d Cir. 

_________________________________________________________________ 

7. We note at the outset of this discussion that Helbling also alleges in 

his pro se brief that the government withheld exculpatory evidence and 

suborned false testimony in return for plea agreements. Since these 

arguments were not raised to the District Court, we review for plain 

error. To the extent that Helbling's argument rests on United States v. 

Singleton, 144 F.3d 1343 (10th Cir. 1998), rev'd en banc, 165 F.3d 1297 

(10th Cir.), cert. denied, 119 S. Ct. 2371 (1999), we note that this Court 

has now rejected the holding of the first Singleton decision in United 

States v. Hunte, 193 F.3d 173, 174 (3d Cir. 1999), decided after briefing. 

Furthermore, Helbling had the opportunity to cross-examine the 

witnesses at trial, and we find no factual support for his other 

allegations. 

 14 

1995). We find that substantial evidence did support the 

verdicts and we will affirm all the convictions on all counts. 

Helbling first argues that the government failed to

establish that he conspired with either Susman or Sokolic.8 

To establish a conspiracy, the government must show: (1) 

a unity of purpose between two or more persons; (2) an 

intent to achieve a common goal; and (3) an agreement to 

work together. See United States v. Carr, 25 F.3d 1194, 

1201 (3d Cir. 1994). Circumstantial evidence may be used 

to establish a conspiracy although if the government relies 

entirely on circumstantial evidence "the inferences drawn 

must have a logical and convincing connection to the facts 

established." Id. (quoting United States v. Casper, 956 F.2d 

416, 422 (3d Cir. 1992)) (internal quotations omitted). The 

indictment charges Helbling with conspiracy (1) to defraud 

the plan and participants, or (2) to put false information in 

documents required by ERISA. We must affirm the jury 

verdict if the government adduced sufficient evidence of 

either object of the conspiracy. See id. at 1201-02 (citing 

Griffin v. United States, 502 U.S. 46 (1991)). 

Helbling argues that the government failed to show that 

he entered into an agreement with either Susman or 

Sokolic because both testified that they did not intend to 

commit unlawful acts and that they came to understand 

the illegality of their actions only by hindsight. However, 

their testimony was replete with statements from which the 

jury could reasonably have inferred that Sokolic and 

Susman had the necessary intent and knowledge regardless 

of their statements to the contrary. For example, both 

testified that they acted illegally, and that they agreed to 

complete work for Helbling after explaining to him that the 
withdrawals were prohibited transactions. 

Contesting his wire fraud convictions, Helbling argues 

that the government failed to establish that Helbling 

participated in a scheme with the specific intent to defraud. 

See 18 U.S.C. S 1343; United States v. Veksler, 62 F.3d 

544, 551-52 (3d Cir. 1995). Helbling argues that the 

government failed to prove this element of the crime 

_________________________________________________________________ 

8. Helbling raised this issue at trial as a Rule 29 motion to dismiss. The 

District Court denied the motion. 

 15 

because he relied upon the expertise of Susman and 

Sokolic, and because both testified that they did not intend 

to defraud the participants. 

Clearly, sufficient evidence existed to establish that 

Susman and Sokolic had the requisite intent. However, 

even if Helbling's contention about Susman's and Sokolic's 

intent had merit, their intent is irrelevant to Helbling's 

conviction since a wire fraud conviction is not dependent 

upon the existence of an agreement. See United States v. 

Nelson, 54 F.3d 1540, 1546 (10th Cir. 1995). Susman and 

Sokolic testified that Helbling directed them to construct 

the ESOP and backdate the documents. Testimony also

supports the conclusion that Helbling forged Barry Penn's 

letter to Oppenheimer before engaging the services of 

Susman or Sokolic, and that he alone forged the consent of 

the directors sometime after engaging their help. These acts 

are clearly probative of Helbling's intent. 

Finally, Helbling contends that the government failed to 

establish that the plan was subject to ERISA. Counts 2 

through 5 of the indictment charged Helbling with 

embezzlement of plan assets in an "employee benefit plan 

subject to any provision of title 1 of [ERISA]" in violation of 

18 U.S.C. S 664 and counts 6 through 23 charged Helbling 

with violating documents required by title I of ERISA to be 

published, kept as records or certified to the administrator 

of the plan. See United States v. Furst, 886 F.2d 558, 565 

(3d Cir. 1989) (explaining that a conviction underS 664 

requires a showing that the plan is covered by ERISA); see 

also United States v. Coyle, 63 F.3d 1239, 1245 (3d Cir. 

1995) (explaining that a conviction under 18 U.S.C.S 1027 

requires a showing that (1) the defendant made a false 

statement; (2) knowing it to be false; (3) in a document 

required by ERISA). A plan is subject to ERISA if itfits 

under 29 U.S.C. S 1003(a), and is not exempted by the 29 

U.S.C. S 1003(b). Relevant definitions are provided in 29 

U.S.C. S 1002. 
Helbling contends that the government failed to introduce 

sufficient evidence from which the jury could conclude that 

the plan was covered by ERISA, and argues that the plan 

was not covered by ERISA as a matter of law.9 Generally, 

_________________________________________________________________ 

9. Helbling's counseled brief argues that the government failed to submit 

sufficient evidence. Helbling raised and developed his second theory in 

 16 

whether a plan is covered by ERISA is an issue of fact to be 

decided by the jury, which we review under the substantial 

evidence standard, see Furst, 886 F.2d at 565, though we 

exercise plenary review when our review requires the 

interpretation and application of legal precepts. See United 

States v. Martorano, 767 F.2d 63, 65 (3d Cir. 1985). 

At trial, the District Court precluded the testimony of two 

experts offered by the government who would have testified 

about the nature of the plan because the government failed 

to comply fully with discovery requirements.10 The 

government therefore relied upon the lay testimony of 

Laura Scurko, the court appointed plan trustee, Susman 

and Sokolic. Scurko testified that the plan was covered by 

ERISA, that the plan was restructured to be an ERISA plan, 

and that the plan itself suggested that it was covered by 

ERISA. Susman and Sokolic predicated their testimony, as 

well as their guilty pleas, on the basis that the plan was 

covered by ERISA. The government also introduced 

testimony of the plan participants indicating that the plan 

had the characteristics of an ERISA covered plan, including 

testimony that the plan was established to provide 

retirement income to workers who did not receive piece rate 

incentives, after they left the company. 

Reviewing the factual evidence adduced at trial and the 

legal arguments raised in response by the government, we 

_________________________________________________________________ 

his subsequent pro se brief. The government points out that he did not 

raise his second argument in front of the District Court. However, we 

have explained that since the alleged error directly relates to his 

criminal 

responsibility, such error would be plain error. See United States v. 

Cusumano, 943 F.2d 305, 309 (3d Cir. 1991) (considering whether a 

plan was covered by ERISA for the first time on appeal). 

10. The government intended to have Debra Golding and Kevin Long 

testify, and presented a letter to Helbling outlining the general areas 

about which they would testify. Helbling moved to preclude their 

testimony, asserting that the government's letter failed to comply with 
Federal Rule of Criminal Procedure 16(a)(1)(e) which requires the 

government to "describe the witnesses' opinions, the bases and the 

reasons for those opinions, and the witnesses' qualifications." Rejecting 

the government's contention that Golding and Long were lay witnesses 

not covered by 16(a)(1)(e), the District Court granted Helbling's motion. 

 17 

conclude that sufficient factual evidence and legal support 

existed for the conclusion that the plan was covered by 

ERISA. The government convinces us as an initial matter, 

with reference to the facts discussed above, that the plan 

fell within the general ERISA definitions, particularly 29 

U.S.C. S 1002(2)(A). See In re New Valley Corp. v. New 

Valley Corp., 89 F.3d 143, 148-49 (3d Cir. 1996) (explaining 

that a court must begin first look to see whether the plan 

fits under the general provisions of ERISA and then

consider the exceptions). Section 1002(2)(A) extends ERISA 

to cover plans established or maintained by an employer to 

the extent that it provides retirement income regardless of 

the method use to determine contributions, or calculate 

and distribute benefits. See 29 U.S.C.S 1002(2)(A). The 

government also explains that the plan fits within the 

definition of a defined contribution plan, see 29 U.S.C. 

S 1002(34), and correctly rebuts Helbling's arguments as to 

why the plan was exempt from ERISA coverage in whole or 

in part. Finally, the government points out that even if the 

plan was exempt from certain provisions of ERISA, for 

example, by having the characteristics of a "top hat" plan, 

18 U.S.C. S 1027 and 18 U.S.C. S 664 would still apply 

because they do not require that the plan in question be 

subject to all of ERISA's various provisions. Rather, these 

criminal provisions require that the plan be a plan"subject 

to any provision of title 1," 18 U.S.C. S 664, or that the 

fraudulent statement be contained in a document required 

by title 1. See 18 U.S.C. S 1027. 

IV. 

Helbling next argues that the prosecutor, Assistant

United States Attorney Jayne K. Blumberg, made 

prejudicial comments in her opening and closing 

statements that require the grant of a new trial. Helbling 

argues that her opening statement included impermissible 

characterizations and impermissible vouching, and that in 

her closing and rebuttal arguments, the prosecutor again 

acted impermissibly by characterizing Helbling and his 

actions, implying that Helbling committed improprieties in 

the past, and by describing the evidence that the letter 

supposedly signed by Barry Penn was forged as 

 18 
"uncontroverted." Without parsing the prosecutor's 

comments, which we have paraphrased in the margin, 11 we 

note that, although the government disputes many of

Helbling's contentions of misconduct, the United States 

acknowledged in its brief that the prosecutor's opening 

statement "overstepped the parameters of an opening

statement" in the manner in which it characterized 

Helbling. See Appellee's Br. at 38. We quite agree that Ms. 

_________________________________________________________________ 

11. Early in opening arguments, the prosecutor told the jury that the 

defendant had "[u]gly values: Dishonesty, disloyalty, deceit, and above 

all, greed. To be sure, ladies and gentlemen, the Defendant, William 

Helbling is a thief. He lied to these men, he stole their retirement 

moneys 

boldly and brazenly." The prosecutor also called Helbling a looter while 

pointing a finger in his face, and said, while discussing the companies' 

financial problems, that "the one source [of money] was what he called 

his `secret fund,' his slush find, his private kitty. And he stole the 

money, he stole the retirement money." The prosecutor also called 

Susman and Sokolic "unscrupulous," and explained that they assisted 

Helbling in "covering up his fraud, his looting of moneys." After a 

defense 

counsel objection, the prosecutor completed her opening by stating that: 

"We believe that you will find the Defendant guilty as charged." The 

District Court directed the jury to disregard the comment. During the 

prosecutor's opening, the Court sustained a number of defense counsel 

objections and brought counsel to side bar where the judge admonished 

the prosecutor. At the close of the prosecutor's opening, the judge 

reminded the jury, as he had already explained during his preliminary 

instructions, that the opening statement was not to be considered as 

evidence. 

Before closing arguments began, the District Court again reminded the 

jurors, as part of the jury instructions, that they must not consider the 

opening and closing arguments as evidence. In the early portion of her 

closing argument, the prosecutor referred to "a greedy person's plan," the 

"Defendant's plunder and thievery," and the Defendant's "track record of 

lying, cheating and deceit." The prosecutor also called evidence that the 

letter from Barry Penn to Oppenheimer was forged"uncontroverted." In 

rebuttal, the prosecutor again referred to the same evidence as 

"uncontroverted," and further characterized the defendant as "arrogant" 

and "despicable" which the court instructed the jury to disregard. Upon 

defense counsel objection to the second reference to uncontroverted 

evidence, the District Court told the prosecutor to avoid such references. 

Later at side bar, the Court asked defense counsel what counsel wanted 

the court to do to neutralize the statement. Counsel asked the Court to 

"leave it, please." 

 19 
Blumberg's remarks were over the line, and arguably even 

out of line. The government will not be sanctioned in this 

instance, however, because our case law punishes the 

government by granting a new trial in such a situation only 

if the defendant was prejudiced by the remarks in question. 

Here, we conclude that a new trial is not warranted

because Helbling was not in fact prejudiced. We reach this 

conclusion even though we view AUSA Blumberg's remarks 

to have been inappropriate, and we urge that the United 

States Attorney for New Jersey remind his assistants of the 

limits of appropriate advocacy. 

"Prosecutorial conduct does not always warrant the 

granting of a mistrial." United States v. Zehrbach, 47 F.3d 

1252, 1264 (3d Cir. 1995) (en banc). "An appellate court 

should not exercise its `supervisory power to reverse a 

conviction . . . when the error to which it is addressed is 

harmless since, by definition, the conviction would have 

been obtained notwithstanding the asserted error.' " Id. 

(quoting United States v. Hasting, 461 U.S. 499, 506 

(1983)). The harmless error standard requires us to

consider the record as a whole. The standard of review 

depends upon whether the error was constitutional or nonconstitutional. If the error is non-constitutional, we will 

affirm "when it is highly probable that the error did not 

contribute to the judgment." Id. (quoting Government of 

Virgin Islands v. Toto, 529 F.2d 278, 284 (3d Cir. 1976)). If 

the error is constitutional, we will affirm if wefind that the 

error is harmless beyond a reasonable doubt. See United 

States v. Molina-Guervara, 96 F.3d 698, 703 (3d Cir. 1996) 

(citing Chapman v. California, 386 U.S. 18, 24 (1967)). 

Even under the most stringent harmless error analysis, 

we cannot conclude that Helbling was prejudiced."In

determining prejudice, we consider the scope of the

objectionable comments and their relationship to the entire 

proceeding, the ameliorative effect of any curative

instructions given, and the strength of the evidence 

supporting the defendant's conviction." Zehrbach, 47 F.3d 

at 1265. First, the evidence presented by the United States 

was overwhelming. See id. at 1267 (finding the evidence at 

trial substantial). As discussed above, the government 

adduced substantial direct evidence of Helbling's activities, 

 20 

and substantial circumstantial evidence of his motivation 

and intent. Second, the District Court did give curative 

instructions. It repeatedly instructed the jury not to 

consider counsel's arguments as evidence, doing so before 

the prosecutor's opening, after the prosecutor's opening, 

and before her closing argument, and appeared to do so in 
a way that conveyed the Court's displeasure with counsel's 

tactics. See id. at 1267 (finding characterizations

neutralized in part by instructions not to consider the 

opening evidence); United States v. Somers, 496 F.2d 723, 

738 (3d Cir. 1974). Furthermore, the Court told the jury to 

disregard the vouching in the prosecutor's opening 

statement and to disregard the references to "arrogant" and 

"despicable" in rebuttal. Lastly, we note that defense 

counsel asked the Court not to give a curative instruction 

to neutralize reference to "uncontroverted" testimony in a 

side bar conference. 

Helbling seeks to distinguish this case by arguing that he 

was prejudiced because the government's comments 

poisoned the jury's mind regarding his intent, a crucial 

element in each count of his indictment. Helbling places 

considerable reliance on United States v. Mastrangelo, 172 

F.3d 288 (3d Cir. 1998), in which we found the defendant 

to be prejudiced by the comments of a prosecutor in closing 

and rebuttal arguments which inflated a limited stipulation 

that the defendant "had the chemical background to know 

the ingredients and equipment necessary to make 

methamphetamine" into one stating that the defendant 

knew how to make methamphetamine. See Mastrangelo, 

172 F.3d at 295. We find Mastrangelo to be easily 

distinguishable from our case. First, and most importantly, 

in Mastrangelo, the prosecutor misstated a stipulation to 

make it encompass a fact central to the government's 

charges and not otherwise supported by any evidence the 

government presented. See id. at 298. Here, the government 

introduced overwhelming circumstantial evidence of 

Helbling's intent. Second, in Mastrangelo, we explained that 

the district court's curative instruction may have served to 

exacerbate the problem because the court reaffirmed the 

prosecutor's incorrect view of the stipulation. See id. at 

296. Here, we view the curative instructions as having 

neutralized the possible prejudice. 

 21 

We note that Helbling's argument is also weakened by 

United States v. Retos, 25 F.3d 1220 (3d Cir. 1994), where 

we found that a prosecutor's reference in opening argument 

to the defendant's "crooked law practice" was not 

misconduct requiring a new trial since the comment was 

clearly related to the charges the government had to prove 

and was supported by the evidence presented at trial. See 

Retos, 25 F.3d at 1226. But see Somers, 496 F.2d at 737- 

38 ("Whether or not proofs were ultimately adduced 

warranting such characterizations is irrelevant. Such 

characterizations add nothing to the legitimate education of 

the jury which is not afforded by the proper presentation of 

the facts to be proved."). Here, although the prosecutor's 
comments may have been a pointed assertion of Helbling's 

guilt, the characterizations were related to the charges 

contained in the indictment which the evidence presented 

later did in fact establish. Accordingly, we find prejudice to 

be lacking. 

V. 

Helbling also appeals the District Court's determination 

of his sentence. Helbling contends that the District Court 

erred by increasing his offense level four-levels under 

U.S.S.G. S 3B1.1(a), "Aggravating Role," by increasing his 

offense level two-levels for obstruction of justice, U.S.S.G. 

S 3C1.1, and by departing upwards two-levels for 

psychological harm. See U.S.S.G. S 5K2.3. 

A. S 3B1.1(a), Aggravating Role 

Helbling argues that the District Court erred in applying 

a four-level enhancement to his offense level pursuant to 

S 3B1.1(a) of the Sentencing Guidelines for"Aggravating 

Role." Section 3B1.1(a) states in full: "If the defendant was 

an organizer or leader of a criminal activity that involved 

five or more participants or was otherwise extensive, 

increase by 4 levels." U.S.S.G. S 3B1.1(a). Helbling finds 

fault with the District Court's view regarding both aspects 

of this Guideline, namely that he was an organizer or 

leader, and that the activity was "otherwise extensive." Both 

Helbling and the government agree that Helbling's criminal 

activity did not involve five "participants" as defined by the 

commentary to the Guideline. 

 22 

We review a District Court's factual determinations

underlying the application of the sentencing guidelines for 

clear error. See United States v. Ortiz, 878 F.2d 125, 126-27 

(3d Cir. 1989). Although we give due deference to the 

District Court's application of the sentencing guidelines to 

those facts, as required by 18 U.S.C. S 3742(e), we exercise 

plenary review over legal questions involving the proper 

interpretation and application of the sentencing guidelines. 

See United States v. Katora, 981 F.2d 1398, 1402 (3d Cir. 

1992). We will address the two aspects of the relevant 

Guideline section in turn. 

 1. Leader or Organizer 

Section 3B1.1(a) applies only if a sentencing courtfinds 

that "the defendant was an organizer or leader of a criminal 

activity." Application Note 4 explains that a court should 

consider a number of factors when determining if the 

defendant was an organizer or leader, rather than a
manager or supervisor. 

 In distinguishing a leadership and organizational role 

 from one of mere management or supervision, titles 

 such as "kingpin" or "boss" are not controlling. Factors 

 the court should consider include the exercise of 

 decision making authority, the nature of participation 

 in the commission of the offense, the recruitment of 

 accomplices, the claimed right to a larger share of the 

 fruits of the crime, the degree of participation in 

 planning or organizing the offense, the nature and 

 scope of the illegal activity, and the degree of control 

 and authority exercised over others. 

U.S.S.G. S 3B1.1, Application Note 3; United States v. Ortiz, 

878 F.2d 125, 127 (3d Cir. 1989). We have explained that 

to be considered an organizer or leader, "the defendant 

must have exercised some degree of control over others 

involved in the commission of the offense." United States v. 

Phillips, 959 F.2d 1187, 1191 (3d Cir. 1992) (quoting United 

States v. Fuller, 897 F.2d 1217, 1220 (1st Cir. 1990)). 

The District Court made specific factual findings, which 

are not clearly erroneous, in determining that Helbling 

acted as an organizer or leader. The Court found that: 

 23 

 Helbling recruited all of the participants mentioned 

 above and his attorneys, Sokolic and Susman, to help 

 him in his criminal activity. He alone made the 

 decision to conceive and implement his conversion 

 scheme. The benefits from his scheme went either to 

 his personal use or into shoring up companies which 

 he was the sole owner. Helbling played the key role in 

 structuring the operation to defraud the retirement 

 plan and convert its assets. There is no evidence that 

 anyone else exercised control over the criminal scheme, 

 nor exercised any decision-making authority.

On appeal, Helbling raises two arguments. Helbling 

argues first that the evidence failed to show that Helbling 

recruited Susman and Sokolic with a criminal purpose or 

controlled their activities. Helbling also argues, citing 

United States v. Katora, 981 F.2d 1398 (3d Cir. 1992), that 

he cannot be a leader or organizer because the other 

participants -- Susman and Sokolic -- were equally 

responsible for the criminal activity. 

Given the guideline provision and the record evidence, we 

find the District Court's factual findings to be proper and 

its legal conclusion that Helbling was an organizer and 

leader unassailable. In so doing, we necessarily reject 
Helbling's arguments which are essentially fact based. 

Contrary to his urging, the District Court could properly 

find that he had a criminal purpose in recruiting Susman, 

that he controlled their activities in orchestrating the 

scheme through them thereafter, and that he was more 

culpable than they were.12 On these facts, Katora does not 

dictate a different result.13 Finally, we note that evidence 

_________________________________________________________________ 

12. Helbling's reliance on the terms of Susman's and Sokolic's plea 

agreements as proof of their equal culpability is misplaced. The 

Guideline clearly contemplates that a defendant may be the leader or 

organizer of another criminally responsible individual; the amount of loss 

stipulated to in a plea agreement is surely not the only factor that bears 

on the relationship between those individuals. 

13. Katora is simply not applicable to this case. In Katora, we explained 

that a defendant cannot be assessed an offense level enhancement under 

S 3B1.1 where the district court determined that the two participants 

were equally culpable and did not organize, lead, manage or supervise a 

third participant. See Katora, 981 F.2d at 1405. In this case, however, 

the District Court determined that Helbling alone organized and led the 

criminal activity which involved two other participants. 

 24 

that certain individuals provided expertise or planning does 

not necessarily counter evidence that their actions were 

controlled by another. 

 2. "Otherwise Extensive" 

The second part of S 3B1.1(a)'s analysis requires the 

sentencing court to determine whether the "criminal activity 

. . . involved five or more participants or was otherwise 

extensive." U.S.S.G. S 3B1.1(a). Since the government 

acknowledges that Helbling, Susman and Sokolic are the 

only "participants," this case requires us to determine when 

a criminal activity is "otherwise extensive." See United 

States v. Colletti, 984 F.2d 1339, 1346 (3d Cir. 1992) 

(holding that the leader or organizer may be included when 

determining the number of participants); see also U.S.S.G. 

S 3B1.1, Application Note 1 (defining "participant"). This 

seemingly simple phrase, which also appears in S 3B1.1(b), 

has spawned much discussion, and some disagreement, in 

the opinions of several courts of appeals. The courts that 

have considered the question agree that the "otherwise 

extensive" language makes S 3B1.1(a) applicable when 

criminal activity involves the equivalent of five participants, 

but disagree as to whether, if fewer than five participants 

are involved, the determination of equivalence must focus 

upon a headcount of the individuals involved, or may also 

rely upon other indices of extensiveness such as the 
magnitude of the harm, the complexity of the planning, or 

the number of victims. Compare United States v. 

Carrozzella, 105 F.3d 796, 802-03 (2d Cir. 1997) (focusing 

analysis on the number of individuals involved), with United 

States v. Dietz, 950 F.2d 50, 53-54 (1st Cir. 1991)

(permitting consideration of a broad range of indices). 

In Carrozzella, the Court of Appeals for the Second

Circuit explained that the analysis of "otherwise extensive" 

must focus initially upon the number of participants, and 

the knowing or unknowing persons, involved in the 

criminal activity, and then a subsequent determination 

must be made as to whether the roles and involvement of 

all those persons constitute the functional equivalent of five 

"participants" as defined by the Application Notes. See 

Carrozzella, 105 F.3d at 802-04. This contrasts with the 

 25 

rulings of several other courts of appeals that permit a 

broader inquiry that examines other characteristics of the 

criminal activity as well. See United States v. Brockman, 

183 F.3d 891, 900 (8th Cir. 1999), cert. denied , 120 S.Ct. 

800 (2000) (permitting consideration of the number of 

persons involved and the amount of loss); United States v. 

Yarnell, 129 F.3d 1127, 1139 (10th Cir. 1997) (following 

Dietz); United States v. Tai, 41 F.3d 1170, 1175 (7th Cir. 

1994) (permitting courts to "to examine factors in addition 

to a headcount to justify a finding that a given criminal 

activity is extensive"). For example, the Court of Appeals for 

the First Circuit, in United States v. Dietz, explained that 

"the extensiveness of a criminal activity is not necessarily a 

function of the precise number of persons, criminally 

culpable, or otherwise, engaged in the activity" and upheld 

a four-level increase based upon a general conception of 

extensiveness which included a finding that the activity 

spanned twelve years, crossed seven states and victimized 

a number of governmental agencies without an exact 

determination of the number of individuals involved. See 

Dietz, 950 F.2d at 53-54. In United States v. Rose, 20 F.3d 

367, 374 (9th Cir. 1994), the Court of Appeals for the Ninth 

Circuit explained that "[w]hether criminal activity is 

`otherwise extensive' depends on such factors as (i) the 

number of knowing participants and unwitting outsiders; 

(ii) the number of victims; and (iii) the amount of money 

fraudulently obtained or laundered." Id. at 374 (internal 

citations omitted). 

In United States v. Bennett, 161 F.3d 171 (3d Cir. 1998), 

the only opinion in which we have previously considered 

the "otherwise extensive" prong of S 3B1.1(a), we affirmed 

the application of S 3B1.1(a) to enhance the offense level of 

a defendant convicted of running a large and complex 
"Ponzi" scheme which the district court found involved two 

participants and at least thirteen non-participants who 

assisted Bennett. See id. at 194. Many of these individuals 

served Bennett by withholding information from investors 

and legitimizing his activities by preparing reports based 

upon false information he had provided. See id. Because 

the evidence of extensiveness was so clear, due to the 

involvement of at least thirteen others, we did not discuss 

whether other indices of "extensiveness" could be 

 26 

appropriately considered under S 3B1.1.14 We take the 

opportunity to decide this issue here. 

We will subscribe to the analysis of the Court of Appeals 

for the Second Circuit as described in Carrozzella. We 

believe that the focus upon the number and roles of the 

individuals knowingly, and unknowingly, involved best 

comports with the text of S 3B1.1, its application notes and 

commentary, as well as the overall structure of the

Sentencing Guidelines. We note that while the Guideline 

itself provides no clear guidance as to the meaning of 

"otherwise extensive," the application notes and the 

commentary strongly indicate that the focus should be 

upon the number of persons involved. Although we disagree 

with the District Court's decision to count one"nonparticipant," we agree with the District Court, which 

essentially applied the Carrozzella test, that the 

combination of Helbling, Susman and Sokolic -- the 

participants -- together with the countable nonparticipants, made Helbling's criminal activity"otherwise 

extensive" for the purposes of S 3B1.1. 

Application Note 3 specifically includes an example of 

"otherwise extensive" that is instructive."In assessing 

whether an organization is `otherwise extensive,' all persons 

involved during the course of the entire offense are to be 

considered. Thus, a fraud that involved only three 

participants but used the unknowing services of many 

outsiders could be considered extensive." U.S.S.G. S 3B1.1, 

Application Note 3 (emphasis added). The background

commentary is consistent with a numerical focus: 

 This section provides a range of adjustments to 

 increase the offense level based upon the size of the 

 criminal organization (i.e., the number of participants in 

 the offense) and the degree to which the defendant was 

_________________________________________________________________ 

14. Since we did not engage in a broader analysis, we place no 

significance upon citations in Bennett to United States v. D'Andrea, 107 

F.3d 949, 957 (1st Cir. 1997), and United States v. Dietz, 950 F.2d at 53, 
decisions that permit the district court to consider the "width, breadth, 

scope, complexity, and duration of the scheme." See Bennett, 161 F.3d 

at 194 n.14. These citations were placed in a footnote attached to the 

last part of the analysis and are no more than dicta. 

 27 

 responsible for committing the offense . . . . The 

 Commission's intent is that this adjustment should 

 increase with both the size of the organization and the 

 degree of the defendant's responsibility. 

U.S.S.G. S 3B1.1, Background (emphasis added). 

The background commentary also explains why the size 

of the criminal activity is important to the purpose of the 

provision. It notes that the Sentencing Commission drafted 

the Guideline's separate provisions to respond to criminal 

organizations whose size and structure increases the 

significance of the defendant's role. Compare U.S.S.G. 

S 3B1.1(a)-(b), with S 3B1.1(c)."In relatively small criminal 

enterprises that are not otherwise to be considered as 

extensive in scope or in planning or preparation, the 

distinction between organization and leadership, and that 

of management or supervision, is of less significance than 

in larger enterprises that tend to have clearly delineated 

divisions of responsibility." U.S.S.G. S 3B1.1, Background 

(emphasis added). 

If the Commission intended the courts to utilize a 

broader analysis to determine if a criminal activity was 

"extensive" it could easily have said so. Instead, the notes 

clearly indicate the Commission meant the courts to

consider the role of the defendant and the size of the 

criminal organization as its way of determining the relative 

responsibility of the defendant, so as to mete a greater 

sentence to those who likely received a greater division of 

the illegal profit, posed a greater danger to the public, and 

are more likely to commit more crimes in the future. See 

U.S.S.G. S 3B1.1, Background ("This adjustment is 

included primarily because of concerns about relative 

responsibility. However, it is also likely that persons who 

exercise a supervisory or managerial role in the commission 

of an offense tend to profit more from it and present a 

greater danger to the public and/or are more likely to 

recidivate."). 

Furthermore, limiting our construction of "extensiveness" 

to a head counting analysis reduces the potential for double 

counting certain aspects of criminal activity that are 

considered elsewhere in the scheme of the guidelines, thus 

 28 
helping to maintain the distinct character of various 

guideline sections. See Carrozzella, 105 F.3d at 802-03. For 

example, as the court in Carrozzella explained, in a fraud 

conviction the base offense level can be increased based on 

the amount of loss, the extent of planning, and the number 

of victims. See U.S.S.G. S 2F1.1; Carrozzella, 105 F.3d at 

802. Further adjustments may be made to account for the 

vulnerability of the victims, see U.S.S.G.S 3A1.1, the 

defendant's role, see U.S.S.G. S 3B1.2, and abuse of a 

position of trust.15 See U.S.S.G. S 3A1.3. If we were to adopt 

a broad reading of the phrase "otherwise extensive," so that 

some of these possible adjustments could be considered in 

that inquiry as well, a defendant would possibly receive two 

sentence enhancements for the same attributes of the 

crime. We avoid this result by focusing upon the number of 

individuals involved. 

We disagree with the government that our opinion in

United States v. Wong, 3 F.3d 667, 668 (3d. Cir. 1993), 

undercuts this rationale. In Wong, we held that where the 

guidelines happen to direct the sentencing court to increase 

the defendant's sentence under two separate sections-- 

which respond to different evils -- based on different 

aspects of the same conduct, the district court does not err 

by "double counting" those aspects in determining the 

sentence. See Wong, 3 F.3d at 668; see also United States 

v. Johnstone, 107 F.3d 200, 211-13 (3d Cir. 1997) (rejecting 

a double counting argument in accordance with Wong); 

United States v. Maurello, 76 F.3d 1304, 1315-16 (3d Cir. 

1996) (same). Thus in Wong, we found no error in the 

district court's decision to increase the defendant's offense 

_________________________________________________________________ 

15. Similarly, following a broad reading of "otherwise extensive" would 

permit a court to consider the amount of drugs sold in both the base 

offense level and as an element leading to the determination that the 

activity was extensive. See United States v. Rodriquez, 981 F.2d 1199, 

1200, 1200 n.3 (11th Cir. 1993) (per curiam) (finding no problem with 

considering drug quantities as evidence of extensiveness). 

Not surprisingly, courts following a broad test for extensiveness 

repeatedly encounter, though they have rejected them, arguments 

complaining of double counting relating to the finding of extensiveness in 

fraud cases. See, e.g., Brockman , 183 F.3d at 900 n.8 (rejecting 

argument based upon double counting by way of S 2F1.1 and S 3B1.1.). 

 29 

level for both more than minimal planning, see U.S.S.G. 

S 2B1.1(b)(5), and aggravating role under U.S.S.G. 

S 3B1.1(c) -- the degree of planning and defendant's role 
were different attributes of the same conduct. See Wong, 3 

F.3d at 668, 669 n.4. Here, the guideline focuses on the 

attribute or aspect of the numerosity of the group that the 

defendant led or organized. The language of two or more 

sections may well require consideration of different 

attributes of the same conduct. This is not an untoward 

result, but, rather an intended one.16 

Having adopted the test that requires us to focus upon 

the number and participation of the individuals involved in 

the criminal activity, we must address how the district 

courts are to apply it to the situations facing them. 

Although Application Note 3 supports our mode of analysis, 

the guidelines are silent as to how the sentencing court 

actually is to decide which non-participants should be 

considered, and what combination of participants and 

_________________________________________________________________ 

16. Application Note 4, of S 1B1.1, was amended effective November 1, 

1993, to state that "[a]bsent an instruction to the contrary, the 

adjustments from different guideline sections are applied cumulatively 

(added together). For example, the adjustments fromS 2F1.1(b)(2) (more 

than minimal planning) and S 3B1.1 (Aggravating Role) are applied 

cumulatively." U.S.S.G. S 1B1.1, Application Note 4 (amended November 

1, 1993, Amendment 497). We believe that this amendment, which 

followed a few months after our decision in Wong , reinforces the decision 

in Wong and our reasoning here. We read the Application Note to explain 

that a defendant cannot attack a sentence by arguing that the district 

court impermissibly considered evidence of more than minimal planning 

when both adjusting under S 2F1.1(b)(2) and when engaged in finding 

the defendant to be a leader, organizer, manager or supervisor as 

specifically directed by S 3B1.1, Application Note 4. Indeed, prior to the 

amendment, the Sixth Circuit Court of Appeals, in United States v. 

Romano, 970 F.2d 164 (6th Cir. 1992), found that because it viewed 

consideration of more than minimal planning as being required by 

S 3B1.1's application notes an enhancement under both provisions was 

not permitted. See Romano, 970 F.2d at 167. In United States v. 

Cobleigh, 75 F.3d 242 (6th Cir. 1996), the court recognized that Romano 

had been effectively overruled by the amendment. See Cobleigh, 75 F.3d 

at 251. Nothing about the amendment leads us to believe that it meant 

to implicate the breadth of analysis required or permitted under the 

second part of S 3B1.1(a) -- the determination of the size of the criminal 

activity. 

 30 

countable non-participants is the "equivalent" of five 

participants. We agree with the court in Carrozzella that 

not every individual tangentially involved in the criminal 

activity can fairly be considered in the analysis. See 

Carrozzella, 105 F.3d at 803. The purpose of the provision 

would rarely be achieved by counting the unknowing 

services of some actors in a criminal scenario, a taxicab 
driver or bank teller, for instance. 

The court in Carrozzella developed a three step inquiry to 

help determine which individuals should be counted. 17 See 

id. at 803-04. This test distinguishes non-participants who 

should be considered from those who should not be 

considered on the basis of the defendant's intent in 

involving them in the criminal activity and the nature of 

their role in the offense.18 Under this test, a sentencing 

_________________________________________________________________ 

17. The Second Circuit wrote in full: 

 [W]e believe that the following must be determined by the 

sentencing 

 court: 

 (i) the number of knowing participants; 

 (ii) the number of unknowing participants whose ac tivities were 

 organized or led by the defendant with specific criminal intent; 

 (iii) the extent to which the services of the unkn owing 

participants 

 were peculiar and necessary to the criminal scheme. 

Carrozzella, 105 F.3d at 803-04. 

18. We note that the Introductory Commentary to Part B, which contains 

S 3B1.1, was amended effective November 1, 1990 to state that: "The 

determination of a defendant's role in the offense is to be made on the 

basis of all conduct within the scope of S 1B1.3(a)(1-4), and not solely 

on 

the basis of elements and acts cited in the count of conviction." Prior to 

the amendment, we held that S 1B1.3 did not apply to the analysis 

under 3B1.1. See United States v. Murillo, 933 F.2d 195, 199 (3d Cir. 

1991); see also United States v. Pollen, 978 F.2d 78, 89-90(3d Cir. 1992). 

In these cases, we focused upon the language of the provision -- the 

offense -- to conclude that consideration of who could be considered a 

participant must be limited to those involved in the offense charged and 

all conduct in furtherance of the offence of conviction. See Murillo, 933 

F.2d at 199. In both cases, we noted that our decisions did not address 

the effect of the amendment on our analysis. See id. at 198 n.1; see also 

Pollen, 978 F.2d at 89 n.24. We do not decide today whether the scope 

of S 1B1.3 might affect our analysis. 

 31 

court must first separate out the "participants" as defined 

by Application Note 1 from other individuals, nonparticipants, who were involved in the criminal activity. "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. S 3B1.1, Application Note 1. The 

defendant may be considered as one of the participants. 

See Colletti, 984 F.2d at 1346. The court must next

determine whether the defendant used each nonparticipants' services with specific criminal intent. See 

Carrozzella, 105 F.3d at 804. Third, the court must

determine the extent to which the services of each 

individual, non-participant, were peculiar and necessary to 

the criminal scheme. See id. at 804. Utilizing this test, the 

Court of Appeals for the Second Circuit has upheld the 

consideration of individuals used by the defendant to 

legitimize, facilitate or hide the criminal activity. See United 

States v. Napoli, 179 F.3d 1, 15 (2d Cir. 1999) (applying 

Carrozzella and upholding the finding that the criminal 

activity was otherwise extensive on the basis of casino 

personnel who unwittingly helped the defendant launder 

money); United States v. Nolan, 136 F.3d 265, 273 (2d Cir. 

1998) (approving the consideration of accountants, bank 

officers, and lawyers used to perpetuate embezzlement from 

an ERISA covered pension plan including the filing of 

incomplete documents). We view this test as helpful in 

defining which non-participants should be counted, and 

subscribe to it. 

After deciding which individuals may be counted, the 

court must then consider whether the sum of the 

participants and countable non-participants is the 

"functional equivalent" of five participants. We note that, at 

a minimum, a criminal scheme must involve more than one 

participant in order to be found otherwise extensive; there 

can be no less than the defendant and one participant the 

defendant led or organized. See U.S.S.G.S 3B1.1, 

Application Note 2 ("To qualify for an adjustment under this 

section, the defendant must have been the organizer, 

leader, manager, or supervisor of one or more other

participants."). However, a court's determination as to the 

functional equivalence does not lend itself to a mere 

numerical analysis, but will necessarily be guided by the 

 32 

sentencing court's discretion. In deciding whether the total 

is the equivalent to five participants, the sentencing court 

may consider other factors, including the nature of the 

criminal scheme, to evaluate the relative value of the 

various countable non-participants. 

We will apply the test we have crafted to the case at 

hand. We note that Helbling urged us to adopt the Second 

Circuit's test and does not contest the District Court's 

determination that Helbling, Susman and Sokolic should be 
counted as participants. Therefore, the analysis rests upon 

the validity of the court's decision to count six nonparticipants -- John Grikis, Arnold Kaminer, Bruce Katz, 

Donald Mayle, Ronald Santora and Thomas Taylor -- and 

the conclusion that the combination of these three 

participants and these six non-participant individuals is the 

equivalent of five participants. Helbling disputes the 

consideration of each individual. He argues that Katz and 

Grikis should not be considered because both merely

transferred funds at Helbling's instruction. Helbling argues 

that Mayle, Santora and Taylor should not be considered 

because they all acted as part of a bankruptcy fraud which 

was not peculiar and necessary to the criminal activities 

that supported Helbling's conviction, and, finally, Helbling 

argues that Kaminer should not be considered because the 

letter Kaminer wrote at Helbling's behest, falsely saying 

that they had a conversation about an ESOP conversion, 

was never sent. We agree with the District Court's 

conclusion in all but Kaminer's case, and find that the 

District Court properly concluded that the combination of 

participants and countable non-participants makes 

Helbling's scheme "otherwise extensive." 

In arguing that Katz and Grikis should not be considered, 

Helbling unduly narrows the scope of our inquiry. While 

our test, which considers both the intent with which the 

defendant directed the individual's involvement and the 

extent to which the services of the individual were peculiar 

and necessary to the criminal scheme, instructs the

sentencing court to disregard individuals who are 

essentially functionaries, the activities of Katz and Grikis 

are distinguishable from those of other banking employees 

who, for example, might have simply moved the money for 

 33 

Helbling. See generally Napoli, 179 F.3d at 15 (applying 

Carrozzella and upholding the finding that the criminal 

activity was otherwise extensive on the basis of casino 

personnel who unwittingly helped the defendant launder 

money). Helbling used the services of Grikis and Katz to 

convert an account held by NatWest as a trustee owing 

fiduciary duties, into an account that from which he could 

withdraw funds, borrow against and which he could 

eventually liquidate. 

We also believe that the District Court was correct to 

count the activities of Mayle, Santora and Thomas. Each 

individual helped Helbling hide his criminal activities. See 

Bennett, 161 F.3d at 194 (counting non-participants who 

helped hide and legitimize the criminal activity). At the 

direction of Helbling, Mayle attested to Helbling's signatures 

on the ESOP conversion documents and hid the influx of 
$350,000 from the Bankruptcy Court. Similarly, Thomas, 

at Helbling's direction, submitted false documents to the 

Small Business Association describing the $350,000 as a 

personal cash infusion from Helbling. Lastly, at Helbling's 

direction, Santora, Helbling's bankruptcy lawyer, submitted 

false documents given to him by Helbling to the bankruptcy 

court. 

We reject Helbling's argument that Mayle, Santora, and 

Thomas ought not be considered because their activities 

were related to crimes for which Helbling was not indicted, 

and, therefore, their activities were not peculiar and 

necessary to Helbling's criminal behavior.19 These activities 

aided Helbling's embezzlement activities by concealing 

Helbling's withdrawals from the Bankruptcy Court, from 

the Small Business Administration, and from the plan 

participants. 

_________________________________________________________________ 

19. In the proceedings in front of the District Court and again on appeal, 

Helbling considers Mayle, Santora and Thomas together because they 

provided services relating to bankruptcy fraud. See Appellant's Br. at 46. 

Our review of the trial testimony indicates that thefilings signed by 

Taylor were not part of the bankruptcy case. Instead, they were 

submitted to the United States Small Business Administration. However, 

we consider the three individuals together because Helbling's arguments 

why each person should not be considered are identical. 

 34 

We agree, however, that the District Court erred in

counting Kaminer. The District Court found that Helbling 

directed Kaminer to write a letter in December 1991 stating 

falsely that he had a conversation with Helbling about an 

ESOP conversion in February 1991. While we disagree with 

the Court's factual conclusion, that is not the focal point of 

our inquiry.20 As far as can be determined from the record, 

Helbling never used the letter, or even placed it in a 

situation where it might be used, and, therefore, we cannot 

say that Kaminer's conduct, innocuous in itself, was 

peculiar and necessary to Helbling's criminal activities. 

We will therefore affirm the District Court's decision to 

enhance Helbling's sentence under S 3B1.1 on the basis 

that he was the organizer or leader of a criminal activity 

that was otherwise extensive. Helbling's criminal activity 

involved three criminally responsible participants and five 

other non-participant individuals whose involvement

Helbling directed and whose actions were peculiar and 

necessary to the furtherance of Helbling's efforts. Given the 

nature of Helbling's criminal conduct, the combination of 

these participants and non-participants was properly held 

by the District Court to be the functional equivalent of five 
participants. 

B. Obstruction of Justice 

Helbling contends that the District Court did notfind 

that Helbling had the requisite willful intent to obstruct 

justice as is required in order to increase Helbling's offense 

level under S 3C1.1 of the Guidelines.21 See U.S.S.G. 

_________________________________________________________________ 

20. The District Court found that the letter was false because the 

conversation never took place. We find this finding clearly erroneous 

because Kaminer testified at trial that the February 1991 conversation 

did occur and that the letter merely confirmed that fact. As we find that 

Kaminer should not be counted because the letter was never used in 

furtherance of Helbling's activities, we need not determine whether 

submitting a truthful letter in an effort to support a false conclusion is 

the type of involvement that should be counted underS 3B1.1. 

21. Section 3C1.1 of the guidelines states: 

 If (A) the defendant willfully obstructed or impeded, or attempted 

to 

 obstruct or impede, the administration of justice during the course 

 35 

S 3C1.1; United States v. Belletiere, 971 F.2d 961, 965 (3d 

Cir. 1992) ("[T]he government bears the burden of proving 

by a preponderance of the evidence that the defendant 

willfully obstructed or impeded, or willfully attempted to 

instruct or impede, the administration of justice."). We 

disagree. 

The District Court applied the two-level enhancement on 

the basis of two acts by Helbling which it found were "clearcut attempts to influence" testimony and which it 

concluded were covered under Application Note 4. 

Application Note 4 lists as one type of applicable behavior, 

"(a) threatening, intimidating, or otherwise unlawfully 

influencing a co-defendant, witness, or juror, directly or 

indirectly, or attempting to do so." U.S.S.G.S 3C1.1, 

Application Note 4(a). The first act relied upon by the 

District Court was a letter written by Helbling to his two 

attorneys, Susman and Sokolic, in May of 1994. In the 

letter Helbling threatened to file malpractice actions against 

the lawyers and file complaints with the bar association if 

they refused to stand behind the documents they created. 

Helbling, however, contends that the letter evidences his 

frustration rather than an attempt to intimidate. The 

second act was a conversation between Helbling and 

Donald Mayle in July of 1996 during which Helbling 

pressured Mayle to say his signature on the board of 
directors' consent was genuine.22 Helbling argues that the 

_________________________________________________________________ 

 of the investigation, prosecution, or sentencing of the instant 

offense 

 of conviction, and (B) the obstructive conduct related to (i) the 

 defendant's offense of conviction and any relevant conduct; or (ii) 

 closely related offense, increase the offense level by 2 levels. 

U.S.S.G. S 3C1.1. 

22. Two conversations between Helbling and Mayle are reproduced in the 

record. The first conversation took place on July 19, 1996. The second 

conversation took place on July 20, 1996. The District Court's opinion 

does not make it clear whether it is relying upon both conversations or 

just one. The opinion quotes from the July 19, 1996 conversation. 

Helbling suggests that part of the District Court's error was failing to 

consider both conversations. We believe, however, that both 

conversations indicate the same desire to influence Mayle. The issue is 

therefore moot. 

 36 

discussion of Mayle's signature was innocuous and that the 

District Court failed to put it in context. We disagree on 

both scores. We review the District Court's factualfindings 

under the clearly erroneous standard. See United States v. 

Boggi, 74 F.3d 470, 478 (3d Cir. 1996) (citing United States 

v. Cusumano, 943 F.2d 305, 315 (3d Cir. 1991)). 

While we recognize that the Helbling's letter varies in tone 

and could be subject to differing interpretations, the letter 

demanded that the lawyers stand behind documents found 

by the jury to be false, and threatened adverse 

consequences if they did not do so. With respect to the 

conversations with Mayle, the inference drawn from the 

conversations is that Helbling desired Mayle to say that he 

signed the board of directors' consent and was urging 

Mayle to lie. We conclude that the District Court'sfinding 

that these acts represented attempts to influence testimony 

was not clearly erroneous. 

C. Extreme Psychological Injury to the Victims 

Helbling also contends that the District Court abused its 

discretion when it departed upward two-levels from the 

applicable guideline level on the basis of extreme 

psychological damage to the victims because there was 

insufficient evidence of psychological harm to justify the 

departure. See U.S.S.G. S 5K2.3 (Extreme Psychological 

Injury to the Victims) (Policy Statement); Unites States v. 

Neadle, 72 F.3d 1104, 1111-12 (3d Cir. 1995); United 
States v. Astorri, 923 F.2d 1052, 1058 (3d Cir. 1991). 

Section 5K2.3 permits a sentencing court to sentence above 

the guideline sentence level "[i]f a victim or victims suffered 

psychological injury much more serious than that normally 

resulting from commission of the offense . . ." The section 

continues to explain that: 

 Normally, psychological injury would be sufficiently 

 severe to warrant application of this adjustment only 

 when there is a substantial impairment of the 

 intellectual, psychological, emotional, or behavioral 

 functioning of a victim, when the impairment is likely 

 to be of an extended or continuous duration, and when 

 the impairment manifests itself by physical or 

 psychological symptoms or by changes in behavior 

 37 

 patterns. The court should consider the extent to 

 which such harm was likely, given the nature of the 

 defendant's conduct. 

U.S.S.G. S 5K2.3. In Astorri, we upheld a departure for 

extreme psychological harm when the District Court found, 

both through testimony and its own observation, that the 

victims' health suffered after they lost their life savings. See 

Astorri, 923 F.2d at 1059. 

We review a district court's decision to depart from the 

guidelines under an abuse of discretion standard. See 

United States v. Jacobs, 167 F.3d 792, 798 (3d Cir. 1999) 

(citing United States v. Baird, 109 F.3d 856, 862 (3d Cir. 

1997)). We have noted that "[i]f there is any place in 

sentencing guidelines analysis where a fact-finder is to be 

given considerable deference, it is here where the district 

court is to be called upon to assess the psychological 

impact upon victims." See Astorri, 923 F.2d at 1058. 

However, in Jacobs, a case addressing the psychological 

effects of an aggravated assault, we explained that a finding 

that the victim's psychological injury was "much more 

serious than that normally resulting from the commission 

of the crime . . . is a prerequisite for a departure under 

S 5K2.3." Jacobs, 167 F.3d at 799. 

Relying principally on Astorri, a fraud case, the District 

Court found that a two level departure was warranted 

under S 5K2.3 because of the effects of Helbling's criminal 

activities and harassment. Helbling argues that the District 

Court's factual findings were insufficient for the departure. 

The District Court found: 

 [T]he age of Helbling's victims did not facilitate the 

 commission of his crimes, it did heighten their impact 
 . . . . The Government has convincingly detailed the 

 emotional and psychological costs of surviving 

 Helbling's crimes and resisting his harassment. These 

 costs include the humiliation of being forced to seek 

 work at an advanced age and rely on help from family 

 members, the trauma that comes from family 

 members, the trauma that comes with losing one's 

 savings, and the psychological damage resulting from 

 resisting slurs, threats, frivolous lawsuits, and 

 38 

 pressure from the tax authorities. The evidence fully 

 justifies this two level upward departure. 

We believe that the District Court's findings are clearly 

supported by the record and that the record itself supports 

the determination that Helbling caused psychological injury 

"much more serious" than would normally result from his 

type of fraudulent activity. In fact, as the District Court 

recognized, the record, in the form of the Presentence 

Report and the testimony of some of the victims at trial, 

contains the same type of evidence of individual loss and 

resulting medical complications we found sufficient in 

Astorri. Accordingly, we find that the District Court did not 

abuse its discretion in departing upward under S 5K2.3. 

VI. 

For the reasons above, we will affirm the judgment of 

conviction and sentence. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 39