FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT MAR 03 2000 THOMAS K. KAHN CLERK [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 97-5261

________________________ D. C. Docket No. 96-8020-CR-RYSKAMP UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus ALTA THAYER, a.k.a. Adie, a.k.a. Helen, a.k.a. Vickie, a.k.a. Louis Mitchell, and ARMAND STORACE, et al., Defendants-Appellants.

_______________ No. 98-4064

_______________ D.C. Docket No. 97-08072-CR-KLR UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ADELAIDE LIPTON, Defendant-Apellant.

________________________1 18 U.S.C. § 371.

2 18 U.S.C. §§ 1343 and 2.

3 18 U.S.C. §§ 1341 and 2.

4 18 U.S.C. § 1956(g).

5 18 U.S.C. § 1956(a)(1)(B)(i)and 2.
2 Appeals from the United States District Court for the Southern District of Florida

_________________________ (March 3, 2000) Before TJOFLAT, Circuit Judge, RONEY and FAY, Senior Circuit Judges. PER CURIAM: Defendants-Appellants, Adelaide Lipt on, Armand Storace, Alta Thayer, Dan Lemrond, and Daniel Duliga, were vari ously charged with and convicted of conspiracy to engage in mail and wire fraud, 1 wire fraud, 2 mail fraud, 3 money laundering conspiracy, 4 and money laundering. 5 Each defendant was sentenced to a term of imprisonment and varying amount s of restitution. All five defendants appeal some aspect of their convictions or the restitution portion of their sentences. We affirm the convictions and the incarcer ation portion of the sentences; we vacate and remand for reconsideration the restitution amounts.3 The defendants were engaged in a te lemarketing scheme which purportedly matched vacation time share owners with prospective corporate buyers. Contrary to the promises made by Vacation Clearing House, Inc. (“VCH”) no such buyers existed. The scheme was very effectiv e and many innocent victims sent money to VCH in hopes of selling their timeshares. A telemarketer would call the timeshare owner, inquire into their interest in se lling their time share, then pass the phone call on to another telemarketer, who would check a fictitious database and inform the victim that VCH had a prospective buyer. The victim would then send VCH a check for $498.00, which the telemarketer promised would be reimbursed at closing. Additionally, VCH would guarant ee that the property would be sold in one year or VCH would buy it. Months later, when the deal was not complete, VCH would send apologetic letters expl aining the delays. Approximately 1600 people were victims of this scheme. A pparently, there were two instances where vacation time shares were actually sold, butthey were not sold to corporate buyers as promised. The first defendant, Adelaide Lipton, wa s the owner, director, and president of VCH; she was also the owner, di rector, and president of Eurofund Group Limited, another fictitious corporation usedto perpetrate the fraud. Lipton appeals on eight grounds. We affirm on all issues.4 First, Lipton claims that the evid ence was insufficient to support her conviction. Sufficiency of the evid ence is a legal question reviewed de novo . See United States v. Ramsdale , 61 F.3d 825, 828 (11th Cir. 1995). Lipton was the owner and director of the sham companies. She hired the employees, gave them a script, and taught them how to execute the scheme. Lipton also generated and signed the phony delay letters. Clearly, th e evidence was sufficient to prove that she was the principal in a conspiracy that engaged in extensive mail and wire fraud. Furthermore, the evidence was also su fficient to show that Lipton was guilty of money laundering. “A person comm its a money laundering offense when he conducts or attempts to conduct a financia l transaction with money he knows to be the proceeds of an unlawful activity, withthe purpose of concealing or disguising the nature, location, source, ownershi p or control of the proceeds.” See United States v. Flynt , 15 F.3d 1002, 1007 (11th Cir. 1994). Lipton funneled profits from VCH to Eurofund and other fictitious busin ess accounts and then eventually to her personal account. The evidence was plai nly sufficient to prove that Lipton intended to conceal the funds that we re generated from her fraudulent company that engaged in illegal activities.5 Lipton’s second claim is that the district court erred in admitting evidence that violated her the attorney-client privilege. The prosecution called Lipton’s former corporate attorney as a witne ss with the understanding that no privileged matters would be raised. After reviewing the testimony of the former corporate counsel, we find that no privileged matters were revealed; therefore, no breach of attorney-client privilege occurred. Lipton’s third claim is that the introduction of her grand jury testimony violated her constitutional privilege against self-incrimination. However, when the grand jury testimony was going to be adm itted at trial, the district court judge asked Lipton’s attorney whether he objected. The attorney replied, “I really don’t object.” The defendant advocates that because her fundamental guarantee against self-incrimination was violated the court should reverse the conviction. However, based on the fact that the district court affirmatively asked counsel if the admission of the grand jury testimony was acceptable, the defense invited the error and review is precluded. See Johnson v. United States , 318 U.S. 189, 200 (1943); United States v. Davis , 443 F.2d 560, 564-65 (5th Cir. 1971) (“invited error” precludes both invocation of the plain error rule and reversal). The fourth claim asserted by Lipton is that the district court’s construction of a government witness’s plea agreement am ounted to a judicial comment on the6 evidence and created an undue restriction of cross-examination. The defendant argues that because the judge instructed th e jury on the basic fundamental structure of the plea agreement the defense was unable to use the plea agreement to show bias and impeach the witness. On cro ss-examination, the defendant had already elicited testimony that the witness thought he received benefits under the plea agreement by testifying against the defendant. When asked by the judge if the defense was finished questioning the witne ss about the plea agreement, the defense answered affirmatively. It is well established under the Federal Rules of Evidence and our precedent that a judge is not a mere moderator, rather he has an obligation to insure a fair trial. Hanson v. Waller , 888 F.2d 806, 813 (11th Cir. 1989). “He may comment on the evidence, may questi on witnesses and elicit facts not yet adduced or clarify those presented, a nd may maintain the pace of the trial by interrupting or cutting off counsel as a matter of discretion.” Id . Here, the judge did not preclude any cross-examination, the judge simply clarified the defense created confusion about the plea agreement. Lipton’s fifth claim is that the introduction of her co-defendant’s pretrial statements violated the Brutonrule. Brutonheld that a defendant is deprived of his rights under the Confrontation Clause when his nontestifying codefendant’s confession naming him as a participant in the crime is introduced at their joint trial.6 Lipton claims that testimony regard ing what “management” required was a direct and clear implication of her; ho wever a myriad of testimony illustrates that management included many people.
7 Bruton v. United States , 391 U.S. 123 (1968). The Supreme Court has repeatedly held that “a defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant.” See Richardson v. Marsh , 481 U.S. 200, 207 (1987). The Brutonrule is very narrow and inapp licable to this case. The codefendants made no facially incriminating statements against Lipton. The redacted version of the statements were innocuous. Furthermore, none of the statements by the co-defendants’ were “powerfully incriminating” as required by Bruton . The five statements that the defendant clai ms are so incriminating are in fact so minuscule that they do not prejudice the defendant. 6 See Schneble v. Florida , 405 U.S. 427, 430 (1972) (“In some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effectof the codefendant’s admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error.”).8 Lipton’s sixth claim is that the government breached the written plea agreement by failing to abide by the stipulated terms governing sentencing. According to Lipton, the government br eached the plea agreement by failing to request a lower offense level, ba sed in part upon “super acceptance” of responsibility. However, prior to sentencing, the government learned that Lipton had underhandedly transferre d assets to her daughter. Further, Lipton failed to object at trial; therefore, she has waivedthe issue on appeal, unless the deviation can overcome the plain error standard. The plain error standard is very high, requiring that the error affect a subs tantial right of the defendant. See United States v. Bendek , 146 F.3d 1326, 1328 (11th Cir. 1998). “A court of appeals may correct a plain, forfeited error affecti ng substantial rights ‘only if the error seriously affect[s] the fairness, inte grity or public reputation of judicial proceedings.’” Id. at 1328, quoting United States v. Olano , 507 U.S. 725, 736 (1993) (quotations omitted). Lipton never argues that the sentence imposed is unfair, rather she argues that she would be released sooner but for the sentence. Viewed in light of the plain error sta ndard, the breach of the plea agreement does not rise to the level of unjustly affec ting a substantial right of the defendant. Furthermore, the district court judge possessed discretion to make independent findings and sentence accordingly. Therefore, we affirm the sentence imposed.9 Lipton’s seventh claim is that the district court erroneously denied a downward departure based on a misunde rstanding of the diminished capacity guideline. After reviewing the findings of the district court judge, we conclude that the judge did not misunderstand the gui delines, rather the judge concluded that Lipton did not suffer from diminished capacity. Therefore, the district court did not err when it failed to depart from the guidelines. Finally, Lipton claims that the district court erred in applying the money laundering sentencing guidelines. The districtcourt did not err, rather it correctly followed Eleventh Circuit precedent. This Court has previously held that Congress intended U.S.S.G. § 2S1.1 to criminali ze a broad array of money laundering activity, not just drug related offenses. See United States v. Adams , 74 F.3d 1093, 1102 (11th Cir. 1996). In Adams , this Court explored the legislative history and other circuit’s applications of U.S.S.G. § 2S1.1 and determined that the statute applied to money laundering outside the “classic” form. Id. Therefore, the district court correctly applied § 2S1.1 in sentencing Lipton. The next defendant-appellant, Armand Storace, appeals on three grounds. First, Storace challenges the sufficiency of the evidence. Second, he claims that his conviction should be overturned becau se it was based in part on testimony solicited by the government by the grant of immunity from prosecution or the10 promise of a reduced sentence. Fina lly, Storace appeals the court ordered restitution. We affirm the conviction, but vacate and remand the restitution order. We review sufficiency of the evidence de novo and in the light most favorable to the government. See United States v. Ramsdale , 61 F.3d 825, 828 (11th Cir. 1995). Furthermore, “[a]ll r easonable inferences and credibility choices are made in favor of the jury verdict.” Id. Storace was a “closer” in the VCH scheme; he was instrumental in pers uading victims to send their money by following a fraudulent script and making fa lse representations. Moreover, Storace admitted that he had worked for a company similar to VCH, which was closed for engaging in illegal activity and making false representations. Storace used virtually the same script and made the same false representations at both places of employment. Clearly, the evidence was su fficient for the jury to convict Storace. Storace’s second claim is that his conviction should be overturned because it was based in part on testimony obtaine d through witnesses who had negotiated government plea agreements. This claim is frivolous. Testimony derived through plea agreements is common in trials and does not violate 18 U.S.C. § 201(c)(2), the statute that prohibits bribing witnesses. See United States v. Lowery , 166 F.3d 1119 (11th Cir. 1999).7 The amended provisions for restitution ma ndate that the district court order restitution in the full amount of the victim ’s loss without considering the defendant’s financial resources. See 18 U.S.C. § 3664(f)(1)(A) (1998).
11 Finally, Storace claims that the sentencing court erred in ordering restitution in an amount that the record shows he is unlikely to be able to pay either at the time of sentencing or in the future. St orace objected, arguing that the record did not reflect his ability to pay $91,397.05 in restitution; therefore, we review for abuse of discretion. See United States v. Siegel , 153 F.3d 1256, 1261 (11th Cir. 1998). The government concedes that the restitution order was not based on the defendant’s ability to pay and that we must vacate the restitution order. The Victim and Witness Protection Act of 1982 (the “VWPA”) empowers the district court to award restitution to victims. See 18 U.S.C. § 3663-64. The VWPA provisions for restitution were substantially amended by the Mandatory Victims Restitution Act of 1996 (the “MVR A”), which became effective April 24, 1996. 7 Prior to the 1996 amendment, awarding restitution was discretionary and “the court was required to consider ‘the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendantand the defendant’s dependants, and12 such other factors as the court deems appropriate.’” See United States v. Siegel , 153 F.3d 1256, 1260 (11th Cir. 1998), citing 18 U.S.C.A. § 3664(a) (West 1985). Storace’s fraudulent activities took place between October 22, 1993 and March 10, 1994, before the amendments to the VWPA. The amended provisions do not apply to persons whose criminal conduct occurred before April 24, 1996, the effective date of the amendments. See United States v. Siegel , 153 F.3d 1256, 1260 (11th Cir. 1998). Therefore, the sentencing court must consider his ability to pay when setting restitution. The recordindicates that Storace may be unable to pay $91,397.05 in restitution. Storace has a negative net worth, a low monthly income, a disabled wife who is unable to work, and a daughter who relies on him for support. Furthermore, the district court even acknowledged that Storace would probably be unable to pay this amount. Accordingly, we vacate the restitution award and remand for the district court to consider Storace’s financial resources, financial needs, and earning ability. Two other defendants also appealed thei r restitution orders, Alta Thayer and Dan Lemrond. However, neither of thes e defendants objected to the restitution at sentencing. A court of appeals may only re view an issue not raised in the trial court if there is a plain error that would result in injustice. See United States v. Olano , 507 U.S. 725 (1993). Plain error is a very high standard; however, it is13 satisfied in this case. The government concedes that the restitution order was not appropriate because the district court did not consider the defendants ability to pay when setting the restitution amount. In th e case of Alta Thay er, the pre-sentence report showed that she had a negative net worth and worked sporadically bringing in a minimal income. Dan Lemrond also ha d a negative net worth; he has several large debts, very little cash, and a rented residence in which he lives with his wife and three young children. Accordingly, we vacate the restitution awards and remand for the district court to considerthe financial resources, financial needs, and earning abilities of Thayer and Lemrond. Defendant Lemrond raised two other issues on appeal. Lemrond claims that the evidence was not sufficient to show that he had knowledge of the fraud. We review sufficiency of the evidence de novo . See United States v. Ramsdale , 61 F.3d 825, 828 (11th Cir. 1995). Here, the evidence shows that Lemrond was a VCH “closer” and supervisor. By the natu re of his job, he was actively engaging in fraud. Based on the evidence presented at a trial, a reasonable jury could easily have concluded that Lemrond had knowledge of the fraud. Lemrond additionally claims that the trial court erred in refusing to grant a two point reduction for his “acceptance of responsibility” at sentencing. The defense cites several cases for the pr oposition that going to trial and being14 convicted at trial does not per se preclude a defendant from a point reduction for accepting responsibility. See United States v. Castillo-Valencia , 917 F.2d 494 (11th Cir. 1990) ( sentencing judges are in a unique position to evaluate acceptance of responsibility and their determinati ons are entitled to great deference, but sentencing judges may not refuse to find acceptance of responsibility perse simply because a defendant elected to go to trial); United States v. Rodriguez , 905 F.2d 372 (11th Cir. 1990) (recognizing instances where a defendant went to trial but is eligible for a sentence reduction for acceptance of responsibility). We agree that there is no bright line rule; instead, trial c ourts have discretion. The district court has discretion to determine whether a point reduction is or is not appropriate. One of the factors a judge may consider is whet her the defendant went to trial. Here, the judge correctly exercised his discretion when he chose not to award Lemrond a two point reduction. He presided over th e trial, was familiar with the position of the appellant during trial and could eval uate the sincerity of the “acceptance of responsibility.” The fifth defendant, Daniel Duliga, clai ms that the eviden ce was insufficient to connect him to the fraud scheme. Dulig a was a “closer” for VCH. By virtue of his job he was involved in making multiple fraudulent representations. Again, this15 jury could have easily found that the evid ence was more than sufficient to conclude he knew of the fraud. We affirm his conviction. After a detailed review of the record and the arguments presented, we affirm the convictions and sentences except for the restitution ordered paid by Storace, Thayer and Lemrond. Those restitution orders are vacated and that issue is remanded to the district court for re-evaluation. AFFIRMED in part; VACATED in part; and REMANDED.