United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-2584

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United States of America, * 

*

Appellee, *

*

v. * 

*

William D. Pierce, *

* 

Appellant. *

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Appeals from the United States 

No. 06-2585 District Court for the 

___________ District of Minnesota.

United States of America, * 

*

Appellee, *

*

v. * 

*

Shirley Best Pierce, *

* 

Appellant. *

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Submitted: January 12, 2007

 Filed: March 8, 2007

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1

The Honorable John F. Nangle, United States District Judge for the Eastern

District of Missouri, sitting by designation.

2

The Honorable Michael J. Davis, United States District Judge for the District

of Minnesota.

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Before WOLLMAN and MELLOY, Circuit Judges, and NANGLE,1 District

Judge.

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NANGLE, District Judge.

After a jury trial, Defendant-Appellants William Pierce and Shirley Pierce,

husband and wife, were convicted of one count of conspiracy against the United

States, in violation of 18 U.S.C. § 371; three counts of filing false tax returns, in

violation of 26 U.S.C. § 7206(1); four counts of mail fraud, in violation of 18 U.S.C.

§ 1341; and, five counts of wire fraud, in violation of 18 U.S.C. § 1343. The district

court2

 sentenced Shirley Pierce to a thirty-month term of imprisonment, to be followed

by three years of supervised release, and sentenced William Pierce to a thirty-seven

month term of imprisonment, to be followed by three years of supervised release. The

court further ordered Appellants to pay $489,239.65 in restitution to the State of

Minnesota.

Appellants jointly appeal their convictions and the amount of the restitution

order, raising three points of error. Appellants allege the court erred in: (1) instructing

the jury that it “should,” rather than “may,” find each defendant vicariously liable for

the substantive crimes of his/her co-conspirator, if certain circumstances were proven,

under Pinkerton v. United States, 328 U.S. 640 (1946); (2) denying the Appellants’

request for a special verdict form; and (3) ordering Appellants to pay $489,239.65 in

restitution. Appellants urge this Court to remand the case for a new trial and a new

restitution hearing. We affirm.
3

St. Paul Public Schools is a public school district with authority under state law

to sponsor charter schools. 

4

 William and Shirley Pierce jointly owned this entity. Payments made to Right

Group were not fully disclosed to the Board of Directors of Right Step Academy. The

Pierces also failed to inform the Board that William was a co-owner of Right Group

and, therefore, operating under a conflict of interest. 

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I. BACKGROUND

The convictions at issue in this appeal arise out of the Pierces’ management of

a not-for-profit charter school, Right Step Academy, which William Pierce established

in June 1995 by entering into a charter agreement with St. Paul Public Schools.3

William Pierce was the executive officer of Right Step Academy, and Shirley Pierce

served on the Board of Directors. Pursuant to the charter agreement, William Pierce

was to operate the school in accordance with Minnesota state charter law; as officers

and directors, the Pierces were subject to fiduciary duties. Minn. Stat. Ann. §§

317A.251, 317A.361(2006). Right Step Academy was funded by the state and federal

governments, and was subject to the same financial audits, audit procedures, and audit

requirements as a public school district. 

In their operation of Right Step Academy, the Pierces engaged in a number of

self-dealing activities, which defrauded the state of Minnesota, as well as the federal

government. For over four years, the Pierces diverted funds from Right Step

Academy, either directly or indirectly through sham invoices for services allegedly

provided by Right Group.4

 Furthermore, the Pierces failed to include the diverted

funds as income in their joint tax returns, and falsely characterized personal expenses

as business expenses.

In addition to the fraudulent transactions conducted between Right Step

Academy and Right Group, and the falsehoods and omissions in their tax preparation,
-4-

the Pierces committed numerous other acts which comprised the heart of the

conspiracy charged in the indictment. For instance, they spent school funds on

personal items such as car and credit card payments. They also failed to properly

operate the school in accordance with the charter agreement, as revealed by an audit

of the school performed by St. Paul Public Schools in early 2000. The audit found that

the school had many issues with regard to its operation. These issues included a lack

of textbooks, educational materials and curriculum, the failure to provide safe

transportation, the maintenance of irreconcilable financial records, and the

accumulation of debt. As a result of the delinquencies exposed by the audit, in August

2000, St. Paul Public Schools refused to renew Right Step Academy’s charter, and

Right Step Academy ceased operations.

The grand jury issued an indictment charging the Pierces with a number of

counts arising out of their scheme to divert money from Right Step Academy for their

own use and benefit, and their failure to report this additional income on their federal

tax returns. The Pierces pled not guilty to each charge, and the case went to trial. 

Before the case was submitted to the jury, the parties jointly submitted proposed

jury instructions. The Pierces unsuccessfully objected to the government’s proposed

Pinkerton instruction on co-conspirator vicarious liability, Jury Instruction No. 9. The

Pierces also requested that a special verdict form be submitted for the conspiracy

charge, which would require the jury to specify which object offense(s) the Pierces

conspired to commit. However, the district court denied the request and instead gave

a specific unanimity instruction.

 The jury convicted both defendants of all counts. The district court sentenced

Shirley Pierce to thirty months in prison and three years of supervised release, and

William Pierce to thirty-seven months in prison and three years of supervised release.

The court also ordered the Pierces to jointly and severally make restitution to the State

of Minnesota Department of Education (“DOE”) in the amount of $489,239.65. 
5

18 U.S.C. § 371 states in relevant part: 

If two or more persons conspire either to commit any offense against the

United States, or any agency thereof in any manner or for any purpose,

and one or more of such persons do any act to effect the object of the

conspiracy, each shall be fined under this title or imprisoned not more

than five years, or both. 

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II. DISCUSSION

A. Pinkerton Instruction

Appellants allege that the trial court committed reversible error in its instructions

to the jury regarding the vicarious liability of co-conspirators under Pinkerton v.

United States, 328 U.S. 640 (1946). We review jury instructions for abuse of

discretion, and “[i]n so doing, we do not consider portions of a jury instruction in

isolation, but rather consider the instructions as a whole to determine if they fairly and

adequately reflect the law applicable to the case.” United States v. Turner, 189 F.3d

712, 721 (8th Cir. 1999).

The Pierces were charged with conspiring to commit offenses against the United

States or defraud the United States in violation of 18 U.S.C. § 371.5

 They were also

charged in counts two through thirteen with the substantive offenses of filing false tax

returns, mail fraud, and wire fraud. In addition to instructing the jury with respect to

each substantive offense charged against each defendant individually, the court

delivered a Pinkerton instruction which provided: 

 

A defendant who has entered into a criminal conspiracy is responsible for

offenses committed by fellow conspirators if the defendant was a member

of the conspiracy when the offense was committed and if the offense was

committed in furtherance of and as a foreseeable consequence of the
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conspiracy. Therefore, if you find a defendant guilty of the conspiracy

charged in Count 1 and if you find beyond a reasonable doubt that while

the defendant was a member of the conspiracy, a fellow conspirator

committed an offense charged in Counts 2 through 13 in furtherance of

and as a foreseeable consequence of that conspiracy, then you should find

the defendant guilty of that offense as well. 

Jury Instructions, Instruction No. 9. Appellants assert that the court’s use of the

word “should,” rather than “may,” in the last sentence of the above-quoted language

was prejudicial error requiring reversal of their convictions. Specifically, Appellants

argue that the instruction invaded the province of the jury and misstated the relevant

law. Appellants further assert that, but for the erroneous Pinkerton instruction, both

Pierces would not have been found guilty of each substantive offense. We disagree.

The seminal case establishing the co-conspirator vicarious liability doctrine at

issue in this appeal is Pinkerton v. United States, 328 U.S. 640 (1946). In Pinkerton,

the Supreme Court held that the overt act of one member of a conspiracy is

attributable to all other members of the conspiracy. Id. at 646. This Court has held

that Pinkerton co-conspirator liability is applicable where the government proves

beyond a reasonable doubt the existence of a conspiracy, that the substantive offense

was committed in furtherance of the conspiracy, and that the substantive offense was

reasonably foreseeable as a natural “outgrowth of the conspiracy.” United States v.

Navarrete-Barron, 192 F.3d 786, 792-793 (8th Cir. 1999).

 Appellants argue that the pattern jury instructions of the Fifth, Ninth, Tenth and

Eleventh Circuits, which use permissive language and instruct the jury that it “may”

convict a defendant for the substantive acts of his/her coconspirator if the Pinkerton

factors are proven, in contrast to the mandatory instruction given in this case, correctly

apply the Pinkerton doctrine. While each of these Circuits has in fact approved of

such permissive language, as has this Court, see e.g., United States v. DeLuna, 763

F.2d 897, 918 (8th Cir. 1985) (overruled on other grounds), each has also approved
6

 We note that the Seventh Circuit’s Pinkerton pattern jury instruction employs

the mandatory language “should” rather than “may.” Fed. Crim. Jury Instr. 7th Cir.

5.10 (1999).

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instructions containing mandatory language similar to that used by the district court

in this case. For instance, in United States v. Basey, 816 F.2d 980 (5th Cir. 1987), the

Fifth Circuit cited with approval language instructing the jury that if “they were

satisfied beyond a reasonable doubt that a conspiracy existed and that a defendant was

one of the members of it, then that defendant assumed the responsibility for the acts

and statements of all other members made in furtherance of the conspiracy.” Id. at

998 (citation omitted); see also United States v. Thomas, 348 F.3d 78, 84 (5th Cir.

2003) (finding that the charge correctly stated the law and court committed no error

where instruction used mandatory language). 

Similarly, the Ninth, Tenth, and Eleventh Circuits have each either approved

of a mandatory Pinkerton charge or interpreted Pinkerton as requiring a jury to find

a co-conspirator vicariously liable when the Pinkerton factors are met. United States

v. Kato, 878 F.2d 267, 270-71 (9th Cir. 1989) (holding that the mandatory Pinkerton

charge was not erroneous); United States v. Willis, 102 F.3d 1078, 1083 (10th Cir.

1996) (stating that under Pinkerton, “the co-conspirator has criminal responsibility

unless” the substantive offense committed by a co-conspirator fell outside the scope

of the conspiracy or was not a reasonably foreseeable consequence of the conspiracy);

United States v. Broadwell, 870 F.2d 594, 602, n.18 (11th Cir. 1989) (characterizing

Pinkerton as holding “that each member of a conspiracy is criminally liable for all

reasonably foreseeable crimes committed during the course and in furtherance of the

conspiracy.”) (emphasis added).

Therefore, while the pattern instructions of other Circuits may indicate a

preference for permissive language in those Circuits,6

 the law of the Circuits does not,

as argued by Appellants, establish precedent standing for the proposition that
7

Appellants also cite to United States v. Blackmon, 839 F.2d 900 (2d Cir. 1988)

as support for their proposition that mandatory Pinkerton instructions are erroneous.

In Blackmon, the Second Circuit stated that it “seem[ed]” the discretionary instruction

was a correct statement of the law. Id. at 910. However, the court also noted the

existing “lack of clarity in the cases as to the mandatory/discretionary dichotomy,”

and did not explicitly hold that a mandatory instruction was erroneous. Id. at 910,

n.12. Rather, the court found that “it was clearly prejudicial error to [first] give a

discretionary Pinkerton instruction at the close of the trial, upon the basis of which

defense counsel made their summations, and then switch to a mandatory charge in

response to an inquiry by the jury during its deliberations.” Id. at 910. Such facts and

resulting prejudice are not present in this case, and Appellants’ interpretation of and

reliance upon Blackmon is misplaced. 

8

We recognize that in Hayes we were not deciding the Pinkerton issue presently

before this Court. However, in Hayes we approved of the district court’s Pinkerton

instruction to the jury, which stated in part that “the jury . . . may consider acts

knowingly done . . . by a defendant’s co-conspirators . . .[A] person who knowingly,

voluntarily and intentionally joins an existing conspiracy is responsible for all of the

conduct of the co-conspirators from the beginning of the conspiracy.” Hayes, 391

F.3d at 963 (emphasis added).

9

The court instructed the jury that “[a] defendant who has entered into a

criminal conspiracy is responsible for offenses committed by fellow conspirators if

the defendant was a member of the conspiracy when the offense was committed and

if the offense was committed in furtherance of and as a foreseeable consequence of

the conspiracy.”

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mandatory Pinkerton instructions are erroneous.7 Rather, the instructions and cases

illustrate that both mandatory and discretionary Pinkerton instructions are fair

statements of the law, so long as each element of the Pinkerton doctrine is included

in the instruction. Furthermore, this Court has affirmed a lower court’s decision

where the court’s Pinkerton instructions contained both permissive and mandatory

language. United States v. Hayes, 391 F.3d 958, 963 (8th Cir. 2004).8

 

 We find that the instructions issued by the district court in this case, which

incorporated the key elements of Pinkerton liability,9

 correctly and adequately stated
10Upon review of the record, we find that because Shirley Pierce failed to object

to the use of a general verdict form for count one, we review this issue for “plain error

resulting in a miscarriage of justice” with respect to Shirley Pierce. United States v.

Manzer, 69 F.3d 222, 229 (8th Cir. 1995).

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the relevant applicable law, and were given within the sound discretion of the trial

court. In any event, considering the totality and thoroughness of the instructions given

to the jury, the use of the word “should” instead of “may” therein, would, at most,

amount to harmless error.

B. Special Verdict Form

Appellants contend the district court erred when it declined to give the jury a

special verdict form for count one, the multiple-object conspiracy charge. We review

a district court’s decision to deny a request for a special verdict form under an abuse

of discretion standard. United States v. Lamoreaux, 422 F.3d 750, 756 (8th Cir.

2005).10 “As a general rule, courts avoid using special verdict forms because of their

potential for confusing a jury.” United States v. Williams, 902 F.2d 675, 678 (8th Cir.

1990).

At trial, the Pierces requested that a special verdict form be submitted for count

one, which would require the jury to specify which object offense(s) the jurors

unanimously agreed the Pierces conspired to commit. The court denied the request

and, instead, gave a specific unanimity instruction as follows:

The indictment charges a conspiracy to commit three separate

crimes or offenses. It is not necessary for the Government to

prove a conspiracy to commit all of those offenses. It would be

sufficient if the Government proves, beyond a reasonable doubt,

a conspiracy to commit one of those offenses; but, in that event,

in order to return a verdict of guilty, you must unanimously agree

upon which of the three offenses was the subject of the

conspiracy. If you cannot agree in that manner, you must find the

defendant not guilty. 
11We note that Appellants cite no law in support of their contention that

Pinkerton vicarious liability applies only to the substantive offenses related to the

object offense that the jury found them guilty of conspiring to commit. 

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 Jury Instructions, Instruction No. 13. The Pierces contend that the court’s

failure to employ a special verdict form, in conjunction with the alleged erroneous

Pinkerton instruction, allowed the jury to convict both Pierces of each substantive

charge, via Pinkerton vicarious liability, without a unanimous finding of guilt with

respect to each object of the conspiracy. The Pierces argue that this error is

prejudicial because Pinkerton liability only applies to the substantive acts committed

in furtherance of the object(s) of the conspiracy for which the jury found the Pierces

guilty.11

Appellants’ contention is without merit. First, Appellants misstate the

proposition for which United States v. Walker, 97 F.3d 253 (8th Cir. 1996), stands,

arguing that we favorably noted a court’s use of a special verdict form when

instructing the jury on a multiple-object conspiracy count. While it is true that the

lower court in Walker gave both a unanimity instruction as well as a special verdict

form, nothing in Walker suggests that a special verdict form is required or favored.

Id. at 255. 

In the instant case, the court cured any risks inherent in count one by instructing

the jury that they must be unanimous on at least one object of the conspiracy in order

to find the defendants guilty of count one. See United States v. Rabinowitz, 56 F.3d

932, 933 (8th Cir. 1995). “We assume, as we must, that the jury followed these

instructions.” United States v. Nattier, 127 F.3d 655, 658 (8th Cir. 1997) (citation

omitted).

Second, as discussed above, the Pinkerton instruction given in this case was not

erroneous. Appellants’ claim that a special verdict form was required in count one

is based on an underlying contention that Pinkerton liability only applies to the
12We disagree with Appellants’ assertion that the tax fraud object was “very

distinct” from the mail and wire fraud objects. The tax returns were fraudulent because

they concealed and mischaracterized the income acquired by means of mail and wire

fraud. We find that the acts of tax, mail and wire fraud were part of a larger

conspiracy to defraud the Government by misappropriating funds from Right Step

Academy for the Pierces’ own personal use. See 16 American Jurisprudence § 11

(2d.) (explaining that “[t]he principal considerations in determining the number of

conspiracies proven are the existence of a common goal, the nature of the scheme, and

the overlapping of the participants in various dealings . . . Where there is one overall

agreement among the various parties to perform different functions in order to carry

out the objectives of the conspiracy, the agreement constitutes a single conspiracy

even though every coconspirator does not take part in every conspiracy transaction.”).

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substantive acts in furtherance of the objects of the conspiracy that formed the basis

of the conspiracy convictions. Conspiracy defendants are not entitled to limit their

potential Pinkerton vicarious liability to only those substantive offenses they believe

are directly related to the object offense underlying the conspiracy conviction. A

conspiracy conviction triggers potential Pinkerton liability, which encompasses all

reasonably foreseeable acts committed in furtherance of the conspiracy. United States

v. Pinkerton, 328 U.S. 640 (1946). Here, the jury convicted Appellants of entering

into an unlawful agreement to defraud the United States and commit offenses against

the United States in violation of 18 U.S.C. § 371. Each of the three sets of object

offenses—fraudulent tax returns, mail fraud and wire fraud—further the general

agreement and are multiple facets of one conspiracy.12 Consequently, the Pinkerton

instruction was applicable to each substantive offense because these acts, counts two

through thirteen, were committed in furtherance of the single conspiracy. 

Even assuming that Appellants’ contention has merit, any conceivable error

resulting from the refusal to use a special verdict form is harmless. Accordingly, we

find that the district court did not abuse its discretion or commit plain error in denying

Appellants’ request for a special verdict form. 
13 Section 3663A(a)(1) requires that a court order restitution when a defendant

has been convicted of an offense against property, including an offense committed by

fraud or deceit. 18 U.S.C. §§ 3663A(a)(1), (c)(1)(A)(ii). 

14 We have determined that the evidentiary standard in restitution cases is

unchanged by United States v. Booker, 543 U.S. 220 (2005). United States v. Miller,

419 F.3d 791, 792 (8th Cir. 2005).

15According to the Victim Impact Statement, the DOE paid state and federal

funding aid to Right Step Academy for the purpose of educating students. 

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C. Restitution

On appeal, the Pierces do not contest the district court’s decision to order

restitution. Rather, Appellants’ argument centers around the amount of restitution

ordered and the evidentiary basis of the award. The district court found that the State

of Minnesota was a victim of the Pierces’ fraud, and, pursuant to 18 U.S.C. §

3663A(a)(1),13 ordered the Pierces to pay $489,239.65 in restitution. Appellants

argue that the district court erred in calculating the amount of loss the DOE suffered.

 We review the district court’s decision to order restitution for an abuse of discretion.

United States v. French, 46 F.3d 710, 715 (8th Cir. 1995). The district court’s factual

determinations underlying an order for restitution are reviewed for clear error. United

States v. Oslund, 453 F.3d 1048, 1062 (8th Cir. 2006). The burden is on the

government to prove the amount of restitution based on a preponderance of the

evidence. Id.14 To satisfy the preponderance of the evidence standard “simply requires

the trier of fact to believe that the existence of a fact is more probable than its

nonexistence.” In re Winship, 397 U.S. 358, 371(1970) (citation omitted). 

Prior to sentencing, based on the DOE’s Victim Impact Statement, the

probation office prepared a presentence report delineating the amounts claimed for

restitution.15 The Pierces objected to the claim for restitution made by the DOE.
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Thereafter, the court held an evidentiary hearing to assess the amount of restitution to

be imposed. 

At the hearing, Audrey Bomstad of the DOE’s Program Finance Division

detailed how the DOE arrived at its figures, and testified that the State suffered a loss

of $489,239.65. Ms. Bomstad testified that at the end of each fiscal year, the DOE

conducts a reconciliation process, which compares monies distributed to a school with

the school’s actual expenditure of those funds. The school is responsible for

submitting its financial information, including its revenues, expenditures, and fund

balances to the DOE to facilitate the reconciliation process. Based on the

reconciliation process, the DOE determines whether it overpaid or underpaid the

school, and corrects funding as necessary. If a school fails to submit the required

audit reports or financial records documenting the expenditure of certain funds, the

DOE will deem those funds to be an overpayment. This policy is due to the fact that

without proper financial data the DOE cannot verify whether the DOE funds were

spent for valid expenditures. 

In this case, Right Step Academy failed to maintain accurate financial records,

and failed to submit audit reports as required. Therefore, information was unavailable

to determine whether the expenditures of certain funds were legitimate or fraudulent,

and those funds were included as overpayments in the DOE’s calculation.

Furthermore, Right Step Academy mistakenly received funds it was not entitled to,

and failed to return the funds to the State.

Appellants contend that Ms.Bomstad based her calculations upon Right Step

Academy’s lack of documentation, rather than the DOE’s actual loss. Appellants

argue that, although, Right Step Academy was unable to supply the DOE with audited

proof that the funds were put to legitimate uses, the funds were properly used.

Curiously, at the evidentiary hearing Appellants did not put forth any evidence
16We acknowledge that it was not the Pierces’ burden to submit rebuttal

evidence at the evidentiary hearing, however we note that the Pierces relied solely on

the testimony solicited through cross-examination of Ms. Bomstad to rebut the DOE’s

claim for restitution.

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detailing how Right Step Academy appropriately spent funding it received from the

State of Minnesota.16 

This Circuit has held that “[t]he district court has wide discretion in ordering

restitution.” United States v. Ross, 210 F.3d 916, 924 (8th Cir. 2000); United States

v. Manzer, 69 F.3d 222, 229 (8th Cir. 1995). In Manzer, we upheld a $2.7 million

restitution award based on the evidence and analysis that supported calculation of

amount of loss for sentencing purposes. Manzer, 69 F.3d at 230. Referring to

U.S.S.G. § 2F1.1, we stated that “[t]he district court’s calculation of the amount of

loss, however need not be precise . . .The court need only make a reasonable estimate

of the range of loss, given the available information.” Id. at 228 (citing U.S.S.G §

2F1.1, comment. (n.8)). 

In this case, the difficulty in calculating a precise amount of loss is attributable

to the lack of sufficient financial records documenting the manner in which Right Step

Academy utilized the funds granted to the school by the DOE. The St. Paul Public

School’s audit revealed that Right Step Academy was delinquent in submitting audited

financial statements and maintained irreconcilable financial records. In response to

the auditors’ request for complete financial records, Shirley Pierce directed employees

to prepare false and fraudulent documents to justify certain payments. Furthermore,

the facts, as found by the district court, indicate that Right Step Academy received

most of its funding from the State of Minnesota, and the Pierces fraudulently used

these funds for their personal benefit. 
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 Therefore, given the available information and the district court’s wide

discretion in ordering restitution, we hold that the district court did not err in ordering

defendants to pay restitution in the amount of $489,239.65.

III. Conclusion 

Accordingly, we affirm the judgment of the district court.

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