### The HONORABLE RICHARD H. KYLE, United States District * 

### Judge for the District of Minnesota, sitting by designation. No. 95-2218

United States of America, * *

Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Barney L. Sandow, * * Appellant. *

Submitted: January 10, 1996 Filed: March 12, 1996
Before BEAM and MORRIS SHEPPARD ARNOLD, Circuit Judges, and KYLE , District * Judge.
MORRIS SHEPPARD ARNOLD, Circuit Judge.
Between 1981 and mid-1993, Barney Sandow worked as an insurance agent (representing insurance companies in selling policies) and an insuranc e broker (representing individuals in buying policies). In 1990, h e persuaded one of his individual customers to pledge an annuity worth over $100,000 as collateral for a bank loan to a pers on unknown to the customer but vouched for by Mr. Sandow; in return, the customer was supposed t o receive income from what was described to him as interest on the annuity of a t least 12 percent. The borrower (who turned out to be Mr. Sando w himself, although his customer was unaware of that) defaulted on

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the loan , however, and the bank sued to foreclose on the annuity

. Mr. Sa ndow then instructed the bank to cash in the annuity; the ban k applie d the proceeds to pay off the loan and sent the surplus t o Mr. Sando w, who never returned any money to his customer. Those event s were the subject of o ne federal indictment against Mr. Sandow (which, for simplic ity's sake, we call the annuity pledge case). That indictmen t contained two counts of mail fraud and one count of wire fraud.

Ad ifferent federal indictment against Mr. Sandow charged that , between mid-1991 and mid-1993, he and several co-defendants were involved in establishing four companies that collected premiums for health insuranc e but in fact failed to provide that insurance (for simplicity's sake, w e call those charges the insurance fraud case). That indictment contained nine coun ts of mail fraud, two counts of wire fraud, and one count o f conspiracy (with his co-defendants). The co-defendants all pleaded guilty , but Mr. Sandow chose to go to trial.

The two c ases were consolidated for trial. After an eight-day jury trial in e arly 1995, Mr. Sandow was convicted on all counts. He wa s subsequently sentenced to 60 months in prison. He appeals his convictions , conten ding that the trial court improperly admitted into evidence a profes sional license suspension, four civil judgments, and a tax lie n agains t him; incorrectly instructed the jury about that evidence; an d improperly refused a jury instruction on multiple conspiracies. Mr. Sando w also a ppeals his sentence, asserting that the trial court incorrectl y calcula ted the loss to the victims and erred in refusing to grant him a red uctionin offense level for acceptance of responsibility. We affir m Mr. Sandow's convictions and his sentence.

I. On the second day of trial, the government sought to introduc e documents showing that the insurance department of the state of

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Missou ri had suspended Mr. Sandow's agent/broker license by consent fo r three mon ths in 1990. That suspension was the result of a custome r complaint that Mr. Sa ndow had "misappropriated funds, solicited insurance when he was not appointed [authorized by a parti cular insurance company to sell its policies] and failed to keep his fiduciary duty as a broker. " (The customer alleged that Mr. Sandow had accepted $1,700 to buy an annuit y for her but never bought one and did not refund her money until six months later

. The factual details of the customer complaint were brought ou t through testimony.)
Mr. Sandow objected, but the trial court admitted the documents under Fed. R. Ev. 404(b), holding that the documents were evidence of "motive, ... intent, ... [or] plan," as permitted by the rule. Although the trial court did not explicitly say so at the time the documents were admitted, the discussion between the trial court and the lawyers suggests strongly that the trial court's ruling related solely to the annuity pledge case. There was no discussi on, at the time the documents were admitted, of how, if at all, they might relate to the insurance fraud case.
On the seventh day of trial, the gov ernment sought to refer again to the documents showing the suspension of Mr. Sand ow's agent/broker license. The g overnment cited those documents at that time as showing tha t Mr. Sandow lied to various insurance companies, when subsequently applying for agent status, about whether any of his customers had ever filed a complaint against him, whether he had ever been investigated or discipline d by any state insurance department, and whether his professional license ha d ever been suspended. Mr. Sandow objected, but t he trial court allowed the government to refer to that evidence, the court stating that the documents
were relevant to the question of intent on the conspiracy count included in the insurance fraud case. See Fed. R. Ev. 404(b).

### 4 Althoughit is not completely clear from his appellate brief , Mr. Sandow appears to concede that evidence of his agent/broker licens e suspensionwas properly admitted under Fed. R. Ev. 404(b) in the annuity pledge case. At oral argument, furthermore, Mr. Sandow acknowledged that that evidence was pro perly admissible in the insurance fraud case to show "inten t, preparation, plan, knowledge, ... or absence of mistake o r accident," see Fed. R. Ev. 404(b), on the conspiracy count. Given th e latter concession, we are unsure whether Mr. Sandow still challenges (as he did in his appellate brief) the admission of those documents in an y other res pect -- perhaps with regard to the remaining counts in th e insurance fraud case. In the interest of thoroughness, however, we briefl y address that question.

We do not see the relevance of Mr. Sandow's agent/broker licens e suspensionto the mail fraud or wire fraud counts in the insurance fraud case. Even if that evidence was marginally rele vant, moreover, we believe that its probative value was far outweighed by its potential for generatin g unfair prejudice against Mr. Sandow. See Fed. R. Ev. 403. We conclude, nonetheless, that the error in admitting that ev idence was harmless, given the overwhelming proof of Mr. Sandow's guilt on all of the counts in the insurance fraud case. We therefore decline to reverse his conviction in that case for any reason associated with the admission of the evidenc e regarding his professional license suspension.

Du ring discussion with the trial court about the evidence on th e suspensionof Mr. Sandow's agent/broker license, Mr. Sandow asked for an in struction, first, that the jury should "disregard the Government' s references to [those documents] as substantive evidence" in the insurance frau d case and, second, "that that evidence was admitted ... for th e purpo se of showing knowledge and intent ... and that [the jury] canno t consider that evidenc e for any other purpose" in the annuity pledge case. During the jury

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instructions conference, the trial court referred to "the [Fed. R. Ev

. 404(b)] instruction, which we discussed substant ially, and elected to give

... as tendered by the Defendant." Mr. Sandow made no objection to th e instructions at that time, nor did he object whe n the trial court actually charged the jury.

We see no plain error in the trial court's instructions, an d certai nlyno prejudice resulting from them, and therefore we rejec t Mr. Sandow's further arguments that the trial court's instruction was too
narrow in that it failed to address the insurance fraud case at all an d that it was too broadin that it "used the umbrella term 'state of mind'" instead of specifying the exact limits under Fed. R. Ev. 404(b) of th e jury's use of that evidence in the annuity pledg e case. See , e.g. , United States v. Aranda , 963 F.2d 211, 216 (8th Cir. 1992); see also Fed. R. Ev. 105, Fed. R. Crim. P. 30, Fed. R. Crim. P. 52(b), and 21 C. Wright an d K. Graham, Jr., Federal Practice and Procedure: Evidence § 5065 at 325, 327 (1977).

II. On the second day of trial, the government sought to introduc e documents showing tha t Mr. Sandow had had two civil judgments against him and had written check s in late 1990 or early 1991 to pay those judgments. Mr. Sandow objected, but the trial court allowed the documents to b e admitted, accepting the government's contentions that they were relevant to show Mr. Sandow's motive for taking money from his customer i n connectionwith the charges in the annuity pledge case. See Fed. R. Ev. 404(b).
On the seventh day of trial, the gov ernment sought to refer again to those two civil judgments and to introduce additional documents showing tw o
more c ivil judgments and a federal tax lien against Mr. Sandow. Th e governmen t cited all of those exhibits at that time as showing tha t Mr. Sandow lied to various insurance companies, when subsequently applying for agent status, about

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whether he had ever been a judgment debtor and whether any federal ta x liens had ever been filed against him. Mr. Sand ow objected, but the trial court allowed the government to refer to all of those documents, the court stating that they were relevant to the question of intent on the conspirac y count included in the insurance fraud case. See Fed. R. Ev. 404(b). On appeal, Mr . Sandow argues that none of that evidence should have bee n admitted and that, even if its admission was proper, the trial court shoul d have instructed the j ury not to use it except for the purposes allowed by Fed. R. Ev. 404(b).
The civil judgments were manifestly relevant to the element of motive in the annuity pledge case. See , e.g. , United States v. Noland , 960 F.2d 1384, 1387-88, 1388 n.4 (8th Cir. 1992); see also United States v. Shriver , 842 F.2d 968, 974-75 (7th Cir. 1988). We are fr ankly unable to comprehend the government's argument concerning the relevance to the insurance fraud
case of the civil judgments or the federal tax lien, and we are in fact, and equally frankly, inclined to see that eviden ce as reflective of piling on by the government. But it was, in any event, harmless error, if it was error, to admit the e vidence in question, given the overwhelming evidence of Mr. Sandow's guilt on all counts of the insur ance fraud case. We note, too, that any prejudicial effect that the admiss ion of that evidence might have had was greatly blunted by the fact that the trial court did not allo w the government to ref er to the facts on which the civil judgments and the federal tax lien were based. Mr. Sandow neither objected to the tria l court' s instructions, moreover, nor offered a jury instruction on tha t evide nce. We see no plain error in the trial court's failure to give a specifi c instruction on that evidence, and therefore we reject all o f Mr. Sandow's arguments with respect to the civil judgments and the federal tax lien.

### 7 III. Mr. Sa ndow offered a jury instruction on multiple conspiracie s (rather than the single one charged in the insurance fraud case). Th e trial court refused to give that instruction, stating that "there [ was] not sufficient evidence to support the giving of a[n ] [instructionon a] multiple conspiracy theory." On appeal, Mr. Sando w challenges that refusal. We ha ve read the trial transcript with care

. We see no error in the trial court's conclusion about the insufficiency of the evidence with respect to multiple conspiracies.

IV. The presentence report on Mr. Sandow calculated the total loss to the victims fr om the insurance fraud case to be $2,745,412 -- premiums o f $2,000,000 and outstanding claims of $745,412. Since Mr. Sandow did not become involved in the events charged in the insurance fraud case unti l early 1992, however, the presentence report deducted $114,111 from tha t total (apparently reflecting premiums received before 1992), leaving the amount of $2,631,301 attributable to Mr. Sandow. Under the federa l sent encing guidelines, a loss to the victims of more than $2,500,00 0 requires an increase in base offense level of 13 levels. See U.S.S.G
. § 2F 1.1(b)(1)(N). The trial court used that increase in determinin g Mr. Sandow's offense level for sentencing purposes.

On appe al, Mr. Sandow contends that the loss to the victims shoul d have been calculated from the exact premium amounts testified to at trial

-- $1,873,870 -- rather than from the concededly approximate figure o f $2,000,000. We do not see the point of that argument, since even using th e more precise premium amounts yields a loss to th e victims of $2,505,171 -- still more than $2,500,000. Mr. Sandow further argues, however, that he should not be held responsible for the premiums collected after he left tw o of the four companies in question (to form the third company) and after a co-defendant formed the fourth company that

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was in volved. Basically, Mr. Sandow reiterates his previous contentio n that t he establishment of the various companies amounted to separat e conspiracies rather than a single one.

Under the sentencing guidelines, the calculation of loss to th e victims used in determining the offense level of an individual defendant who has participated in a "jointly undertaken criminal activity" is t o include "all reasonably foreseeable acts ... of others ... that occurred during t he commission of the offense of conviction." See U.S.S.G
. § 1B1. 3(a)(1)(B) and application note 2, illustration (c)(2); see als o U.S.S.G. § 1B1.1, app lication note 1(l) (definition of "offense" includes "all relevant conduct under § 1B1.3"). We have held, as noted above, that there was no error in the trial court's conclusion that the evidence was insuff icient with respect to multiple conspiracies. We also hold , accordingly, that the trial court's determinatio n of the amount of loss to the victims was not clearly erroneous. See , e.g. , Kok v. United States , 17 F.3d 247, 250 (8th Cir. 1994).

V. Under the federal sentencing guidelines, a defendant may receive a decreas e in base offense level of two levels if he or she has "clearly " accepted responsibility for the offense. See U. S.S.G. § 3E1.1(a). If the defe ndant receives that two-level decrease, he or she may receive a n additi onal one-level decrease if he or she "timely" provides complet e inform ationto the government, see U.S.S.G. § 3E1.1(b)(1), or "timely " notifie s the government of an intention to plead guilty, see U.S.S.G
. § 3 E1.1(b)(2). The trial court declined to grant any decrease fo r acceptance of responsibility by Mr. Sandow. On appeal, Mr. Sandow asserts that the trial court improperly denied one or both of the decrease s authori zed by the sentencing guidelines. We have read the sentencin g transcript carefully; the trial court's decisionnot to grant any decrease for acceptance of responsibility was not clearly

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erroneous . See , e.g. , United States v. Walter , 62 F.3d 1082, 1083 (8t h Cir. 1995) ( per curiam ).

VI. For the reasons stated, we affirm Mr. Sandow's convictions and hi s sentence.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.