### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUI T November 10, 2003 THOMAS K. KAHN

CLERK

* Honorable Paul C. Huck, United States District Judge for the Southern District of Florida, sitting by designation. [PUBL ISH]

IN THE UNITED STATES COURT OF APPEALS FOR TH E ELEV ENTH C IRCUIT

________________________ No. 01-14746

________________________ D. C. Docket No. 99-00078-CR-T-25F UNI TED STA TES OF A MER ICA, Plaintiff- Appe llee,

versus HAY WO OD E UDO N HA LL, a.k.a. Do n Hall, Defen dant-A ppellant.

________________________ Appeal from the United States District Court for the Middle Dist

rict of Flor

ida

_________________________ (November 10, 2003) Bef oreBLACK a

nd FAY , Circ

uit J udges,and HUCK * , District Judge. FAY, Circuit Judge: In Ma rch 199 9, Defe ndant, H aywoo d Eud on Ha ll (“Hall”), w as charg ed in1 Two co-defendants, James R. Chambers and Andrew J. Krishak, accepted plea agreements for

their role in the c

rime. The other f

our co-defenda

nts, Gerald Pay

ne, Betty Pa

yne, David Whitfield, and Patrick Talbert, were found guilty on all counts charge d against them (except that Count Five was dismissed with respect to all defendants on a motion for judgment of acquittal). These four defendants appeal their convictions and sentences on various grounds, and some have also adopted issues raised by co-defendants; however, we find no mer it to any of the issues not discussed in this opinion and they do not warrant discussion. 2 17 counts of a 20 cou nt indictment along with six co-defend ants. 1 The government alleged that Hall and t

he co-defendants, as principal s in Greater Ministries International Church (GMIC), managed and promote d a fraudulent investment scheme. Hall was subseq uently convicted of five counts: mail fraud consp iracy, money laundering c onspiracy,and three counts of mail fra ud. In this a

ppeal he raises various challenges to both his convictions and sente ncing. Hall first ar

gues that the dis trict court e rred in n ot requir ing the ju ry to find proof o f an ove rt act to support his conviction for cons piracy to c ommit money launderi ng under 18 U.S.C. § 1956(h). Since we find that proof of an overt act is not an esse ntial element under § 1956(h), we affirm Hall’s money laundering conspiracy conviction. Hall also claims that the dist rict court erroneously applied a two-level increase to his sentence pursuant to U.S.S .G. § 3B1.3 for abu se of position of trust due to his st

atus as a pas

tor. We conclude t

hat Hall did not

occupy a posit

ion of trust under the Sentencing Guidelines,and therefore reverse this s entence2 We are aware that Hall argues the government failed to present suff icient evidence to support any of his convictions and that he has also adopted issues raised by co-defendants; however, we find no merit in any of these issues and they do not war rant discussion. 3 enhanc ement. 2 I. In early 1996,Hall joined GMIC as a dir ector and past

or of the church,

and also became hea

d of its World Missi ons program. When Hall came t o GMIC, he became involved i

n the “gift

ing” program that

had been start

ed by one of the codefendants,Gerald Payne. Though the name of the program cha nged from the “Double Your Money Program,” to t he “Double Your Blessi ngs Program,” and finally to th e “Faith P romises Progr am,” the g ifting pro gram re mained essentially the same throug hout its life . Unde r the pro gram, in vestors w ould “gif t” mone y to GMIC in increments of $250 and within 17 months the “giftors” were to get back double their money in the form of “giftbacks. ” Hall and some of the

other defendant

s held “roads

how” meetings acros s the country to promot

e the program. Despi

te using rel

igious rhet

oric to encour

age participati on in the program, the main focus of the meetings was on how much money could be m ade. Although there w ere disclaimers on the “gifting forms” stating t hat there were

no guarantees of

a return, t

he defendants e

xpressly or impliedly promised giftbacks. The defendants told the giftors t hat profits were4

generated through investments in mining for precious metals and gems, in offshore

comm odities an d drilling , and in o verseas b anks tha t paid hig h interest r ates. Aside from being led to b elieve that they would get back doub le their money, potential in vestors w ere also to ld that som e of the p rofits gen erated w ould go to feed the homeless, rehabilitate drug addicts, and suppo rt missionaries. However, GMIC never had any of the ass ets the def endants cla

imed to be investing i

n. There is no re cord of GMIC or any one of the defe ndants having gold, silver, or dia

mond mines in the United States from 1978 to the present. In addition , the diam ond an d gold m ines GM IC wa s suppo sed to be operatin g in Liberia never did fully get off the ground. Although a diamond mine there produced tiny industrial gra de diamonds of little val ue, the gold mines were never even operati onal. GMIC, however, did buy gol d and silver a

nd then had a compa ny mint g old and silver me dallions w ith the G MIC logo on them in o rder to promote the gifting program to potential giftors and to appease alrea dy dissatisfie d investor s. Furthermore, t

he GMIC office supposedly located in t he Cayman Islands never existed. Similarly, the Greater International Bank of N auru was merely a storefront

inside GMIC’s Tampa buildi ng. No money was ever deposit ed into the Bank of Nauru, as gift

backs were deposit

ed purely on paper

by the gift

ors through5

couriers. Giftors were encouraged to make their gi fts through these courier services, and this made i t especially

easy for already participating investors to “regift” the ir giftba

cks, or deposi

t them in thi s “offshore ba nk,” without eve

r seeing the cash, thus allowing the defendants to perpetrate thei r fraud. If a giftor, however, stil

l wanted to withdr

aw money from his account, the bank representa

tive, a GMIC gospel si

nger, would have to go di rectly t o Defendant Payne to get money or

gold. Notwithstanding t

he defendants’ promises of la rge amounts of money,many investors r

eceived li

ttle or no r

eturn on thei

r gifts. When giftors inqui red about their money,the defendants employed sta lling te chniques. Moreover, despite t he defendants’ claims tha

t giftors ’ investment

s were going to char

ity, onl y about one percent of t

his money went to cha

ritable purposes. In cont

rast, ea ch director received monthly “gas money,” which was a five percent commissi on of all money gifted or re-gifted by an i nvestor recruited by that director. All gas money was paid in cash by Defendant Payne, and over the course of the fraud, Hall received more than $539,00 0 of this money. II. Hall first clai

ms that the distri ct court erred in refusi ng to instruct the jury that proof of a

n overt act was ne cessary t o convict him under

18 U.S.C. § 1956(h)6

for conspiracy to commit money laundering. Although this Court revi ews a refusal to give a r equested jury instru ction for abuse o f discretio n, United States v. Condon , 132 F.3d 653, 656 (11th Ci r. 1998), if

the refusal

was based on an error of law, then it is by defin ition an ab use of d iscretion. United States v. Govan , 293 F.3d 1248, 1250 (11th Cir. 2002). While neither this Court nor the Supreme Court has determined whether commission of an overt act is an es sential element of a convictio n unde r § 195 6(h), oth er circuits a re split on the issue. See United States v. God win , 272 F.3d 659, 669 n.9 (4t h Cir. 2001) (noti

ng that 18 U.S.C. § 1956(h) does no t explicitly re quire pr oof of a n overt a ct); United States v. Tam , 240 F.3d 797, 80 2 (9th C ir. 2001 ) (findin g that § 1 956(h ) does n ot requir e the indic tment to allege an o vert act). But see United St ates v. Wil

son , 249 F.3d 366, 379 (5th Cir. 2001) (finding proof of an overt act is required for a conviction under § 1956(h)); United States

v. Hildebrand

, 152 F .3d 756 , 762 (8 th Cir. 19 98) (fin ding tha t § 1956(h) requires proof of an overt act for conviction). Those circuit courts that have found § 1956(h) to require proof of an overt act ha ve relied on c ase l aw inte rpret ing the gener

al con spira

cy st atut e of 18 U. S.C. § 371. See Wilson , 249 F.3d at 379; Hildebrand , 152 F.3d at 762. Sec tion 371 provides: If two or more persons c onspire eit her to commit any offense agai

nst the Unite d States, or to defraud the7 United States , or any agency thereof in a

ny manner or for any purpose, and one o r more of such person s do any act to effect the object of the conspiracy , each shall be fined under thi s titl e or imprisoned not more than five years, or bot

h. 18 U.S .C. § 37 1 (emp hasis add ed). It is im portant to note that § 371 ex pressly requires proof

of an overt act

in furthera

nce of the conspi

racy to est

ablish violation of the statu te. How ever, the m oney lau ndering conspir acy statute, 1 8 U.S .C. § 1956(h), does not contain this express language:

Any person who conspires to commit any offense defined in this se ction or sec

tion 1957 shall

be subject t

o the same penalties as those pr escribed for

the offense t

he commission of w hich was the object of the conspiracy. 18 U.S.C. § 1956(h). In t his respect

, the langua

ge of § 1956(h) is not

like § 371, but instea d is nearly identical to the drug conspir acy statute, 2 1 U.S .C. § 84 6. See Tam , 240 F .3d at 80 2; United States v. T hreadg ill , 172 F.3d 357, 366 n.5 (5th Cir. 1999). Section 846 p rovides:

Any person who attempts or conspires t

o commit any offense defi

ned in this s

ubchapter shal

l be subject

to the same penalties as those pr escribed for

the offense,

the commission of which was t he object of t

he attempt or conspiracy. 21 U.S .C. § 84 6. The Supreme Court, recognizing that the language of § 846 does not call fo r an ove rt act, refus ed to infe r an ove rt act requ irement in to the statu te. United States

v. Shabani , 513 U.S. 10, 13 (1994). In reaching t his conclusion, the8

Supre me Co urt com pared th e langua ge of 21 U.S.C . § 846 to that of 18 U.S.C . § 371: [W]e find it instructi ve that the general conspira cy statute , 18 U.S.C. § 371, cont ains an explicit requi

rement that a conspi

rator “do any

act to eff

ect the obj ect of the conspiracy. ” In light of

this addit

ional ele ment in the general conspi

racy stat ute, Congress’ silence i

n § 846 speaks volumes. Id. at 14. Sin ce the lang uage ofthe statute a t issue her e, 18 U .S.C. § 1 956(h ), is nearl y iden tica l to 21 U.S.C. § 846, we a re compe lled

to follow the

Supreme Court’s reas oning in Shabani . Given the abse nce of any langua

ge in § 1956(h) requiring proof

of an overt act

, we find that

an overt act

is not an ess ential e lement for conviction of conspiracy to commit money launderi ng. Accordingly, the jury instructio ns appr oved b y the distric t court w ere indee d prop er. III. Hall next contends that the di strict court er roneously enhanced his sentence under U .S.S.G . § 3B1 .3 for ab use of p osition o f trust du e to his statu s as a pasto r. Pursuan t to the Sentenc ing Guid elines, this two-lev el increase is appro priate “[i]f the defendant abused a position of public or pri vate trust, . .. in a manner that significan tly facilitated th e comm ission or concealm ent of the offense .” U.S.S .G. § 3B1.3 . In orde r for the d istrict cour t to have a pplied th is increase , two elem ents must have been est

ablished: (1) that t

he defendant occ

upied a posit

ion of public or9

private tru st; and (2 ) that the d efendan t abused that positio n in a sign ificant w ay to facilitate the c ommis sion or c oncealm ent of the offense

. United States v. Garrison , 133 F.3d 831, 837 (11th Cir. 1998). “We review the distric t court’s fact findi

ngs for clear error, but its determination whether the facts justify an abuse-of-trust enhancement we review de novo.” United States v. Ward , 222 F .3d 909 , 911 (1 1th Cir. 2000) (quotation marks and citation omitted). Although we accept the district court’s fin ding of

fact with regard to Hall’s statu s as a pasto r, we co nclude th at this fact alone

is insufficient to s

upport a deter

mination tha

t Hall occupi ed a positi on of trust with respect to the victims. In finding tha

t Hall’s s tatus as a pastor put hi

m in a positi on of trust,the distric t court did not

indicate whether it found Hall to have occupied a positi on of public trust or of privat

e trust. Nevertheless,

it is of no consequence as to whether

we ana lyze this as a private o r public tr ust, for w e find the evidenc e in the rec ord to be insuffic ient to suppor t a finding t

hat the relationships , if any,between Hall and the victi ms were of the type

to put Hall i

n any positi on of trust under the Sentencing Guidelines. Withi n the context

of fraud, thi s Court has found a position of trust to exist in tw o instanc es: “(1) w here the d efendan t steals from his employer, using his positi on in the company to facilit ate the offense, and (2) where a fiduciar

y or personal t

rust rela tionship exi sts with othe r entities, and the3 The district court cites the Seventh Circuit case, United States v. Lill y , 37 F.3d 1222 (7th Cir. 1994), as being i

nstructive in dete

rmining that Hall

occupied a positio

n of trust by v

irtue of his status as a pastor. Although Lilly dealt with an investment fraud scheme by a pastor, the Lilly court specifically found that “regardless of the position Pastor Lilly held with respect to the nonChurch member investors, the Pastor undoubtedly held a position of trust within the Church.” Id. at 1227. However, since all the victims presented by the government in this casewere nonchurch member investors, the district court’s reliance on Lilly is misplaced. 10 defendant takes advantage of the relationship to perpetrat e or conceal the offense.” Garrison , 133 F .3d at 83 7-38 (q uotation s omitted ). This ca se can on ly fall with in the second situation. However, since the government does not allege the exist ence of a fid uci ary rel ations hip , t o co ncl

ude tha t Ha ll occupi ed a

pos ition of t rus t we must find a “personal trust relationship” between H all and the victims. Hall’s status as a pastor does not necessarily create a personal trust relationship between himself and the victims. 3 See Un ited States v. Mor ris , 286 F.3d 1 291, 12 97 (11 th Cir. 20 02). See also United States v. Caplinger, 339 F.3d 226, 236-38 (4th Cir. 2003) (finding that defendant’s re presentation as a physician did not by itself mean he occ upied a posit

ion of trust

). In Morr is , though the defendant was repr

esented as a

n attorney t

o investors i

n an investment

fraud scheme , he was found not to ha ve abus ed a pos ition of tru st. See id. at 1296 -97. This C ourt exp lained:

[I]t simply is not the case that an attorney holds a position of t

rust with res

pect to all people with whom he comes into contact solel y by virtue of his stat

us as an attorney. Morris did not have a n attorney- client relationship with any of the victims. Although Morris’11 status as an attorney

may have been used t

o develop the trust of t he victims,

there are no f

acts to suppor

t the conclusion t

hat as an at

torney Morris occ

upied a posit

ion of trust in relation to these victims. Id. at 1297. As in Morr is , the government concedes that

there is no e

vidence in t

he record in dicating th at Hall ha d a pasto r-clergy r elationsh ip with a ny of the victims. Although Hall may have us ed his stat us as a pastor

to develop the

trust of investor s, this doe s not dem onstrate th at Hall cre ated a per sonal tru st relations hip with any of the victims. The gover nment claims t

hat evidence

of Hall espousi

ng religious rhetoric a t the road show meeting s is sufficie nt to estab lish this relationship. However, w e must be careful to “distinguish between those ar mslength com mercial relationsh ips where tru st is created by the d efendant’s person ality or the v ictim’s cred ulity, and r elationsh ips in w hich the v ictim’s trus t is based on defendant’s position in t he transaction.” Garrison , 133 F.3d at 838 (citations omitted). Since Hall and the other elders traveled across the coun try, these meeti

ngs were not regula

rly held i n one locali

ty, and li stening to a

meeting over the course o f a few h ours is n ot enou gh to esta blish the ty pe of rela tionship contem plated by the Sen tencing G uidelines . The go vernm ent attemp ts to equa te Hall’s sp eeches at th ese meetin gs with the type o f preach ing a pas tor enga ges in with members of h is church at regular church services. These ro adshow meetings, however, were not regular church services, and the government concedes that there12

is no evid ence in th e record to indicate Hall pre ached ab out the g ifting pro gram to victims at r egular ch urch ser vices w here he p resided a s a pastor

. Most im portantly , in determ ining w hether H all occup ied a pos ition of tru st, we must focus on the re lationshi p between Hall and t

he victims f

rom the perspec tive of the victims. Garrison , 133 F.3d at 837. Th us, Hall’s status as a pastor and hi s invol

vement in the roadshows are only as

signi fica nt as t he victims indicate. It was the government’s burde n during sentencing, to show , by a preponderance of the evidence, that Hall occupied a position of trust wit h respect to his victim s. See United States v. Kummer , 89 F.3 d 1536 , 1545 ( 11th C ir. 1996 ). How ever, inste ad of pr esenting any evid ence to in dicate that th ere was in fact a personal tr

ust relat ionship between Hall and even one vic tim, the gove

rnment relied solely on Hall’ s status as a pastor. During trial, the government called multiple victims as wit

nesses. None of t

hese victi

ms came to the roa

dshows for spiritua l guidance; rather, a

ll of them t

estifi ed that the

y came to inves

t money, not because Hall was a

pastor, but

because they

wanted to “double

their money. ” The govern ment did not even present e vidence that Hall s poke o f the giftin g prog ram to church members during r egular church s ervices,much less evide nce that eve

n one church memb er was a victim of his fraud . Now the gov ernmen t asks this C ourt to assume that a

t least one of the vict

ims was a member of Hall’ s church and13

considered Hall

to be his past

or. We decline t

o assume facts

that the gove

rnment had ample opportun ity to establish during either trial or sentencing. When these victims d ecided to invest the ir mone y, they trus ted that this was a leg itimate investm ent prog ram as re presente d by the d irectors, in cluding Hall; ho wever , this relationship between Hall and his vic tims is no different t

han the relationship t

hat exists in ev ery succe ssful frau d. See id. at 838. With res pect to the

victims t hat the govern ment pr esented, th ere was no pers onal trus t relationsh ip with H all so as to place him in a

position of t

rust under the

Sentencing Guidelines, and t herefore the two-level enhancement under U.S.S.G. § 3B1.3 was in error. We are therefore obliged to vac ate the se ntence imposed a

nd remand for resent

encing. AFFIRMED in part; REVERSED in par t; Sente nce Vacated and remanded for resentencing.