* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** The Honorable H. Dale Cook, Senior District Judge , Northern District of Oklahoma, sitting by designation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 4 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. No. 99-3378 MICHAEL K. FRIERSON, Defendant-Appellant. (D.C. No. 99-CR-10009-2) (D.Kan.)

ORDER AND JUDGMENT *

Before EBEL and BRISCOE, Circuit Judges, and COOK , District Judge. **

Michael Frierson appeals his convictions and senten ces on two counts of interstate transportation of counterfeit securities , in violation of 18 U.S.C. §§ 2314 and 2. We exercise jurisdiction under 28 U .S.C. § 1291, affirm in part, reverse in part, and remand with directions to vacate.2 I. On January 26, 1999, Frierson was indicted on two c ounts of interstate transportation of counterfeit securities. The char ges stemmed from two checks that were mailed from San Leandro, California, to W ichita, Kansas, in February 1998. At trial, Jad Wolf testified that in February 1998 Frierson told him arrangements were being made for fraudulent checks to be sent to Wichita. Wolf was to deposit the checks, withdraw the cash, and g ive the cash to Frierson and his brother, Brian Frierson. Gerald Farha, who ranFarha Enterprises Used Cars in Goddard, Kansas, testified he received a Federal Express package with two $400,000 checks in February 1998. The package had been shipped by Avery Jackson, Parkridge Financial, 256 Suffolk Drive, San Leandro, California, which was Frierson’s mailing address. Farha gave the envelope with the checks to Wolf, an d Wolf then gave them to Randy Wolverton, special agent for the Federal B ureau of Investigation in Wichita. The checks were dated February 12, 1998, and were each in the amount of $400,000. They were drawn on the account of “De an Witter Reynolds Inc.” at the Bank of America in Walnut Creek, California, an d were payable to Farha Used Cars. Phyllis Werneke, operations manager at Dean Witter in Wichita, testified the checks did not conform to Dean Witterstandards, the information on the checks was incorrect, and to her knowledge the checks were not authorized3

by Dean Witter. Werneke also testified she had see n a third Dean Witter check for $600,000. The government introduced audiotape recordings of m onitored telephone conversations in April 1998 between David Miller an d Frierson. Frierson called Miller and asked him to find out about the two chec ks. Firerson stated Farha and Wolf had the checks and he wanted the money or the checks. There was also testimony at trial concerning a $1.5 million check. Miller testified that in November or December 1997, Friers on asked him whether he knew anyone who would cash a large check. Miller a greed to participate and had the $1.5 million check sent to Las Vegas, where Farha and Wolf were to cash it. Frierson told Miller that someone at Dean Witter wa s obtaining the check. Wolverton testified that in January 1998 someone attempted to pass a $1.5 million check at a casino in Las Vegas. Wolf testi fied that in January 1998, he went to Las Vegas and picked up the check made out to a fictitious name, along with false identification. Farha accompanied Wolf when he tried to cash the check at two casinos in Las Vegas. According to Wo lf, Frierson’s brother came to his hotel room and picked up the check after Wol f was unable to cash it. In a recorded conversation between Frierson and Miller i n April 1998, Frierson said he had the Las Vegas check. The district court denied Frierson’s motion for jud gment of acquittal and4

the jury convicted him on both charges. The distri ct court sentenced Frierson to 37 months in prison for each count, to run concurre ntly; 3 years supervised release for each count, to run concurrently; and a $100 special assessment on each count. II. Frierson’s Sentences The district curt determined Frierson had a crimina l history category of 2 based on a prior conviction. Frierson argues his p rior sentence was to a work program, which was not a “sentence of imprisonment” under U.S.S.G. § 4A1.1(b). Frierson did not raise this objection inthe district court, which would normally preclude review by this court. See United States v. Nelson , 36 F.3d 1001, 1003 (10th Cir. 1994). However, we recognize a narrow exception for plain error when the error is “particularly egregious.” Id. The presentence report stated Frierson had a 1995 C alifornia conviction for vehicle theft and two counts of fraudulent use of an access device that resulted in “3 years probation; 180 days custody in work releas e.” ROA Vol. X at 7. Frierson’s attorney objected to the presentence rep ort, stating:

. . . I have a strong belief that Mr. Frierson’s cr iminal history significantly overrepresents his true criminal natu re. He is in Category II based solely on a single misdemeanor co nviction 4 years ago. The only reason he received 2 rather than 1 p oint is due to the fact that he was incarcerated in work release for p art of the sentence. He did not have counsel, which he waived, and I fee l this may have5

affected the outcome of that case. In most situati ons, a first offender for such a minor offense would have received a stra ight probation with no jail which would have resulted in 1 crimina l history point. ROA Vol. X at 18. At the sentencing hearing, Frier son’s attorney stated [Frierson] also couldn’t remember that he had actua lly served any jail time . . . because the work release was the type where he [] drove to the place, checked in and they told him he neede d to go to be assigned to work. Wasn’t really a confinement sett ing, from my understanding, based on what I talked to Mr. Friers on about, at all, and although I technically agree that it qualified , . . . it just was very unusual under the circumstances. ROA Vol. IV at 223-24 (emphasis added). Frierson’s counsel then stated that it was simply one crime, but for the nature of the sentence imposed could have been in criminal history category 1 as o pposed to 2. To me that takes it out of the heartland of those indi viduals who would typically be considered in a criminal history categ ory 2. I ask the Court to consider . . . the appropriate departure u nder those circumstances, and that would be to drop one level to criminal history category 1 and impose the sentence in that range based on that. Id. at 224. The district court concluded Frierson’s c riminal history was not overrepresented and overruled Frierson’s objection. U.S.S.G. § 4A1.1(b) provides that in calculating a defendant’s criminal history category the district court is to “[a]dd 2 points for each prior sentence of imprisonment of at least sixty days,” and less thanone year and one month. The guidelines define “sentence of imprisonment” as “a sentence of incarceration and refer[] to the maximum sentence imposed.” U.S.S.G. § 4A1.2(b)(1). Frierson did not object, and in fact agreed, to the districtcourt’s determination that his6

previous sentence qualified as a term of imprisonme nt under § 4A1.2(b)(1). The application notes to § 4A1.2(b)(1) state that “ [t]o qualify as a sentence of imprisonment, the defendant must have actually s erved a period of imprisonment on such sentence.” U.S.S.G. § 4A1.2, comment. (n.2). This court has noted that the phrase “sentence of incarceratio n” in § 4A1.2(b) “suggests that physical confinement is a key distinction between s entences of imprisonment and other types of sentences.” United States v. Vanderlaan , 921 F.2d 257, 259 (10th Cir. 1990). The burden is on the government to pro ve by a preponderance of the evidence whatever facts are necessary to justify ad ding criminal history points. United States v. Torres , 182 F.3d 1156, 1162 (10th Cir. 1999). We conclud e the government met this burden. The presentence invest igation report listed Frierson’s prior sentence as “180 days custody in w ork release” and Frierson’s attorney admitted this sentence qualified as a prio r term of imprisonment under § 4A1.2(b)(1). Failure to object to a fact in a pr esentence report, or failure to object at the sentencing hearing, acts as an admission of fact. United States v. Deninno , 29 F.3d 572, 580 (10th Cir. 1994). The district court’s determination of Frierson’s criminal history was not plain error. Frierson argues the district court erred in determi ning that the $1.5 million Las Vegas check was relevant conduct for offense le vel purposes. We review “the district court’s legal interpretation and appl ication of the sentencing7

guidelines de novo and review the court’s factual f indings for clear error, giving due deference to the district court’s application o f the guidelines to the facts.” United States v. Henry , 164 F.3d 1304, 1310 (10th Cir.), cert. denied , 527 U.S. 1029 (1999). The district court concluded the Las Vegas check was relevant conduct and increased Frierson’s base offense level by 12 levels because the loss exceeded $1,500,000. See U.S.S.G. § 2F1.1(b)(1)(M) (detailing offense level s). U.S.S.G. § 1B1.3(a) provides for the determination of a defendant’s offense level when the guidelines specify more than one base offense level. Section 3D1.2(d) requires grouping “[w]hen the offe nse level is determined largely on the basis of the total amount of harm orloss,” as is the case here. U.S.S.G. § 3D1.2(d); see U.S.S.G. § 2F1.1(b)(1). There are three requireme nts for conduct to be relevant under § 1B1.3(a)(2): (1 ) “the offense in question involved conduct described in §§ 1B1.3(a)(1)(A) and(B),” (2) “the offense must be the type of offense that, if the defendant had b een convicted of both offenses, would require grouping with the offense of convicti on for sentencing purposes under U.S.S.G. § 3D1.2(d),” and (3) “the offense mu st have been ‘part of the same course of conduct or common scheme or plan.’” United States v. Taylor , 97 F.3d 1360, 1363 (10th Cir. 1996) (quoting U.S.S.G. § 1B1.3(a)(2)). Frierson argues the government did not prove the offense was part of the same course of conduct or common scheme or plan.8

“To determine whether a prior offense is conduct re lated to the instant offense, courts generally examine several factors, including the similarity, temporal proximity, and regularity of the instant o ffense and the prior sentence.” United States v. Torres , 182 F.3d 1156, 1160 (10th Cir. 1999). The govern ment must prove the facts of relevant conduct by a prepo nderance of the evidence. United States v. Fortier , 180 F.3d 1217, 1225 (10th Cir. 1999). Here, the evidence showed Frierson was involved in a conspiracy to cash fraudulent checks. The charged Wichita checks invo lved Frierson, his brother, Farha, Miller, and Wolf. The Las Vegas check invol ved the same parties. The check-cashing schemes were similar, if not in fact a continuation of the same scheme. The Las Vegas check and the Wichita checks were sent less than a month apart. The recorded conversations between Fr ierson and Miller show the continuing nature of the scheme. We conclude the d istrict court did not err in considering the Las Vegas check as relevant conduct

.

Frierson’s convictions Frierson argues there was insufficient evidence to convict him of interstate transportation of counterfeit securities. In revie wing the sufficiency of evidence, we review “the evidence to determine whether, if taken in the light most favorable to the prosecution, it is sufficient for a reasonable jury to find the9

defendant[] guilty beyond a reasonable doubt.” United States v. Mounkes , 204 F.3d 1024, 1027 (10th Cir.), cert. denied , 120 S. Ct. 2661 (2000). “The evidence supporting the conviction must be substantial and d o more than raise a suspicion of guilt.” Id. (citation omitted). To convict Frierson of inters tate transportation of counterfeit securities the government must prove (1) Frierson “caused the securities to be transported in interstate commerce ,” (2) at the time Frierson caused “the transportation of the securities, the s ecurities were altered,” (3) Frierson “knew, at the time he caused the securitie s to be transported interstate, that the securities were altered,” and (4) Frierson“acted with unlawful or fraudulent intent.” United States v. Yusufu , 63 F.3d 505, 509-10 (7th Cir. 1995). Frierson argues the witnesses were so incredible th at a jury could not convict him based on their testimony. Judging the credibility of witnesses is a function of the jury, which this court will not second-guess on appeal. See United States v. Guidry , 199 F.3d 1150, 1156 (10th Cir. 1999). In any eve nt, Frierson’s credibility arguments were presented to the jury. While testifying, Miller admitted the government had filed a motion t o reduce his sentence based on his cooperation in testifying and that he had a prior conviction for cocaine possession. Frierson’s attorney stressed the credi bility of witnesses in closing argument. Frierson also presented the jury with hi s argument about the reliability of the FedEx package.10

After examining the record, we conclude there was s ufficient evidence for the jury to convict Frierson of interstate transportation of counterfeit securities. Frierson was charged both as a principal and an aid er and abettor. Wolf testified Frierson said he was arranging for fraudulent check s to be sent to Wichita and Frierson stated the checks were to be cashed at cas inos. The audiotapes of Frierson’s conversations with Miller show Frierson’ s knowledge of, and participation in, the scheme. The evidence showed that Frierson either sent the checks from California to Wichita or was involved i n having them sent, that Frierson knew the checks were not legitimate before they were sent, and that Frierson had the intent to defraud. Frierson contends the district court erred in admitting testimony about the $1.5 million Las Vegas check and the $600,000 check . Frierson did not object to the evidence at trial. This court generally review s the district court’s evidentiary rulings for abuse of discretion. United States v. Brown , 200 F.3d 700, 708 (10th Cir. 1999), cert. denied , 120 S. Ct. 1213 (2000), cert. denied sub nom., Dixon v. United States , 120 S. Ct. 1706 (2000). However, when the defend ant does not object to the admission of the testimony, we reviewthe admission only for plain error. United States v. McSwain , 197 F.3d 472, 482 (10th Cir. 1999), cert. denied , 120 S. Ct. 2024 (2000). “Plain error is that whi ch is obvious, or which seriously affects the fairness or integrity of the trial.” United States v. Deters ,11

184 F.3d 1253, 1258 (10th Cir. 1999) (citation omitted). Federal Rule of Evidence 404(b) provides in relevan t part: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action i n conformity therewith. It may, however, be admissible for othe r purposes, such as proof of motive, opportunity, intent, preparatio n, plan, knowledge, identity, or absence of mistake or accid ent. The questioning concerning the $1.5 million Las Veg as check focused on the witnesses’ participation in that situation rather than on Frierson’s participation. The evidence of this check showed the intent to pas s fraudulent checks, which is one of the stated bases for admitting prior crimes evidence under Rule 404(b). Further, the record does not indicate that admissio n of the testimony seriously affected the fairness of the trial. Evidence concerning the $600,000 check came in thro ugh Frierson’s crossexamination of Werneke. During direct examination, Werneke stated she was given copies of three different checks. She did no t testify further concerning the third check. During cross-examination, Frierson’s attorney asked Werneke specific questions about the $600,000 check and mov ed for admission of the check into evidence. Under the invited error doctr ine, Frierson cannot now contend that admission of the $600,000 check into evidence was erroneous. See United States v. Johnson , 183 F.3d 1175, 1179 n.2 (10th Cir. 1999) (stating that “[t]he invited error doctrine prevents a party frominducing action by a court and12

later seeking reversal on the ground that the reque sted action was error”). Frierson also argues the district court erred in not sua sponte giving the jury a limiting instruction on its consideration of uncharged misconduct evidence. Frierson did not request such an instruction at tri al. “[W]e review a court’s failure to instruct a jury for plain error if the d efendant fails to raise the contention at trial.” United States v. Smith , 13 F.3d 1421, 1424 (10th Cir. 1994). “Plain error, in this context, is error that affect s the defendant’s right to a fair and impartial trial.” Id. To constitute plain error, the district court’s e rror must have been both obvious and substantial. Id. The failure of the district court to give a limiting instruction was not plain error. As discu ssed above, there was sufficient evidence without the $1.5 million check to convict Frierson of the charged offenses. Frierson also contends this court should vacate his conviction and sentence on the second count of interstate transportation of counterfeit securities because both the first and second counts stem from the same “unit of prosecution.” The government agrees. In United States v. Lovett , this court accepted the defendant’s argument that “the appropriate unit of prosecution for a violation of 18 U.S.C. § 2314 is the number of transportations a cross state lines, not the number of financial transactions with each financia l institution.” 964 F.2d 1029, 1040-41 (10th Cir. 1992). Frierson was charged with two counts of interstate13

transportation of counterfeit securities for one tr ansportation across state lines. Therefore, we remand this case to the district court for the limited purpose of vacating Frierson’s conviction, sentence, and speci al assessment on count two. III. We AFFIRM Frierson’s conviction, sentence, and spec ial assessment on count one, and REMAND this case to the district cou rt with directions to VACATE Frierson’s conviction, sentence, and special assessment on count two. Entered for the Court Mary Beck Briscoe Circuit Judge