The

HONORABLE FERNANDO J. GAITAN, JR., United States District Judg e 1 for the Western District of Missouri, sitting by designation.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 98-1365

_____________ United States of America, * * Appellee, * * On appeal from the United States v. * District Court for the * District of Minnesota. Lee Vernell Jackson, * * Appellant. *

_____________
Submitted: June 10, 1998 Filed: August 13, 1998

_____________ Before BOWMAN, Chief Judge, BEAM, Circuit Judge, and GAITAN, District Judge. 1

_____________ FERNANDO J. GAITAN, JR., District Judge.
Lee Ja ckson appeals his four-count conviction for orchestrating a fraudulen t check writing scheme. He claims the Government fa iled to prove that the object of the conspiracy charged in Count I w as to constitute the commission of a crime cognizable under feder al law; the Government failed to prove that five or more of the documents charged in Count III were in or affecting interstate commerce; Count II charges theThe HONORABLE P AUL A. MAGNUSON, United States District Judge for 2 the District of Minnesota presided at Jackson’s jury trial and sentencing. -2- sam e crime as Count III; the amount of loss was based, in part, on speculation; th e enhancement for obstruction o f justice was not supported by reliable evidence, and the restitution order was imposed in violation of law. This court affirms in part and reverses in part the decision of the district court. 2

I. BACKGROUND

On May 21, 1997, Jackson was indicted for conspiracy to possess or utte r counterfeit s ecurities (18 U.S.C. §§ 371 and 513), two counts of possessing five o r
more identification documents (18 U.S.C. § 1028(a)(3)) and one count of possessin g fif teen or more unauthorized access devices (18 U.S.C. § 1029(a)(3)). Tria l commenced on August 28, 1997. Jackson twice moved for a judgment of acquittal , which was both times denied.

At tri al, evidence was presented regarding a check writing fraud scheme tha t Jackson was alleged to have organized and run with the help of female accomplices

. The ev idence suggested that Jackson’s scheme to defraud had five basic components. First, he purchased the contents of stolen purses (checkbooks, credit cards, driver’ s licenses, social security cards). Tr. at 183-85. Second, he altered the stolen driver’ s licenses by replacing the photographs on the licenses with thos e of his accomplices. Tr. 192. Third, he provided his accomplices with the altered driver’s l icenses along with the matching credit cards and social security cards for identification purposes. Fourth, he provi ded his accomplices with counterfeit payroll checks and stolen persona l checkbooks that matched the names on the driver’s licenses. Fifth, he helped hi s
ac complices cash the counterfeit payroll checks and negotiate the first three persona l checks out of each stolen checkbook for his benefit. The remaining personal check s were for his accomplices’ own uses. Counterfeit checks were drawn from payroll-3-

accounts at

various local business and organizations, including the City of Shoreview, Minne sota and the University of Minnesota. Tr. at 191-95, 242-44, 395-98, 422-45

. The checks were negotiated by co-conspirators at localbusiness, such as Target Stores. Id

. Various accomplices testified at trial. Tiffany Olson tes tified for the Government that Jackson took her photograph and made her five or six fake ide ntification cards from other people’s drivers licenses. S he testified that she passed stolen checks for Jackson and spli t the cash with him. Tr. at 395-97. Kristine Hawkins testified that Jackso n provided her with counterfeit payroll checks from Hennepin County, Brown & Bigelow, the University of Minnesota, and the City of Shoreview. Tr. at 192. When she received the checks she took them to Target stores and usually cashed them for just under $500, because Jackson told her that Target had a policy of cashing any check under tha t amount. Tr. at 193-94. Nancy Osborn and Karen Fox also testified that they negotiated counterfeit payroll checks at Target for Jackson. Tr. at 242-43, 424-35. Osborn said the che cks usually ranged from $200 to $600. Osborn received approximately $100 - $150 from each o f the checks she cashed. Tr. at 244. Fox stated that the counterfeit checks she passed were for amounts close to $500 and that s he received $100 and $150 for each check. Tr. at 426.

The inv estigation revealed certain real evidence, including check stock pape r similar to tha

t used for the University of Minnesota counterfeit checks, Tr. at 287, 99- 100, a laminating machine, plastic laminates th e size of typical identification document, Tr. at 290, a glue stick and press board, Tr. 292, Polaroid photographs of differen t woman standin g in front of a blue drop cloth, Tr. 302, 06, 08, and a typewriter. Tr. at 307.

After the close of the evidence, the jury returned guilty verdicts as to all fou r counts on September 5, 1997. The Probation Office issued a Presentence Investigation Report (“PSR”), concl uding that the Guidelines prescribed a range of 77 to 96 months-4-

imprisonment. This conclusion was reached u sing a calculated total offense level of 21 and a criminal history category of VI. After the presentence report was completed , Jackson filed his objections and the Government filed its responses. Thereafter, o n January 28 , 1998, the court held an evidentiary hearing and sentenced Jackson. Th e court imposed a 77 month sentence on Count IV, 36 month sentences on Counts II and III, as well as a 60 month sentence on Count I, all to run concurrently, a supervise d releas e term of three years, a $400 special assessment, and a restitution order o f $26,449.26.

II. DISCUSSION

Jackson challenges his sentence, claiming that the Government failed to prov e that the object of the conspiracy charged in Count I was to constitute the commission of a cri me cognizable under federal law; the Government failed to prove that five o r
more of the documents charged in Count III were in or affecting interstate commerce; Count II charged the same crime as Count III; the amount of loss was based, in part, on speculation; the enhancement for obstruction of justice was not supported by reliabl e evidence; and the district court judge erred in entering the restitution order.
A. Did the Government fail to p rove that the object of the conspiracy charged in Count I was to constitute the commission of a crime cognizable under federal law?

Jackson was convicted of Count I of the i ndictment, which alleged conspiracy to pos sess or utter counterfeit securities, 18 U.S.C. §§ 371 and 513. Title 18 U.S.C. § 371 prohibits a person from conspiring to commit “any offense against the Unite d States.” Section 513 prohibits the making, utterin g, or possessing a counterfeit security of “a State,” “a political subdivision thereof,” or “an organization.” It define s “secur ity” broadly to include a “check” and “organization” to mean “a legal entity , other than a government, established or organized for any purpose ... which operates in or the activities of which affect interstate ... commerce.” Jackson argues federal-5-

juris diction does not exist over a conspiracy to counterfeit securities of a state o r political subdivision thereof and that the offense lacks a connection to interstat e
commerce.

The st andard of review on a claim of insufficient evidence is stringent. W e
rev iew the evidence in the light most favorable to the jury's verdict. United States v

. Jenkins , 78 F.3d 1283, 1287 (8th Cir.1996). We give the verdict the benefit of al l reasonable inferences that might be drawn from the ev idence. United States v. Gaines , 969 F .2d 692, 696 (8th Cir.1992); United States v. Logan , 49 F.3d 352, 359 (8t h Cir.1995).

The issue is whether the defined term “organization” refers, in this case, to the banks where t

he accounts were held or to the account holders, which are state bodies. The Government argued, and the district court concluded, that for purposes of the § 513 definition, the organizations were the banks on which the accounts w ere drawn. Clearly the City o f Shoreview and the University of Minnesota cannot be defined a s “organizations” because the term specifically excludes government entities.
Jackson argues that neither ca n the banks be organizations. First, he argues that the bank on which the U niversity of Minnesota checks were drawn, “Northwest,” was a non-existent enti ty. However, this is only true due to appellant’s own misspelling of the name “Norwest.” Jackson was charged with counterfeiting the securities o f “N orwestBank,” a real entity, not with counterfeiting the securities of the non-entit y “Northwest Bank.” Therefore, this argument is h as no merit. Second, appellant argues that the banks cannot be the organizations referred to by § 513 because a check is the security of the person wh ose holds the account and not of the bank itself, Black’s Law Dictionary 237 (6 ed. 1990). We agree with the reasoning of United States v. Chappell th

on this point . 6 F.3d 1095 (5 Cir. 1993). “[S]ection 513 does not expressly o r th im pliedly state that a document may be the security of only one organization.” Id . a t 1099. While it is clear that the definition prevents the bank account holder, the City-6-

of Shoreview and University of Minnesota, from being “organizations,” we canno t conclude that the district court erred in determining t hat the banks were “organizations” under the definition. Appellant’s third argument, that there is no statutory requirement that a State or political subdivision operate in intersta te commerce, is irrelevant because we have indicated that the City of Shoreview a nd University of Minnesota were not the entities defined as “organizations” for purposes of the statute.
B. Did Government fail to prove that five or more of the documents charged in Count III affected interstate commerce?
Jackson appeals his conviction under Count III, which charg ed possession of five
or more identification documents in violation of 18 U.S.C. § 1028(a)(3), alleging that the Government failed to prove that five or more of the documents listed in Count III
were “in or affecting interstate commerce.” The documents charged in Count III are a series of drivers licenses, all but o ne of which were issued by the State of Minnesota. Jackson claims that because there was no evidence that five or more of the licenses had crossed a state line, the evidence was insufficient to establish the interstate commerce element listed in § 1028(c)(3).
Again, the standard of review on a claim of insufficient evidence is stringent. We review the evidence in the light mo st favorable to the jury's verdict, Jenkins , 78 F.3d at 1287, and giv e the verdict the benefit of all reasonable inferences that might be drawn from the evidence. Gaines , 969 F.2d at 696; Logan , 49 F.3d at 359.

We first note that the statute does not require the Government to prove that five
or m ore of the documents were “in or affecting interstate commerce,” as Jackso n alleges. Instead, technical wording requires that the “production, t ransfer, or possession prohibited by this section is in or affects interstate or foreign commerce[.]” § 1028(c)(3) (emphasis added).-7-

We do not agree with Jackson’s contention that the statute requires a showin g that th e documents traveled in interstate commerce. Indeed, the statute presents tw o op tions: possession may be “in” interstate commerce or it may “affect” interstat e
commerce. Id . The Government demonstrated that Jackson’s possession affecte d interstate commerce by proving that possession of the stolen driver’s licenses wa s integral to his scheme to defraud businesses and banks operating in intersta te commerce. The requirement of § 1028(c)(3) is not as stringent as Jackson would have us believe. See Un ited States v. Pearce , 65 F.3d 22, 24 (4 Cir. 1995)(deciding that court did not th

err when it d id not instruct the jury that the Government was required to prove tha t every document-making implement had made its way into interstate commerce).
C. Did Count II charged the same crime as Count III?
Jackson challenges his conviction on Counts II and III, which were charge d under 18 U.S.C. § 1 028(a)(3), claiming that they charge the same crime – possession of five
or m ore identification documents. Appellant did not raise this issue prior to trial an d the refore has failed to preserve it for appeal. United States v. Shephard , 4 F.3d 647 , 650 (8 Cir. 1993)(An objection to an indictment on grounds of multiplicity or double

th jeopardy is waived if not raised before trial.), cert. denied , 510 U.S. 1203 (1994)

. Theref ore, this court will affirm the conviction unless (1) the district court made a n error, (2) the error was plain under current law, meaning clear and obvious, and (3) the error was prejudi cial and affected the trial outcome. United States v. Olano , 507 U.S. 725, 7 32-36 (1993). The court should only correct the error if the error results in a miscarriage of justice or seriously affects the fairness, integrity, or public reputation of the judicial proceedings. Id . at 736; United States v. Wivell , 893 F.2d 156, 161 (8 Cir. th 1990.
The Double Jeopardy Clause of the Constitution provides three related-8-

protections: protection against a second prosecution for the same offense after acquittal; protectio n

against a second prosecution for the same offense after conviction; an d protection against multiple punishments for the same of fense. Brown v. Ohio , 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). In this case, Jackson contends that hi s convi ctions violate the Double Jeopardy Clause's prohibition against multipl e punishment for the same offense.

The Supreme Court has stated the applicable rule and the Double Jeopard y Cla use in Blockburger v. United States , 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 30 6 (1932): The ap plicable rule is that, where the same act or transaction constitutes a violation of tw o distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. 284 U.S. 304, 52 S.Ct. at 182. "If each [off ense] requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the pro of offered to establish the crimes." Iannelli v. United States , 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1293 n. 17, 43 L.Ed.2d 616 (1975).
We do not reach the legal argument presented by Jackson: whether Count II and Count III charge the same crime. This is because our standard of review lim its us unless the district court made an error which was plain under current law, meaning clear and obvious, and the error was p rejudicial and affected the trial outcome. Olano , 507 U.S. at 732-36. First, we cannot find that the di strict court made a plain error in maintaining both coun ts. The argument exists that an additional fact (i.e. an interstate commerc e nexus) i s required for a conviction for fraudulent use of state identification documents under 18 U. S.C. § 1028(c)(3), and comparatively, a conviction for fraudulent use o f federal identific ation documents requires proof of a separate kind: that the documents
wer e or appeared to be issued under the authority of the United States, 18 U.S.C. § 1028(c)(1). We also conclude that the trial outcome was not-9-

prejudiced. Because Jackson was sentenced on fou r counts, all to run concurrently, the issue of sentenci ng on one or both counts would not change the amount of time he has been committed to serve. Because we do not find that plain error has been committed by the district court, we deny Jackson’s motion to overturn his convictions on the basis of the Double Jeopardy Clause.
D. Was the amount of loss was based on speculation?
Jackson appeals the loss calculation representing an estimate of the loss Jackson intend ed to inflict using yet uncashed checks. The government had the burden o f proving the amount of loss by a preponderance of the evidence. See United States v. Mills , 987 F.2d 1311, 1315 (8 Cir.), cert. denied . 510 U.S. 953 (1993). In the case of th fraudor theft, the loss " 'need not be determined with precision. The court need only make a reasonable es timate of the loss, given the available information.' " Chappell , 6 F.3d at 1101(quoting U.S.S.G. S 2F1.1 cmt. 8). A court’s estimate of loss “may b e based upon th e approximate number of victims and the average loss to each victim, or on more general factor s such as the scope and the duration of the offense.” U.S.S.G § 2B1.1., comment n.3. The Guidelines further provide that “if an intended loss that the defendant was attempting to inflict can be determined, this figure will be used if it i s greater than the actual loss.” U.S.S.G. § 2F1.1, comment n.7. Loss determinations are reviewed for clear error; as long as the determination is plausible in light of the record as a whole, clear error does not exist. United States v. Sowels , 998 F.2d 249, 251 (5th Cir.1993), cert. denied , 510 U.S. 1121, 114 S.Ct. 1076, 127 L.Ed.2d 393 (1994).
At trial, co-conspirators Hawkins, Osborn and Olson testified that the y negotiated the f irst few checks in each stolen checkbook for Jackson’s benefit, and kept th e remainder for their own use. Tr. at 181, 188, 235-36, 389-91. They testified tha t checks were negotiated in amounts varying from $100 to more than $800. Hawkin s testified that she usually cashed checks for just under $500, because Jackson told her-10-

that Target had a policy of cashing any check under that amount. Tr. at 193-94

. Haw kins and Osborn testified that they had been involved in this scheme fo r approximately five years. See Tr. at 187 (Hawkins testified as to her involvement from Apr il1990 or 1991 to December 1995); Tr. at 238 (Osborn testified as to he r involvement from 1991 until 1995).
From this testimony, the PSR esti mated that co-conspirators used approximately thre e checks from each stolen checkbook for Jackson, purchasing items o f approximately $2,000 total value with the three checks. The PSR further estimated that the co-con spirators purchased items worth about $450 with each of the remainin g checks.
We uphold the district court’s conclusion that there was substantial evidence of Jackson’s pattern and practice of fraudulent check negation s over a period of years, and that the losses attributable to Jackson’s past transactions in stolen pe rsonal checks were evidence of his likely intent with respect to the blank checks.

E. W as the enhancement for obstruction of justice supported by reliabl e evidence?
Jackson complains that unreliable hearsay evidence was used by the Government in suppo rt of an enhancement for obstruction of justice. At the sentencing hearing , Hawkin s testified that prior to trial Jackson had contacted her twice through tw o differen t mutual friends, first to tell her to return anything she received from federa l agents unopened, and second to tell her that he knew where she lived, tha t he had family living around the corner if he wanted to do anything to her, he thought she was trying to send him away for a long time, and he just wanted to talk to her. Evidence was also presented that during or around the time of trial, both Hawkins and Osborn received a series of unexplained hang-up phone calls with no response from the caller at the other end of the line.-11-

Th e Sentencing Guidelines permit the use of hearsay without regard to it s admissibility at trial, provided that it has sufficient indicia of reliability to support it s probably acc uracy. United States v. Campos , 87 F.3d 261, 264 (8 Cir.), cert denied, th 117 S.C t. 536 (1996). Uncorroborated hearsay evidence is a proper topic for th e court’ s consideration as long as the defendant is afforded an opportunity to explain or rebut th e evidence. United States v. Wise , 976 F.2d 393, 402 (8 Cir. 1992), cert

. th denied , 507 U.S. 989 (1993).
The District Court found that Hawkins’ testimony was credible and supported an enhancement for obstruction of justice. S entencing Tr. at 33-34. However, it found no casual connection between Jackson and the hang-up calls. Id

. We review factual findings in sentencing for “clear error.” Unit ed States v. Elliot , 89 F.3d 1360, 1370 (8 Cir. 1996); United States v. Morris , 18 F.3d 562, 570 (8 Cir. th th 1994). We find no reason to disagree with the district court’s findings as to the twopoint enhancement based on Hawkins’ testimony.
F. Did the district court judge err in entering the restitution order ?

The district court ordered restitution to be paid to Target Stores in the amount of $20,918.47, and ordered to $26,449.28 to be paid to other victims. Jackson no w appeals the restitution order. Because Jackson failed to object to the restitution orde r at the sentencing hearing, we review this issue for “plain error resulting in a miscarriage of justice.” Wivell , 893 F.2d at 161 ; Shephard , 4 F.3d at 650; Olano , 507 U.S. at 732- 36.

Ja ckson cites Hughey v. United States for his proposition that the amount o f restitution must be limited to loss caused by the specific conduct wh ich formed the basis for the conviction. 495 U.S. 411, 413, 1 10 S.Ct. 1979, 1981, 109 L.Ed.2d 408 (1990). In Hughey , the United States Supreme Court dealt with the interpretation ofJackson argues that the Mandatory Victim Restitution Act of 1996 (MVRA) 3 should not have applied to th is case because the offense concluded in December 1995 rather than November 1996, and because the MRVA is not retroactively applicable

. We will not entertain the issue of whether the MVRA or the previous restitution statute apply becau se the statutory language providing for determination of amount of loss is the same. Both state: that the order of restitution “shall require that such defendant – in the c ase of an offense resulting in damage to or loss or destruction of property of a victi m of the offense – . . . pay an amount equal to the greater of the value of th e property on the date of the damage, loss, or destruct ion; or the value of the property on -12- the restitution provision s of the Victims and Witness Protection Act of 1982 (VWPA). Hughey Court reversed a restitutionary sentence which had been based on the total loss attributable to all counts in an indic tment charging unauthorized use of credit cards and theft by a Postal Service employ ee, rather than on the loss attributable to the one count to which Hughey had pled guilty.

Ja ckson argues that pursuant to Hughey , restitution cannot be imposed for an y amount of loss caused by t he counterfeit payroll check scheme beyond the $8,000 loss itemize d in Count I of the indictment and proved at trial. He asserts that restitutio n cannot be based on the unproved checks because they were not charged in th e indictment and not proved at trial.
Subsequen t

to the Hughey decision, the 18 U.S.C. § 3663 was amended

. Current ly, both § 3663(a)(2) and § 3663(A)(a)(2) provide that the district court ma y order res titution to every victim directly harmed by the defendant's conduct "in th e
cour se of the scheme, conspiracy, or pattern of criminal activity" that is an element of the offense

of conviction, without regard to whether the particular criminal conduct of the defendant which directly harmed the victim was alleged in a count to which th e defendant pled guilty, or was even charged i n the indictment. United States v. Manzer , 69 F.3d 222, 230 (8 Cir. 1995); United States v. W esland , 23 F.3d 205, 207 (8 Cir.), th th cert. denied , 513 U.S. 1045 (1994). In Manzer , this court permitted restitution 3the date of sentencing, less the value (as of the date the property is returned) of any part

of the property that is returned[.]” See 18 U.S.C. § 3663(b)(1)(B); 18 U.S.C. § 3663A(b)(1)(B). -13- awards enc ompassing all the acts encompassed in the conspiracy, not just the specific acts alleged in the indictment. Id

. at 230. “[W]e look to the scope of the indictment in order to determine whether it details a broad scheme encompassing transaction s ‘b eyondthose alleged in the counts of conviction.” Id ., quoting Wesland , 23 F.3d a t 207.

Jackson ’s fraudulent scheme encompassed checks beyond the University o f Minnes otaand City of Shoreview payroll checks listed in the indictment and cause d losses to Target beyond the $8,000 alleged in Count I. Jackson’s scheme to defrau d therefore brings the losses within the outer limits of a permissible restitution order.
Although we do not agree with Jackson’s contention that restitution cannot b e ordered t o Target for more than the $8,000 alleged in Count I, we do reverse an d remand for entry of a different restitution amount for Target. The Gov ernment concedes the amount o f restitution awarded to Target was in error. Because the Governmen t disputed the amount of the Brown & Bigelow checks and the Government elected not to present any evidence at the sentencing hearing, the restitution award should b e reduc ed by $10,155.47, the amount of the Brown & Bigelow checks. Therefore, th e amount of restitution ordered paid to Target is $10,763.00

Ja ckson’s last restitution argument is that the nature of the figures to be paid to the unnamed individuals is impossibl e to determine based on the information contained in the reco rd. Jackson claims these people were not “victims” of the offense o f conviction, but only “victims” of unconvicted conduct. We disagree. The individuals were named; they were identified in the PSR as the people whose checkbooks, driver’s licenses, credit cards, and social security cards were stolen in furtherance of the-14-

scheme. Contrary to Jackson’s assertion, they were “victims.” Section 3663A(a)(2 ) define s a victim as a “person directly and proximately harmed” as a result of th e
c o mmission of a crime for which restitution may be ordered “including, in the case of
an offense that involves as an element a scheme, conspiracy, or pattern of crimina l activity” a ny person directly harmed by a defendant “in the course of the scheme , conspiracy, or

pattern.” Id . Those whose checkbooks, driver’s licenses, credit cards, and social security cards were stolen in furtheranc e of the scheme were directly harmed by the loss th ose possessions, and for some, as a result of the break-ins that allowe d access to the licenses, che ckbooks, and/or credit cards. Restitution as to these victims was therefore proper.

III. CONCLUSION
For the reasons set forth above, we affirm in part and reverse in part the decision of the district

court. We further order the amount of restitution ordered paid to Target reduced by $10,155.47, for a total of $10,763.00 in restitution to Target.
A true copy.

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