### The Honorable Jean C. Hamilton, Chief Judge, United State s 1 

### District Court for the Eastern District of Missouri. ___________ No. 95-1586

___________ United States of America, * * Appellee, * Appeal from the United States * District Court for the v. * Eastern District of Missouri. * Forriss D. Elliott, * * Appellant. *

___________ Submitted: February 14, 1996 Filed: July 22, 1996

___________ Before BOWMAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ BOWMAN, Circuit Judge.

Forriss D. Elliott was convicted of seven counts of mail fraud i n vi olation of 18 U.S.C. § 1341 (1988 & Supp. V 1993) and one count o f conspiracy to commit mail fraud in violation of 18 U.S.C. § 371 (1988) for submitting fraudulent legal bills to the state of Missouri in connection with his work as a special assistant attorney general. The Dist rict Court 1 sentenced him to a te rm of sixty months of imprisonment. Elliott appeals his conviction and sentence. For reversal, Elliott raises four issues

. First, he contends that the mail fraud statute does not apply to purel y intrast ate mailings. Second, Elliott, who is black, raises an equal

protection challenge to the racial composition of the all-white jury that convicted him. Third , he claims that the District Court made a number of evidentiary errors. Fourth, he challenges

### After the first two cases ended with hung juries, a thir d 2 

### attempt at trial a few weeks later was unsuccessful when a m istrial was declared during the first day of jury selection becaus e referenc e was made to the fact that Elliott had been tried twic e previously.
-2- the length of his sen tence as calculated under the sentencing guidelines. We affirm Elliott's conviction and sentence.

I.

In the fall of 1989, Elliott, an att orney in private practice in the St. Lo uis area, was appointed a part-time special assistant attorne y general t o represent the Second Injury Fund (the Fund) and the State o f Missouri in workers' compensation cases where ei ther the Fund or the state
was being sued. In limited circumstances, the Fund provides additiona l compensation to previ ously compensated employees who suffer a second jobrelated injury. The goal of the Fund is to encourage employers to hire th e partially disabled by limiting the employer's liability in the event that the e mployee "receives a subsequent compensable injury resulting i n additi onal permanent partial disability." Mo. Rev. Stat. § 287.220. 1 (1994). As a special assistant attorney general, Elliott was authorized to bill the state for legal services rendered an d expenses incurred in his work on behalf of the state. Elliott mailed his bills to the state on a monthly basis. The b ills he submitted, however, turned out to be grossly inflated.
After the state discovered the fraudulent billing scheme, Ellio tt was indicted for mail fra ud. He was convicted after a third trial by an allwhite jury. The first two trials, both of which had black jury members, result ed in hung juries. At trial, the government presented a mountai n 2 of documentary evidence that mapped out Elliott's fraudulent billin g scheme. T hirty-six billing entries showed that Elliott or one of hi s employees worked more than twenty-four hours a d ay, sometimes in excess of fifty hours.

### -3-

On forty occasions, Elliott claimed that he or h is associate, Steve Lewis, had appeared at a Wor kers' Compensation Division trial, court hearing, or depositi onon behalf of the Fund when, in fact, minute sheets an d deposition transcripts revealed that no one from his law firm was present. Elliott also billed t he state for settlement negotiations supposedly done on case files that ha d been closed months or years earlier, some of which Elliott had closed himself. Numerous times the billing entries showe d Elliott, who billed h imself out at seventy dollars an hour, as the person doing the legal work when, in fact, the work was done by his paralegal or his associate, both of whom had lower billable rates. The document s indica ted that, on many occasions, instead of billing the thirty-dolla r flat fee that is allowed for handling a partial disability case, Elliott billed partial disability cases at the much more lucrative hourly rat e
reserv ed for total disability cases. The documentary evidence als o demonst rated that Elliott had grossly exaggerated copying and postag e expenses.
Although the substantial documentary evidence was probably enough to convict Elliott, the government also presented witness testimony tha t showed Elliott was the mastermind of the fraudul ent billing scheme. While representing the Fund , Elliott employed two paralegals at different times to assist him in preparing the bills that he sent to the state. Elliott first hired Brenda Leake in August 1990. Leake testified that Elliot t ordered her to make bogus entries on his billing statements. She worked for Elliott for about twelve months until she wa s fired in September 1991. Elliott t hen hired Connie O'Bryant as a new paralegal to assist in bil l preparation. Even though O'Bryant was called as a defense witness, sh e acknowledged that Elliott gave her false entries to put in the bills. Mar y Rein hardt, who worked for the state and received all the bills, als o testi fied. She stated that while Leake was still employed by Elliott , Leake telephoned her to warn her about the false entries and recommended that someone look at the inflated bills. Elliott's former accountant , Brian Cox, also

### -4-

testified. In December 1992, after Elliott saw his picture splashed acros s the front page of the Sunday edition of the St. Louis Post-Dispatc h
acco mpanied by a story accusing him of billing fifty-hour work days , El liott telephoned Cox. Elliott asked Cox to review his billin g statements. Cox spent two weeks comparing the bills with Elliott's case files. Cox testified that the bills could not b e substantiated. Finally, the government put on the previous sworn testimony of Elliott himself

. Although denying criminal culpability, Elliott a dmitted certain bills were "inflated" or false and that the state was billed for work not done. Tria l Trans. (Dec. 1, 1994) at 23-25 (testimony of court reporter regardin g Elliott's sworn statements).

II.

Elliott f irst argues that the mail fraud statute, 18 U.S.C. § 1341, does not apply to purely intrastate mailings. A lthough the evidence shows that Elliott used the United States mails to send his bills to the state, all were sent and received in Missouri. Relying on United States v. Lopez , 115 S. Ct. 1624 (1995), Elliott insists that mai l fraud requires some sort of interstate connection. We disagree. Lopez is a Commerce Clause case and therefore has no application whatsoever to the mail fraud statute , whichis based on the Postal Power found in Article I, Section 8, Clause 7 of the Constitution. The Postal Power, of course, gives the federa l government the power to deliver mail intrastate. In Lopez , the Suprem e Court struck down the Gun-Free School Zones Act of 1990, which made it a feder al offense for any individual knowingly to possess a firearm in a school zone. Congress had used the Commerce Clause as the source of its aut horityto enact the Gun-Free School Zones Act. The Lopez Cour t determ ined that Congress exceeded its Commerce Clause authority when i t passed the Gun-Free School Zones Act because mere possession of a gun in

a school zone did not substantially affect interstate commerce. Unlike th e Gun-Free School Zones Act, the jurisdictional basis of

### Th e judicially engrafted equal-protection component of th e 3 

### Fif thAmendment is implicated in this case because Elliott i s challenging the actions of a federal prosecutor. See UnitedStates v. Greene , 995 F.2d 793, 795 (8th Cir. 1993) ("An action tha t viol ates the fourteenth amendment guarantee of equal protectio n when committed by a state acto r violates the due process guarantee of the fifth amendment when committed by a federal actor.").
-5- the mail fraud statute is grounded in the Postal Power and therefor e necessarily encompasses all items passing throug h the United States mails, even if their passage is purely intrastate. "It is irrelevant that all of the mailin gs in this case may have been intrastate in nature," Unite d States v. Cady , 567 F.2d 771, 776 n.7 (8th Cir. 1977), cert. denied , 435 U.S. 944 (1978), because "[t]he focus of the sta tute is upon the misuse of the Postal Service . . . and Congress clearly has the authority to regulat e such misuse of the mails," United States v. Stat es , 488 F.2d 761, 767 (8th Cir. 1973), cert. den ied , 417 U.S. 909 (1974). See also United States v. Minkin , 504 F.2d 350, 353 (8th Cir. 1974) (affir ming mail fraud conviction where fraudulent mail ing made only twelve-mile intrastate journey), cert. denied , 420 U.S. 926 (1975); United States v. Mirabile , 503 F.2d 1065, 106 7 (8th Cir. 1974) (affi rming mail fraud conviction for intrastate mailing), cert. denied , 420 U.S. 973 (1975).

III.
Elliott next challenges the racial c omposition of the all-white jury that co nvicted him as a Fifth Amendment equal-protection violation. H e 3 theorizes that the pr osecutor, having been stymied by hung racially mixed juries in the first two trials, sought to exclud e all potential black jury members from the third trial in the hope of ensuring a conviction. Th e court seated an all-white jury after the prosecutor eliminated thre e potential black jurors using challenges for caus e and struck another three potential black jurors using peremptory challenges. Elliott argues that the for-cause strikes as well as the peremptory challenges run afoul of

### There is nothing in the record to indicate which jurors , 4 

### black or white, were voting against conviction in the first tw o trials. Elliott's theory assumes that one or more black jur y members voted to acquit. Such an assumption is unwarranted. Just as it is wrong for a prosecutor to exclude potential black jurors on the assumption that they wi ll be unable impartially to consider the state's case against a bla ck defendant , so it is equally wrong for Elliott to assume that it was black members of the jury wh o caused the first two mistrials.
-6- Batson v. Kentucky , i n which the Supreme Court held "the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely o n account of their race or on the assumption that black jurors as a grou p will be unable impartially to consider the State's case against a blac k defendant." 476 U.S. 79, 89 (1986). 4 We turn first to Elliott's argument that the prosecutor's use o f forcause strikes against three black venire members was a Batsonviolation. He insists that with only six peremptory challenges (plus one for alternat e jurors), the prosecutor realized that "he would not be able to rid himself of all black jurors, unless he was able to strik e some black venirepersons for cause." Appellant's Brief at 19. Consequen tly, Elliott contends that the for-cause strikes in combination with the peremptory strikes resulted in a c onstitutional violation that deprived him of a fair trial. W e disagree. Batsonapp lies only to peremptory strikes. We know of no case that has extrapolated the Batsonframework to fo r-cause strikes. There is simpl yno legal basis for this argument, which fails to recognize tha t peremptorystrikes, for which no reasons need be given (absent a Batso n challenge), are different from challenges for cause, which by definition require a showing of cause. A district court is required to strike fo r
cause any juror who is shown to lack impartiality or the appearance o f impartiality and, "[a]bsent abuse of discretion, we will not interfere wit h the District Court's determination of juror qualifications." United State s
v. Tib esar , 894 F.2d 317, 319 (8th Cir.), cert. denied , 498 U.S. 82 5 (1990). The district court is

### -7-

givenbroad discretion in determining whether to strike jurors for cause because it is in the best position to assess the demeanor and credibility of the prospective jurors. United States v. Graves , 5 F.3d 1546, 1554 (5t h Cir

. 1993), cert. denied , 114 S. Ct. 1829 (1994). After carefull y revie wing the record, we are convinced that the District Court did no t abuse i ts discretion when it dismissed three of the prospective blac k jurors for cause.

We come, then, to Elliott's arguments concerning the peremptor y chal lenges. The Batson framework, using a three-stage burden-shiftin g analysis, establishes the order and allocation of proof in challenges to the discriminatory use of peremptory strikes in jury selection. Purkett v. Elem , 115 S. Ct. 1 769, 1770-71 (1995) (per curiam). In the context of

a crimin al trial, after the defendant makes a prima facie case o f pur poseful discrimination in the government's use of a peremptor y challenge, the burden shifts to the government to offer a race-neutra l explanation for the s trike. Id. A prosecutor's explanation for a strike is deemed race-neutral if discriminatory intent is not inherent in th e stated reason. Id. at 1771. The defendant may then attempt to prove that the facially valid reason is a mere pretext and that the real reason for the strike was discrimination. Id. at 1771. Th e defendant retains at all times the ultimate burden of persuasion, id. at 1771, and the trial court' s finding on the discrimination issue will be set aside only if clearl y erroneous, United States v. Darden , 70 F.3d 1507, 1531 (8th Cir. 1995), cert. denied , 116 S. Ct. 1449 (1996) and 64 U.S.L.W. 3855 (U.S. June 24, 1996). O n appeal, we are mindful of the fact that "evaluation of th e prosec utor's state of mind based on demeanor and credibility lie s `peculiarly within a trial judge's province.'" Hernandez v. New York , 500 U.S. 352, 365 (1991) (plurality opinion) (quoting Wainwright v. Witt , 469 U.S. 412, 428 (1985)). After carefully reviewin g the trial transcript, we
are persuaded that the District Court did not commit clear error in findin g that Elliott failed to

### -8-

prove t hat the government's race-neutral reasons were mere pretextua l covers for unlawful discrimination.

The prosecutor used peremptory challenges to strike three blac k jurors: Juror No. 4 (Smith), Juror No. 12 (Johnson), and Juror No. 2 0 (Harper). After Elliott objected to the use of these peremptory challenge s
as a viol ation of Batson , the District Court found that Elliott ha d established a prima facie case of discrimination. This finding required the pr osecutor to come forward with race-neutral explanations for th e striking of the jurors.

As an initial matter, we conclude that Elliott's Batson challeng e with respect to Harper is procedurally barred. At trial, Elliott's counse l initially objected to Harper being stricken as a Batsonviolation, but the n wi thdrewthe objection after the government proffered a race-neutra l explanation for the strike. See Trial Trans. (N ov. 28, 1994) at 218-220A. Elliott cannot raise an argument on appeal that he explicitly waived a t trial. Accordingly, only the propriety of the strikes against jurors Smit h and Johnson are properly before us.

Th e prosecutor proffered three race-neutral reasons for strikin g Smi th. First, Smith listed "church organization" under the category o f "Hobbies and Activities" on the juror survey form. Smith's church activit y concerned the prosecu tor because Elliott's first trial resulted in a hung jury when one of the jurors had religious convictions that created problem s for him in deliberations. Moreover, the prosecutor also observed tha t Elliott was reading a Bible during voir dire. The only other juror wh o listed "church" as an activity was a white femal e, and she also was struck by the prosecution. Second, Smith was struck because she did not own her
own home, which the prosecutor believed meant that Smith "had less of a stake in and commitment to the community." Appellee's Brief at 17. The government also struck any other

### -9-

prospective panel mem bers who did not own their own homes, which included
one white and another black. Third, Smith was laughing with defens e
coun sel during voir dire, and was showing particular interest in hi s comments, which, as t he prosecutor saw it, meant that Smith had developed "more of a bond with defense attorney than the government was comfortable with." Trial Trans. (Nov. 28, 1994) at 214.

Four race-neutral reasons were proffered for striking Johnson

. First, Johnson did not own her own home, and as already explained, al l potential jurors, white or black, who did not own their own homes wer e struck. Second, Johnson had relatives employed by the United States Posta l Ser vice. Postal employees are often subjected to rigorous scrutiny an d secret observation by postal inspectors. Becaus e Elliott was charged with mail fraud, the government's case agent and key witness was a posta l inspector. The prose cutor felt that postal employees and their relatives may ha ve negative attitudes toward postal inspectors because of thei r watchdog role. To avoid this dilemma, all prospective jurors wit h relati ves currently employed by the United States Postal Service wer e struck, wh ich included a white venireperson who had a relative in th e posta l service. Third, Johnson failed to respond to certain voir dir e questions. When the venirepersons were asked whether they thought th e criminal justice syst em was fair, Johnson failed to raise her hand. When asked whether they thought the criminal justice system was unfair, Johnson again failed to raise her hand. When asked if they had no opinion on the fairness of the crimi nal justice system, Johnson failed to raise her hand for a third time. The prosecutor struck Johnsonfor her unresponsiveness. Finally, t he prosecutor also felt that Johnson "was looking at him i n hostile fashion." Appellee's Brief at 18.

Once t he prosecution articulated race-neutral reasons for th e peremptory challenges, the burden then shifted to Elliott to offer evidenc e showing that the reasons given by the government--all

### Our caselaw establishes that explanations of the sort offered 5 

### bythe prosecutor in this case are race-neutral. See , e.g. , Williams v. Groose , 77 F.3d 259, 261 (8th Cir. 1996) (posta l workers); United States v. Carr , 67 F.3d 171, 175-76 (8th Cir

. 1995) (rented home indicating lack of community attachment), cert. denied , 116 S. Ct. 1285 (1996); United States v. Atkins , 25 F.3 d 1401, 1406 (8th Cir.) (insufficient attachment to community) , cert. denied , 115 S. Ct. 371 (1994); United States v. Todd , 963 F. 2d 207, 211 (8th Cir. 1992) (hostility toward prosecutor); United St ates v. Day , 949 F.2d 973, 979 (8th Cir. 1991) (sporadic work history and lack of property ownership, indicating lack of communit y attachment); United States v. Jackson , 914 F.2d 1050, 1052-53 (8th Cir. 1990) (insufficient commitment to community).
-10- conceded by Elliott to be facially race-neutral --were a mere pretext for 5 discrimination and th at the real reason Smith and Johnson were struck was because they were black. Although Elliott's appellate counsel makes a valiant attempt to show that all of the government's proffered reasons wer e pretextual, Elliott's trial counsel failed to at tack as pretextual several of the race-neutral reasons proffered by the government to justify th e strikes. At trial, Elliott did not challenge as pretextual the striking of Smith because of her church activity; he also did not challenge a s pretextual the striking of Johnson because she h ad relatives in the postal servi ce. We uphold facially neutral reasons where the opponent of th e strike m akes no attempt in the trial court to demonstrate pretext

. Wil liams v. Groose , 77 F.3d 259, 261 (8th Cir. 1996); see also Unite d States v. Carr , 67 F.3d 171, 176 (8th Cir. 1995) , cert. denied , 116 S. Ct. 1285 (1996). Although Elliott did attempt to show that the remaining reasons -

- la ck of community attachment, unresponsiveness during voir dire, an d hostility toward one party or undue friendliness with one party -- were a
mere pretext for discrimination, he did so only in the most conclusor y fas hion. Consequently, the District Court found that Elliott failed t o satisf yhis ultimate burden of proving purposeful discrimination. Th e District Court was in the best position to evaluate the motives of th e prosecutor, and the record reveals that the court did so meticulously , painstakingly

### -11-

noting the several racially neutral reasons offe red for the challenges and finding t hat those reasons were not pretextual. We cannot say that th e court clearly erred in making its finding of no discrimination.

In a la st-ditch effort to show a Batsonviolation, Elliott makes a "similarly situated" argument for the first time on appeal. He notes that while S mith was struck because of her church activity, the prosecuto r failed to strike several similarly situated white jurors. Specifically, the prosecutor kept a white juror who worked for a Baptist church school and whos e husband had been a minister for six years, a white juror wh o listed "Christian concerts" as a hobby, and a white juror who indicate d that he "preach[ed] parttime" as an activity. Similarly, Elliott points out that while Johnson was struck because, among other reasons, she ha d postal service relatives, the prosecutor did not challenge a white juror who had "a very close friend who is a retired mail man," a white juro r whose un cle was a retired letter carrier, and a white juror whos e grandmother was a postmaster and whose brother " is a postmaster in a small town."

Elliott is correct that "the government may not justify peremptor y challenges to venire members of one race unless venire members of another
race with comparable or similar characteristics, are also challenged. " Reynolds v. Benefield , 931 F.2d 506, 512 (8th Cir.) (civil case), cert
. denied , 501 U.S. 1204 (1991). The government must exercise "its challenge s in a consistent manne r," United States v. Atkins , 25 F.3d 1401, 1406 (8th Cir.), cert. denied , 115 S. Ct. 371 (1994), and treat similarly situated juror s similarly, Davidson v. Harris , 30 F.3d 963, 965 (8th Cir. 1994 ) (civil case) (noting otherwise neutral explanation for removal of blac k juror may be pretextual if stated reason also applies to white juror who is not removed), cert. denied , 115 S. Ct. 737 (1995). Elliott thus ma y have had a factual basis for at least a colorable Batsonclaim based on th e government's failure to strike

### -12-

white jurors who argu ably were similarly situated to the black jurors who were struck. This argument, however, is untimel y since it is made for the first time on appeal. See United States v. Dobynes , 905 F.2d 1192, 1196-9 7 (8th Cir.), cert. denied , 498 U.S. 877 (1990). Having failed to raise thi s argument before the trial court, Elliott has waived his right to have it consi dered by this Court. See Roth v. G.D. Searle & Co. , 27 F.3d 1303 , 1307 (8th Cir. 1994).

We hold that the District Court did not err in rejecting Elliott' s Batsonclaims.

IV.

Elliott also argues that the Distric t Court made several evidentiary errors when it: (1) limited cross-examination o f Brenda Leake, his former paraleg al; (2) excluded as irrelevant evidence concerning the routin e practices of the Office of the Missouri Attorney General and other special

as sistant attorneys general; and (3) excluded as irrelevant evidenc e relating to the routine practices of the Workers' Compensation Division. "We review the eviden tiary rulings of a district court only for abuses of discre tion, and will reverse only when an improper evidentiary rulin g affects the substantial rights of the defendant or when we believe that th e error has had more than a slight influence on th e verdict." United States

v. Ba llew , 40 F.3d 936, 941 (8th Cir. 1994) (citations omitted), cert
. denied , 115 S. Ct. 1813 (1995).

A. Cross-Examination of Brenda Leake

Elliott maintains that Leake misrepresented her educational an d employment history onher resume, which he relied on when he hired her as a paralegal. He claims that these misrepresenta tions were relevant to his defense because Leake 's "lack of education and experience caused mistakes and erroneous billings." Appellant's

### -13-

Brief a t 43. According to Elliott, the jury was entitled to know abou t Leake's supposed lies because it was these lies that "lulled" Elliott "int o believing that she was capable of relieving him of much of the wor k generated by the thousands of files." Id. Armed with this information, Elliott contends that the jury would have believed his cries of innocence and chalked up the over-billings to Leake's mistakes.

Elliott s ought to introduce several documentary exhibits, including Leake's resume, to show that Leake misrepresente d her educational and work experienc e. He wanted to use these exhibits to impeach Leake on cross

examination. Trial Trans. (Nov. 30, 1994) at 22 . Elliott was not allowed to use the documentar y exhibits, however, because the trial court granted the government's motion in limine to exclude the exhibits as extrinsi c evidence of Leake's conduct. Federal Rule of Evidence 608(b) prohibits th e
use of extrinsic evidence to prove specific instances of a witness' s conduct. United States v. Johnson , 968 F.2d 765, 766 (8th Cir.), cert
. denied , 506 U.S. 980 (1992). Consequently, "[w]hile documents may b e admissible on cross-examination to prove a material fact, or bias, they ar e not admi ssible under Rule 608(b) merely to show a witness' genera l character for truthfulness or untruthfulness." United States v. Martz , 96 4 F.2d 787, 789 (8th Ci r.) (citations omitted), cert. denied , 506 U.S. 1038 (1992). The reason for barring extrinsic evidence "is to avoid holdin g mini-trials on periph erally related or irrelevant matters." Id. "To the extent that such evidence is ever admissible, the introduction of extrinsi c evidence to attack credibility is subject to the discretion of the trial court." Johnson , 968 F.2d at 766. Given Rule 6 08(b)'s admonition against the introduction of such evidence, we conclude t hat the District Court did not abuse its discretion when it excluded the exhibits as extrinsi c evidence.

We not e that Elliott fails to mention Rule 608(b) in his openin g brief, relying instead on the general principle that

### -14-

cr iminal defendants are entitled to a "searching cross-examination. " Appellant's Brief at 41. That is exactly what Elliott got. Although the trial court excluded the extrinsic evidence, it did not place any specific limitations on areas of cross-examination. Elli ott was given a wide berth to engage in a search ing and wide-ranging cross-examination as long as it did not require the u se of extrinsic evidence. Elliott was thus required to "take his answer" because Rule 608(b) precludes him from using extrinsi c evidence to impeach t he witness. United States v. Capozzi , 883 F.2d 608, 615 (8th Cir. 1989) (citations to quoted cases o mitted), cert. denied , 495 U.S. 918 (1990).
Despite the District Court's generous latitude with respect to crossexamination questions, Elliott contends that the government's motion i n limine sought "to bar defendant from using documents and cross-examining [Leake] as to misrepresentations concerning her educational background and her job history." Appellant's Brief at 38 (emphasis added). Elliott is mistaken. The court specifically informed defense counsel that he could ask Leake questions about her education and workexperience. Trial Trans. (Nov. 30, 1994) at 20-21. The court simply requ ested that, prior to those questions being asked , defense counsel approach the bench and proffer the question to allow the court to make a ruling. Id. (Nov. 29, 1994) at 15- 16; id. (Nov. 30, 1994) at 9-10, 22-23. There w ere no questions proffered bythe defense that the court did not allow, and Elliott was free to ask Lea ke anything he wished concerning misrepresentations by her as to he r education and employment. We are unable to see any abuse of discretion in the District Court's handling of this matter.

B. Rou tine Practices of the Attorney General's Office and Othe r Special Assistant Attorneys General

Elli ott sought to introduce evidence relating to the routin e practices of the Office of the Missouri Attorney General and other

### Because the evidence was irrelevant to any issue in the case, 6 

### we need not and do not discuss Elliott's arguments based on Federal Rul e of Evidence 406 (evidence of habit or routine practice)

. These arguments are meritless in any event.
-15- special assistants because he "wanted to show th at mistakes were common in the m anner in which [the bills] were handled by the Attorney General' s Office and in the manner in which files were routinely reviewed on a monthly basis by Spec ial Assistants." Appellant's Brief at 45 (citations omitted). The routine practices ostensibly woul d have been established by the proffered testimo ny of two other special assistant attorneys general. The sp ecial assistants would have testified that (1) special assistant s
were told to use their own best judgment when determining whether t o categorize a file as a partial or total disability case, and (2) they had received closed files without being told that the files were closed an d were paid for work do ne on the closed files. The District Court excluded this evidence as irrelevant. See Fed. R. Evid. 402 (stating irrelevan t eviden ce is inadmissible). After carefully reviewing the record, w e conclu de that the District Court properly excluded this evidence a s irrelevant.

The issue at trial was whether Elliott intentionally defrauded th e state by knowingly submitting false bills. The proffered testimon y
concern ing the categorization of files or the fact that other specia l assistants were paid for work done on closed files had nothing to do with this issue. On cross-examination, one of the pr offered witnesses admitted that he had no personal knowledge of how Elliott prepared his legal bills, kept his time, dealt with the courts, or reviewed his files. The proffere d witness could only testify as to how he prepared his own legal bills and han dled cases in which he was involved. Put simply, the proffere d testimony had nothing to do with Elliott and was irrelevant to the questio n of his guilt or innocence. The District Court did not abuse its discretio n in excluding this evidence. 6

### -16-

C. Routine Practice of the Workers' Compensation Division

Elliot t also sought to introduce testimony concerning routin e practice at the Workers' Compensation Division. The purpose of th e proffered testimony was to show that court proce edings at the Compensation Divisionwere rather informal and that the absence of a name on a minute sheet did not necessa rily mean that the special assistant was absent from the proceeding. Although the District Court excluded this evidence a s being irrelevant, the evidence may have had some relevance because th e government's case included proof that Elliott billed the state for court appear ances at the Compensation Division despite the fact that minut e sheets failed to name him as being present. Elliott argues that th e evidence was admissible for a purpose envisioned by Federal Rule o f Evidence 406-- i.e. , to show that the Compensation Division was acting in accordance with its usual laxness when it failedto register on the minute sheets al l attorneys in attendance for the proceedings. We are no t convinced that the proffered testimony established that the allegedly slac k pr actices at the Compensation Division were sufficiently numerous o r regular to rise to the level of cognizance under Rule 406 as a routin e pract ice. But even assuming that the laxness did constitute a routin e pra ctice, if the District Court abused its discretion in excluding thi s testimonythe error amounted to, at most, only harmless error given th e weight of the government's massive case against Elliott. See United State s v. Mihm , 13 F.3d 1200, 1205 (8th Cir. 1994); Uni ted States v. DeAngelo , 13 F.3d 1228, 1233 (8th Cir.), cert. denied , 114 S. Ct. 2717 (1994).

V.

Elliott challenges the length of his sentence as calculated und er the sentenc ing guidelines. Mail fraud carries a base-offense level of 6 , U.S.S.G. § 2F1.1(a) (1995), which, with Elliott's criminal history categor y of I, would provide a sentencing range of

### -17-

imprisonme nt of zero to six months. Through a series of enhancement s
recomm ended by the presentence report (PSR), the base-offense level wa s raised to 24. The enhancements Elliott received were: (1) an eight-level increase pursuant to id. § 2F1.1(b)(1)(I) because the "amount of loss" to the sta te exceeded $200,000; (2) a two-level increase pursuant to id

. § 3C1.1 because Elliott obstructed the administr ation of justice by asking his paralegal to lie and by lying on the witness stand himself; (3) a twolevel increase pursuant to id. 2F1.1(b)(2)(A) for "more than minima l planning"; (4) a four-level increase pursuant to id. § 3B1.1(a) for hi s extensive "role in th e offense"; and (5) a two-level increase pursuant to id. § 3B1.3 for his abuse of a position of publi c trust in his capacity as a special assistant a ttorney general. As a result of these enhancements, Elliott received a sentence of sixty months of imprisonment. Elliot t claims the District Court erred in accepting the enhancements contained in the PSR because the c ourt failed to make "a finding as to the allegations in the PS R which were disputed by appellant." Appellant's Brief at 51

. "We review the factual findings a district court makes in sentencing for clear error, and the application of the guidelines to the facts de novo." Darden , 7 0 F.3d at 1544. We conclude that the District Court did no t commit any error in making its sentencing determination.

Wh ere the defendant objects to statements in the PSR, a distric t court should neither merely accept the PSR nor require the defendant t o disprove the disputed facts. United States v. Wise , 976 F.2d 393, 404 (8t h Cir. 1992) (en banc), cert. denied , 507 U.S. 989 (1993). Instead, th e government bears the burden of proving any disputed enhancement factors. United States v. Hammer , 3 F.3d 266, 272 (8th Cir. 1993), cert. denied , 11 4 S. Ct. 1121 (1994). Elliott complains that the government did not satisfy its burden with respect to the enhancements because the trial court did no t hold a n evidentiary hearing before sentencing. "A formal sentencin g hearing is not, however, the exclusive means by which the government may meet [its evidentiary burden]." United States

### As noted ab ove, the government provided the sentencing court 7 

### with two independent grounds t o support the obstruction of justice enhancement. First, the gover nment claimed that Elliott asked his paralegal to lie. During the first trial, Brian Cox testifi ed that Connie O'Bryant, the paralegal, told him in Elliott's presen ce that Elliott directed her to lie. Second, the government argued tha t Elliott himself lied on the witness stand. The District Cour t accepted both of these grounds as a basis for the enhancement. On appeal, Elliott complains that the District Court improperly used Cox's testimony from the first trial--which resulted in a hun g jury--to enhance his sentence. He argues that it is "wrong to rely on testimony in an earlier trial in which the issue was certainly disputed and the jury did not convict appellant." Reply Brief at 6. We need not and do not decide whether it was improper for the sentencing court to rely on Co x's earlier testimony from the first trial because the court's find ing that Elliott himself lied on the wi tness stand provides an independent and sufficient basis fo r enhancement.
-18- v. Bellrichard , 62 F. 3d 1046, 1051 (8th Cir. 1995) (quoting United States

v. Fetlow , 21 F.3d 243, 250 (8th Cir.), cert. denied , 115 S. Ct. 45 6 (1994)) (alteration in Bellrichard ), cert. denie d , 116 S. Ct. 1425 (1996). Infact, a district court may base its findings on evidence presented at trial "even though no additional exhibits or testimony are introduced at the sentencing phase." Id. (quoting Fetlow ). That is what the District Court did in this case. For each of the enhancements that Elliot t cha llenges on appeal, the District Court properly based its findings o n evidence adduced at t rial. See Trial Trans. (Mar. 3, 1995) at 11 (amount of loss); id. at 18 (obstruction of justice) ; id. at 21 (more than minimal 7 planning); id. at 26 (role in the offense); id. at 28-29 (abuse of positio n of trust). The District Court methodically considered the required ground s for each enhancement and carefully based its factual findings on th e evidence. We cannot say that any of these factual findings are clearl y
erroneous.
Finally, Elliott claims that he was entitled to a downward departure becaus e other defendants snared in the Second Injury Fund investigatio n received far lesser sentences. Elliott sought access to the sealed PSRs of these other defendants to bolster his

### -19-

argu ment for a downward departure, but his request was denied by th e District Court. "A district court's failure to grant a defendant a downward departure is not reviewable on appeal if the court was aware of its aut hority to grant a departure." Darden , 70 F.3d at 1549. Elliot t cla ims that "there is nothing in the record to reflect the Court' s
awarene ss of the authority to depart, because the District Court sai d nothing at all with reference to a departure or authority to depart. " ReplyBrief at 6. Elliott is simply wrong. The record reveals that the court wa s in fact well aware of its authority to grant a departure an d opted not to do so. On at least two occasions during the sentencin g hearin g, Elliott's counsel pressed the court to consider the lighte r sentences of the othe r Second Injury Fund defendants and to use that as a basis for departing downward in this case. Tria l Trans. (Mar. 3, 1995) 4- 7; id. at 41-42. Aware of its discretionary aut hority to depart downward, the court exercised its discretion by declining to grant the requeste d departure. Its decision is not reviewable.

VI.
For the foregoing reasons, the judgm ent of the of the District Court is affirmed.

A true copy.

Attest:

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