IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-10430

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BRUCE HENRY HUMPHREY

and FAY CAROLYN HUMPHREY

Defendants-Appellants.

_________________________________________________________________

Appeals from the United States District Court for the

Northern District of Texas

_________________________________________________________________

January 13, 1997

Before KING, JOLLY, and DENNIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Bruce Henry Humphrey and Fay Carolyn Humphrey operated a loan

brokerage service that was essentially a scam. They appeal from a

jury verdict finding them guilty of seven counts of mail fraud and

three counts of wire fraud. They also challenge their sentences.

After reviewing the record, stu dying the briefs, and considering

the arguments made to this court, we affirm the convictions and the

sentences.

The primary issue we address is the validity of the search

warrant authorizing the search of the defendants’ home. We hold

that an “all records” warrant for the search of a residence is-2-

valid in the specific circumstances of this case wher e the

residence was the primary place of busin ess for the defendants,

where the fraud was pervasive, where there was a sign ificant

overlap in the business and personal lives of the defendants, where

the defendants maintained no known bank accounts, and where the

warrant was limited to financial records.

I

For over two years, the Humphreys s uccessfully ran a scheme

designe d to bilk capital-needy individuals seeking loans. The

Humphreys called their organizati on H & H Consultants--later

changed to Secure Investments--and advertised as a loan brokerage

service.

Although the specific dealings of the Humphreys with the

victims of their scam varied somewhat, the general pattern of

behavior in all of the transactions was the same. Loan applicants

would submit applicat ions to H & H Consultants and would then be

notified by letter that the company was "pleased to inform you that

a commercial lender has approved your project for funding."

Applicants, however, were informed that they had to make a deposit,

usually $4250, to the Humphreys before a letter of approval could

be sent from the lender. Many potential investors inquired whether

this deposit was the only payment that would be required before

receiving the loan and were assured that no more up-front money

would be necessary. Upon payment of the deposit, the applicant

would rec eive a letter from a financial institution that-3-

conditioned any loan upon payment of a substantial amount of upfront money, generally between $7500 and $15,000. Since this was

contrary to th e arrangement with the Humphreys, most applicants

sought to have their deposit refunded and were refused. Other

applicants paid the fee requested by the financial institution and

still never received financing.

Throughout the scheme, the Humphreys maintained no known bank

accounts, choosing instead to use check cashing services to obtain

cash from the deposits. The money collected through the scheme is

unaccounted for, and the Humphreys now claim destitution.

The Humphreys were charged, in a ten-cou nt indictment, with

mail fraud in violation of 18 U.S.C. § 1341 and wire fraud in

violation of 18 U.S.C. § 1343 in th e execution of a scheme and

artifice to defraud. The jury returned a guilty verdict on all ten

counts and the Humphreys were each sentenced to f orty-one months

imprisonment per count, t o run concurrently, and to three-year

terms of supervised release. Both Bruce Henry Humphrey and

Fay Carolyn Humphrey timely filed notices of appeal.

II

On appeal, the Humphreys assert six points of error. After

considering each point of error individually, we conclude that the

proceedings contain no reversible error.

A

The Humphreys argue that the district court erred by failing

to suppress evidence found during a search of their residence,1 The search warrant authorized the seizure of:

1. Books, records, receipts, notes, ledgers

and other documents relating to financial

transactions and relationships with financial

institutions.

2. Ledger paper, column paper, check

-4- bec ause the search warrant was overbroad and failed to describe

sufficiently the property to be seized. Prior to trial, the

Humphreys filed motions to suppress evidence found in the search of

their residence. The district court denied the motions, finding

that the affidavit of the FBI agent established probable cause to

believe that the Humphreys were running a fraudulent business, that

the FBI had information that the Humphreys were using their

business a ddress only sporadically, that the affidavit provided

probable cause to believe that the documents of the type listed in

an attachment would be found at the Humphreys' residence, and that

the description of the types of property to be seized was

suffi cient under the circumstances. We review the trial court's

findings of fact related to the denial of a motion to suppress for

clear error, United States v. Harrison

, 918 F.2d 469, 472 (5th Cir.

1990); however, we review conclusions of law related to the

sufficiency of the warrant de novo

. United States v. Richardson

,

943 F.2d 547, 549 (5th Cir. 1991); see also United States v. Rabe

,

848 F.2d 994, 997 (9th Cir. 1988).

The warrant authorizing the search of the Humphreys' residence

included a list of four generic categories of property, all related

to financial records, to be seized. 1 The search warrant wasregisters, checks, U.S. currency, deposit

slips, receipts, bank statements, cashier's

checks, association checks, check order forms,

new account information forms, wire transfers

and receipts, signature cards, correspondence,

and all other documents relating to banking,

banking transactions, and transactions at

savings and loan institutions, and in

particular all documents relating to the

purchasing, cashing, transferring and

depositing of cashier's checks.

3. Credit cards, debit cards, and all

statements, receipts, applications, letters,

notices, and other documents which relate to

the use of credit cards or debit cards.

4. Computer storage devices containing

records, documents, and other information

described above in paragraphs 1 thru 3, and

related equipment and materials for adequately

retrieving and reviewing the information,

including central processing units, printers,

monitors, floppy discs and instruction manuals

which could be used to store information

regardi ng customer files and banking

information.

-5- supported by a three-page affidavit from an FBI agent engaged in

the investigation of the Humphreys. The affidavit establishes that

at least a portion of the Humphreys' home was furnished with office

equipment, that the Humphreys rarely utilized their rented office

space oth er than as a mailing address and as a telephone message

center, that ther e had been numerous complaints concerning the

"services" provided by the Humphreys, that the Humphreys had cashed

a large number of cashier's checks, that Fay Carolyn Humphrey had

informed police, in connection with an unrelated theft complaint,

that cash had been taken from the mattress in the Humphreys'

bedroom and that she and her husband operated a business from their-6-

home. The question before us is whether the affidavit supports the

broad language of the search warrant authorizing the search of the

Humphreys' home. We conclude that it does.

We have previously held that a warrant may satisfy the

requirements of the Fourth Amendment even though it describes the

objects to be seized only in generic terms. S ee Williams v. Kunze

,

806 F.2d 594, 598 (5th Cir. 1986)

, see also United States v.

Webster

, 734 F.2d 1048, 1055 (5th Cir.), cert. denied

, 469 U.S.

1073 (1984) (hold ing that in situations which make detailed

particularity impossible then "generic langua ge suffices if it

p articularizes the types of items to be seized"). In K unz e , we

upheld an "all records" search of a business "[w]here probable

cause exist[ed] to believe that an entire business was merely a

scheme to defraud, or that all the records of a business are likely

to constitute evidence." I d. Thus, the warrant in this case would

be valid had it authorized a search of a business rather than a

home, because, undoubtedly, the affidavit supports the conclusion

that the entire business operated by the Humphreys was merely a

scheme to defraud. The warrant, however, authorized the search of

the Humphreys' home, and we must decide whether, and when, the

reasoning of Kunze should be extended to cover searches of private

residences.

The First Circuit addressed the identica l issue in U nited

States v. Falon

, 959 F.2d 1143 (1st Cir. 1992). There the court

held that the "all records" doctrine must be applied with caution2 Our holding today should not be read as a broad authorization

for the issuance of all records searches of homes. We caution law

enforcement agencies to draft w arrants carefully to ensure the

mandates of the Fourth Amendment are satisfied and note that it is

only in extreme cases, such as the one before us today, that we will uphold warrants of this type.

-7- when an allegedly fraudulent business was operated out of a

residence. Id. at 1148. The court stated that "it would require

extraordinary proof to demonstrate that an individual's entire life

is consumed by fraud and that all rec ords found in the home were

subject to seizure," and that absent such a showing, the "broad

categories of items that may be seized pursuant to an 'all records'

search of a home must be sufficiently linked to the alleged

criminal activity so as to distinguish them from innocent personal

materials." Id. We agree with the First Circuit that the Fourth

Amendment requires much closer scrutiny of an all records search of

a residence; however, we conclude that, in the present case, the

searc h warrant was valid in the light of the pervasive nature of

the fraud, the considerable overlap of the Humphreys' business and

personal live s, and the limitation of the warrant to records

pertaining to financial transactions. The district court,

therefore, did not err in refusing to suppress the evidence gained

through the search. 2

B

Next, the Humphreys assert that the tri al court committed

reversible error by excluding testimo ny from their former lawyer

concerning a civil action filed by the Humphreys against James-8-

Dunn, which resulted in an award of commissions to the Humphreys as

a result of their loan-finding efforts.

The trial court's dec ision concerning the admissibility of

evidence is reviewed on appeal for abuse of discretion. J on-T

Chems., Inc. v. Freeport Chem. Co. , 704 F.2d 1412, 1417 (5th Cir.

1983). Additionally, even if an abuse of discretion occurred, we

must consider whether the error was harmless or whether the error

requires reversal because, when viewed in the light of the entire

record, it affected the substantial rights of the defendants.

United States v. Skipper , 74 F.3d 608, 612 (5th Cir. 1996).

The evidence regarding the prior successful action for

commissions was properly excluded because the testimony of the

lawyer was not the best evidence of the judgment. S ee Fed. R.

Evid. 1002; see also Morgan v. Dun & Bradst reet, Inc. , 421 F.2d

1241, 1243 (5th Cir. 1970) (pre-rules of evidence case holding that

testimony concerning cont ents of court documents "was properly

excluded as not the best evidence"). The Humphreys offered no

documentary proof of the judgment and, therefore, the exclusion of

the testimony was not erroneous.

However, even if we were convinced that the exclusion was

error, the error was harmless. The Humphreys offered the evidence

to establish their good faith and their lack of criminal intent in

the operation of their business. There was other evidence on this

issue, including testimony from a s atisfied borrower, testimony

from an individual who, o n occasion, provided funding to persons-9-

working through the Humphreys and testimony regarding eff orts to

coope rate with the Better Business Bureau and to collect

commissions. It cannot be said, therefore, that the exclusion of

the testimony regarding a single prior civil action harmed the

Humphreys, as the jury was presented with other evidence on the

same issues of good faith and lack of criminal intent.

The exclusion of the evidence regarding the prior civil action

against James Dunn does not rise to the level of reversible error.

C

Fay Carolyn Humphrey argues that the evidence was insufficient

to convict her on five of the cou nts on which she was convicted.

This court will not reverse a guilty verdict unless, after viewing

the evidence, and all reasonable in ferences drawn from the

evidence, in the light most favorable to the government, the court

concludes that no rational jury could have found the essential

elements of the offense beyond a reasonable doubt. United States

v. Duncan

, 919 F.2d 981, 990 (5th Cir. 1990), c ert. denied

, 500

U.S. 926 (1991).

Fay Carolyn H umphrey's argument on appeal is that, with

respect to five of the counts, she cannot be convicted because the

victims of those counts testified that they dealt only with

Bruce Henry Humphrey and because there was no jury instruction on

aiding and abetting. In order to obtain a conviction under 18

U.S.C. § 1341, the government must show that the defendant "devised

a scheme to defraud and . . . for the purposes of executing the3 Two of the counts that Fay Carolyn Humphrey appeals on this

basis charge her with wire fraud in violation of 18 U.S.C. § 1343.

The same analysis used with respect to the mail fraud charges

applies to the co nvictions for wire fraud. S ee United States v.

Snyder

, 505 F.2d 595, 600-01 (5th Cir. 1974), cert. denied

, 420

U.S. 993 (1975) (indicating that no direct participation in use of

"wires" is required, only that use was foreseeable consequence of

appellant's acts).

-10- scheme, "knowingly cause[d] [an article] to be delivered by mail."

United States v. Blankenship

, 746 F.2d 233, 240 (5th Cir. 1984)

(alterations in original). A defendant "'causes' an article to be

delivered by mail if he acts with the knowledge that the use of the

mail will follow in the ordinary course or if use of the mail is

reasonably foreseeable." I d. There is no requirement of direct

contact with the victims in the offense of mail fraud, and, thus,

Fay Carolyn Humphrey's argument fails. 3

D

The Humphreys also appeal the refusal of the trial judge to

issue two requested jury instructions. We review the decision of

a trial judge to refus e to give an instruction for abuse of

discretion. U nited States v. Thomas

, 12 F.3d 1350, 1365 (5th

Cir.), cert. denied , 114 S.Ct. 1861 (1994). The Humphreys

requested that the jury receive an instruction explicitly stating

that they were under no obligation to call any witnesses on their

behalf and another instruction specifically relati ng to the

credibility to be given to the testimony of law enforcement

officials who appeared as witnesses. The trial judge refused both

instructions. The jury was instructed, however, that the defendant-11-

had no duty to "produce any evidence at all" and also was

i nstructed that they were to determine the credibility of all

witness es and, in that context, should consider whether the

"witness [had] any relationship with either the government or the

defense." The jury was properly instructed, and the instructions

offered by the Humphreys were merel y slight variations on the

instructions actually given. The trial judge did not abuse his

discretion in refusing the requested instructions.

III

A

The Humphreys also appeal from the sente nces imposed by the

district court. They first argue that the sentence was based upon

an incorrect calculation of loss. The calculation of amount of

loss is a factual finding and will be disturbed on appeal only if

clear error is found. U nited States v. Wimbish

, 980 F.2d 312, 313

(5th Cir. 1992), cert . denied , 508 U.S. 919 (1993). In order to

satisfy this clear error tes t all that is necessary is that the

finding be "plausible in light of the record as a whole." I d. The

sentencing court "need not determine the loss with precision," as

long as its estimate is "reasona ble . . . given the available

information." U.S.S.G. § 2F1.1, Application Note 8.

The presentence reports prepared on each of the Humphr eys

recommended a twelve-level upward adjust ment based upon a

calculated loss of $1.8 million. S ee U.S.S.G. § 2F1. 1(b)(1)(M).

The loss was calculated based upon a journal found at the-12-

Humphreys’ home, which contained a list of names, dates and

numbers--largely matching the amount required by the Humphreys to

be deposited by loan applicants. The district judge adopted the

recommendations of the presentenc e reports and sentenced the

Humphreys based on the $1.8 million loss figure. The Humphreys

contend that the journal was un reliable, that it contained

legitimate transactions that the government failed to investigate,

noting that at least one person--of the over 600 incl uded in the

book--obtained financing throu g h their services, and that the

government failed to prove that all of the transactions in the book

were rela t ed to a common scheme or plan as required by the

sentencing guidelines. This showing by the Humphreys does not

satisfy the standard for clear error. Their arguments do not

demonstrate that the conclusion of the dis trict court was the

result of a misapplication of the sentencing guid elines, because

the journal, when viewed in the light of the evidence presented in

the entire trial, contains s ufficient indicia of reliability to

serve as the basis for application of the sentencing guidelines.

B

The Humphreys also conten d that their sentences should be

reversed and the case remanded for resentencing because the trial

judge impermissibly considered their socioeconomic status--their

inability to make restitution--in determining the length of their

sentences. The Humphreys failed to object on this basis below and,

thus, our court reviews for plain error. To demonstrate plain-13-

error, the Humphreys must show: (1) that there is an error, (2)

that it is clear or obvious, and (3) that it affects their

substantial rights. See Fed. R. Crim. P. 52(b).

Trial judges are expressly prohibited from considering a

defendant's socioeconomic status in the context of sentencing. S ee

28 U.S.C. § 994(d); U.S.S.G. § 5H1.10. The district court judge

who sentenced the Humphreys stated,

But beca use you took these hundreds and thousands and

millions of dollars from these people and are not going

to pay any of that back, I think a sentence at the top of

the guideline range is appropriate in this case for the

kind of money that you have taken.

Even if these remarks are construed to mean that the judge

considered the ability of the Humphreys to make restitution in

calculating their sentences, it would not amount to plain error.

It is not clear, however, that any error occurred. The judge seems

to focus on the amount of money taken in the scam and mentions

restitution in noting the real loss to the victims. In any event,

it certainly cannot be said that the error was clear or obvious,

because the sentences handed down were within the guidelines, and

because, when interpreted in the light most favorable to the

defendants, the meaning of the trial judge's remark is only

imprecise.

The Humphreys fail to make the requisite showing of plain

error, and, t herefore, this point of appeal does not require

remanding the case for resentencing.-14- IV

We find no merit in any of the points of error advanced by the

Humphreys; therefore, the judgment of the district court is

A F F I R M E D.