UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 03-4147

KEITH A. ELSESSER,

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Lyle E. Strom, Senior District Judge.

(CR-01-79-V)

Submitted: January 30, 2004

Decided: March 12, 2004

Before WILKINSON, NIEMEYER, and GREGORY,

Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Robert D. Jacobs, Richmond, Virginia, for Appellant. Robert J. Conrad, Jr., United States Attorney, Kenneth M. Smith, Assistant United

States Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
OPINION

PER CURIAM: 

Keith A. Elsesser appeals his convictions for conspiracy to commit

wire fraud and mail fraud, 18 U.S.C. § 371 (2000), aiding and abetting wire fraud, 18 U.S.C. §§ 2, 1343 (2000), conspiracy to commit

money laundering, 18 U.S.C. § 1956(h) (2000), and four counts of

aiding and abetting engaging in monetary transactions in property

derived from unlawful activity, 18 U.S.C. §§ 2, 1957 (2000). On

appeal, Elsesser asserts that the district court improperly instructed

the jury regarding co-conspirator testimony. Elsesser also argues that

the district court erred in applying sentencing enhancements for role

in the offense, U.S. Sentencing Guidelines Manual § 3B1.1(c) (2002),

and abuse of position of trust, USSG § 3B1.3. Finding no error, we

affirm. 

Elsesser first contends that the district court erred by not instructing

the jury that the testimony of a co-conspirator who pled guilty was to

be reviewed with great caution and viewed with grave suspicion. In

general, the decision to give, or not to give, a jury instruction and the

content of that instruction are reviewed for an abuse of discretion.

United States v. Burgos, 55 F.3d 933, 935 (4th Cir. 1995). Jury

instructions are to be read as a whole. See United States v. Morrison,

991 F.2d 112, 116 (4th Cir. 1993). "If [the instruction] fairly summarizes the law, it is not grounds for reversal." Id. Upon our review of

the record, we conclude the district court did not err in failing to

instruct the jury that the co-conspirator’s testimony must be viewed

with grave suspicion. 

Second, Elsesser asserts the district court erred in applying two

enhancements. Elsesser’s sentencing was enhanced for his role in the

offense as a supervisor of at least one other person. The district court

found that Elsesser took responsibility for one area of the fraud and

acted as a leader and supervisor. A district court’s determination of

the defendant’s role in the offense is reviewed for clear error. United

States v. Sayles, 296 F.3d 219, 224 (4th Cir. 2002). A two-level

enhancement is appropriate where the defendant directed the activities

of one other person. United States v. Harriott, 976 F.2d 198, 200 (4th

2 UNITED STATES v. ELSESSER
Cir. 1992). The district court did not clearly err in the application of

the enhancement for Elsesser’s role in the offense. 

Elsesser also challenges the application of an enhancement for his

abuse of a position of trust. Elsesser asserts the transactions

undertaken with the victims of the fraud were ordinary commercial

transactions that are not sufficient to invoke the abuse of trust

enhancement. See United States v. Moore, 29 F.3d 175 (4th Cir.

1994). Whether the defendant occupied a position of trust must be

viewed from the perspective of the victim. Moore, 29 F.3d at 179-80.

The enhancement applies to "a defendant who . . . perpetuates a financial fraud by leading an investor to believe the defendant is a legitimate investment broker. § 3B1.3, comment. (n.2). The district court’s

determination that this adjustment applies is a factual question

reviewed for clear error. United States v. Akinkoye, 185 F.3d 192, 203

(4th Cir. 1999). Knowingly advising clients to invest in fraudulent

schemes may constitute abuse of a position of trust. United States v.

Godwin, 272 F.3d 659, 663-65 (4th Cir. 2001). We find the district

court did not clearly err in finding that Elsesser abused his position

of trust with the investors he defrauded. 

Accordingly, we affirm Elsesser’s convictions and sentence. We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and argument would not aid in the decisional process. 

AFFIRMED

UNITED STATES v. ELSESSER 3