### *The Honorable Charles A. Shaw, United State s

District Judge for the Eastern District o f Missouri, sitting by designation. The Honorable Lyle E. Strom, United State s District Judge for 1 

### the District of Nebraska. ____________ No. 94-2551

____________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of Nebraska Suzanne Wonderly, * * Appellant. *

____________ Submitted: December 13, 1994 Filed: December 5, 1995

____________ Before McMILLIAN, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and SHAW, District Judge. *

____________ McMILLIAN, Circuit Judge.
Suzanne Wonderly appeals from a final judgment entered in the United States District Court for the District of Nebraska, upon a jury verdic t 1 finding her guilty on one count of conspiracy to commit wire fraud, 1 8 U.S.C. § 371, and four counts of wire fraud, 18 U.S.C. § 1343. Th e distr ict court sentenced defendant to thirty-three months imprisonment , three years supervise d release, a special assessment of $250, and payment of restitution in the amount of $202,683. For reversal, defendant argues that (1) the evidence was insufficient as a matter of law to support the jury's

### -2-

ver dict; (2) the district court abused its discretion in admitting Rul e 404(b) evidence at tr ial; (3) the district court committed plain error in making certain statements to the jury concerning scheduling matters; and (4) her sentence under the guidelines was based upon clearly erroneou s find ings by the district court. For the reasons discussed below, w e affirm.

Background

Defendant started a business called Executive Finance & Leasing whic h purp orted to provide services to persons seeking commercial financing

. Acc ording to the government's evidence at trial, during the late 1980s , defendant used false documentation and oral misr epresentations to persuade five individuals to wire her a total of $320,000 , which she said she would
use to pu rchase and resell discounted prime bank notes, or to engage i n letter of credit transactions, at substantial profits to the investors

. Defendant promised these individuals that their funds would not be lost an d that, in fact, their investments would generate millions of dollars -- in some instances, doubling in as little as seventy -two hours. In persuading them to in vest their money, defendant represented that she had a 100 %
success rate investing funds for prior clients. Each time she targeted on e of the investors, she claimed to have a specific investment opportunity fo r which time was of the essence. After receiving their money, defendan t would provide them with fictitious reports regar ding the progress of their investments, holding them at bay for weeks or sometimes months. Oftentime s the in vestors received communications from individuals other tha n defendant, including a man named Allen Bestmann, regarding the status of their investments. After a while, however, the investors would find i t difficult, if not impossible, to reach defendant. On a few occasions, som e of the funds were par tially returned. However, the majority of the money was never seen again by the investors.

### -3- On June 18, 1992, defendant and Bestmann were indicted in th e District of Nebraska on one count of conspiracy to commit wire fraud i n violatio n of 18 U.S.C. § 371 and five separate counts of wire fraud i n violation of 18 U.S.C . § 1343. Bestmann pleaded guilty to the conspiracy charge and, upon the government's motion, the re maining counts against him were dismissed. Defendant entered pleas of not guilty to all counts. Her
case proceeded to trial on January 24, 1994. At trial, defendant testifie d in her own defense. She denied having made the representations described by the government's w itnesses, but did admit to having very little actual experience with the type of investments she had purportedly discussed with th e investors. She essentially portrayed her role as that of a n intermediary between Bestmann and the investors. She maintained that she had always believed her representations to be tr uthful and always acted in good faith. At the close of evidence, upon the government's motion, the dis trict court dismissed Count VI of the indictment. The case wa s submitted to the jury on February 3, 1994. The next day, February 4, 1994 , the jury returned a verdict of guilty on the five remaining counts.
In calculating defen dant's total offense level under the sentencing guidelines, the district court found, among othe r things, that the offense involved more than minimal planning or a scheme to defraud more than one victim, U.S.S.G. § 2F1.1(b)(2); that defendant was an organizer, leader, manager, or supervisor of the criminal conspiracy, id. § 3B1.1(c); that sh e had obstructed justice by perjuring herself at trial, id. § 3C1.1; and tha t she had not accepted responsibility within the meaning of § 3E1.1

. Defen dant was sentenced under the guidelines to thirty-three month s impriso nment, three years supervised release, a special assessment o f $250.00, and payment of restitution in the amount of $202,683. This appea l followed.

### -4- Discussion
Sufficiency of the evidence

Defendant first argues that the evidence was insufficient as a matte r of law to support the jury's verdict. She maintains that the jury could not infer from the ev idence that she intended to defraud the investors or that she entered into an agreement to commit wire fraud. At best, sh e argues, the evidence merely established that she acted as an intermediary for Bestmann.

In reviewing the sufficiency of the evidence, this court must view the evidence in the l ight most favorable to the government, resolving all conflicts in the government's favor. United States v. Clausen , 792 F.2d 102, 105 (8th Cir.), cert. denied , 479 U.S. 858 (1986). "Intent to defrau d need not be shown by direct evidence; rather, it may be inferred from all the fa cts and circumstances surrounding the defendant's actions." Id

. Upon review of the evidence, including the testimony of the government's wit nesses and defendant herself, we hold that the jury could reasonabl y have inferred both that defendant had intended to defraud her investors an d that an agreement exi sted among defendant and others, including Bestmann, to carry out a fraudu lent scheme. Accordingly, we hold that the evidence was sufficient to support the jury's verdict.

Rule 404(b) evidence

Defendant next argue s that the district court abused its discretion in admitting evidence, pursuant to Fed. R. Evid. 404(b), of other wrongful acts committed by defendant. The evidence challenged by defendant include s the testimony of two individuals who invested a total of $130,000 through defendant. These

### The fact th at the challenged testimony refers to defendants' 2 

### actions after the events that are the subject of the indictmen t does not alone render the evid ence inadmissible. United States v. Riley , 657 F.2d 1377, 1388 (8th Cir. 1981) (citing McConkey v

. United States , 444 F.2d 788, 790 (8th Cir.) (per curiam), cert
. denied , 404 U.S. 885 (1971)).
-5- investments were made after the dates charged in the indictment. The two 2 witnesses testified that defendant persuaded them to invest substantia l
sums of money by claiming to have specific opportunities to invest their fun ds in transactions involving prime bank notes and letters of credit , which would yield tremendous short-term profits. In each instance, they testified, they never saw their money again.

Pri or to trial, the district court held an evidentiary hearing o n defendant's motion in limine seeking to exclude evidence of other wrongful acts. Upon review of the government's proffer of Rule 404(b) evidence, th e district court held that the evidence now being challenged on appeal was admiss ible to prove absence of mistake or accident because defendant' s anticipa ted defense theory was that she acted in good faith as a n intermediary for Bestmann. Defendant now argues, however, that her defens e at trial was based upon a denial of the acts charged in the indictment and , thus, the issues of mistake and accident were no t relevant to her guilt or innocence. She further argues that, even if the evidence were relevant, the unfair prejudice and confusion of issues created by the evidenc e substantia lly outweighed its probative value. Fed. R. Evid. 403. W e disagree.

Upon review of the evidence presented at trial, including defendant' s
own testimony, we note that defendant's theory of defense was not merely a denial of the conduct alleged by the governmen t but was primarily a good faith defense. See, e.g. , transcript at 890. For example, she stated tha t she never intended fo r the investors to lose their money. Id. at 864-65. She also

### -6-

maintained that the r epresentations she made to investors originated with Bestmann, that she assumed those representations were truthful, and that she believed the oper ation was legitimate. Id. at 822, 825-29. In other words, she described herself as the innocent messenger for Bestmann. The challenged Rule 404(b ) evidence was therefore relevant to show absence of mistake because, even after the five investors l ost virtually all of their money, defendant continued to engage in the same practice of seeking out investors and persuading them to turn over tens of thousands of dollar s upon the promise of h igh-yield investment opportunities which she claimed were virtually risk-f ree. These subsequent acts belie her claim that she merely spoke for Bestmann and that she believed she was being truthful whe n she claim ed a 100% success rate and virtually no risk in the investmen t opportunities she was presenting. Accordingly, we hold that the district court did not abuse i ts discretion in admitting the Rule 404(b) evidence.
Comments to the jury

Defendant next argues that her due process rights were violated as
a result of certain comments made by the district court to the jur y
concer ning scheduling matters. The comments to which defendant object s began with the district court's inquiry as to whether it would be a proble m for members of the jury to begin the proceedings each day at 8:30 a.m. Th e court stated:

Wo uld it be alright if we started at 8:30 nex t Monda y morning? Would that create a problem fo r anybody? We may start at 8:30 every morning we can.

The court then continued:

One of the reasons that I have to [interrupt] our days once in a while, under the present budget cuttin g procedures in Washington, the United States Marshal's

### -7- Service budget has been cut about 40%, which is, as you can imagine, very substantial.
Th at means that if I tried to start something i n a criminal matter with a defendant who is in custody , the marshal's service has to pay overtime to get tha t person here before 9:00 o'clock in the morning.
An d in order to avoid putting the burden on th e marshal's service, if a person is in custody, I try t o schedule it over the noon hour, al though many of my noon hours are filled with other commit ments, or I have to do it at 9:00 o'clock in the morning. Next week we wil l try to start at 8:30 and I will keep you advised. We may shorten our noon hours a couple of days in an effort to try to move along a little more rapidly.
Transcript at 399.

Defendant argues that prejudicial error occurred as a result of thes e comments because the jury could have inferred that defendant was in custod y whe n, in fact, she had been released on her own recognizance ; al ternatively, defendant contends, the jury could have inferred tha t defend ant was serving a sentence for another crime. In light of th e distric t court's failure to give any curative instructions, defendan t argues, she is entitled to a new trial.

In response, the government notes that defendan t failed to object to the district court's comments in a timely manner and thus the standard of review on appeal is p lain error. The government argues that the district court's comments constituted neither error nor plain error. The governmen t suggests that the dis trict court's comments quite clearly indicated that, due to budgetary problems affecting the United States Marshal's Service, it would generally not be possible for criminal defendants in custody to arrive at the courthouse before 9:00 a.m.; as a consequence, any matters involving such defendants which the court needed to entertain would b e scheduled either over the noon hour or at 9:00 a.m.; if the

### -8-

court were to have such a 9:00 a.m. hearing, then, on that day, defendant' s trial would begin aft erward. The government thus argues that it would be logically inconsistent for the jury to have infe rred that defendant was in custody because the court had just indicated its intention to start th e trial proceedings at 8:30 a.m. each day, whereas those defendants who were in custody could not be brought to the courthouse until 9:00 a.m.

We ag ree with the government that the standard of review on thi s iss ue is plain error. Upon review, we hold that the district court' s statements did not prejudice defendant in any way. Accordingly, we hold that the district cou rt did not commit error, much less plain error, as a result of its comments to the jury.
Sentencing issues

Defend ant also raises several sentencing issues on appeal. Sh e clai ms that the district court erred in finding that (1) the offens e involved more than minimal planning or a scheme to defraud more than one victim , U.S.S.G. § 2F1.1(b)(2); (2) defendant was an organizer, leader , manager, or supervisor of the criminal conspirac y, id. § 3B1.1(c); (3) she had obstructed justice by perjuring herself at t rial, id. § 3C1.1, and (4) she had not accepted responsibility for her unla wful conduct and therefore
was not entitled to the applicable downward adjustment, id. § 3E1.1. As to all of these sentencing determinations, defendant maintains that th e district court's relevant findings are not suppo rted by the record and are clearly erroneous. As to her perjury claim, def endant additionally argues that the enhancement is invalid under United States v. Ransom , 990 F.2 d 1011, 1014 (8th Cir. 1993), because "the court failed to make the necessar y findi ngs that she committed perjury, failed to address one of th e gov ernment's proposed bases for the finding of perjury and placed undu e emphasis

### Unite d States v. Ransom , 990 F.2d 1011 (8th Cir. 1993), i s 3 

### dis tinguishable from the present case because, in that case, th e district court admitted at sentencing that it was not famili ar with the transcript of the grand jury testimony which was the basis of its pe rjury finding. In reversing the application of th e enhancement for obstruction of justice, this court noted that "the [district court's] lack of familiarity with the transcript i s esp ecially important in this case, given that no trial wa s conducted which would have provided the judge with an opportunity to gauge the defendant's actions and testimony while on the witness stand." Id. at 1014. -9- on the jury's disbeli ef of [defendant's] testimony." Brief for Appellant at 26-27. 3

In response, the government first argues that, as a result o f defenda nt's failure to object to the two-level increase unde r § 2F1.1(b)(2), as recommended in the presentence investigation report, the distri ct court's findings that the offense involved more than minima l planning and that it involved a scheme to defrau d more than one victim may not be reversed "unless a gross miscarriage of justice would otherwis e result." Brief for Appellee at 38-39 (citing United States v. Williams , 994 F.2d 1287, 1294 (8th Cir. 1993)). In any case, the governmen t maintains, the district court's finding that the offense involved more tha n minimal planning or m ore than one victim is well supported by the record. As to de fendant's arguments addressing her role in the offense an d obstruction of justice, the government maintains that the district court's relevant findings are also well supported in the record and not clearl y
erroneous. On the perjury finding, the government notes that, while the Supreme Court and this court have expressed a preference for specifi c findings of false statements, the absence of such specific findings does not necessarily render the enhancement invalid, provided the district cour t sufficiently indicate d that it considered the trial testimony in light of the factual predicates for a perjury finding. B rief for Appellee at 44-45 (citing United States v. Dunnigan , 507 U.S. 87, __, 113 S. Ct. 1111, 1117 (1993); United States v. Turk , 21 F.3d 309, 313

### -10-

(8t h Cir. 1994)). As to the finding that defendant was an organizer , supervisor, manager, or leader, the government emphasizes that, from the victim s' perspective, defendant was the key person involved in th e conspiracy -- she was the one who solicited their business and she made th e false representations that convinced them to turn over their funds. Even assuming that she later withdrew from the transa ctions, this fact does not diminish her leadership role in the conspiracy. Brief for Appellee at 41- 42 (citing United States v. Pierce , 907 F.2d 56, 57 (8th Cir. 1990))

. Final ly, as to the district court's failure to find that defendant ha d accepted responsibili ty, the government notes that the standard of review
on appeal is one of particularly great deference and this court will not
reverse the sentencing court's determination "unless it is withou t foundation." Brief f or Appellee at 48 (citing United States v. Big Crow , 898 F.2d 1326, 1330 ( 8th Cir. 1990) (quoting U.S.S.G. § 3E1.1 commentary, application note 5)). In any case, the government argues, a finding that defe ndant accepted responsibility for her fraudulent behavior would b e wholly inconsistent w ith the evidence at trial, the procedural history of this case, and defendant's continued insistence upon her innocence.

Upon careful review of the record in this case and the arguments on appeal, we hold that the factual findings challenged by defendant are all well supported by the record and not clearly erroneous. Accordingly, we hold that there is no basis for finding reversib le error in the sentencing process.

Conclusion

For the foregoing reasons, the judgment of the district court i s affirmed. See 8th Cir. R. 47B.

### -11- A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.