1

The Honorable James M. Rosenbaum, United States District Judge for the

District of Minnesota, sitting by designation. 

2

The Honorable Susan Webber Wright, United States District Judge for the

Eastern District of Arkansas, presided over Price's jury trial, and the Honorable J.

Leon Holmes, Chief Judge, United States District Court for the Eastern District of

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 07-3891

___________

United States of America, * 

* 

Appellee, * 

* Appeal from the United States

v. * District Court for the 

* Eastern District of Arkansas.

Debra Jean Price, * 

* 

Appellant. *

___________

Submitted: June 11, 2008

Filed: September 15, 2008

___________

Before SMITH and GRUENDER, Circuit Judges, and ROSENBAUM,1

 District

Judge.

___________

SMITH, Circuit Judge.

Debra Jean Price was convicted, following a jury trial, of conspiracy to commit

wire fraud, in violation of 18 U.S.C. § 371. The district court2

 sentenced her to 15
Arkansas, conducted Price's sentencing proceedings.

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months' imprisonment, followed by three years of supervised release. The court also

ordered her to pay $202,215.75 in restitution and imposed a $100 special assessment.

Price appeals, arguing that the district court: (1) erred in denying her motion for a

judgment of acquittal; (2) improperly refused to order disclosure of certain statements

in the possession of the Federal Bureau of Investigation (FBI); (3) erred in failing to

give her a minor role adjustment; and (4) imposed an unreasonable sentence. We

affirm.

I. Background

Quality Homes was a mobile home dealership owned by Debbie Cossitt with

four locations throughout Arkansas. Price worked for Quality Homes as the manager

of its lot in Harrison, Arkansas. Price, Cossitt, and several other Quality Homes

employees routinely misrepresented the qualifications of borrowers to mortgage

lenders in order to facilitate financing for its mobile home sales. In this scheme, the

participants deceived potential lenders by providing fraudulent documents—including

W-2s, bank records, and check stubs—to improperly inflate the borrowers'

creditworthiness. When these lenders called to verify the borrowers' financial

information, Quality Homes would also provide false information to them, often

reading from a prepared sheet. Price personally organized several of these fraudulent

audit calls, and on at least one occasion, she directed an employee to provide

fraudulent documents to submit to a potential lender.

Price was indicted, along with Cossitt and another employee, Shannon Hill, for

conspiracy to commit wire fraud. The government presented several witnesses who

testified as to Price's involvement in the wire fraud scheme. Vivien Sanford, the

manager of the Batesville, Arkansas lot, testified that she overheard Price and Cossitt

discussing the ease with which the lenders could be fooled using the fraudulent

documents. Matthew Seibert, a salesperson for Quality Homes in Searcy, Arkansas,
3

The court did not rule whether the remaining FBI 302s contained material that

was discoverable under Brady. 

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testified that he would occasionally consult with Price before submitting fraudulent

documents to the potential lenders. Seibert also testified that Price was aware that the

documents were fraudulent and that Price would examine the documents to make sure

they looked "legal" and accurately reflected the fraudulent numbers that had been

represented to the lenders. Trish Bulkeley, an employee at the Harrison lot, testified

that Price ordered her to provide fraudulent bank statements on one occasion. She also

testified that Price would arrange false audit calls. 

During the trial, Price requested copies of all government witnesses'

memoranda of interview ("FBI 302s"). Price argued that a portion of Seibert's trial

testimony had not been included in the FBI 302, and this omission should be brought

out on cross-examination. The court examined the FBI 302 concerning the agent's

meeting with Seibert to see if the document was discoverable under Brady v.

Maryland, 373 U.S. 83 (1963). After an in camera review of the document, the district

court ordered that the government produce Seibert's 302 under Brady because the

statement could be used to impeach Seibert with respect to his testimony concerning

Price. The court, however, refused to order production of the remaining FBI 302s,

finding that these documents were not discoverable under the Jencks Act, because

they were not the prior statements of a witness.3

Price testified in her own defense, denying any involvement with the scheme.

At the close of the government's case, Price moved for a judgment of acquittal, but the

district court denied her motion. The jury found Price guilty of conspiracy to commit

wire fraud. 

At sentencing, the district court found Price's Guidelines sentencing range to

be 27 to 33 months. The court, however, varied downward to achieve sentencing
4

Hill and Cossitt pleaded guilty a few days into Price's trial. Hill was sentenced

to a three-year term of probation and was ordered to pay a $100 special assessment

and $120,000 in restitution. Cossitt was sentenced to a term of 30 months'

imprisonment, followed by three years of supervised release and was ordered to pay

a $200 special assessment and $129,560 in restitution.

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parity with the other two defendants in the case.4

 Ultimately, the court imposed a

sentence of 15 months' imprisonment, followed by three years of supervised release

and ordered Price to pay a $100 special assessment and $202,215.75 in restitution.

II. Discussion

In this appeal, Price challenges both her conviction and the sentence imposed,

arguing that: (1) the evidence introduced at trial was insufficient to convict her of

conspiracy; (2) the district court erroneously refused to order the government to

disclose certain witness statements; (3) the district court erred in failing to give her a

minor role adjustment; and (4) her sentence is unreasonable.

A. Sufficiency of the Evidence

Price challenges the sufficiency of the evidence; she contends that the

government did not offer any evidence to prove that she knowingly joined and

participated in the conspiracy. In reviewing the sufficiency of the evidence, "[w]e

resolve all evidentiary conflicts in the Government's favor and accept all reasonable

inferences from the evidence that support the jury's verdict." United States v. Johnson,

528 F.3d 575, 580 (8th Cir. 2008). Further, we will overturn the verdict only if no

reasonable jury could have found Price guilty. Id.

To convict Price of conspiracy to commit wire fraud, the government had to

prove, beyond a reasonable doubt, that: (1) a conspiracy with an illegal purpose

existed; (2) Price knew of the conspiracy; and (3) Price knowingly joined and

participated in the conspiracy. United States v. Munoz, 324 F.3d 987, 990 (8th Cir.

2003). Mere knowledge of a criminal conspiracy is insufficient. Id. at 991. Price does
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not challenge that a conspiracy existed and that she was aware of its existence. At

issue is whether sufficient evidence was presented to prove that Price knowingly

joined and participated in this loan fraud conspiracy. We conclude that the record

contains sufficient evidence that Price both knowingly joined the conspiracy and was

an active participant in it. 

In support of her sufficiency of the evidence argument, Price cites United States

v. Casperson, 773 F.2d 216 (8th Cir. 1985). In Casperson, we reversed the conviction

of a defendant, concluding that "[t]he evidence of [the defendant's] activities falls

short of demonstrating the knowing, affirmative cooperation necessary to sustain a

conviction for conspiracy." Id. at 221. The conspiracy in Casperson was a fraudulent

investment scheme, and the defendant's responsibilities only included taking notes at

meetings and keeping track of potential investors. Id. at 220. There was no indication

that the defendant had knowledge of the scheme and, on at least one occasion, he

advised a couple not to invest, given their reservations. Id. Unlike the defendant in

Casperson, however, Price's knowledge of and involvement with this criminal

conspiracy is borne out by the trial record. Specifically, Price ordered an employee to

provide fraudulent documents to lenders, and she directed other employees to provide

false information on audit calls. Coupled with Price's knowledge of the conspiracy,

this evidence sufficiently shows Price's knowledge and participation in the conspiracy.

We, therefore, affirm the district court's denial of Price's motion for a judgment of

acquittal.

B. Discovery of the FBI 302s

Price next argues that the district court erred in refusing to review the FBI 302s

to determine whether they contained witness statements that are subject to disclosure

under the Jencks Act. We review the district court's refusal to conduct an in camera

inspection of the FBI 302s for an abuse of discretion. United States v. Duval, 496 F.3d

64, 72 (1st Cir. 2007).
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"By the Jencks Act, after a government witness has testified, the court, upon

motion of the defendant, shall order the government to produce any statement of the

witness that relates to the subject matter of the testimony and is in the government's

possession." United States v. Sturdivant, 513 F.3d 795, 803 (8th Cir. 2008) (citing 18

U.S.C. § 3500(b)). The Jencks Act defines a "statement" as:

(1) a written statement made by said witness and signed or otherwise

adopted or approved by him;

(2) a stenographic, mechanical, electrical, or other recording, or a

transcription thereof, which is a substantially verbatim recital of an oral

statement made by said witness and recorded contemporaneously with

the making of such oral statement; or

(3) a statement, however taken or recorded, or a transcription thereof, if

any, made by said witness to a grand jury.

18 U.S.C. § 3500(e). Although an in camera inspection is not required in every case,

"a Government objection to production may require that the trial court inspect

documents or hold a hearing to gather extrinsic evidence bearing on the extent to

which the documents are statements producible under [§] 3500." Goldberg v. United

States, 425 U.S. 94, 108 (1976). Before an in camera inspection is required, Price

must make a "colorable claim" that the documents that she seeks are statements within

the meaning of the Jencks Act. See United States v. Willis, 997 F.2d 407, 413–14 (8th

Cir. 1993) (holding that the district court did not err in refusing to conduct an in

camera inspection where the defendant "failed to raise a colorable claim that the FBI

302s that he [sought were] 'statements' for purposes of the Jencks Act").

We conclude that the district court did not abuse its discretion in refusing to

conduct an in camera inspection of the FBI 302s. The FBI 302s are notes of witness

interviews that were transcribed by an FBI agent and not by the witnesses. The mere

fact that the witnesses did not prepare the documents, however, is not dispositive of
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our Jencks Act inquiry; we must also consider whether any of the witnesses adopted

or approved the notes. Kane v. United States, 431 F.2d 172, 174 (8th Cir. 1970)

(holding that an FBI agent's notes were not a "witness statement" within the act

because there was no evidence that the witness adopted or approved what was

recorded); see also 18 U.S.C. § 3500(b)(1) (defining a "statement" as "a written

statement made by said witness and signed or otherwise adopted or approved by

him") (emphasis added). In raising her claim, Price relies upon § 3500(e)(2); however,

she offered no evidence that any of the witnesses approved or adopted the information

that was in the FBI 302s. Absent such evidence, these documents are not discoverable

under this section of the Jencks Act. See United States v. Madrigal, 152 F.3d 777, 782

(8th Cir. 1998) (affirming the district court's refusal to conduct an in camera

inspection where the defendant failed to provide a "basis for his belief that the notes

contain 'statements' as defined in the Jencks Act"). Because Price failed to raise a

colorable Jencks Act claim, we hold that the district court did not err in refusing to

conduct an in camera inspection. 

C. Minor Role Adjustment

Price also challenges the district court's calculation of her advisory Guidelines

sentence. She argues that the district court erred because it refused to grant her a

minor role adjustment. We disagree and affirm.

We review the district court's refusal to grant a minor role adjustment for clear

error. United States v. Lopez, 414 F.3d 954, 961 (8th Cir. 2005). "A defendant may

be eligible for the minor-role adjustment if [her] culpability is relatively minor

compared to other participants, but the mere fact of lesser culpability does not entitle

[her] to the reduction." Id. We hold that the district court did not clearly err here

because Price's role was not relatively minor compared to the other participants. Price

was a Quality Homes supervisor, and in this capacity, she directed at least one

employee to provide fraudulent documents to a lender and often made arrangements

for employees to deceive the lenders with false information on the lenders' audit calls.
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D. Reasonableness of Sentence

Finally, Price argues that her sentence is unreasonable. She contends that her

case warrants a greater downward variance based on her personal

characteristics—namely her history of family problems and evidence that she

overcame these problems. These personal characteristics, however, do not compel a

reversal of Price's sentence. 

"We review a challenge to the reasonableness of a sentence for abuse of

discretion." United States v. Starr, ---F.3d---, 2008 WL 2485178, *14 (8th Cir. June

23, 2008) (citation and punctuation omitted). We presume that a sentence within the

Guidelines range is reasonable. Id. This presumption, however, may be rebutted by

reference to the statutory sentencing factors found in 18 U.S.C. § 3553(a). Id. Price,

however, did not receive a Guidelines sentence but a sentence varying below her

Guidelines range by twelve months. The only evidence that Price offers in support of

her argument that her below-Guidelines sentence is unreasonable is her past history

of family problems. The district court considered this evidence but found that it was

not sufficiently compelling to warrant a greater variance, and we conclude that the

district court acted within its discretion in determining the extent of the variance. See

United States v. Austad, 519 F.3d 431, 434 (8th Cir. 2008) (recognizing that while our

reasonableness review may take into consideration the extent of the district court's

deviation from the Guidelines range, we "must give due deference to the district

court's decision that the § 3553(a) factors, on a whole, justify the extent of the

variance.") (quoting Gall v. United States, 128 S. Ct. 586, 597 (2007)). 

III. Conclusion

Accordingly, we affirm the judgment of the district court.

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