UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4000

ROBERT M. CLEMENTS, JR.,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4001

THOMAS TURBEVILLE,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4041

ERNEST MICHAEL JONES,

Defendant-Appellant.

Appeals from the United States District Court

for the District of South Carolina, at Greenville.

G. Ross Anderson, Jr. and William B. Traxler, Jr.,

District Judges.

(CR-96-480, CR-97-133)

Argued: December 4, 1998

Decided: January 14, 1999
Before WILKINSON, Chief Judge, KING, Circuit Judge, and

WILLIAMS, United States District Judge

for the District of Maryland,

sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Russell Doyle Ghent, LEATHERWOOD, WALKER,

TODD & MANN, P.C., Greenville, South Carolina, for Appellants.

David Calhoun Stephens, Assistant United States Attorney, Greenville, South Carolina, for Appellee. ON BRIEF: Chad A. McGowan,

MCGOWAN LAW FIRM, Atlanta, Georgia, for Appellant Clements;

Edward M. Saufain, Greenville, South Carolina, for Appellant Jones.

J. Rene Josey, United States Attorney, Greenville, South Carolina, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Robert M. Clements, Jr. and Thomas Turbeville appeal their convictions on multiple counts of wire fraud under 18 U.S.C. § 1343,

alleging that the district court abused its discretion by failing to sever

their trials from those of other codefendants, and that it erred in denying their motions to suppress certain evidence. Clements and Turbeville also allege multiple evidentiary, procedural, and sentencing

errors. Finally, Clements, Turbeville, and codefendant Ernest Michael

Jones--who pleaded guilty to wire fraud--argue that the district court

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improperly enhanced their sentences because, in the district court's

opinion, they had chosen "vulnerable victims." U.S. Sentencing

Guidelines Manual § 3A1.1(b) (1997) (hereinafter U.S.S.G.). We

hold that each of the district court's rulings of which appellants complain was proper, and, as a result, we affirm the convictions and sentences appealed.

I.

In the late 1980s, Kashma Porter began a telemarketing operation

in Atlanta, Georgia, called CD Marketing ("CDM"). Sometime in

1994, Clements came to work as a telephone solicitor for CDM, and

Turbeville began work in the same capacity approximately six months

later.

CDM's "business" consisted of telephoning individuals whose

names appeared on "lead sheets" that were provided by CDM's coowner, Reginald Jennings. The telephone solicitors would contact

individuals on the lead sheets and inform them that they had been

selected to receive large cash prizes, but that they needed to send cash

to CDM in order to "qualify" for the prizes. Some of the contacted

individuals would respond by sending varying amounts of cash to

CDM, usually between $1000 and $2000, as requested by the solicitors. See J.A. 332. In some cases, CDM would then send low-value

merchandise to responding individuals (i.e., their victims); these

goods included small safes, "household items," and "trinkets." J.A.

333.

Contrary to what the solicitors had told them, the people contacted

had not been selected to receive any "top bonus prizes." Instead, their

names and phone numbers had simply appeared on the lists obtained

by Jennings. The overwhelming majority of the people contacted

were elderly, and, at trial, witnesses testified that these victims had

been selected because of their age. E.g., J.A. 324, 778. Many victims

who had sent in money to one of Porter's companies in the past--

thereby demonstrating themselves to be, in one solicitor's words,

"proven buyer[s]"--were contacted repeatedly. Such victims were

referred to as "reloads." Id.

Clements, Turbeville, and Jones made phone calls like those

described above. When making such calls, each used an alias. Tur-

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beville used the alias "John Wilson," and Clements identified himself

as "Bobby Boyd." J.A. 331. One fellow solicitor explained that the

aliases were used to prevent reloads from identifying solicitors that

had previously called them. J.A. 330.

In 1995, Porter was sued by the Georgia Department of Consumer

Affairs. As a result of that litigation, he entered into a consent decree

under which he agreed to close down CDM and pay restitution to its

victims. Porter later testified that he provided copies of the consent

decree to all of CDM's employees, including Clements and Turbeville. J.A. 780.

While he was negotiating the consent decree in Georgia, Porter

began setting up a nearly identical operation in Greenville, South Carolina, under the name of Initial Services. After CDM was shut down,

both Clements and Turbeville came to work as telephone solicitors for

Initial Services. The company operated from a single, two-bedroom

apartment in which multiple phone lines had been installed. Ordinarily, all solicitors would make their calls over speaker phones, so that

they could easily overhear each others' conversations. J.A. 338,

784-85. As Porter would later testify, "[I]f you were in the apartment,

it was quite difficult for you not to hear." J.A. 786. The speaker

phones also allowed the solicitors to coach each other through particularly difficult conversations. One of the solicitors testified at trial

that he had personally coached Turbeville. J.A. 339.

During the six months of 1995 when it operated out of Greenville,

Initial Services collected approximately $500,000 from its victims.

J.A. 707. Worried that he would soon experience the same problems

he had encountered in Georgia, Porter decided to close Initial Services's Greenville office and to re-establish the company near Chattanooga, Tennessee. The new company was called Safe Health Products

("SHP"), and it employed both Clements and Turbeville. In preparing

to commence its operations, SHP opened an account at AmSouth

Bank and rented a drop box at Mail Boxes Etc in Chattanooga.

In January 1996, Special Agent Earl Burns of the F.B.I., who

headed a taskforce on telemarketing fraud, received word from

AmSouth Bank that SHP's account showed signs of being used in an

illegal telemarketing operation. Specifically, a large number of out-of-

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state checks were being deposited into the account, and many of those

checks were being dishonored and returned to the bank. Near the

same time, Burns learned that complaints had been filed against SHP

in the F.B.I.'s Charlottesville, Virginia office. Id. The complainant

had identified SHP's address at Mail Boxes Etc near Chattanooga.

On January 19, 1996, Burns contacted the Mail Boxes Etc branch

that SHP was using. In response to Burns's questions, Mail Boxes Etc

explained that SHP's mail ordinarily consisted of thin Federal

Express envelopes, and that one of these envelopes showed the return

address of the original complainant in Virginia. Using their return

addresses and phone numbers--which appeared on the outside of the

Federal Express envelopes--Burns contacted several of the people

who had sent packages to SHP. All of the senders Burns spoke to

were elderly, each had been told by SHP that he or she had won a

prize, and each had sent a check for between $1000 and $2000 to SHP

to "qualify" for this prize. J.A. 218.

Burns and other federal agents then went to the Mail Boxes Etc in

Chattanooga, Tennessee, where they met Reginald Brown, who had

come to retrieve SHP's mail. Id. As Burns examined Brown's driver's

license, Brown volunteered that his license had been suspended. J.A.

220. When Burns informed Brown that Brown would not be permitted to operate the car that he had driven to Mail Boxes Etc, Brown

telephoned SHP's apartment. Jones and Turbeville soon arrived to

pick up Brown. J.A. 220.

Burns identified himself to Jones and Turbeville and asked if they

would show him SHP's apartment. The pair consented, and Burns and

the other agents followed them to the apartment. J.A. 221-22. Jones,

Turbeville, or Brown opened the door and allowed Burns and the

other agents to enter the apartment. J.A. 222-23. Once inside, Burns

immediately saw several telephones, tape recorders, lead sheets, a fax

machine, and several opened Federal Express packages. J.A. 223.

Based on his experience with telemarketing fraud, Burns recognized

that the apartment was probably a "boiler room" for a telemarketing

operation, and that, in his opinion, it could be dismantled in five to

ten minutes. Clements and Porter, among others, were present in the

apartment when Burns arrived. J.A. 226.

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Burns then contacted an Assistant United States Attorney

("AUSA") to request assistance in conducting a lawful search of the

apartment and a seizure of any evidence there. J.A. 224. At the

AUSA's instruction, Burns asked if Porter--whom Burns had been

told was the leader of the operation--would consent to a search of the

apartment. J.A. 225. Porter did not immediately consent, but after

Burns began preparing the affidavit necessary to obtain a warrant,

Porter signed a written consent allowing Burns to search the apartment. J.A. 226.

Burns and the other agents then searched the apartment. During

their search they found lead sheets in various rooms, handwritten

sales logs, handwritten summaries of payments made to solicitors,

tape recordings of various solicitors' phone calls, and other documents relating to the company's operations in both Tennessee and

South Carolina. See J.A. 227-28.

Based on this and other information, including the company's

banking records from South Carolina, a federal grand jury in Greenville, South Carolina, indicted Porter, Clements, Turbeville, Jones,

Brown, Jennings, and Gary Becks. J.A. 55-67 (original and superseding indictments). The superseding indictment charged each defendant

with sixteen counts of committing wire fraud, in violation of 18

U.S.C. § 1343. J.A. 66. Each count was predicated on a single, separate phone call made from the offices of Initial Services in Greenville

between July and November, 1995, a period during which both Clements and Turbeville worked for the company.

Clements and Turbeville each filed motions to sever their trials

from those of the other defendants and to suppress all evidence recovered during the search of the Chattanooga apartment. The district

court denied those motions. J.A. 132, 306. Before trial, defendants

Jones, Becks, and Brown entered guilty pleas, leaving Porter, Jennings, Turbeville, and Clements to be tried jointly.

At trial in Greenville, South Carolina, in late 1996, the Government

presented the documentary evidence and tapes of phone calls that had

been seized in Tennessee. The sales logs, along with testimony of certain victims, indicated that some of the phone calls listed in the superseding indictment had been made by Clements, and others by

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Turbeville. E.g., J.A. 720-21. Becks also testified for the Government.

He detailed the day-to-day aspects of the company and confirmed that

he had known that the operation was fraudulent. J.A. 333.

After the Government rested its case, defendants Porter and Jennings pleaded guilty, leaving only Clements and Turbeville as active

defendants. J.A. 767. The Government then immediately moved to

reopen its case, so that it could call Porter as an additional witness.

J.A. 768. The district court granted the Government's motion over

objections from Clements and Turbeville. Id. Porter then testified as

to the remaining defendants' involvement in his operation, and he

confirmed that the Government's case had accurately portrayed the

nature of the telemarketing scheme. J.A. 791. Porter further acknowledged that the group had targeted the elderly. J.A. 778.

In response to Porter's strong testimony, both Clements and Turbeville testified in their defense. Each of them denied knowing that

the operation had been fraudulent, and each denied that he had

intended to defraud anyone he had called. J.A. 841, 921.

At the close of the trial, the jury found Turbeville guilty on Counts

II and VII of the superseding indictment, and it convicted Clements

on Counts II, III, and VIII. J.A. 1021. The parties agree that specific

record evidence indicated that each of these defendants had actually

been involved in each phone call that formed the basis for the counts

of which he was convicted. Both defendants were acquitted on all

other counts.

At sentencing, the district court determined that the amount of loss

for which Clements and Turbeville each were responsible exceeded

$500,000. The court further enhanced their sentences on the grounds

that each had (a) obstructed justice by committing perjury on the witness stand, U.S.S.G. § 3C1.1; and (b) undertaken "more than minimal

planning", U.S.S.G. § 2F1.1(2). The court also declined to reduce

Clements's and Turbeville's sentences on the grounds that they were

minor participants in the scheme, as defined by U.S.S.G. § 3B1.2(b).

J.A. 1200. Finally, the district court enhanced the sentences of Clements, Turbeville, and Jones for having chosen victims that were vulnerable because of their advanced ages, U.S.S.G.§ 3A1.1(b). As a

result of these adjustments, the district court sentenced Clements to

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sixty months of imprisonment, Turbeville to forty-seven months, and

Jones to thirty-eight months. Clements and Turbeville appeal their

convictions, and along with Jones, appeal the sentences they received.

II.

Clements and Turbeville challenge the district court's denial of

their severance motions, as well as its refusal to suppress the evidence

seized during the search of the apartment. They also challenge the

court's decision to permit the Government to reopen its case after

Porter had pleaded guilty, as well as certain of the court's evidentiary

and procedural rulings.

With regard to their sentences, Clements and Turbeville maintain,

among other things, that the district court erroneously enhanced their

sentences based on its determination that they had committed perjury.

Finally, Clements, Turbeville, and Jones all assert that the district

court abused its discretion in applying the "vulnerable victim"

enhancement to each of their sentences.

A.

Clements and Turbeville argue that the district court erred in denying their motions to be tried separately from the other defendants.

First, they argue that the overwhelming evidence of their codefendants' guilt prevented the jury from making individualized determinations with respect to their individual criminal intent, or lack thereof.

Second, they allege that, because the jury must have viewed them as

being "in the same boat" as their codefendant, Kashma Porter, they

were unduly prejudiced when Porter later testified against them. In

essence, they believe that the jury must necessarily have taken their

codefendant's on-stand confession as an implicit acknowledgment of

their own guilt. We disagree.

1.

Rule 8(b) of the Federal Rules of Criminal Procedure permits the

joint trial of defendants that have been named in the same indictment

"if they are alleged to have participated in the same . . . series of acts

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or transactions constituting an offense or offenses." The Supreme

Court has emphasized that the federal system of criminal justice promotes and supports the joint trial of defendants who are indicted

together. Zafiro v. United States, 506 U.S. 534, 536 (1993) ("Joint trials `play a vital role in the criminal justice system.'" (quoting

Richardson v. Marsh, 481 U.S. 200, 209 (1987))). Nevertheless, a district court may sever the trials of codefendants"[i]f it appears that a

defendant . . . is prejudiced by a joinder of . . . defendants . . . for trial

together." Fed. R. Crim. P. 14. We review a district court's denial of

a motion for severance for abuse of discretion. Zafiro, 506 U.S. at

538-39.

In Zafiro, the Supreme Court explained that severance is mandated

"only if there is a serious risk that a joint trial would compromise a

specific trial right of one of the defendants, or prevent the jury from

making a reliable judgment about guilt or innocence." Id. at 539.

Here, Clements and Turbeville first invoke one of the specific

grounds for prejudice listed in Zafiro: They assert that they were

unfairly prejudiced by the jurors' consideration of evidence regarding

their codefendants' actions that, absent a joint trial, would not have

been admissible against them. See id.

While the appellants fail to specify exactly which pieces of evidence would have been inadmissible against them in a separate proceeding, we are convinced that the evidence relating to their

codefendants' actions did not prevent the jury from fairly deciding

their cases. The strongest indication that the jury carefully sorted

through the entirety of the evidence is that Clements and Turbeville

were each convicted only of those counts of the superseding indictment that were based on telephone calls which, according to the

record, he had made himself. Consequently, it is manifest that any

evidence of codefendants' actions, whether or not admissible as to

Clements or Turbeville, did not prevent the jury from fairly evaluating the ultimate question of these appellants' guilt or innocence.

2.

Clements and Turbeville complain that Porter's mid-trial decision

to plead guilty, together with his ensuing testimony on behalf of the

Government, necessarily caused the jury to convict them solely

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because of their association with Porter. Put differently, they believe

they were convicted because Porter, who had previously been their

codefendant and "in the same boat" with them, admitted his own

guilt.

We have no doubt that Porter's guilty plea and testimony dealt a

serious strategic blow to Clements's and Turbeville's defenses. However, the Supreme Court has clearly rejected the idea that trials must

be severed to prevent admission of potentially damaging testimony

from codefendants:

A defendant normally would not be entitled to exclude the

testimony of a former codefendant if the district court did

sever their trials, and we see no reason why relevant and

competent testimony would be prejudicial merely because

the witness is also a codefendant.

Zafiro, 506 U.S. at 540. Also, even before Porter chose to testify, the

jury had already heard extensive and damning testimony from Gary

Becks, who, like Porter, had been indicted with Clements and Turbeville. Becks also testified that he had pleaded guilty. J.A. 356.

Accordingly, we conclude that Porter's decision to plead guilty and

to give "relevant and competent" testimony for the Government did

not prejudice Clements's or Turbeville's trial rights, and that the district court was thus well within its discretion to try both Clements and

Turbeville together with their codefendants.

B.

Clements and Turbeville next argue that the district court improperly admitted the evidence seized during the search of the Chattanooga apartment. More specifically, they maintain that the district

court erred in finding that the F.B.I.'s warrantless search of the apartment was justified by exigent circumstances. We reject this argument.

Warrantless entries into a dwelling place are presumed unreasonable. United States v. Turner, 650 F.2d 526, 528 (4th Cir. 1981). But

we have recognized that warrantless entries may be justified when

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they are made under certain "exigent circumstances." Id. Such circumstances exist when agents "have probable cause to believe that

evidence of illegal activity is present and reasonably believe that it

may be destroyed or removed before they can secure a warrant."

United States v. Campbell, 945 F.2d 713, 715 (4th Cir. 1991). Where,

as here, a district court has found the existence of exigent circumstances justifying a warrantless search, we will not overturn that finding of fact unless it is clearly erroneous. Turner, 650 F.2d at 528.

However, we review de novo any legal conclusions in the district

court's suppression ruling. United States v. McDonald, 61 F.3d 248,

254 (4th Cir. 1995).

In Turner, we identified five factors that should guide a determination of whether exigent circumstances exist in a particular case:

(1) the degree of urgency involved and the amount of time

necessary to obtain a warrant; (2) the officers' reasonable

belief that the contraband is about to be removed or

destroyed; (3) the possibility of danger to police guarding

the site; (4) information indicating the possessors of the

contraband are aware that the police are on their trail; and

(5) the ready destructibility of the contraband.

Id. In its written order on this issue, the district court found that each

of these five factors was, to a greater or lesser extent, present in this

case.

We agree with the district court's assessment of these factors, and

it is clear that the second, fourth, and fifth factors were especially

strong here. There is no question that, at the moment Burns and his

colleagues entered the Chattanooga apartment, everyone present knew

that the "police [were] on their trail." Further, Burns testified at the

hearing on the suppression motion that, based on his experience with

telemarketing operations, it would have taken only five to ten minutes

to dismantle the entire "boiler room" and to remove all relevant documents. J.A. 221. Finally, it is reasonable to assume that, if given the

chance, the six suspects in the apartment would readily have "removed or destroyed" the evidence of their activities. With respect to

this factor, we have held that the Government need not produce "concrete proof" that evidence was about to be destroyed; it simply must

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show that a reasonable agent would have believed that the dwelling's

occupants would attempt to destroy evidence before the agents could

return with a warrant. United States v. Grissett , 925 F.2d 776, 778

(4th Cir. 1991).

In light of the strong presence of the factors discussed above, we

cannot say that the district court clearly erred in finding that exigent

circumstances justified the F.B.I.'s warrantless search of the apartment. As a result, the district court properly denied Clements's and

Turbeville's motions to suppress the fruits of that search.

C.

The next issue raised by Clements and Turbeville is whether the

district court erred in permitting the Government to reopen its case

and call Porter as a witness, all after the Government had rested. We

conclude that, however damaging Porter's testimony may have been

to his former codefendants, it was not error for the district court to

allow the Government to reopen its case.

The decision of whether to reopen a case after the close of the evidence is committed to the district court's discretion. United States v.

Abbas, 74 F.3d 506, 510 (4th Cir. 1996). In exercising that discretion,

the trial court is guided by three practical factors:

(1) whether the party moving to reopen provided a reasonable explanation for failing to present the evidence in its

case-in-chief; (2) whether the evidence was relevant,

admissible, or helpful to the jury; and (3) whether reopening the case would have infused the evidence with distorted

importance, prejudiced the opposing party's case, or precluded the opposing party from meeting the evidence.

Id. at 510-11. In this case, there is no question that the first factor

weighed heavily in favor of permitting the Government to reopen its

case: Porter's Fifth Amendment rights had prevented the Government

from calling him during its case-in-chief. There is also little doubt that

Porter's detailed testimony regarding the day-to-day operations of the

telemarketing company was relevant and helpful to the jury, and neither Clements nor Turbeville objected to its admissibility.

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The district court also correctly applied the third factor. While Porter's mid-trial decision to plead guilty and testify for the Government

must certainly have gotten the jury's attention, we do not believe it

was thereby imbued with "distorted importance." Cf. United States v.

Peay, 972 F.2d 71, 73 (4th Cir. 1992) (testimony directly contradicting defendant's denial of guilt not given distorted importance even

when presented immediately before summation). As the apparent

ringleader of the operation, Porter's testimony would have been

important whenever it was given. Here, it was given before the defendants' case-in-chief had begun; thus, Clements and Turbeville were

given an opportunity to meet any additional evidence Porter offered

in his testimony.

Under these circumstances the district court was well within its discretion in permitting the Government to reopen its case after it had

rested.1

III.

Clements and Turbeville also argue that the district court erred in

enhancing their sentences under U.S.S.G. § 3C1.1, based on its finding that each of them committed perjury when testifying at trial. Specifically, they argue that the district court failed to make

particularized findings regarding each element of perjury, as required

by United States v. Dunnigan, 507 U.S. 87 (1993). Before a defendant's sentence may be enhanced for perjury, Dunnigan requires the

district court to find "that the defendant's testimony was untruthful as

to a material matter, and that the false testimony was willful." United

States v. Queen, 132 F.3d 991, 1000 (4th Cir. 1997) (citing Dunnigan,

507 U.S. at 94-95)). While it is "preferable" for a district court to

make a separate, clear finding as to each element of perjury, its findings are sufficient whenever it finds all three elements. Id.

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1 Clements and Turbeville raise several additional evidentiary and procedural issues. For example, they argue that certain admitted evidence

was inadmissible hearsay as to them, that other evidence was improperly

admitted under Rule 404(b), and that the district court erred in denying

their motions for acquittal. We have carefully considered the appellants'

arguments as to each of these issues and find that they are each without

merit.

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With respect to Clements, the district court specifically found that

he had testified falsely, that the testimony had related to a material

issue, and that the testimony constituted "a willful attempt to obstruct

justice." J.A. 1180. Likewise, the district court found all three elements present in Turbeville's testimony. J.A. 1185-86. Accordingly,

the district court's findings satisfied the Dunnigan test as to each

defendant's testimony, and its enhancement under U.S.S.G. § 3C1.1

was therefore appropriate as to the sentences of Clements and

Turbeville.2

IV.

Jones's sole argument on appeal is that the district court erred in

enhancing his sentence under U.S.S.G. § 3A1.1(b), which permits a

two-point increase in the base offense level when a defendant has

chosen his or her victims because they were vulnerable due to age.

See U.S.S.G. § 3A1.1(b). Clements and Turbeville raise the same

argument with respect to the enhancement of their own sentences.

J.A. 1174. Since the record well supports the district court's findings

with respect to this issue, this argument is also rejected.

Importantly, both Porter and Becks testified that their operation had

targeted elderly victims. J.A. 778, 1162. Further, the Government had

surveyed all of the apparent victims of the defendants' scheme, and

more than eighty-five percent of those who responded to the survey

were over seventy years old. J.A. 1159. Finally, it is simply not

believable that, after working in telemarketing for years, neither

Clements, Turbeville, nor Jones could tell that the persons to whom

they were speaking on the phone were most likely elderly. For these

reasons, we hold that the district court was correct in enhancing the

appellants' sentences pursuant to U.S.S.G. § 3A1.1(b).

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2 Clements and Turbeville also challenge their sentences based on the

(1) district court's finding as to the amount of loss involved in the

offenses of conviction, (2) its finding that both of them had engaged in

more than minimal planning, and (3) its failure to depart downward

because they were "minor participants" under U.S.S.G. § 3B1.2. We

have reviewed these arguments with respect to both Clements and Turbeville, and we conclude that each of them is meritless.

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V.

Pursuant to the foregoing, each of the appealed convictions and

sentences is hereby

AFFIRMED.

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