* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 16 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v. ELIZABETH MARJORIE ROBERTSON, Defendant-Appellant. No. 96-1233 (D.C. No. 95-CR-448-03-S) (D. Colo.)

ORDER AND JUDGMENT *
Before BRORBY, BARRETT, and McKAY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 Richard Clark ultimately testified against Ms. Ro bertson and Mr. Smith

under the terms of a plea agreement with the govern ment. Mr. Smith was tried and convicted of six counts of wire and mail fraud, and aiding and abetting. See United States v. Smith , ___ F.3d ___ No. 96-1245, 1997 WL 796417 (10th Ci r. Dec. 31, 1997).
-2- Elizabeth Marjorie Robertson was convicted by a jury of one count of mail fraud, and aiding and abetting, in violation of 18 U.S.C. §§ 1341 and 2, and one count of wire fraud, and aiding and abetting, in vi olation of 18 U.S.C. §§ 1343 and 2. Ms. Robertson was sentenced to eighteen months imprisonment on each count to run concurrently, three years supervised r elease, and restitution in the amount of $4,800. Ms. Robertson appeals both her c onviction and her sentence. First, she challenges the adequacy of the jury ins truction on the aiding and abetting charge. Second, Ms. Robertson contends th e district court abused its discretion by enhancing her sentence based on facto rs already fully considered under the United States Sentencing Guidelines (U.S. S.G.). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.
Background Ms. Robertson and her codefendants, Robert Smith & Richard Clark, 1 were employed as telephone solicitors by Say No Now, a f raudulent telemarketing operation. Working on a commission basis, Ms. Robe rtson and the other2Defense counsel objected to the following instruc tion: In order for you to find the defendant guilty as an aider or abettor, you must be satisfied beyond a reasonable doubt that the defendant intentionally associated himself or herse lf with a criminal venture, that he or she participated in it as somet hing that he or she wished to bring about, and that he or she sought byhis or her action to make it succeed.
-3- telemarketers would solicit contributions to the or ganization through unsolicited telephone calls to potential donors, often targetin g elderly individuals, especially those who had given in the past. Potential donors were told contributions would be used to keep children off drugs. Ms. Robertson and the other solicitors further induced potential donors to contribute by telling d onors they had been selected to receive their "fair share" of $75,000 in prizes and awards, and that they would receive prizes exceeding the value of their contrib utions. However, while collecting over $915,000 in donations in the first ten months of 1995, Say No Now contributed only $45 to charitable causes. Rat her than valuable prizes, donors actually received pencil sets, board games, figurines, and savings bonds in return.

Discussion On appeal, Ms. Robertson challenges the adequacy of the jury instruction on the aiding and abetting charge. 2 She complains the district court's aiding and(Supp. Vol. 1, Tr. at 27; Vol. 16, Tr. at 1045-47.) The district court denied the

objection. (Vol. 16, Tr. at 1047.)
-4- abetting instruction failed to adequately instruct the jury on the definition of "participant" and on the required mens rea .
Our standard of review for challenges to jury instructions is "whether the jury, considering the instructions as a whole, was misled." United States v. Smith , 13 F.3d 1421, 1424 (10th Cir.), cert denied, 513 U.S. 878 (1994). Where, as here, an objection was made to the instruction at trial, our review is de novo
. Id . The judgment of the district court will be disturbed on ly where this Court has "substantial doubt that the jury was fairly guided. " United States v. Mullins , 4 F.3d 898, 900 (10th Cir. 1993).
The district court's aiding and abetting instructio n adequately clarified the term "participant" and the requisite intent. The i nstruction made it clear the defendant must have "intentionally associated ... h erself with a criminal venture." The instruction further required that the defendant"wished to bring about" the criminal venture and "sought by ... her action to m ake [the criminal venture] succeed." Contrary to Ms. Robertson's assertions, requiring proof the defendant intentionally associated herself with a criminal ve nture would not leave the jury-5-

free to assume "anyone who worked for Say No Now" f ell within the meaning of the term "participant."
Moreover, the jury instructions are to be read as awhole, as the trial court repeatedly told the jury. See United States v. Lee , 54 F.3d 1534, 1536 (10th Cir.), cert. denied, 116 S. Ct. 247 (1995). Numerous instructions, in cluding those pertaining to the mail and wire fraud charges, spel led out the government's burden to prove Ms. Robertson had acted with the specific intent to defraud. The jury was instructed that her actions must have been "kno wing" and "willful." The jury also received a "good faith" instruction, requiring the government to prove Ms. Robertson did not act with good faith, leaving litt le doubt as to the requisite mens
rea .
Considering the jury instructions as a whole, the j ury was adequately instructed and fairly guided in its deliberations o n the aiding and abetting charge. We find no likelihood that the jury was misled. Ac cordingly, we conclude the district court committed no error.3 Section 5K2.0 of the Guidelines annual sets forth the Sentencing

Commission's general policy statement on grounds fo r departure from the sentence range established by the applicable guidel ine(s).

4Ms. Robertson does not challenge directly the dis trict court's application of the guideline enhancements for vulnerable victim and multiple victims. U.S.S.G. §§ 3A1.1(b) and 2F1.1(b)(2).
-6- Ms. Robertson also contends the district court erre d in enhancing her base offense level by two levels pursuant to U.S.S.G. § 5K2.0. 3 She argues the district court may depart under § 5K2.0 only if the applicab le guidelines do not take a special factor into account, and the district courtimpermissibly based its upward departure on factors fully accounted for under the multiple victim and vulnerable victim guidelines. 4 See U.S.S.G. §§ 2F1.1 and 3A1.1.
Ms. Robertson's codefendant, Robert Smith, raised this same argument. See Smith , ___ F. 3d at ___, 1997 WL 796417 at *9. Guided b y the United States Supreme Court's analysis in Koon v. United States , 518 U.S. 81 (1996), and this court's analysis in United States v. Collins , 122 F.3d 1297 (10th Cir. 1997), we held the district court's imposition of an upward d eparture under U.S.S.G. § 5K2.0 was permissible provided an aggravating cir cumstance existed to a degree not adequately taken into consideration by t he relevant guidelines. See Smith , ___ F. 3d at ___, 1997 WL 796417 at *12. We furt her held the record-7-

supported the district court's conclusion that the departure factors were present to an exceptional degree with regard to Mr. Smith's of fense behavior, i.e. , his mass victimization of the elderly. Id . at ___, *12-*13; see also Collins , 122 F.3d at 1303 (describing necessary factual inquiry).
We now ask whether the record as a whole supports the district court's conclusion Ms. Robertson's offense behavior fell outside the "heartland of cases in the Guideline[s]." Koon , 116 S. Ct. at 2046. We review the district's cou rt's decision to depart deferentially, under a unitary a buse of discretion standard. Id
. at 2047-48.
Ms. Robertson was convicted of participating in a s cheme to defraud under the guise of a bogus charity, Say No Now. In decid ing to depart from the guidelines, the district court noted the scheme was particularly predatory. The scheme targeted scores of "the most susceptible peo ple," particularly preying on lonely, isolated, elderly persons. The same indivi duals were victimized repeatedly, until, as in the case of one of Ms. Rob ertson's named victims, "there was simply no more money." The sentencing court de termined the victims were psychologically, emotionally, and financially devas tated as a result of the Say No Now scheme. Adding insult to injury, victims were disparaged by Ms. Robertson-8-

and her cohorts. Importantly, the trial court conc luded Ms. Robertson was "fully aware" of Say No Now's activities, and accountable for its mass victimization of the elderly, not just the one victim who testified against her.
After listening to the evidence adduced at trial an d proffers of proof at the sentencing hearing, including the testimony of vict ims, the district court concluded the despicable nature of Ms. Robertson's offense behavior placed it outside the heartland of the applicable guidelines. After a thorough review of the record, we cannot say the district court abused its discretion in imposing a twolevel upward departure.
The judgment and sentence of the district court is AFFIRMED
.

Entered for the Court
WADE BRORBY United States Circuit Judge