*

 This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.
1

 Richard Clark ultimately testified against Ms. Robertson and Mr. Smith

under the terms of a plea agreement with the government. 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 Cir.

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 violation 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 release, and restitution in the

amount of $4,800. Ms. Robertson appeals both her conviction and her sentence. 

First, she challenges the adequacy of the jury instruction on the aiding and

abetting charge. Second, Ms. Robertson contends the district court abused its

discretion by enhancing her sentence based on factors 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 fraudulent telemarketing

operation. Working on a commission basis, Ms. Robertson and the other
2

 Defense counsel objected to the following instruction:

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 herself with a criminal

venture, that he or she participated in it as something that he or she

wished to bring about, and that he or she sought by his or her action

to make it succeed.

-3-

telemarketers would solicit contributions to the organization through unsolicited

telephone calls to potential donors, often targeting 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 donors 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 contributions. However, while

collecting over $915,000 in donations in the first ten months of 1995, Say No

Now contributed only $45 to charitable causes. Rather 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 only 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 instruction adequately clarified the

term "participant" and the requisite intent. The instruction made it clear the

defendant must have "intentionally associated ... herself with a criminal venture." 

The instruction further required that the defendant "wished to bring about" the

criminal venture and "sought by ... her action to make [the criminal venture]

succeed." Contrary to Ms. Robertson's assertions, requiring proof the defendant

intentionally associated herself with a criminal venture would not leave the jury
-5-

free to assume "anyone who worked for Say No Now" fell within the meaning of

the term "participant."

Moreover, the jury instructions are to be read as a whole, 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, including those

pertaining to the mail and wire fraud charges, spelled 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 "knowing" and "willful." The jury

also received a "good faith" instruction, requiring the government to prove Ms.

Robertson did not act with good faith, leaving little doubt as to the requisite mens

rea.

Considering the jury instructions as a whole, the jury was adequately

instructed and fairly guided in its deliberations on the aiding and abetting charge. 

We find no likelihood that the jury was misled. Accordingly, 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 for departure from the

sentence range established by the applicable guideline(s).

4

 Ms. Robertson does not challenge directly the district 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 erred 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 applicable guidelines do not take a

special factor into account, and the district court impermissibly 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 by 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 departure under U.S.S.G.

§ 5K2.0 was permissible provided an aggravating circumstance existed to a

degree not adequately taken into consideration by the relevant guidelines. See

Smith, ___ F. 3d at ___, 1997 WL 796417 at *12. We further 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 offense 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 court's

decision to depart deferentially, under a unitary abuse of discretion standard. Id.

at 2047-48.

Ms. Robertson was convicted of participating in a scheme to defraud under

the guise of a bogus charity, Say No Now. In deciding to depart from the

guidelines, the district court noted the scheme was particularly predatory. The

scheme targeted scores of "the most susceptible people," particularly preying on

lonely, isolated, elderly persons. The same individuals were victimized

repeatedly, until, as in the case of one of Ms. Robertson's named victims, "there

was simply no more money." The sentencing court determined the victims were

psychologically, emotionally, and financially devastated 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 concluded 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 and proffers of proof at the

sentencing hearing, including the testimony of victims, 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