1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0455P (6th C ir.) File Name: 03a04 55p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
U NITED S TAT ES OF A MERICA ,

Plaintiff-Appellee,

v.

J OAN M ARIE ANDERSON (02-1662); F RANCIS A LBERT S AG ORS KI (02-1673); R ODGER B RUCE Y ATES (02-1700); A RTHUR H ENRY M ODDERMAN (02-1703); S USAN E LAINE S LOBODA (02-1736); R OBER T L EE G OO DWIN , J R

. (02-1769); R UTH E LAINE S HRIVER (02-1771), Defenda nts-Appe llants. X - - - -
> , - - - - - - - - - - - - - - N Nos. 02-1662/ 1673/1700/1703/ 1736/1769/1771

Appeal from the United States District Court for the We stern Dis trict of M ichiga n at Gran d Rapids. No. 01-00175—Robert Holmes Bell, Chief District Judge. Argued and Submitted: December 2, 2003
Decided and Filed: December 23, 2003 2 United States v. Anderson , et al. Nos. 02-1662/1673/1700/1703/ 1736/1769/1771

* The Honorabl e Danny C. Reev es, Unit ed States Dist ric t Ju dge f

or the Eastern Distri ct of Kentucky, si tting by designation. Befor e: GUY a

nd GILMAN , Circuit Jud ges; REE VES, District Judge. *

_________________ COUNSEL

ARGUED: Lawrence

J. Phe lan, HAEHNEL & PHEL AN, Grand R apids, Michigan, Kevin M. Schad, SCHAD & COOK, Indian Springs, Ohio, Richard E. Zam bon, MITC HELL & ZAMB ON, Gra nd Rapids, Michigan, Daniel R. F agan, DANI

EL R. FAGAN & A SSOCIATES, Grand Rapids, Michiga

n, John M. Karafa, Grand Haven, Michigan, for Appellants. Donal d A. Davis, ASSISTANT UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee. ON BRI EF: Lawrence J. Phelan, HAEHNEL

& PHELAN, Grand Ra

p ids, Michigan, Kevin M. Schad, SCHAD & COOK, I

ndia n Sp rings, Ohio, Richard E. Zambon, MITCHEL

L & ZA

M BON, Grand Ra

pids, Michigan, D aniel R. Fagan, DANI EL R. FAGAN & ASSOCI ATES, Grand Rapids, Michigan, John M. K ara fa, Grand Haven, Michigan, Anthony J. Valentine, TW OHEY MAG GINI, PLC, Grand Rapids, Michigan, Keith W. Tu rpel, Kalamazoo, Mich iga n, for Ap pellants. Donald A. Davis, ASSISTAN T U NITED STATES ATTORNEY, Gra nd Rapids, Michigan, for Appellee.

_________________ OPINION

_________________ PER CURI

AM. These seven consolidated appeal s by defenda nts Joan Marie Anderson, Arthur Henry Modderman,Nos. 02-1662/1673/1700/1703/

1736/1769/1771 United States v. Anderson , et al. 3

1 A bank represent at ive, Paul Wegener, contrasted a check with a sight d raft . A check i s payabl e on demand when prese nted t o a ban k
, while the maker

or drawer of a sigh t draft instru cts the d rawe e to p ay a third party. A sight draft is not deposited in an account l ike a check, but must b e pro cesse d thro ugh the collec tion de partm ent. Rodger Bruce Yates, Franc is Albert Sagorski, Rut h Elaine Shriver, Susan Elaine Sloboda, and Robert Lee Goodwin, Jr., raisevarious challenges to their respective convictions and/or sentenc es. The 73-c ount Super ceding Indic tment in thi s case charged 14 defen dants with

conspira cy both to def

raud and to commit offense s a ga inst the United States in violation of 18 U.S.C. § 371 (count

1); substantive offenses relating to the making and offering of

fictitious “sight

drafts” purporti ng to be actual fin ancial instruments issued under the authority of the United Sta

tes in viola

tion of 18 U .S.C. § 514( a)(2) ( counts 2-24); and substantive offenses involving the maki ng and subs cribi ng, or

aiding, assisting or counseling the making and subscribing of false

reports of cash t ransactions to the IRS on For m 8300 in violation of 26 U.S.C. § 7206(1) and (2) (counts 25-73). Two defendants pleaded guilty a nd the remainingtwelve defendants were convicted by a jury on all charges follo wing a joint tria l. After review of the record a nd the defendants’ respective challeng es to their convictions and/or se ntences , we aff

irm in all r

espects

. I.

The indictment alleged that begin ning in late 1998 and
co ntinuing through

July 2 001, the d

efenda nts joined

in a single co ns pi ra cy w ith multiple obje ctives: namely, to defr aud the United S tates by impeding, impairing , obstructing, and defeating the lawf ul government functions of the IRS and other federal agencies; and to c ommit of fense s against the United States wit

h respec t to both the

fictitiou s s ightdrafts and the false reports of cash t ransactions t o the I RS. 1 The indictmentde scribed the “means and methods” of the 4 United States v. Anderson , et al. Nos. 02-1662/1673/1700/1703/ 1736/1769/1771

conspiracy

to include

the cre ation and

offerin g o f 193 fictit ious sight drafts purporting to be drawn on the Uni te d S tates Treasur

y with an aggreg ate fac e value o f mo re tha n $550 million and

the use of IRS Form 8300 to falsely report that 113 transactions oc cu rred with third parties with an aggr egate value of more than $490 million. In ad dition, def endantsrefused to appear before or cooperate with t

h e grand jury , its subpoe

nas, or the feder

al di strict co

urt. Defend ants also filed

frivolous “notices” (including criminal complain ts ) against prosec

utors, la w enfor cement a nd ju dicia l officers involved i

n the inve stigation and pro secution of this
case.
In1998, defend ant Ro dger Yat es was servi ng a sentenc e in fede ral prison for activities involving the “Montana Freemen” at the same time that defendant Jerry Allen Chase was serving
a sentence for violating income tax laws. Chase testified that Yates told him that he a nd Ro ger Elv ick we re perf ectin g a scheme using false financial instruments that appea red to be drawn on t he Unite d States. Yates enlisted the aid of individua ls outside prison; namely, Joan Anderson, her
commonlaw husband Arthur Modderman, and

Phillip Leroy (a.k.a. PJ) Hammond (who ha s no t appealed). Yates, who
wa s in prison for having used earlier forms of f ict itiou s instrumen ts, told Chase

that the new “sig

ht draft” theory was “more so und” than earlier schemes

. Duringtha t same time frame, defendants Ruth Shriver (Shriver) and her h

usband Jack Shriver

(who has no t appealed) were in financial trouble wi th the I RS. The Shrivers communicated with El vick and his partner, Roger Knutt, both of whom had recently been released from prison and claimed to have reco vered their farm using false sig ht drafts. In late summer 1998, PJ Hammond ordered thousands of blank sig

ht dr af ts fr om a c om me rc ia l p ri nt in g c om pa ny. The drafts were paid for by someone named

“Ruth.” On September

9, 19 98, t he Shrivers sent the IRS a sight dra ft app earing to be drawn on the United States Treasury in theNos. 02-1662/1673/1700/1703/

1736/1769/1771 United States v. Anderson , et al. 5

amount of $1.75 million. Althoug h the I RS initially

credited the Shrivers in that amount, the credit was revers ed. Within
a week of the firs t sig ht dra ft, si x o th er codefendants each wrotesimilar sight drafts to the IRS (includin g appe llants Sagorski, Hammond, Anderson, and Modderman). Sight drafts ma de pay able to th e IRS were wr

itten by all but two defendants, Sloboda and Goodwin, and formed the basis for the substantive charges in counts 2 through 24. As referenced

earlier, numerous other sight drafts were presented to state and local g overnme nts, cre dit card companies, banks and credit u nions, brokerag es, and w ere als o used for personal expenses. Part of the scheme was the hop e that some financial institutions had such sloppy computer

sys tems that at least some sight drafts would be acc epted and the cre dits could be s

pent or us ed to elimi

nate othe r debts.

Another aspect of the conspiracy

involved the filing of

false returns with the IRS that reported cash transa ctions of over $10,000, when no transaction had in fact o ccurre d, in

order to intimidate

and harass the individual identified as having participated

in the nonexistent transaction. Under feder al law,
a return, Form 830 0, must b e fi led with the IRS when a person engaged ina trade or business receives over $10,000 ina cash transaction. 26 U.S.C. § 6050I. Form 8300 includes
a jurat, stating

that: “Under penalties of perjury, I declare tha t to the best of my knowledg e the information I have furnished above is true, correct, and complete.” Target s of the false 8300s included individuals who rejected sight dr afts and both public

officia ls and pri

vate individua ls against whom a defendant bore a g rievance. For example, four members of the Westveld family wer e targeted because one of the

m had purc

hased pr operty th at ha d once 6 United States v. Anderson , et al. Nos. 02-1662/1673/1700/1703/ 1736/1769/1771

2 An emp loyee o f a cred it union w as ta rgeted by Hammond, and a disabl ed worker in t

he mail room of a credi t card companywas targeted after op ening a n app lication fro m de fenda nt Car ney. belonged to Modderm a n. 2 Most of the false 8300s reported nonexistent transactions involving a nu m ber of ju

dges, prosecu tors, attorne

ys, public officials, and law enforcement and correc tions offi cers. The forms w ere fill ed out to in dicate that the target ha d refuse d to give his or her

social se curity number, which au

tomatica lly c aused th e IRS to send a stern formletter to the target

demanding compliance with thelaw.

A total of eight

defendants were charg ed

with makin

g false declarations u nder

penalty of perju ry by s igning

a false IRS Form 8300 , in violation of § 7206 (1); incl uding a ppellant s Modderman (counts 37-4 5), Sagorski (counts 46-47), S lobod a (counts48-49), and

Goodwin (counts 28-30). The remaining charges for ai ding, assisting , counse ling, or advising others to make false declarations on the 8300s in violation of § 7206(2)
were brought against Yates (counts 50- 53 ) and Anderson (counts 50-73).

The evidence showed that Anderson and Modde rman explained the “redemption theory

” and instructed others how to write the

sight dr afts and fill o ut the false 8300s. One witn es s, Diana Arndt-Mammen (Arndt), testified that Anderson and Modderman offered the sig ht-draft scheme as a way for her t o resolve her seve

re fina ncial pr oblems, showed her how to f

ill out the sig

ht drafts and fals e 8300s, and asked if she had filed f alse 8 300s against those who rejected the sight drafts. Another coconspirator , H erbert Lawrence , testified

that Anderson and

Modderman instructed him on how touse the false 8300s to “bring the IRS down” on officia ls and other

individua

ls to hara ss them. Anderson and Modderman

also told L awrenc e to avoid law ye rs, that h e didNos. 02-1662/1673/1700/1703/

1736/1769/1771 United States v. Anderson , et al. 7

3 The mantra cons ist ed of the foll owing t hree questions and demand: “What is yourname ? D o you have a claim agai nst me? Do you know of any others that have a clai m against me? I request the order of t he Court be re leased to me imme diately.”

4 Ruth Shri ver a lso rose and st epped t ow ard someone near the podi um, but w as i nter cepte d by s ecuri ty and re moved f rom th e cou rt room. nothave to obey the

corrupt court sy stem, and that he would be protected if he recited their “shield” or “mantra.” 3

Use of the mantra was taught as part of the sc heme and was recited by various defe

ndants through all stages of the procee dings. It

was part of the refusal to cooperate with the grand jury and in con

tempt proc eeding s, which r esu lted i n o bstructionof justice

enhanc eme nts at sentencing

. Handwritingexemplars were ultimately provided to the grand ju ry, but not unti l after d

efenda nts w ere h eld in contempt of court. At trial, each

of the defenda

nts—except for Sag orski, Dewey Metcalf, Sr., and Dewe y Metcalf, Jr.—disrupted the trial by standing a

nd reciting the mantra.

This disruption involved seve ral def endants rising together, repeat edly reciting the mantra and be ing rem oved from the courtro om. The first time, sev en def endants were removed. The next day, a total

of nine de fendant s were removed. 4 With that, the district

court decided, after

consultin g with c ounsel, that the nine defendants would be allowed to ret ur n only if they ga v e assurances that they would not disrupt the procee dings an y fu

rther. U nwilling to give a ny a ssuranc es, none of the nine were

present inthe courtroom for

the rest of the tr ial. Although the defendants do not challenge t h e districtcourt ’s han dlin g o f the situation, it was the basis for upward departures at sentencing as we ll as Sagorski’s motion for seve rance or mistrial

. Defend ants were c onvicted

on all counts and, after sente ncing, timely notices of app e al were filed on behalf of 8 United States v. Anderson , et al. Nos. 02-1662/1673/1700/1703/ 1736/1769/1771

Anderson, Modderman, Yates, Sa gorski, Sloboda, G oodwin and Shriver.

II.

Withthe exception of Sloboda an d Shr iver, de fendant s appeal from

the denial of judgment of acquittal with respect to some or a

ll of their convicti ons. On ap

peal, “the relevant questionis whether, af

ter vie wing the evidence in the light most favorable to the prosecution, an yrational trier of fact could have found the essential elements of the crime bey ond
a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979). This standard applies to both direct an d circumstantial evidenc e, and a ll reasonable inferences mus t be drawn in favor of th e government. United States v. Searan
, 259 F.3d 434, 441 (6th Cir. 2001).

A. Form 8300 Challenging

the ir co nvictions

for viola tions of 26U.S.C. § 7206 (1) and (2), as well as the portion of the conspiracy charge relating

to these o ffense s, Ande rson, Ya tes, Modderman, Sagors ki, and Go odwin ar gue first that t

he se convictions must

be reversed because there is no duty

to file F orm8300 for nonexistent transactions. Defendants reason that if there is no duty to file a r eturn, t here can be no prosecution

for filing a for

m c ontaining false information either because it cannot be a “willful” violation or because the falsity cannot be “material.” While there are a pparently no
cases a ddressin g this ar gument, we are satisfied

that it is the novelty of the defendants’ conduct that accounts for this fac t and not the inapplicability of § 7206 to this situation.

Defend ants empha si ze that most cases involving the currency transaction report required by 26 U.S.C. § 6050I are prosecutions for w ill ful failure to file the return under 26 U.S.C. § 7203. That may be, a nd, in those cases, proof of a duty to fi le a r et ur n m ay be r equired for conviction sinceNos. 02-1662/1673/1700/1703/

1736/1769/1771 United States v. Anderson , et al. 9

5 Althoug h Ande rson cl aims er ror in the f

ailure to gi ve a reques ted ins tru cti on on wil lfu lness , th e record shows that the jury was inst

ructed concerning “wil lfu lness .” The dist rict court deni ed a request that “wi ll fu ll y” b e adde d to th e ve rdi ct for m. § 7203 refers to any

pers on “r equi red t o mak e a re turn. ” We hav e no difficulty concluding , however, that proof of a d ut y to file a return is not required to es tablish a violation of § 7206(1) or

(2) for filing r eports of nonexisten

t transac tions. See U nited States v. Tarwater , 308 F.3d 494, 504 (6th Cir. 2002) (descr ibin g § 7206 as a perjury statute criminalizing lying on any

document filed with the IRS).

“Willfulne ss” for purp oses of the tax laws connot es “‘a
vo lu nt ar y, intent ional violation of a known legal duty .’” Cheek v. United

State s , 498 U.S. 192, 200 (1991) (citation omitted). The relevant

duty for purposes

of willfulness is the duty imposed by the

provision of the sta tute or regulation the defendant is acc used of violating. Id. at 201-02. Under § 7206(1), the government must show the defendant

willfully made and subscribed “any return, statement, or other document
, which contains or is verified by a written declaration

that it is made under

the penalties of perjury , and whichhe does not believ e to be true and correct as to ever y material matter.” The companion section, § 7206(2), makes it a felony for any person to

willfully aid, assi st , procu re, counsel, or advise the pre para tion or presentation under the internal reve n ue laws a return, affidavit, claim or other document which is fraudulent or false as to any material matter. The clea

r import of

theseprovisions is thatwhen one

m akes and subscribes a return, or aids and counsels the preparation

and presentation of a return, an obligation arises that the return not be fal se as to any materia l matter. This duty arises w ith the makin

g of the return, without re gard to whether there was an

obligat ion to file one in the first place. 5 10 United States v. Anderson , et al. Nos. 02-1662/1673/1700/1703/ 1736/1769/1771

6 Anders on does not

appeal her c on vict ion s f or vi olat ion of § 514( a)(2) (counts 2-3), or her convict ion on the conspiracy charg e (count 1). Takinga slightly diffe

rent tack, Modderman argues that the falsity of the information on the 8300s w as not “ma terial” because in the absence of any

reportable transaction there was no du ty t o file the 8300s and no tax to be computed by the IRS. Of cour se, the f

ailure to report in come or o ther item s necessar y to the computation of tax is material. Tarwater , 308 F.3d at 505. In g e neral, however , “a fal se statement is material if it has ‘ a natura l tendenc y to influenc e, or [is] capable of influe ncing, the deci sion of the decisi onmaking body to which it was addressed.’” Neder v. United States
, 527 U.S. 1, 16 ( 1999) (a lteratio n in orig inal) (c itation omitted). We reject de fend ants’ contention that it is immaterial as a matte

r of law t o falsely report a transaction on Form 8300 when no transaction has in fact occur red.

B. Sight Drafts

The convic t ions for violation of 18 U.S.C. § 514(a)(2), as well as the portion

of the conspiracy charge

relating to those offense s, are challenged on appea l by Modderman

(counts 1, 15-17), Y ates (c ounts 1 and 24), Sagorski (counts 1, 18-22), and Goodwin (count 1). 6 Defend ants make thr

ee main c laims: that the si ght drafts are n

ot “ficti tious”obligations; that

they do not appear to be “actual” financia l instruments; and that there was no evidence of

an intent to defraud because they did notattempt to get a refund fr om the I RS. None of

these claims ha ve merit.

Added in 199 6, § 514(a) (2) make s it a felony t o pass, present , offer, issue, attempt or cause the same , or posse ss, with intent to defraud,Nos. 02-1662/1673/1700/1703/

1736/1769/1771 United States v. Anderson , et al. 11

any false or fictitious instrument, document, or other item appearing, representing , purporting, or c ontriving throu gh scheme or artifice, to bean ac tual security or other financial instrument issued under the autho ri ty of the United States, a foreign governme nt, a State or other political subdivision of the United States, or an organization[.]

The legisla

tive histor

y of this provis ion indica

tes th at i t was intended to cove r “ficti

tious” inst

ruments, as oppose d to “counte rfeit” i nstrumen ts, in orde r to close a

loophole in the criminal statutes

. Unit ed States v. Howick , 263 F.3d 1056, 106 6-67 (9th Cir. 2001), cert. denied, 535 U.S. 946 (2002). T he court in Howick articulated the distinction betwe e n counterfeit and fictitious documents as follows, id . at 1067:

A “counterfeit” obl ig ation is a bogus document contrived to appear similar to an existing financialinstrument; a “fictitio us” oblig ation is a

bogus document

contrive d to appear to be a financial instrument, where there is in fact
no such genuine instrument, and where the fa ct of the g e nuine instrumen

t’s nonexist

ence is presumab ly unknown by, and not

revealed to, the intended recipient of the doc ument.

I n t his case , there was testimony t hat altho ugh the re is a legitima te financial instrument known as a sight draft, the United States Treasury

has no t used sight drafts in modern hi s to ry. Moreover, the United States Treasury maintains no de pository

accounts against which an individual could dra w a c heck, draft, or any

other financial instrument. The sight draftsat i s sue here were properly charged as fictitious instruments under § 514(a)(2).

Yates asserts, without elaboration or citation t o au th or it y, that it was obvious from the face of the sig ht draft t hat it was not an “actual” financial instrument within the meaning of § 514(a)(2). While

the sight drafts were not in fact acc epted 12 United States v. Anderson , et al. Nos. 02-1662/1673/1700/1703/ 1736/1769/1771

7 In contra st with co unt erf eit st atut es, § 514(a) (2) cannotbe int erprete d to includ e a “sim ilitude” r equ ireme nt; t hat is, that t he document bear such likene ss to genuine curren cy as is ca lculated to deceive an honest unsuspecting person of ordinary observation. by any of the r

ecipients, we agree

with t he court in Howick that because the “ver y pu rpose of the statut e is to supplement th e preexisting counterfeit laws by criminalizing bog u s obli gations th at ar e n ot co pi es of an y actual

obligation” t

h e term“actua

l” in § 514(a)(2) cannot be given its most natural meani ng. 263 F.3d at 1067 (emphasis in o riginal) . Instead, it should be interpreted to encompass the idea of “verisim ilitude”— the quali ty o f appea

ring to b e true or

real. Id. 7
Recognizingthe infinite range of f inanc ial instru

ments, both genuine and fictitious, the court in Howick interpreted the phrase “ ‘actua

l securit y or other financi al instrument’” to
mean “one tha t appears to be ‘actual’ in the sense that it bears
a family resembla nce to g enuine f

inancia l instrume nts” or, in other words, “include[s] enough of the various hallmarks and indicia of financia l obligat ions so as t o appea r to be wit

hin tha tclass.”

263 F.3d a

t 1068. I n this cas e, the g overnme n t presented testimony from William Kerr of the Off ice of the Comptrolle

rdescribing the sight drafts as having good physical quality (including micr

oenco ding , microprinting, a colored background, and an artificial wa termark), and noting that th eir in validity would not necessa

rily be appa rent just from look ing at them.
Fi na ll y, def

end ants assert that there was insufficient evidence of an intent to defraud because they made no attempt to obtain a refund from the IRS. As the government points out, however, it was not necessary to prove d

efenda nts requested a refund in order to establish t hat the sight

drafts
were present

ed with int

ent to defraud. Intent may be proven throug h circu

mstantial evidence, and there was evidence fromNos. 02-1662/1673/1700/1703/

1736/1769/1771 United States v. Anderson , et al. 13

whichthe jury could infe r t hat defendants knowingly sent worthles s sight dr

afts dra wn on the U

nited St ates Tr easury with the intention that they be acc epted for value.

C. Sufficiency

Defend ants Goodwin and Sagorski argue that the evidence
was insufficient to support their convictions under

26 U.S.C. § 7206(1) (counts 28-30 and 46-47). Sagors ki specif ically relies on the fact that the document exam iner w as unable to identify him as havin g s igned the 8300s that bore his name. The witness did testify, h oweve r, that Sa gorski a uthored a ll other entries on the form and that no conclusion could be made about the signatures because Sag orski’s handwri ti ng exemplar was “very

quickly executed and pa

rtially illegible.” Goodwin, on the other han d, relie s on the fact that the document examiner c ould only

identify him as the “

probable preparer” of the 8300s bearing his name.

Inaddition to the expert witne ss testimony, the jury was entitled to consider both circumstantial evidence as well as the rebuttabl e presumption afforded by 26 U.S.C. § 6064,

w hichprovides that the fact that an individual’s name i s signed to the retu

rn is prima facie evidence that the return was signed by h im. We have no difficulty finding that when the evidence and inferences are viewe d in the lig ht most favora ble to the prosecution, there was sufficient evidence fromwhich a rat ional trier of fact could conclude that Sagorski and Goodw

in signe d the fal se 8300s that bore t heir
names. Next, defendants Sagorski and Goodwin c ha llenge the sufficiency

of the ev idenc e tying the m to the charged
co ns pi ra cy. Both def

endants a rgue f irst that they never

joined the conspiracy

to defraud

the United States by obstructing the IRS. Not only does this ignore tha t the con sp ir ac y h ad multiple objectives, but also disregards the evidence concerning

their participation. Goodwin’ s namewas signed 14 United States v. Anderson , et al. Nos. 02-1662/1673/1700/1703/ 1736/1769/1771

8 Sago rski, a cust omer in Lawr ence ’s muffler sh op, h eard Lawr ence ’s anger at police and the court s ystem and arra nge d for h im to m eet with Anders on and M odderman at the i r home. Sagors ki al so gave Lawre nce
some audio tap es t hat incl uded anti -govern ment rhet oric. Under And erson ’s direc ti on, Lawr ence signed false 83 00s that were filed with the IRS reporti ng transacti ons wit h indi vidual s agai nst wh om Lawrence bore gr ievances . Arndt , who worked f or Sagorski , had sev ere fi nancial probl ems ari sin g fr om her s on’s use of her credi t cards . Sagors ki ref erred her to Anderson and Modde rman a nd provi ded her wit h si ghtdraf

ts on
one occas ion. Arndt

sent more t han 50 sight

drafts and filed false 830 0s. She introd uced her so n and sister to the schem e and they, i n turn , also wrote wo rthless sight drafts. on11 false 8300 s dir ected at judicial officers, police, and attorn eys that colle ctively reporte d over $1 40 million in financial transactions which never o ccurre d. Goodwi n also refused to cooper ate with the gra nd jury , sent noti ces to court office rs, and joined with those who acted to disrupt the trial

. Sagorski si gned 34 false sight drafts totaling $49 million and filed 16 false 830 0s r eporting nonexistent transactions with employ ees of f inancia l institution s, as well

as judge s, la wye rs, andcourt officers. Special Agent Robert Walker testified that Sagorski admitted

to having prepared the 8300s and sight dra fts bear ing his na me and ins isted that

the IRS
was a fictitio

us entity with no rig

ht to colle ct taxes. I n add ition, Sagorski was responsible for bringing Lawrence

an d Ar nd t i nt o t he co ns pi ra cy. 8

Fi na ll y, Goodwin argues that it was error

to have admitted another piece of ev idence, the only sight dr aft purp ortedly writtenby him, because it pre ceded the conspiracy . To the
co nt ra ry, the sight draft was dated Ma y 21, 1999, and was endorsed on the revers e side to Jer

ry M. Beurkens on July 13, 1999; well withi n t he period of the conspiracy . Beurkens, a
c ity attorney, testified that he had prosecuted Goodwin o n a traffic ticket se veral y ears ea rlier; r eceive d severa

l documen

tsNos. 02-1662/1673/1700/1703/

1736/1769/1771 United States v. Anderson , et al. 15

9 Go odw in also a rgues th at this sight d raft was nei ther the subj ect of

a substanti ve charge nor list ed as an ove rt act in furtherance of the conspi racy. The gover nment may of fer proof of ove rt a cts not l ist ed i n the indictm ent. United States v. Hens on , 848 F.2d 1 374 (6th Cir. 1988). The gover

nment als o n otes tha t thi s exhibit was admitted twice wit hout objection from Goo dwin.

10 At trial , counsel for Sagorski agreed with the dist ri ct c ou rt’s chara cteriza tion that the motio n was in e ssence one fo r mistrial. fromGoodwin, including the sight draft; and was the targ et of a false Form 830 0 filed wi

th the I RS. 9

III. Sagorski claims er

ror in the denial of his motion for
severance or mistrial on the grou nds that he was prejudiced by the disruptive behavior of his codefendants. Whether properl y articulated as a question of prejudicial joinder requ ir ing severance, or a motion for mistrial resulting from prejudicial joinder, t he record reflects that the district court addressed the appr o priate considerations for determining whether the defe ndant cou ld demonst

rate he was prejudiced. See United Sta tes v. Mo ore , 917 F.2d 215, 2 20 (6th Cir. 1990). Our review

of a district court’s decision on a motion for severance or for

mistrial is for abuse of discretion. United States v. Lloyd , 10 F.3d 1 197, 1215 (6th Cir. 1993) (prejudicial joi nder) ; United Sta tes v. Cha mbers , 944 F.2d 1253, 1263 (6th Cir. 1991) (mistrial). 10

Relief from prejudicial joinder

is requir ed “only if there is
a serious risk that a join

t trial wou

ld compromise a spe cific tr ial right of one of the defendants, or pre vent the j ury fro m making a reliab le judgment about guilt or innocence.” Zafiro

v. United States , 506 U.S. 534, 539 (1993). A trial court’s l imit ing instructions may “cure ” such prejudice. Id . The defe ndant bears the burden of making a “strong showing o f factua lly s peci fic and c ompelling

prejudic e resulti

ng from a 16 United States v. Anderson , et al. Nos. 02-1662/1673/1700/1703/ 1736/1769/1771

joint trial.” Moore , 917 F.2d at 221. We adhere to the view that t he ju ry m ust be presumed capable of sorting out the evidence against each de fendant separately

. Id. at 220.

Indenying

Sagorski’s motion, the district court observed at the ou t set that there had been a noticeable diffe rence in the appearance, demeanor, and atten ti veness of the three defenda nts w ho di d not disrupt the proceedings (who were also on bond) as compared to the nine defendants who engaged in the disruptive behavior. The three nondisruptive defendant s w ere als o phy sically separa ted from t

he others, due to the configuration

of the tables in the smal l courtro om. Inaddition, the court noted that much of the evidence related to the sight drafts or

8300s allegedly

prepared by

the various individua ls.

Fi na ll y, in considering the impact of the di sruptive behavior, the court indicated that the outbursts were short and the defendants were quickly escorted out of the court ro om. Infact, t he cou rt sugge sted t hat S ago rsk i’s good behavior may have served to impr ess the jury and diff erentia te him fromthe disruptive defend ants . No further disruptions occurred, as the nine defendants were unwilling to gi ve the necessary assurances. Mor eover, the jury was prop erly instructed to separately

con si der the evidence as to each defenda nt. United Sta tes v. Stu ll , 743 F.2d 439, 447 (6th Cir. 1984). We find no a

buse of di screti on inthe denial of Sagors ki’s motion

for seve rance or mistrial

. IV.

Several evidentiary c lai ms are ra ised by defenda nts Anderson, Modderman, Sagorski, and Goodwin. We review the district court’s decisions concerni ng t he admission of evidence for abuse of discretion. United States v. Middleton
, 2 46 F.3d 825, 836 (6th Cir. 2001). Even if an abuse o f discretionhas occurred, “[a]ny error, d efect , irregularity , orNos. 02-1662/1673/1700/1703/

1736/1769/1771 United States v. Anderson , et al. 17

variance that does not affect substantial rights must be disregarded.” F ED

. R. C RIM

. P. 52(a). Anderson, joined by Modderman, c laims error occurred when Agent Jon Stre et was allow ed to t estif y concerni ng a box of docume

nts which c onsist e d of correspondence received from the defendants and addressed to individuals including ju dge s, p ros ecu to rs, and IR S investigators (the “G at ew ay” box). The essence of Anderson’s claim on appeal is twofold: t

hat it was

an abuse

of discr etion to allo w testimony concerning the e ntire co llection o f docume nts withoutadmitting all of the documents; and that it was unfairly prejudic ial beca

use it allowed the jury

to specul ate about the voluminous “collective misdeeds ” of the defenda nts. We re

ject thes e conten

tions as me

ritless.

The record reflec ts that Stree t testified generally concerning the contents of the b ox t o explain how the documents were
accu mulated

and org anized, bu

t did not inc lude spec if

ic s about documents that were not admitted int o evi den ce. In addition, the box was present so that it would be available for defense counsel t o use in cross-examination. From the b ox, Str eetse lected documents sent by various defendants that contai ned the same or very

similar captions or verbiag e

. Thoseselected documents were offere d as exhibits to show the e xistence of and participation in the conspiracy . To th e extentthat the volum ino us number of documents reflected badly on defendants, it was not unfairly prejudicial. There
was no cl aim th at the box did not contain the kind of document s that the exhibits repr es ented. At least one defendant was able to clarify on c

ross-examination that none of the se lected d

ocuments were se nt by him.

Anderson and Modderman contend that it was an improper plea for sympathy

to mention that defendants directed notices and ot her harassing correspondenc e to the prosecutor pe rs on al ly. In ov erruling objections to su ch ev idence, the districtcourt observed that to exclude the evidence woul d 18 United States v. Anderson , et al. Nos. 02-1662/1673/1700/1703/ 1736/1769/1771

11 In a related argum ent, G ood win asse rts that do cum ents recei ved by the government

during tri al, includi ng a let ter prepared by Goodwin fr om th e h olding cell and handed to a Deputy United States Marshal, were irreleva nt, outs ide t

he sc ope of t

he cons pira cy, and un duly pr ej udicia l. The documents, and especially Goodwin’s lett er, were relevant to the alle ged conspiracy as they supported the cont ention that there was concerted action by the de fendants. allow a defendant to thwart prosecution

by sending da

maging material to the pro secutor . This is an unusu al case in that the letters and notic es were

releva nt to the conspiracy

charge and
were not themselves of an inflammator y nature. Moreover, defenda nts have not identified any questioning or argument by the p rosecut or rela

ting to th e corre spondenc e that wou ld te nd to in fl am e t he ju ry. 11
Sagorski claims th at the district court erred in allowing Agent Steven B aker to t

e stif y conce rning items seized from the An de rs on -M od de rm an re si de nc e. Sp ec if ic al ly, defendant points to testimony about a letter from a bank in re sponse to correspondencefr om Sa go rs ki ; a co py o f the alert from the Co mp troller’s Office to financial institutions about the fictitious sight

drafts; excerpts from a book called “Accepted for Value”; portions of pamphlets outlining the us e of th e mantra; and literature referencing the “Kingdom of Heaven” group and other teachings. Defenda nt argues that the evidence was hea

rsay , and cla

ims it was ir

releva nt and hig hly pre judicial because

it brande d the def

endants a s “anti

gover nment” and because some of the refer ences might have called to mind simila

rly named cu

lts. There is no indication, however, that a

n objection was made on either basis. As such, our review is for plain error. United States v. Thomas
, 11 F.3d 620, 629-30 (6th Cir. 1993).

This evidence was relevant to the ques tion o f the defend ants ’ knowledge and intent and would not have been
o ffered for the tr

uth of the matter a sserted . Moreove r, this
was hardly

the only evidence

of “anti-government” sentimentNos. 02-1662/1673/1700/1703/

1736/1769/1771 United States v. Anderson , et al. 19

12 USSG § 2F1 .1 was repealed and amende d provisions were consoli dated in USSG § 2B1.1, eff ecti ve November

1, 2001. See USSG § App. C, amendmen t 617. Although defendants were sentenced aft er the effective d ate, the o ld pro vision w as used in ord er to avoi d ex po st facto prob lems. onthe part of the defend ants. Finally, it would be pure speculation

to conclu

de that r efere nces to the “Ki ngdom of Heaven” group might have led t he j urors to a ssociate defenda nts, specifically A

nderson and Modder

man , with a cult known by a similar name. We find no r eversible error.

V.

Five defendants—Anderson, Shriver, Sloboda, Go odwin, and Sagors ki—appea

l from ce rtain asp ects of

the district court’s calcula

tion of the ir adjuste d offens e level under United States Sentencing Guidelines Manual (USSG) § 2F1.1 (2000). This guideline applies to both the group of offenses relatingto th e sight draft s and t hose r elati ng to the f alse 8300s, and provides for

a base of

fense le vel of 6. USSG § 2F1.1(a

). The g

uidelin e ap plicable to the conspiracy charge, USSG § 2X1.1(a), incorporates this base offense level and any specific offense characteristics for intended conduct that can be established with reasonable certainty . Because a broad range of offe nses are covere d by

USS G § 2F1.1, the guidelines i nclude a

number of

specific offense charac teris tic s

– the most sig

nifican t of which is the incremental increase of up to 18 levels based on the value of the loss or

intended loss. USSG § 2F1.1(b)(1). 12

Alth ough the probation department recommended that the offense level be increased based on the fac e value of all the sight drafts a nd 8300s a

ttrib utabl e to each defendant, the district court rejected that approach as incons istent with

this court’s precedent concerning the c alculation of intended losses. United States v. Watkins , 994 F.2 d 1194 (6th Cir. 1993); Uni ted S tates v. Khan , 969 F.2d 218 (6th Cir. 1992). 20 United States v. Anderson , et al. Nos. 02-1662/1673/1700/1703/ 1736/1769/1771

This determination is not challenged on appeal

. To be included as an intended l o ss, the district court must find the defendant intended the loss; it was possible for the defendant to cause the loss; and the defendant completed or was a bout to compl ete, but f

or interr uption, al l of the a

cts nece ssary

to bring about the loss. Watkins , 994 F.2d at 1196.

Co ns eq ue nt ly, the district court categ orically

excluded the value of all the 8300s, leaving a base offense leve l of 6 for the § 7206 offenses. The court then discriminated between

sight draftsth at wou ld be counted as intended losses, excluding those for more than

$100,000 and including those that related to an existing debt or an

at te mp t t o o bt ai n c re di t. In t hi s w ay, the district court determined that Anderson and Sagorski would each receive a 12-leve l increase in the offense level relatingto their co nvict ions under § 514(a)(2) for intended losses of more than $1.5 million and less than $2.5 million under § 2F1.1(b )(1) (M). Anderson and Sagorski claim that this was error.

A. Intended Loss and § 514(a)(2) Offenses

At the outset, Anderson argues that no s ight drafts sh ould have been included as int ended losses be cause they

were so obviously bogus that it was im

possible f

or the scheme to succeed in causing a loss. In Khan , we explained tha t th e incremental increa ses for in tended lo ss es “assume a fraudulent

scheme t hat wou ld have c

reated some act ual loss but for the interruption of the scheme by de

tection or failure to carry out all the steps nece ssary to su cceed.” 969 F.2d at 221. This limitation applies when the impossibility of pecuniary loss is “en

tirely unrelat ed to the fraud or

its discovery.” Id. at 220. See United States v. Ly , No. 98-3783, 1999 WL 196573 (6th Cir. Mar. 29, 1999) (unpublishedNos. 02-1662/1673/1700/1703/

1736/1769/1771 United States v. Anderson , et al. 21

13 The amendmen ts abandon thi s ci rcui t’ s i nter pret ati on of in tended loss and clar ify

that int ended loss “incl

udes int ended pecuniar y harm t hat

wou ld have b een im p ossi ble or unl ikely t o occur .” USSG § 2B1.1, comment. (n.2) (eff. Nov. 1, 2001 ).

14 The addi ti on of

th ese amo unt s t o the def endant’ s int ended losse s “bum ps” the increa se in the base of fen se l evel fr om 11 level s (f or loss es of more t han $800, 000) to 12 lev els (f or los ses of

more than $1.5 milli on). decision). Whil e no sight d rafts we re acc epted for value i

n this case, it is because the fraud was detecte d. 13

Anderson and Sag orski both

claim the district court erred by holding t

hem acc ounta

ble f or sight drafts written by others

. To be considered “relevant conduct,” the conduct must have been (1 ) reas onably fore seeable to the defendant and (2) undertaken in furt

her ance of the jointly unde rtaken criminal activity. USSG § 1B1.3 (a)(1) (B) an d comment

. (n.2) (2000); United Sta tes v . Orla ndo , 281 F.3d 586, 600 ( 6th Cir.), cert. denied, 537 U.S. 9 47 (2002) . The dis tric t court must make indiv idualized f indings r egard ing thes e require ments in order to differentiate between coc onspira tor s. 281 F.3d at 600. Sagorski does not c ontest

the amount of

losses representing sight dr afts he wrote himself, to the tune of about $820,000, butonly disputes the inclusion of sight draf ts written by Arndt and her s on, Chad B oerma, on the gr ounds that

t h e court failed to make particularized findings con cer ning the forese eability

of their conduct and the scope of the joint
ac ti vi ty. The recor d shows, however, that the district court made the requisite finding s. 14

Th e district court found that Sagorski recommended the scheme to Arndt, and

arranged for

Anderson and Modderman to teach her. Arndt explained the theory to her son , who, with prompting fromSagorski, wrote a series of sight drafts. The districtcourt concluded tha t Sagorski should be found 22 United States v. Anderson , et al. Nos. 02-1662/1673/1700/1703/ 1736/1769/1771

culpable for

the conduct of Arndt and Boerma because “one
can say without a shadow of a que stion that he knew what [Arndt] and her s on Boer

ma were doing, and theamounts that they defrauded and

intended to defra ud are c ulpable t o him as a co-conspirator

because it was clearly

foreseeable within that por tion of the conspiracy .” Because Sagorski has not demonstrated

that the district court’s findings we r e either inadequately individualized or clearly erroneous, we find no
error in the 12- lev el adjustment in the offense level under § 2F1.1.

Anderson was hel d accountable for intended losses of $2,205,749, of which only $31,000 was a ttributable to sight drafts she wrote herself. This resulted in a 12-leve l increa se inthe offense level for

the § 514(a)(2) convictions. Anderson argue s, as she did at sentenc ing, tha t it was not

reasona bly forese eable

that her “stu dents” w ould write

these sig ht drafts

. She claims she mere ly explained the redemption theory and the u se of the sight drafts and could not control what her “student s” did

with that “

knowledg e.” The

issue, however, is
no t c on tr ol bu t f

or es ee ab il it y.
We find n o error in th e find ing t hat it wa s reasonably forese eable

to Anderson

that her coconsp irators would write the sight drafts in q

uestion. She explained how the sight draftscould be used to escape debts and secure credit, showed themhow to fill

outthe sight drafts, and encourag ed the filing of false 8300s against those who rejected the sig ht drafts. The only coconspirator A

nderson did not personally instruct was Boerma. Not only

did Anderson fail to ob

ject to those sight drafts, but any err

or in the inclusion of the $156,000 in sight draftswritten by Boe

rma would be harmless bec ause evenNos. 02-1662/1673/1700/1703/

1736/1769/1771 United States v. Anderson , et al. 23

15 Anders on also questions t he accur acy of

some of t

he fi gures incl uded by the dist

rict court and complains that t he addin g machi ne t ape refer enced by the distri ct court is not part of the record. Inviti ng this court to reman d to ex pa n d the record, Anderson asserts that there are discrepan cies in the totals of the sight draft s wri tten

by Arndt an d Boerma. Anders on did not obj ect to or ask for c larification conc erning the am ounts that were being inc luded in t he l os s calcu lation, an d we find no plain

error. withoutit the intended losses would still greatly e xceed $1.5 million. 15

B. Enhancements under USSG § 3B1.1 and § 3A1.2

Shriver received a two-level enhanc eme nt under U SSG § 3B1.1(c ) for he

r role in t he offe nse as “an organizer, leader, manager, or su

pervisor” of the criminal activity . To qualify for this adjustment, the defendant must have exerted control
over at least one other participant in a supervisor y , manage rial, leadership, ororganizational capacity

. United States v. Caseslo rente , 220 F.3d 727, 734-35 (6th Cir. 2000). Alth ough the district court did not identify an individual over whomShriver exerted control, we can infer the nec es sa ry finding from the district cou rt’s e xplanation that she had a leadership role in that she secured the sigh t drafts, met with and connected people, and had a leade rship role both pretrial and at trial. United States v. Dupree , 323 F.3d 480, 494 (6th Cir. 2003); see also Ca

sesloren te , 220 F.3d

at 736 (alth ough preferable, it is not required tha t the dis trict court state the specific facts relied on in a

pplying § 3B1.1 enhancement). The record

indic ates th at Shriver was an organizer in the conspiracy

and an instigator among the defenda nts at tri a l. The government notes that there can be l ittle doubt that she exerted control with respect to the participation of her husband. It was not clea

rly errone ous for the district court to find the enhancement applied to Ruth Shriver. 24 United States v. Anderson , et al. Nos. 02-1662/1673/1700/1703/ 1736/1769/1771

16 In a novel

cla im, Anders on argues that although proper not ice was sent regardi ng possi ble depart ure under § 5K2.7, the di stri ct court ha d an obli gati on to amend that notice to advise her regarding the possibil ity of departure un der

§ 5K2

. 0. We find no error, however, because the gove rnme nt’s preh earing motio n for d epa rture ad equ ately discl osed that departure unde r § 5K 2.0 w as at i ssue. Bur ns v. United States , 501 U.S. 129 , 138 (199 1) (notice is r equired before the distri ct court may depart upward “on a groun d not identifi ed as a groun d for dep arture in t he presentence report or in a prehearing submiss ion by the Government”). Anderson appeals from the 3- level enhancement imposed under USSG § 3A1.2(a

), which applies if “the victim was a gov ernment

officer or employ

ee . . . and the offense o f convictionwas motivated by such status.” This enhancement
was added to t

he offe nse lev el for the § 7206(2) offenses relatingto the false 8300s. Although Anderson challenge s the enhance ment

on th e g ro un ds th at th e t ar ge t w as re al ly t h e governm ent , rather than government officials, the district court did not clearly er

r in finding that

the targe ts of the f alse 8300s covere d individua l gover nment o ff

icials who were targeted because of their positions. For

example, in

dividuals targeted included an officer

who issued a ticket

to a defendant and a judge who presided

ov er a cou rt mat ter in volv ing a defenda nt. Conceding that

about half of the 8300s that were the subject of her convictions under § 7206(2) targ eted federal
or stateemployees, Ande

rson argues that it wa s error to apply the enhanc ement to a

ll of those counts. However, the § 7206 convictions were grouped toge ther without objection.

C. Upward Departures under USSG§ 5K2.0 a nd § 5K2.7 16

We have reviewed a district court ’s deci sion to depart upward or downw ard from th e sen tenci ng guid eline range under an abuse of discretion standard. United States v. Chance
, 306 F.3d 356, 393 (6th Cir. 2002 ). Rece nt amendme nts to 18 U.S .C. § 3742(e) require de novo review of whether a depar ture was based

on proper factors, butNos. 02-1662/1673/1700/1703/

1736/1769/1771 United States v. Anderson , et al. 25

review of the ex ten t of such a departure continues to be for abuseof discretion. See PROTECT Actof 2 003, § 401(d), Publ. L. No. 108-21, 117 S tat . 650 (2003). Because we would affirm the upward

departures under either standard, we need notdecide w

hether t his modifica

tion applie s to appea

ls pending as of the effective date

of the PROTECT Act.

The applicable gui d elines allow for upward departures when “there exists an aggravating . . . circumstance of a

kind,
or to a degree, not adequately taken into consideration by the SentencingCommission in formulating the guidelines.” 18 U.S. C. § 3553(b ); see USSG § 5K2.0 (2000). When a factor being considered is an encouraged factor, the court may depart if the applicable guideline does not already take th e factor into consideration, or, if already taken int o accou nt, it is present to a deg ree tha t makes the c ase different from the ordinary casein wh ich it is present. Koon v. United States
, 518 U.S. 81, 95-96 (1996).

Once the district

court excluded

all of the false 8300s and many of the sight drafts from

the loss calculations, the offense level could not be in creased under USSG § 2F1.1(b)(1) f or any of the convictions under § 7206, or for Ruth Shriver’ s co nviction under § 514(a)(2). Granting the government ’ s mot ion for upward departures under USSG § 5K2.0 , th e districtcourt fo und that without additional increases the of fense level wou

ld not ref

lect the s eriousne ss of th e defenda nts’ conduct. As th e commen tary to USSG § 2F1.1 explains: “In cas es i n which the loss determined under subsecti on (b)(1 ) does not fully capture the harmfulness and seriousness of the conduc t, an u pward departure may be

w arranted.” USSG § 2F1 .1, comme nt. (n.11) . Sh river
, Anderson, Sloboda, a

nd Goodwi

nchallen ge thes e departu

res.
Inaddition, the district court pr ovide d defend ants with notice of its intention to consider upward departure under USSG§ 5K2. 7, which provides, in part, that “[i]f the defendant’s conduct r

esult ed in

a significant disruption of 26 United States v. Anderson , et al. Nos. 02-1662/1673/1700/1703/ 1736/1769/1771

17 The court later r ejected the government’s request for furt

he r enhancement for

mor e th an mini mal plann ing under USSG § 2F1.1(c) because Shri ver’ s over all part ici pati on in t he conspir acy was fac tored into the USSG § 5K2 .0 departure. g overnmental function, the court may increase the sent enc e above the authorized guideline range to ref lect the nature and extentof the disruption and the importance of the governmentalfunction aff ected.” The d istrict court found that the disruptions during trial represented significant disruption of a govern

men tal function for which upward departures would be warranted in calculating the offe nse leve ls for both the § 514(a)(2) and

§ 7206 offenses. Anderson, Sloboda, and Shriver a ppeal fr om these d

epartur es.
1. Shriver

Convicted

of one count each of conspiracy and violat i ng § 514(a)(2), Shriver had an adjusted offense level of 10 prior to any depa

rtur e. The district court found this offense level did not accurately

reflect the se riousness of her conduct and granted an 8 -le vel upw ard dep art ure und er U SS G § 5 K2. 0. In explaining the reasons for this departure, the court noted that the one sight draft at issue for $1.75 million was sent to the IRS at a time when Ruth and

Jack Shriver had a tax obligation of $114,000. Given the

amo u nt of the sight draft, however, the district court did not

increa se the base

offense level to account for intended losses. Nonetheless, the court found that the sight dr

aft sent t o the I RS was obvio

us ly d esigne d to commit fraud and t

he tax liability

related to her ow

n antigovern m ent animus. The district court a lso found t

hat, in addit ion to the enhancement under USSG § 3B1.1(c), the extentof her pa

rticip at ion in the larger conspiracy had not been taken int o accou nt. In deciding to upwar dly depart 8 levels, the district court observed that a loss of $114,000 would alone result in a 6-level increase in the offe nse level under USSG § 2F1.1(b)(1). 17Nos. 02-1662/1673/1700/1703/

1736/1769/1771 United States v. Anderson , et al. 27

18 W ith a total off

ense level of 24 and a criminal historyscor e of 0, the guidel ine r ange w as 51 t o 60 month s. Shri ver w as s ente nced t o 60

mon ths’ impr isonm ent on each coun t, to run co ncurr ently.

19 Anders on wa s sen tence d to 6 0 mo nths on the co nspira cy cou nt, 120 months on the § 514(a)( 2) conv ict ions , an d 36 month s on t he § 7206

con victions , to run c onc urren tly. Turning then to the

question o f depar

ture unde r USSG § 5K2.7, the district court explained that additional upw ar d departure wa s “ ab so lu te ly nec essary” because Shriver was
one of the leaders of the disruptive behavior and bec ause she repeat edly engag ed in the d

is ruptive behavior, all of which demonstrated

contempt for t he process and every one from judge to jury. As a result, the district cour t foun d Sh river’s conduct warr anted an additional 6-level increase in the offense level. She contends that this departure was an abuse of discretion because her behavior during trial was ade quately taken into account

by the 2-level e

nhancement for obstruction of justice. T

he distric t court fo und other wise
, emphasizing that t he signi ficant disruption of the trial was separate from the obstruction of the grand jury and contempt procee d ings. We agree. 18

2. Anderson

The district court granted a 6-level upward departure under USSG§ 5K2.0 with respect to Anderson’s § 72 06 off enses on ly, after finding that the base o ffensele vel of 6 did not account for the seri ousness o f her conduct. In a ddition, she

r eceived a 4-leve l upward

departu re in the offense level fo r both the § 514(a)(2) offenses (counts 2-3) a nd the § 7206(2) offenses (counts 50-73) under USSG § 5K2.7. 19
Takingissue with

the USSG § 5K2.0 departure, Anderson mistakenl y asserts that such a departure mu st relate to a financial loss. This assertion is refuted by the earlier

quoted commentary

to USSG § 2F1.1 authorizing departure when the 28 United States v. Anderson , et al. Nos. 02-1662/1673/1700/1703/ 1736/1769/1771

20 Slo bod a was sentenced to concurre nt terms of 37 m onths’ imprisonment on the conspira cy count and 36 months on eac h of the two § 720 6 co nviction s. Go odw in rece ived c onc urren t te rms o f 46 m onths’ imprisonment on th e cons pira cy count a nd 36 m onths e ach on his two § 72 06 co nvictions. loss calculation does not ref lect the harmfulness and seriousness of th e conduc t. Ander son also a rgues t hat this departure resulted in doub le counti ng when combined

with the official-victim enhancement under USSG § 3A1 .2. In particular, she emphasizes that more t han half of the targ ets of the f a lse 8300s were government officials. Howe ver, the districtcour

t explain ed the departure as warrante d because the base offense

level of 6 did not t ake into a ccoun t the l arge number of false 8300s that Anderson had aided, assisted, or counseled others to

file. Thi s i s distin ct from the enhancement

based on t he status

of the ta rgets t hemselve s. The USSG § 5K2. 0 depart ure did not re sult in doub le counting of

the same factor. Sloboda and Goodwin, who join inthis arg

ument, al s o received a 6-level departure under USSG§ 5K2.0 based on the number of false 8300s they each filed in an atte

mpt to subve

rt the I RS and har

ass t he target s (in each case a dozen). 20
Appealingthe 4-level upward departures under US SG § 5K2.7, Anderson argues, as she did at sentenc ing, that they constituted

doublecounting

of the sa me conduct addressed by the 2-level enhancement fo r obstru ction of ju stice. As with Shriver, howeve r, it is clear that these departures addressed sep arate conduct from the obstruction of justice enhanc ement

. Al te rn at iv el y, Anderson suggests the USSG § 5K2.7 departures were e

rror be cause the trial court could have exercise d its conte

mpt powers during

trial.

The distr ict cour

t conside red this p ossibility

, but found

it inappropriatebecause to bring criminal contempt ch arg es at trial could have “anoin

ted th es e people with martyr dom.”Nos. 02-1662/1673/1700/1703/

1736/1769/1771 United States v. Anderson , et al. 29

21 Sloboda, who ad opts And erson’s argum ents on this issue, also receiv ed a 4-le vel upwar d departure u nde r US SG § 5K2.7 for th e sa me
reasons. T he district c ourt also

explained

that “this

is not all abou t contempt

. T his wh ole trial, this whole issue, redemption th eo ry,

. . . was illustrative of contempt for all authority . Not just judicial authority, bu

t all a uthority. This contempt for judic ial authority was just one aspe ct of the contempt for governmentalauthority

wit hin a democracy .” We find no
error in the determination that upward departures we r e appropriate under USSG § 5K2.7.

Ina related “piling on” arg ument, Anderson sugges ts th e departures were not necessary because removing her and the others from the trial was pu nishmen t enoug

h. That wa s a questio n of courtroom management, with defendants being invited to return to the courtroom twice e v ery day , and was notadequately

reflected in the sentencingcalculations absent the departure. Finally, Ander son challenges the extent of the departures as unrea sonable. We cannot say that th e 4-le vel departures under USSG § 5K2.7 rep rese nt an abuse of discretion. In particular, the district cour t emphasized that the conduct involved mul tiple incidents o f disruptive conduct that significantly disrupte d an important judicial function. 21

AFFIRMED.