*Pursuant to 5th Cir. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5th Cir. Rule 47.5.4.

REVISED - March 13, 2001

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 00-20187

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GARY G. SCOTT; CHRISTOPHER M. BURKS,

Defendants-Appellants.

 

Appeal from the United States District Court 

for the Southern District of Texas

(H-96-CR-158-12)

 

February 12, 2001

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges. 

PER CURIAM:*

Defendants-Appellants Gary G. Scott and Christopher M. Burks

appeal their convictions for one count of conspiracy, five counts

of mail fraud and one count of money laundering pursuant to 18

U.S.C. §§ 371, 1341, and 1956(a)(1)(A)(i), respectively. Scott and
1 In Neder v. United States, 527 U.S. 1, 25 (1999), the

Supreme Court held that materiality is an element of the offense of

mail fraud.

2 United States v. McGough, 510 F.2d 598, 602 (5th Cir. 1975).

3 See id. at 602-603. 

Burks were employed as telemarketers for American Land Liquidators,

Inc. (“ALL”), a company that purported to advertise hard-to-sell

properties and match owners of such property with potential buyers

in return for a fee. In reality, ALL was little more than an

extensive telemarketing fraud scheme. Scott and Burks appeal these

convictions on several grounds. 

First, they contend that the indictments against them were

fatally flawed because the five counts of mail fraud, predicates to

the conspiracy and money laundering counts, failed to include

expressly the element of materiality1 as to the scheme or artifice

to defraud. Even though the magic word “materiality” was not

present in the indictments, an “indictment is not fatally

insufficient for its failure to allege materiality in haec verba”;2

it is sufficient when, as here, the indictment specifically alleges

the facts of the criminal acts in which the misrepresentations made

are clearly material.3 

Second, Scott and Burks challenge the sufficiency of the

evidence supporting their convictions, arguing that the government

failed to adduce enough evidence to prove that the telemarketing

scheme was a scheme to defraud within the meaning of the mail fraud

statute, 18 U.S.C. § 1341. We disagree. As we held previously in
4 United States v. Reissig, 186 F.3d 617, 619 (5th Cir. 1999)

(per curiam).

5 United States v. Gray, 105 F.3d 956, 967 (5th Cor. 1997)

(quoting United States v. Lara-Velasquez, 919 F.2d 946, 951 (5th

Cir. 1990)).

affirming the convictions of the supervisors of this same

telemarketing scheme for, inter alia, mail fraud, a reasonable jury

“could certainly look at the evidence presented by the government

and conclude that ALL was a sham and that the defendants used it to

perpetrate [a] fraudulent telemarketing scheme.”4 

Scott and Burks next contend that the district court erred in

giving the jury a deliberate ignorance instruction. “[W]hen the

defendant claims he lacks the requisite guilty knowledge, such an

instruction is appropriate if the trial evidence raises two

inferences: ‘(1) the defendant was subjectively aware of a high

probability of the existence of the illegal conduct; and (2) the

defendant purposely contrived to avoid learning of the illegal

conduct.’"5 As we are satisfied that the evidence so demonstrated,

we conclude that the district court acted properly in instructing

the jury on deliberate ignorance.

Finally, Burks asserts that the district court abused its

discretion in allowing the government to cross-examine him

regarding a prior conviction for the sale of a simulated drug. We

are satisfied that the district court did not abuse its discretion

in admitting evidence of Burks’s prior conviction through his

answers on cross-examination, pursuant to Federal Rule of Evidence
6 “For the purpose of attacking the credibility of a witness,

. . . evidence that any witness has been convicted of a crime shall

be admitted if it involved dishonesty or false statement.” Fed. R.

Evid. 609(a)(2).

609(a)(2). Not only did he “open the door” to discussion of this

crime of dishonesty when he testified that he “would not have

deceived somebody to get money,”6 the similarity between the deceit

at issue here and that in his prior crime of conviction ——

representations that a fake drug was real when attempting to

distribute it —— complies with the strictures of that rule and

comports with Federal Rule of Evidence 403 as well.

We conclude that each of these contentions is without merit,

and therefore affirm the convictions of Scott and Burks.

AFFIRMED.