* Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule

47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 95-10550

____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ALLAN GLEN VON HOFF, 

also known as Allan Christian, 

JIMMIE LEE BATES, JOHN WILLIAM HOELZER, 

LEWIS HUDSON POWELL, III,

Defendants - Appellants.

__________________________________________

Appeal from the United States District Court

for the Northern District of Texas

( 4:94-CR-098-A )

__________________________________________

August 19, 1996

Before POLITZ, Chief Judge, JOLLY and BARKSDALE, Circuit Judges.

PER CURIAM:*

At issue are convictions and sentences arising out of a

fraudulent telemarketing scheme. Von Hoff, Bates, Hoelzer, and

Powell raise numerous due process, evidentiary and other claims.

We AFFIRM.

I.
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In early 1995, appellants were found guilty on several counts

of various fraud offenses for their parts in the telemarketing

scheme of GTP, Inc. Each appellant had a role in GTP: Powell as an

office manager; Bates as a telemarketer and later a sales manager;

Hoelzer and Von Hoff as telemarketers.

The scheme began in early 1988 and continued until GTP was

raided by law enforcement two years later. The raid was the

culmination of an investigation by Postal Inspectors and Internal

Revenue Agents, during which agents examined documents in GTP’s

trash and made calls to GTP posing as customers.

It is undisputed that GTP was a fraudulent scheme. To sell

water purifiers, and later, home security systems, GTP sent

postcards to victims throughout the United States telling the

recipient that they were “absolutely guaranteed” to receive one of

five “fabulous awards. No purchase necessary”. The awards listed

on the card included a new Chevrolet Blazer and a $5,000 cashier’s

check, and the card further instructed the recipient to call to

learn how to receive more of the listed prizes.

Approximately 20-30 GTP telephone operators, housed in a

“boiler room”, received calls prompted by the cards and told

victims that they would be eligible to receive more prizes if they

elected to purchase a product from GTP. GTP provided its sales

staff with scripts to guide the sales pitch. The scripts contained

false and misleading statements, and telemarketers also embellished

the pitch with further misrepresentations. After the sale was
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initially made by the telemarketer, a sales manager would “button

up” the sale by verifying certain information.

GTP never awarded a Blazer or a $5,000 cashier’s check, but

instead awarded only watches and retail merchandise checks valued

at substantially less than touted by GTP. And, the products sold

were grossly overpriced.

In October 1994, Powell, Bates, Von Hoff, and several others

were indicted on various fraud charges arising out of their

activities with GTP. That December, a superseding indictment added

charges against Hoelzer. Several of those charged entered into

plea agreements; appellants proceeded to trial and were convicted

on several counts in February 1995.

II.

The numerous issues at hand cover the board. None have merit.

A.

Convicted of conspiracy to commit wire fraud, in violation of

18 U.S.C. § 371, and wire fraud, in violation 18 U.S.C. § 1343,

Bates and Hoelzer challenge the sufficiency of the evidence.

Although it is undisputed that GTP was a fraudulent scheme, each

asserts that, for them, the evidence failed to demonstrate the

requisite knowledge and intent.

1.

For starters, the standard of review is in dispute. Bates and

Hoelzer moved for acquittal at the close of the Government’s casein-chief, but did not do so at the close of all the evidence. Only
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Von Hoff did. As a result, the Government advances the more

onerous “manifest miscarriage of justice” standard. 

a.

“Where a defendant fails to renew his motion at the close of

all the evidence, after defense evidence has been presented, he

waives his objection to the earlier denial of his motion.” United

States v. Daniel, 957 F.2d 162, 164 (5th Cir. 1992). Therefore,

our review narrows greatly to the manifest miscarriage standard.

Id. For reversal, the record must be “devoid of evidence pointing

to guilt.” United States v. Robles-Pantoja, 887 F.2d 1250, 1254

(5th Cir. 1989). Bates and Hoelzer fall far short of clearing this

hurdle. 

b.

Alternatively, had the acquittal motions been renewed,

reversal would be in order only if, viewing the evidence in the

light most favorable to the verdict, a rational trier of fact could

not have found the essential elements of the offenses charged

beyond a reasonable doubt. E.g., United States v. Zuniga, 18 F.3d

1254, 1260 (5th Cir.), cert. denied, __ U.S.__, 115 S. Ct. 214

(1994). See also, United States v. Aggarwal, 17 F.3d 737, 740 (5th

Cir. 1994) (reasonable jury can find intent based on circumstantial

evidence and need not exclude every hypothesis of innocence). Even

under this standard, the evidence was more than sufficient.

2.
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The record included, inter alia, witness (customer caller)

testimony combined with documentary evidence linking those callers

to the defendants. The witnesses testified regarding the

representations made by the persons who took their calls, and the

documentary evidence consisted of call logs and “button-up” forms,

which were created and signed by defendants and referred to the

callers by both name and credit card numbers.

a.

Numerous witnesses testified that Bates performed the “button

up” on their calls. Each was linked to Bates through documentary

evidence.

Customer Mellenbruch testified that, although he explained to

Bates that he did not wish to purchase anything, his credit card

was charged. He testified that Bates assured him that he would

only be charged for the shipping of his award, which he never

received.

Customer Brady testified that, upon recognizing that the

operation was probably fraudulent, he informed the salesman that he

did not want either the product or the Blazer. When transferred to

Bates, he told her that he did not want to purchase anything, did

not want a Blazer, and did not want his credit card charged. Bates

responded that she could not stop delivery of the Blazer. Brady’s

credit card was charged and, needless to say, he did not receive a

Blazer.
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Customer Faulkner testified that Bates assured him that he

could receive cash rather than the $5,500 worth of prizes that he

was guaranteed.

Customer Whitby testified that Bates elicited his credit card

number under the pretext that it was necessary to confirm that he

was a valid credit card holder and thus qualified to participate.

Although he told Bates that he did not want to purchase the

security system, his card was charged.

b.

The evidence against Hoelzer combined customer testimony

describing his sales pitch with documentary evidence -- GTP sales

logs and Hoelzer’s handwritten call records -- that tied the

particular customer to him. 

Customer Bennett testified that Hoelzer told him that his was

the winning card, placed Bennett on hold while he purported to

confirm the number from the card in the computer (no telemarketer

had access to any computer), told Bennett he had won a Blazer and

asked what color he would prefer, and promised delivery in six to

eight weeks. Bennett testified that he believed that he would

receive the Blazer if he ordered the security system and therefore

agreed to do so in reliance on Hoelzer’s misrepresentations that he

had won the Blazer.

Customer Watkins testified that Hoelzer told her he needed her

credit card number only to process her awards; that she told him
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she did not want to purchase anything; and that, nevertheless, her

card was charged, but she never received anything.

Customer Wilcox testified that Hoelzer told him that his card

would not be charged for 30 days after receiving the system and

that only when Wilcox called back to confirm the purchase would his

account be charged. This was despite the fact that GTP’s

salespeople had been told that credit cards would be charged prior

to shipment. Wilcox was charged immediately, but never received

the system.

Customer Golden testified that Hoelzer made a similar

misrepresentation to her when he told her that she could use her

purifier for ten days before being charged; however her card was

charged before she received the product. She returned the water

purifier but her account was never credited.

Customer Brendon testified that he was victimized by the same

tactic when Hoelzer assured him of a 60-day free trial period for

his security system. Although Brendon never received the system,

his card was charged.

B.

The appellants assert, based on numerous examples, that their

due process rights were violated because, in sum, the trial court

abandoned its neutral role and became an advocate for the

Government. They point to the court’s limiting opening statements;

eliciting testimony favorable to the Government by questioning

witnesses; asking questions to establish admissibility of
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Government evidence; terminating cross-examination examination of

certain witnesses; inhibiting defense testimony; engaging in

hostile cross-examination of defendants; conveying to the jury

disbelief in defendants’ testimony (all of the appellants except

Von Hoff testified); rebuking defense counsel in absence of

objection by the Government; providing the jury with the indictment

but not the written jury charge; and limiting closing argument to

eight minutes per defendant and then interrupting it. They claim

that these points individually and cumulatively compel reversible

error.

To violate due process, the judge’s conduct must be so

prejudicial as to deny a fair trial. United States v. Bermea, 30

F.3d 1539, 1569, __ U.S. __, 115 S. Ct. 1113 (1995). But, the

trial transcript reveals little that might be construed as an attrial claim of due process violation. 

No objection was made urging that a ruling or other action by

the court was violative of due process. In fact, quite often, no

objection of any sort was made. For example, there was no

objection regarding the limitations on opening statements or

closing arguments. Therefore, we review such issues only for plain

error, in accordance with the long-established rule that error must

be preserved at trial. E.g., United States v. Calverley, 37 F.3d

160 (5th Cir. 1994), cert. denied, __ U.S. __, 115 S. Ct. 1266

(1995). As to the issues which were preserved by contemporaneous
- 9 -

objections, we review, of course, only for abuse of discretion.

E.g., United States v. Clemonts, 73 F.3d 1330, 1334 (5th Cir.

1996). We do not find reversible error under either standard. 

On two occasions, the court advised the jury that it was not

to be swayed, by any of the court’s questions or statements, from

its role as fact finder. Moreover, none of the asserted instances

of overreaching by the judge fall beyond his proper role of

maintaining control over the trial and seeking to move it along in

a reasonably timely fashion. While we do not dispute that “the

district judge actively managed” the trial, “we conclude that ...

[his] actions ... were within his broad discretion to manage the

pace and objectivity of the trial.” United States v. Mizell, __

F.3d __, slip op. 95-10593, p. 4444 (5th Cir. July 1, 1996).

Concerning the written charge, unlike the indictment, not

being taken into the jury room, none of the defendants either

requested it or objected when the court confirmed that it did not

permit it in the jury room. Once again, we review only for plain

error; there is none. 

Allowing the jury to have a copy of the charge during its

deliberations is problematic, because “[w]hile not error in itself,

the practice is conducive to dissection of the charge by the jury

and overemphasis of isolated parts rather than consideration of the

charge as a whole.” United States v. Schilleci, 545 F.2d 519, 526

(5th Cir. 1977). As to the indictment, the trial judge stated at
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the beginning and end of trial that it was not evidence and

instructed the jury not to consider it as proof of any fact. It is

well-settled that “juries are presumed to follow their

instructions.” Zafiro v. United States, __ U.S.__, 113 S. Ct. 933,

939 (1993). 

C.

Linked in part to the due process contention are challenges to

evidentiary rulings. There was no abuse of discretion. 

1.

Von Hoff’s attempt to question prosecution witness Field

regarding the general operation of GTP’s business was beyond the

scope of her direct testimony, which concerned Powell’s familiarity

with GTP operations. Von Hoff does not assert that his questioning

would have elicited information from which the jury might have

found bias against Von Hoff or reason to doubt Field’s ability to

recount accurately the substance of her testimony, but rather that

he hoped to establish by description of GTP’s organization that

only top management were responsible for the fraud. This attempt

to use cross-examination for development of defense evidence

violated the trial court’s limitation of it, consistent with FED.

R. EVID. 611(b), to impeachment and matters within the scope of

direct.

2.

Next, Von Hoff challenges three Government exhibits.
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a.

Exhibits 193 and 196 purportedly contain “hearsay within

hearsay”. They are computer printouts of summaries entered by GTP

employees of telephone conversations with potential customers, and

were admitted pursuant to the hearsay business records exception.

FED R. EVID. 803(6). Testimony elicited by Von Hoff, that the

information in the documents was recorded contemporaneously with

its receipt from a customer, established its admissibility.

b.

Exhibit 143, a complaint letter from a customer was properly

admitted on the basis that it was not offered for the truth of the

matter stated but instead to establish Von Hoff’s awareness of the

complaint. 

In the alternative, any error concerning these three exhibits

was harmless. See FED. R. EVID. 103. 

D.

For the jury instructions challenged on appeal, it is most

doubtful whether each defendant properly preserved the issue. But,

in light of the trial court’s considering an objection by one

defendant to inure to the benefit of all, and the fact that we

reach the same conclusion regardless of whether plain error or

abuse of discretion frames the standard of review, we need not

address the point. Reviewing under the more lenient abuse of

discretion standard, we find none.
- 12 -

1.

Failure to give “an instruction constitutes reversible error

only ... [if] (1) the requested instruction is substantially

correct; (2) the actual charge ... did not substantially cover the

content of the proposed instruction; and (3) the omission of the

instruction would seriously impair the defendant’s ability to

present his defense.” E.g., United States v. Storm, 36 F.3d 1289,

1294 (5th Cir. 1994), cert. denied, __ U.S. __, 115 S. Ct. 1798

(1995). Concerning the failure to give the requested instruction

on specific intent, and to more fully define “willfully”, the jury

was instructed repeatedly that the defendants had to have intended

to further an unlawful purpose; intended to defraud, deceive,

cheat, bring about a crime, and violate the law. 

The jury was instructed further that it was not sufficient

that the defendants acted because of mistake or accident. These

instructions amply informed the jury that any action taken in good

faith or with innocent motive was not criminally actionable; thus,

the instructions did not prevent presenting the defense of good

faith.

2.

For a deliberate ignorance instruction to be warranted, the

evidence must be capable of “rais[ing] two inferences: (1) the

defendant was subjectively aware of a high probability of the

existence of the illegal conduct; and (2) the defendant purposely
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contrived to avoid learning of the illegal conduct.” United States

v. Lara-Velasquez, 919 F.2d 946, 951 (5th Cir. 1990). Along that

line, evidence of affirmative acts designed to avoid knowledge is

not required. United States v. Faulkner, 17 F.3d 745, 766 (5th

Cir.), cert. denied, __ U.S.__, 115 S. Ct. 193 (1994). On the

evidence in this case, there was no abuse of discretion in granting

the instruction. (In the alternative, the instruction would

constitute harmless error at worst.)

Concerning the subjective awareness prong, the following

evidence is illustrative: the sales-pitch scripts were facially

overwhelmingly suspicious; the sales staff saw the watches, which

telemarketers touted as worth $500, but the testimony of an expert,

valuing the watches at not more than $45, and the watches (as well

as their packaging) placed in evidence provided a basis from which

the jurors could have inferred that GTP employees were aware that

the watches’ value was being misrepresented to customers; and sales

staffers were suspiciously denied access to the GTP customer

service areas.

As for the avoid knowledge prong, a defendant’s failure to

inquire when circumstances are overwhelmingly suspicious suggests

conscious effort to avoid incriminating knowledge. United States

v. Daniel, 957 F.2d 162, 169-70 (5th Cir. 1992). No evidence

suggested that any of the defendants made such inquiries.

E.
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Powell asserts that the Government’s closing argument

improperly shifted the burden of proof. In this context, as usual,

if a defendant’s substantial rights were not prejudiced, any error

is deemed harmless. United States v. Morris, 568 F.2d 396, 402

(5th Cir. 1978).

At issue is the reference, in rebuttal, to Powell’s failure to

call any witness from Advantage Marketing (a company involved in

mailing GTP’s postcards, for which Powell tried to collect a debt

owed by GTP) to support his assertion that he held no stake in that

company. Any error regarding this somewhat tangential issue was

cured by the trial court’s sustaining the objection to the remark

and giving a curative instruction, reminding the jury that Powell

had no obligation to present any evidence.

F.

Finally, Bates, Hoelzer, and Von Hoff contest their sentences.

1.

Bates and Hoelzer challenge their perjury enhancements.

Obstruction of justice under Sentencing Guidelines § 3C1.1 is a

factual finding; accordingly, we review only for clear error. 18

U.S.C. § 3742(e); United States v. Storm, 36 F.3d 1289, 1295 (5th

Cir. 1994), cert. denied, __U.S. __, 115 S. Ct. 1798 (1995). Of

course, we review de novo the assertions at hand of constitutional

error.

a.
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The district court found that Bates committed perjury when she

testified that, during her tenure with GTP, she was aware of only

one misrepresentation by a telemarketer to a customer. Obviously,

the testimony was material to the intent element. The court found

the testimony knowingly false and given with intent to persuade the

jury to acquit. This finding was not clearly erroneous; there is

sufficient evidence in the record to conclude that the enhancement

applied. United States v. Franco-Torres, 869 F.2d 797, 800 (5th

Cir. 1989). In any event, Bates relies on two bases in challenging

the enhancement. 

First she notes that the testimony was elicited by the court

and urges that the manner in which it questioned her conveyed an

impression that she was not credible, which led to her conviction

and subsequent enhancement. Our research reveals no basis, nor

does Bates cite any, for her contention that testimony elicited by

the court may not be considered perjury and punished just as if it

were elicited by opposing counsel. As noted, the trial court

instructed carefully that the jury was the fact finder, and we

reject Bates’ contention regarding the impression that the judge’s

questioning could have created for the reasons discussed supra. 

Likewise, we reject Bates’ second basis: that the enhancement

penalized her for exercising her right to testify. Needless to

say, she does not possess a constitutional right to testify
- 16 -

falsely. United States v. Dunnigan, 507 U.S. 87, 113A S. Ct. 1111,

1117 (1993).

b.

The court found Hoelzer’s testimony that he did not deviate

from the telemarketing script to be perjurious; specifically, it

found it false in light of other testimony that, in deviation from

the script, Hoelzer had misrepresented the timetable for being

charged for merchandise. The court found the testimony willfully

false and given in an effort to persuade the jury to acquit.

Obviously, contrary to Hoelzer’s contention, the testimony was

material. We reject his specious assertion that, because the

script was already a misrepresentation, false testimony that he had

never deviated from it was not material to the charged offense.

Likewise, Hoelzer’s claimed deprivation of the right to

indictment and trial before punishment for the crime of perjury is

foreclosed by Dunnigan, 507 U.S. at __, 113A S. Ct. at 1118

(holding that § 3C1.1 perjury enhancement is more than mere

surrogate for perjury prosecution). 

Finally, Hoelzer’s claim that his right to equal protection

was violated because he was treated differently than non-defendant

witnesses who commit perjury is rejected for the obvious reason

that criminal defendants and witnesses are not similarly situated

for sentencing purposes.
- 17 -

2.

Bates and Von Hoff contest the amount of loss attributable to

their conduct. Both contend that the district court erred by

attributing all sales during the time of their employment to their

conduct. Again, we review only for clear error. 

a.

Bates’ position at GTP, particularly her sales manager role,

provided a sufficient basis to find that she was responsible for a

jointly undertaken fraudulent scheme and that the losses caused by

the scheme were reasonably foreseeable to her. (Bates asserts

erroneously that the court did not make findings on amount of loss;

the court adopted the factual findings in the presentence report.)

b.

Von Hoff urges that his loss calculation should not include

all sales by his shift (day) because he did not engage in jointly

undertaken criminal activity and most certainly should not include

those by the other shift (late). It was not clear error to find

that the actions of both shifts were foreseeable to him. 

III.

For the foregoing reasons, the judgment is

AFFIRMED.