United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 10-3345

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Carolyn M. Louper-Morris, *

*

Appellant. *

___________

No. 11-1021

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

William J. Morris, Jr., *

*

Appellant. *

___________

Submitted: October 21, 2011

 Filed: March 2, 2012 

___________
Before RILEY, Chief Judge, SHEPHERD, Circuit Judge, and WEBBER, District

1

Judge.

___________

WEBBER, District Judge.

A jury convicted Carolyn M. Louper-Morris of conspiring to commit mail

fraud and wire fraud in violation of 18 U.S.C. § 371, aiding and abetting wire fraud

in violation of 18 U.S.C. § 1343, and aiding and abetting mail fraud in violation of

18 U.S.C. § 1341. A jury convicted William J. Morris, Jr., of conspiring to commit

mail fraud and wire fraud in violation of 18 U.S.C. § 371, aiding and abetting wire

fraud in violation of 18 U.S.C. § 1343, mail fraud in violation of 18 U.S.C. § 1341,

and making and subscribing a false tax return in violation of 26 U.S.C. § 7206(1).

Louper-Morris and Morris both appeal.

Louper-Morris raises six issues on appeal: 1) the district court erred by 2

denying her motion to dismiss the indictment because the United States made a

material misrepresentation to the grand jury; 2) the district court erred in overruling

her objection under Batson v. Kentucky, 476 U.S. 79 (1986); 3) the evidence was

insufficient to support her convictions; 4) the United States intimidated one of her

witnesses thereby depriving her of the right to present a complete defense; 5) the

district court erred by enhancing her base level offense by four points for her role as

a leader or organizer of an activity involving five or more participants under United

States Sentencing Guidelines § 3B1.1; and 6) cumulative trial errors warrant reversal

or at least remand. 

The Honorable E. Richard Webber, United States District Judge for the

1

Eastern District of Missouri, sitting by designation.

The Honorable John R. Tunheim, United States District Judge for the

2

District of Minnesota.

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Morris raises six issues on appeal: 1) the evidence was insufficient to support

his convictions; 2) the wire and mail fraud statutes, as applied to Morris, exceed

Congress’s authority to legislate in violation of the Tenth Amendment; 3) the district

court erred by not allowing the jury to view the live website at issue; 4) the district

court erred in overruling his objection under Batson, 476 U.S. at 79; 5) the district

court erred in enhancing his base offense level by four points for his role as a leader

or organizer of an activity involving five or more participants under U.S.S.G § 3B1.1

and by two points for the sophisticated-means enhancement under U.S.S.G. §

2B1.1(b)(9)(C); and 6) the district court’s restitution order improperly included

restitution to an entity that was already receiving compensation from a settlement

agreement. 

Having jurisdiction under 28 U.S.C. § 1291, we affirm.

I. Background

We state the facts in the light most favorable to the jury’s verdict. United

States v. Johnson, 450 F.3d 366, 369 (8th Cir. 2006). Around 1996 in Washington,

D.C., Carolyn M. Louper-Morris, a former college professor, assisted in the

development of a software product entitled CyberStudy 101. CyberStudy 101

software allowed college students to enter their class notes into the program and the

program would generate quizzes from this data. As a software product, CyberStudy

101 never reaped a profit and the venture failed. 

Louper-Morris then moved to Minneapolis, Minnesota to live with her son,

William J. Morris, who is an attorney. Louper-Morris and Morris (collectively,

“Appellants”) decided to try to sellCyberStudy 101over the internet using the website

cyberstudy101.com. Appellants formed the company, Cyberstudy 101, a Minnesota 

corporation (hereinafter “CyberStudy”). Louper-Morris owned a 51 percent interest

in the company and Morris owned a 49 percent interest. 

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Around 1998, Appellants learned of a Minnesota tax credit called the

Education Tax Credit. Enacted in 1997, the tax credit was available to low-income

Minnesota families who incurred out-of-pocket expenses for certain supplemental

educational opportunities for their children in elementary school, middle school, or

high school. In order to utilize the tax credit, Appellants changed the educational

content of CyberStudy 101 froma college curriculumto an elementary and secondary

school curriculum. Louper-Morris also met with employees of the Minnesota

Department of Education, the Minnesota Department of Revenue, and other agencies

to research the tax credit’s requirements in order to utilize the tax credit to expand

CyberStudy’s business opportunities. 

One such individual with whom Louper-Morris met to discuss the tax credit

was MorganBrown, the Director ofthe Partnership for Choice in Education (“PCE”). 

PCE is a nonprofit organization that seeks to educate low-income families about the

educational opportunities available to them and advocates for additional educational

options. At the time, PCE focused on implementing the tax credit and improving its

accessibility. PCE had an informal relationship with the Minnesota Department of

Education and the Minnesota Department of Revenue. Because of the organization’s

goals, many individuals and groups contacted Brown to educate them on how to

utilize the tax credit. 

At a December 1999 meeting, Brown described to Louper-Morris the two

available educational tax credits and their requirements. The first credit applied to

educational computer software or hardware, which allowed a family to claim up to

$200 in a tax credit for purchasing a qualified computer product. The other credit

applied to instruction or tutoring provided by a qualified instructor, which allowed

a family to claim up to $1000 for one child or $2000 for the family. Brown stressed

that the tutoring tax credit required an actual qualified instructor interacting with

students. He explained that static content would not satisfy the tax credit’s

requirements and any tutoring product must be interactive. Louper-Morris told

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Brown thatshe wasinterested in revising CyberStudy 101 to make it comply with the

tax credit requirements.

Brown also explained to Appellants that the tax credit could not be claimed

until the person had actually made the qualifying expenditure. Because many lowincome families have limited disposable income, Appellants discussed with Brown

financing options for potential CyberStudy customers. Although the tax credit

allowed financing, the tax credit prohibited the vendor of the service from also being

a lender. Only a separate third party could loan money to the taxpayer to pay for the

qualifying educational service or product. 

Brown also had interactions with Morris in early 2000. According to Brown,

Morris functioned as CyberStudy’s legal counsel and was also involved in business

planning and development. Brown repeatedlydiscussed with Morris the requirements

of educationaltax credits and how those requirementsrelate toCyberStudy’s product. 

Brown met with Appellants on numerous occasions, and each time he reiterated the

requirements of the tax credit. 

At some point, Brown learned that Appellants were marketing CyberStudy 101

by offering a free computer if a person signed up for the online tutorial program. 

Appellants told Brown that they had negotiated with K-Mart for a certain number of

computers to offer with their program.

In May 2000, Brown was present at a meeting with the Minnesota Department

of Revenue and the Minnesota Department of Education in which Appellants

presented CyberStudy 101 in an effort to qualify the product for the tax credits. At

that meeting, it was clearly communicated to Appellants that tutors and interactivity

were necessary to qualify for the credit.

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Appellants began selling CyberStudy 101 on floppy disk for $999 for families

with one qualifying child, and $1499 for families with two or more qualifying

children. CyberStudy 101’s content was then placed online. Appellants informed

Brown that they were in the process of hiring retired teachers to satisfy the tax

credit’s interactivity requirement and the qualified instructor requirement. 

Appellants marketed CyberStudy through their “break the digital divide”

campaign that promised a free computer and free internet access for life to everyone

who registered for the product. They distributed fliersto local churches, schools, and

community centers in African American, Somali, and Hmong communities. 

Appellants also mailed fliersto individuals residing in low-income communities. The

fliers highlighted the free computer and did not mention the cost of the online tutorial

program. Fliers stated such things as, “Stop, break the digital divide and sign-up for

CyberStudy 101. Receive a new, fully-loaded complimentary free computer. No outof-pocket expense.” Because of this campaign, evidence shows that members of the

community thought CyberStudy was a charitable organization when, in fact, it was

a for-profit company. CyberStudymarketed the tutorial as an age-appropriate, online,

interactive tutorial course that included twenty-eight study tools in four languages. 

In February 2000, theMinnesota AttorneyGeneral’s office received complaints

and inquiriesrelating to CyberStudy soliciting personal information fromindividuals

living in low-income communities and CyberStudy’s promise of giving away 100,000

free computers to low-income individuals. Deb Strafaccia, a consumer fraud

investigator for the Minnesota Attorney General, investigated the complaints. 

Strafaccia became concerned when she learned that hundreds of individuals were

providing the relatively unknown CyberStudy with birth certificates, tax returns,

social security numbers, and children’s schoolrecords. Strafaccia spoke with LouperMorris who informed her that CyberStudy needed to enroll 100,000 applicants in

order to receive funding from investors. Louper-Morrisindicated that the computers

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and internet access would be free, but the customer would have to pay for the online

tutorial. 

Strafaccia was disturbed by the information from her initial investigation,

therefore, she posed as a customer and conducted an undercover investigation at a

CyberStudy enrollment event held at a St. Paul, Minnesota church. At the event,

Strafaccia spoke with individuals eager to get the free computer. She observed that

many of the individuals were from the Somali and Hmong communities and had

limited English-speaking skills. The individuals were convinced that the computer

wasfree and felt an urgent need to encourage othersto enroll for the program in order

to hit the 100,000 customer requirement. Morris was at the event and he stated that

there would be no out-of-pocket expenses for the customers. He mentioned the

online tutorial. Strafaccia waited in line for two hours to enroll in the program. She

provided the necessary documents and signed the paperwork; however, she was not

allowed to take copies of the agreement with her. She left the event convinced that

consumers were being misled to believe that the computer and internet access was

completely free and that the consumer would not be required to make any personal

expenditure for the products.

After Straffacia’s investigation, assistant Attorney General Karen Olson

conducted an investigative meeting with Appellants. At the meeting, Appellants told

Olson that private investors were funding the program in order to give low-income

individuals free computers and free internet access “for life.” They told her that the

purpose of these free products was to facilitate access to the CyberStudy online

tutorial program. Appellants indicated that they needed 100,000 participants to go

forward and that cost would be approximately $1000 for each participant. Olson told

Appellants that if the participants were indeed signing loan documents, then in fact,

the computer and internet access were not free.

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Louper-Morris also recruited volunteers to staff CyberStudy by describing the

company’s product and Appellants’ efforts to “break the digital divide” to pastors of

African American churches in the area. One pastor, Reverend Jerry McAfee of the

New Salem Baptist Church, became particularly involved with CyberStudy: he let

Appellants operate CyberStudy from a building owned by the New Salem

congregation and he recruited congregation members to volunteer to enroll people

in the CyberStudy program. Rev. McAfee testified that he loaned Appellants $2500.

Contrary to the assertions on CyberStudy’s marketing materials,Appellants had

not secured promises from private investors to fund the program if they enrolled

100,000 customers. Appellants needed to secure financing for customers in order to

satisfy the tax credit’s pay-up-front requirement and to pay employees. Appellants

approached various banks, Catholic Charities, community organizations, and credit

card companies to secure a revolving line of credit or pool loan. Their endeavors

were not successful. At some point, Appellants eventually formed the idea of using

Rev. McAfee as a front for a lender of a “revolving pool loan” through the

organization Salem, Inc.

3

Jacqueline Denita Hollie, a New Salem congregation member, was introduced

to Louper-Morris after hearing about CyberStudy from her father and her twin sister,

Jacqueline Benita Williams. She testified, “I heard about [CyberStudy] as the free

computer people.” Louper-Morris represented to Denita that she was the CEO and

The term “pool loan” is not defined by either party. We gather that the

3

parties are referring to a loan that aggregates funds and allows individuals to borrow

from that pool of money. The borrowers then pay that money back into the pool and

other individuals may then borrow money. Regarding the pool loan, Morris testified

that “the pool didn’t have money for a one-to-one exchange. If we had that kind of

money and we had five million dollars . . ., we would never have needed a pool loan

to begin with. What we had was a pot of money that people could – that you could

access, that everybody could access if they had, you know, signed off on the

appropriate documentation.”

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president of CyberStudy and told her that the company could earn about three million

dollars from the tax credit. Denita began working part time in the evenings at

CyberStudy and then full time, organizing paperwork and assisting customers in

signing up for the program. Denita also created usernames and passwords for

customers. She expected to be paid for her work. She testified that customers did not

receive access to the tutorial and that the promise of a free computer lured people to

sign up for the CyberStudy 101 tutorial. Denita worked for CyberStudy from April

2000 until Appellants terminated her employment on July 13, 2001. At trial, Denita

testified that all the acts she committed at CyberStudy were “at the direction of the

owners of the company.” There was no evidence to suggest that the owners of

CyberStudy were anyone other than Appellants. 

According to K-Mart executive, Lyman Locket, Appellants entered into a

contract with K-Mart on December 19, 2000 whereby K-Mart would provide

computersto CyberStudy. Locket had become interested in CyberStudy’s “break the

digital divide” campaign because he believed that the program would advance

K-Mart’s diversity initiative. The contractstated that CyberStudy agreed to purchase

4000 computers at $529.98 per unit, a value of 2.12 million dollars. Final payment

was due on February 28, 2001. Appellants received 2284 computers from K-Mart. 

The contract contained no provision that would require K-Mart to provide free

internet access. However, at that time, K-Mart was offering limited free internet

access through BlueLight.com, an internal organization of K-Mart, to any K-Mart

customer. The computers that were provided to CyberStudy all contained a compact

disc from BlueLight.com, which would enable the owner to access the internet upon

installation of the software. 

Shortly after the K-Mart computers were distributed, Appellants began to file

tax returns on behalf of customers. Denita Hollie, along with Appellants, filled out

the tax return forms. CyberStudy’s bank information was written on the forms as the

account to which any refund should be routed. CyberStudy filed hundreds of tax

-9-
returns beginning December 31, 2000. The Department of Revenue returned many

of those forms to CyberStudy because the requisite power-of-attorney form had not

been completed. Louper-Morrisinstructed CyberStudy employees, including Denita

Hollie, Benita Williams, and Jennifer Davis, to forge customers signatures if

necessary. Louper-Morristold employees that the customer’s initial signature on the

customer contract provided them with sufficient authority to sign the customer’s

name on the power-of-attorney form.

In January 2001, after the Department of Revenue received many tax returns

claiming the educational tax credit from moneys paid to CyberStudy, it held a

meeting with Appellants to discuss details about its financing, specifically, who was

acting as the company’s third-party lender. The Department of Revenue wanted to

see evidence that the third-party loans had been provided to the taxpayer and that the

taxpayer then used that money to purchase CyberStudy’s services. At the meeting,

Appellants told the Department of Revenue that Rev. McAfee’s company, Salem,

Inc., was providing a pool loan for CyberStudy customers. Appellants stated that

they had received payment for the tutorial program from Salem, Inc., for each

customer that subscribed to the program. The Salem, Inc., lending arrangement was

only a paper transaction and amounted to a sham loan agreement.

In February 2001, Department of Revenue officials went to CyberStudy’s

office at the New Salem Baptist Church for the purpose of confirming details about

the pool loan. Denita, Morris, and Louper-Morris discussed the pool loan, but they

spoke in generalities. They stated that Salem, Inc., had paid CyberStudy for each

customer who signed up for the tutorial. At the meeting, Louper-Morris gave a

demonstration of the CyberStudy website, but she did not allow the Department of

Revenue representative to navigate the website. 

At the request of the Department of Revenue, CyberStudy sent a letter to the

Department describing the lending arrangement. The letter was signed by Rev.

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McAfee. He testified that he did not draft the letter and he did not read the letter. 

Denita Hollie also testified that the letter was drafted by Louper-Morris and reviewed

by Morris. The letter stated Salem, Inc., had loaned 4800 CyberStudy customers

either $999 or $1499. 

Shortly thereafter, the Department of Revenue began releasing tax credit

money to Appellants. In February 2001, Appellants received $260,761 from the

Department of Revenue in tax-credit reimbursements. The money was routed to

CyberStudy’s custodial account operated by Wells Fargo Bank. Louper-Morris

purchased a new MercedesBenz SUV with the money. She also purchased a fur coat. 

Morris purchased a $650,000 home and used money derived fromthe tax creditfunds 

for a down payment.

CyberStudy did not receive tax credit money from each of its customers

because CyberStudy made filing errors, or a customer independently filed his or her

own tax return. In those cases, Appellants would threaten the customer with

collection efforts and warn the customer thatsuch efforts would ruin his or her credit

score. Because many of the customers were fromthe Somali or Hmong communities,

Appellants threatened that they would report customers to federal deportation

authorities if the did not pay CyberStudy. Many customers took these threats

seriously and brought money to CyberStudy’s office. Appellants also used these

intimidating tactics to seek collection from customers who did not receive the full tax

credit. 

 

Many individuals worked for CyberStudy. Denita Hollie, Benita Williams,

Jennifer Davis, and Cheryl Cardinal were hired as employees, but none of them

received any pay for their work. Outside tax preparers started assisting CyberStudy,

including Al Pennicks. CyberStudy also hired an information technology specialist,

Fong Xiong. Hisjob wasto train customers on using the computer and tutorial if they

purchased a support package. 

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In April 2002, the Department of Revenue audited CyberStudy to assess

whether it qualified for the educational tax credit. It determined that CyberStudy

products did not meet the tax credit’s requirements. Between February 2001 and

May 2002, CyberStudy filed tax returns on behalf of over 1800 taxpayers, and

received approximately $2.35 million in tax credit payments from the Department of

Revenue. 

K-Mart never received payment for the computers and filed a breach of

contractsuit against CyberStudy. After a few years of litigation, CyberStudy entered

into a settlement agreement in which it was to pay K-Mart $610,000. CyberStudy

failed to make any payments, and in October 2003, a judgment for $1,211,134.03,

plus interest and attorney’s fees was entered against CyberStudy. 

On February 27, 2008, a grand jury returned an indictment charging each

Appellant with one count of conspiracy to commit wire fraud and mail fraud in

violation of 18 U.S.C. § 371, nine counts of wire fraud in violation of 18 U.S.C. §

1343, seven counts of mail fraud in violation of 18 U.S.C. § 1341, and five counts of

promotion of money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i). Morris

was also charged with one count of making and subscribing a false tax return in

violation of 26 U.S.C. § 7206(1). On January 7, 2010, the indictment was amended

to strike four of the wire fraud counts and all of the money laundering counts as to

both Appellants. 

Before trial, Appellants moved to dismiss the indictment. The magistrate

judge denied the motion on the ground that the motion was untimely filed and also

4

failed on the merits. The district court adopted the magistrate judge’s report and

recommendation.

The Honorable Janie S. Mayeron, United States Magistrate Judge for the

4

District of Minnesota.

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A three-week trial was conducted. Numerous witnesses testified on behalf of

the United Statesincluding Morgan Brown; Deb Strafaccia; Karen Olson; Minnesota

Department of Revenue employees; an investigator from the Internal Revenue

Service; former K-Mart executive, Lyman Locket; and a United States Postal

Inspector. CyberStudy employees and volunteers testified including Denita Hollie;

her sister, Benita Williams; Carlos Granados, an accountant; Cheryl Cardinal; and

Rev. McAfee. 

CyberStudy customers also testified including Juanita Jensen; Mohamud

Aideed, a Somali immigrant;JurlineBryant; Kiin Farah, a Somali immigrant; Patricia

Marquez-Preston; Faith Pfeiffer; Tana Danz; Tina Brown; Cheryl Cardinal, also a

CyberStudy employee; Adrina Hobbs; Shirley Knudson; Tandalaya Jones-Paige;

Sonja Overbaugh; Farhiya Ali; Brenda Amponsah; Saeed Ali, a Yemeni immigrant;

Aimee Torres; Blong Pha, a member of the Hmong community; and Thi Huong

Keosongseng. Their testimony can be summarized as follows: the customers 5

testified to signing contracts that they did not understand. They understood that they

were to receive a free computer and free internet access. They did not take out a loan

to finance the computer orsign any loan papers. Some customers did not know about

the educational tutorial. Once home with the computer, most customers did not have

internet access. If they had internet access, they could not access the tutorial. If they

could access the tutorial, the tutorial lacked educational content and the web page

would state that it was “under construction.” Some customers understood that

CyberStudy was going to complete their tax returns; however, those individuals

expected to receive any refund if the refund amount surpassed the tax credit amount. 

In some cases, CyberStudy filed multiple tax returns on behalf of one customer

claiming the tax credit on each tax return. Some customers testified that Appellants

Blong Pha and Thi Huong Keosongseng both testified with the assistance of 5

interpreters. 

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threatened them with collection actions. Some customers filed complaints with the

Attorney General’s office or the Better Business Bureau. 

Louper-Morris did not testify, but Morris did testify. He testified that he

drafted customer agreements and letters to customers threatening collection actions

and lettersthreatening federal immigration investigations. He testified that he helped

recruit customers at community centers and various churches. He also admitted

committing tax fraud. 

The jury returned a verdict of guilty on all counts in the amended indictment

except Count 7, a mail fraud count, as to both Appellants, and Count 9, another mail

fraud count, as to Morris. 

Appellants moved for a new trial. In their motion, they alleged that Michelle

Garcia-Strait, a potential defense witness, was intimidated by the United States. The

district court held an evidentiary hearing on the matter. After the hearing, the district

court issued an order denying the motion for a new trial. The district court expressly

found that the United States did not threaten Garcia-Strait, and that Appellants chose

not to call her as a witness. The district court noted that Garcia-Strait was concerned

about testifying because she could be cross-examined about pending state court fraud

and forgery charges. The district court concluded that the United States did not

impermissibly interfere with Garcia-Strait and a new trial was not warranted. 

At sentencing, the United States sought many enhancements to LouperMorris’s base offense level including a four-level increase for her leadership role in

a criminal activity that involved five or more participants pursuant to U.S.S.G. §

3B1.1(a). Ultimately, her total offense level was 35 and her criminal history category

was I. Her U.S.S.G. sentencing range was 168 to 210 months imprisonment. The

district court sentenced Louper-Morris to 144-months imprisonment. 

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The United States also sought many enhancements to Morris’s base offense

level including the leadership enhancement pursuant to U.S.S.G. § 3B1.1(a) and the

sophisticated-means enhancement pursuant to U.S.S.G. § 2B1.1(b)(9)(C). Morris’s

adjusted offense level was 35. His U.S.S.G. sentencing range was 168 to 210 months

imprisonment. The district court sentenced Morris to 132-months imprisonment. The

court ordered Louper-Morris and Morris, jointly and severally, to make restitution in

the amount of $2,351,368.71 to the Minnesota Department of Revenue and

$1,211,134.03 to Sears/K-Mart Corp. Neither Appellant objected to the restitution

order.

Louper-Morris and Morris now appeal. Louper-Morris raises six issues on

appeal: 1) the evidence was insufficient to support her convictions; 2) the district

court erred in overruling her objection under Batson, 476 U.S. at 79; 3) the district

court erred by denying her motion to dismiss the indictment because the United States

made a material misrepresentation to the grand jury; 4) the United States intimidated

one of her witnesses thereby depriving her of the right to present a complete defense;

5) the district court erred by enhancing her base level offense by four points for her

role as a leader or organizer of an activity involving five or more participants under

United States Sentencing Guidelines § 3B1.1; and 6) cumulative trial errors warrant

reversal or at least remand. 

Morris raises six issues on appeal: 1) the evidence was insufficient to support

his conspiracy and wire fraud convictions; 2) the district court erred in overruling his

objection under Batson, 476 U.S. at 79; 3) the wire and mail fraud statutes, as applied

to Morris, exceed Congress’s authority to legislate in violation of the Tenth

Amendment; 4) the district court erred by not allowing the jury to view the live

website at issue; 5) the district court erred in enhancing his base offense level by four

points for his role as a leader or organizer of an activity involving five or more

participants under U.S.S.G § 3B1.1 and by two points for the sophisticated-means

enhancement under U.S.S.G. § 2B1.1(b)(9)(C); and 6) the district court’s restitution

-15-
order improperly included restitution to an entity that was already receiving

compensation from a settlement agreement. 

II. Appellants’ Joint Claims

A. Sufficiency of the Evidence

Appellants contend that the evidence was insufficient to support their

conspiracy, mail fraud, and wire fraud convictions. Specifically, Louper-Morris

states that the United States failed to prove that she harmed or intended to harm

anyone, that she made material false representations or promises, and that she

intentionally participated in a scheme to defraud. Morris only contends that the

United States failed to prove his intent to defraud.

We review de novo the sufficiency of the evidence to sustain a conviction. 

United States v. Wiest, 596 F.3d 906, 910 (8th Cir. 2010). The evidence is viewed

most favorably to the verdict, giving it the benefit of all reasonable inferences. Id.

Reversal is appropriate only where no reasonable jury could find all the elements

beyond a reasonable doubt. Id. We do not weigh the credibility of the witnesses or

the evidence. Id. “The jury has the sole responsibility to resolve conflicts or

contradictions in testimony, and credibility determinations are resolved in favor ofthe

verdict.” Id. (quoting United States v. Honarvar, 477 F.3d 999, 1000 (8th Cir.

2007)). 

To prove conspiracy to commit wire fraud, the United States must show that

1) there was a conspiracy, an agreement to commit wire fraud; 2) Louper-Morris and

Morris knew of the agreement; and 3) they intentionally joined in the conspiracy. 

Johnson, 450 F.3d at 374. “The elements of conspiracy may be proved by direct or

circumstantial evidence, and the jury may draw reasonable inferences from the

evidence presented about what the defendant’s state of mind was when he did or said

-16-
the things presented in the evidence.” United States v. Rodriguez-Ramos, 663 F.3d

356, 361 (8th Cir. 2011) (quoting United States v. Cervantes, 646 F.3d 1054, 1059

(8th Cir. 2011)).

To establish mail fraud pursuant to 18 U.S.C. § 1341, the United States must

prove: “(1) a scheme to defraud by means of material false representations or

promises, (2) intent to defraud, (3) reasonable foreseeability that the mail would be

used, and (4) [that] the mail was used in furtherance of some essential step in the

scheme.” United States v. Bryant, 606 F.3d 912, 917 (8th Cir. 2010) (quoting United

States v. Parker, 364 F.3d 934, 943 (8th Cir. 2004)). “[T]o constitute mail fraud, a

defendant’s misrepresentations must be material.” Id. at 917-18. “A

misrepresentation is material if it is capable of influencing the intended victim.” Id.

at 918; see also Preston v. United States, 312 F.3d 959, 961 (8th Cir. 2002) (per

curiam) (a material fact is “a fact that would be important to a reasonable person in

deciding whether to engage or not to engage in a particular transaction”).

The elements of wire fraud are virtually identical to mail fraud. To establish

wire fraud pursuant to 18 U.S.C. § 1343, the United States needed to prove beyond

a reasonable doubt that 1) Appellants joined a scheme to defraud; 2) they intended to

defraud; 3) it was reasonably foreseeable that interstate wire communications would

be used; and 4) the wires were, in fact, used. Johnson, 450 F.3d at 374. 

Intent is an essential element of both wire fraud and mail fraud. United States

v. Flynn, 196 F.3d 927, 929 (8th Cir. 1999) (wire fraud); Bryant, 606 F.3d at 917

(mail fraud). “Fraudulent intent need not be proved directly and can be inferred from

the facts and circumstances surrounding a defendant’s actions.” Flynn, 196 F.3d at

929. Accordingly, the question before us is “whether the facts and circumstances of

this case, viewed in the light most favorable to the jury’s verdict, are sufficient to

establish intent to defraud. . . .” Id. (quoting United States v. Andrade, 788 F.2d 521,

527 (8th Cir. 1986)).

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Contrary to Louper-Morris’s assertions, the United States is not required to

show actual loss or harm to the victims of the fraud in order to prove wire fraud or

mail fraud. United States v. Williams, 527 F.3d 1235, 1245 (11th Cir. 2008). Rather,

“[t]he government merely needs to show that the accused intended to defraud his

victim and that his or her communications were reasonably calculated to deceive

persons of ordinary prudence and comprehension.” Id. (internal citations and

quotations omitted). 

The record is replete with evidence of Appellants’ intent to defraud the State

of Minnesota, K-Mart, and CyberStudy customers through material

misrepresentations. Appellants intended to deceive the Department ofRevenue about

the existence of a pool loan. Denita Hollie and Benita Williams testified that

Appellants were intentionally obtuse in their representations of the loan and led the

Department of Revenue to believe that Rev. McAfee through Salem, Inc., had loaned

over four million dollars to CyberStudy customers. In truth, Rev. McAfee had only

loaned CyberStudy less than $3000, and the pool loan did not exist. Appellants also

forged signatures on power-of-attorney forms and directed Denita, Benita, and

Jennifer Davis to do the same. Those forged forms were filed with customer’s state 

tax returns thereby defrauding the Department of Revenue.

Appellants intended to deceive K-Mart. Lyman Locket testified that K-Mart

entered into a contract with CyberStudy in which K-Mart would provide computers

to CyberStudy customers at a reduced rate. Louper-Morris told Locket that

CyberStudy had over 100,000 customers and that two other computer companies were

currently providing computers to CyberStudy and deferring payment until the tax

credit reimbursement was released from the State in the following tax year. Locket

stated that K-Mart provided the computers believing that CyberStudy would provide

a comprehensive educational tutorial to low-income individuals, which would further

K-Mart’s diversity initiative. Numerous individuals testified, however, that the

tutorial lacked the advertised educational content. K-Mart also expected payment on

-18-
the computers once CyberStudy began receiving tax credit reimbursements. After

Minnesota began depositing money in CyberStudy’s bank account, Appellants never

routed any of the funds to K-Mart. Locket’s testimony is sufficient to show that

Appellants intended to defraud K-Mart.

Perhaps Appellants’ most egregious behavior in their fraudulent scheme was

their joint intention to deceiveCyberStudy customers, low-income individuals, many

who did not speak English. Numerous CyberStudy customers testified that

Appellants promised them a free computer. In fact, the computers were not free and

required customers to sign a service contract with CyberStudy and to assign their tax

creditrefund toCyberStudy. CyberStudy customerstestified that theywere promised

a comprehensive educational tutorial with material in four languages. That content

never existed. Denita and Benita testified that Appellants had them prepare

CyberStudy customers’ tax returns for mailing on December 31, 2000 even though

the CyberStudy contract stated that tax returns would not be filed until April 15,

2001. When Appellants did not receive the full tax credit amount, Appellants in

many cases threatened legal action against the customers, including immigration

enforcement.

Despite Appellants’ repeated assertion that they were just trying to “break the

digital divide” and educate low-income individuals, the trial testimony shows that

Appellants intended to defraud others. The United States proved beyond a reasonable

doubt that Appellants made material misrepresentations and intended to defraud the

state of Minnesota, K-Mart, and CyberStudy customers. We conclude that evidence

was sufficient to support Appellants’ conspiracy, mail fraud, and wire fraud

convictions.

-19-
B. Batson claim

Appellants assert that the district court erred in overruling their objection

under Batson v. Kentucky, 476 U.S. 79 (1986). During jury selection, the United

States used one of its peremptory strikes to strike juror number 41, an AfricanAmerican, from the venire panel. Appellants objected. The following side-bar

discussion occurred:

Mr. Kelly: Your Honor, defendants object to government’s

striking peremptory challenge of juror number 41. The record should

reflect that juror number 41 is the only African American left on this

panel, and there is no, as far as the defendants are concerned, no

justifiable reason for striking this juror other than race based.

Mr. Genrich: Well, Your Honor, clearly the issues in the case

include both school and nonschool based education instruction and

tutorial interactivity with respect to application of the education tax

credit, which among other things has a prong related to whether tutoring

services were provided by qualified instructors.

And we also struck, for example, juror number eight, who I will

refer to asthe Alabama juror, who indicated she had tutoring experience,

and juror number [five] who worked in the special ed environment.

And we have a real concern that there could be a tendency among

jurors, particularly those who have tutored children in school settings,

to apply their own standards, their own legal standards or a matter of

human nature their own experiential standards to the facts of the case.

And that wasthe primary basis certainly on which we struck juror

number 41, and there was no race consideration to it. In fact, we struck

these other jurors for the same reason before we struck 41. 

The Court: Anything else?

-20-
Mr. Kelly: No, Your Honor. Well, Your Honor, I think that there

are, as the Court observed here, there are a number of jurors who are

connected to the educational system in one fashion or another, and this

particular juror is the only remaining African American. The Court

excused one other gentleman, the school bus driver, for employment

reasons. 

And as coincidence, the only remaining potential juror, the only

one that was not seated, is the only other African American that is here. 

So this gentleman, juror number 41, represents the sole member of the

race of both of the defendants. We think it’s important that the

defendants have representation from their race. 

Mr. Genrich: Your Honor, I would note with respect to the racial

composition of the jury, that juror number 10 also comes from a

community of color and was struck by the defense, and the fact that 41

would have been the only remaining juror of color, at least by my

observation, is not solely exclusively a function of our strike.

The Court: Well, he does work in the educational setting. I

understand the rationale for it, and while I certainly in the grand 

[scheme] of things would prefer to have a racially mixed jury, the Court

finds that the government has stated a sufficient reason for their strike,

which is not race based, but the issue is preserved if necessary for

appeal. 

The Equal Protection Clause of the Fourteenth Amendment prohibits the use

of peremptory challengesto strike jurorssolely on the basis of race. Batson, 476 U.S.

at 86. In order to succeed on a Batson challenge, a party must satisfy a three-part test.

Id. at 96. First, the objecting party must make a prima facie showing that a

peremptory challenge is race based. Id. Then, the party seeking to strike the juror

must show a race neutral justification that is “clear and reasonably specific” and

related to the case to be tried in order to overcome the objection. Id. at 98 n.20. The

-21-
district court then decides whether the objecting party has shown purposeful

discrimination in light of all the evidence. Id. at 98. [T]he critical question in

determining whether [the objecting party] has proved purposeful discrimination at

step three is the persuasiveness of the prosecutor’s justification for his peremptory

strike.” Miller-El v. Cockrell, 537 U.S. 322, 324 (2003). 

[T]he issue comes down to whether the trial court finds the prosecutor’s

race-neutral explanationsto be credible. Credibility can bemeasured by,

among other factors, the prosecutor’s demeanor; by how reasonable, or

how improbable, the explanations are; and by whether the proffered

rationale has some basis in accepted trial strategy.

Id. at 339. Because “those factual findings turn largely on credibility evaluations,

they are due great deference[.]” United States v. Allen, 644 F.3d 748, 752 (8th Cir.

2011) (citing Batson, 476 U.S. at 98 n.21). Therefore, we review the district court’s

Batson ruling for clear error. Id. 

“If a prosecutor’s proffered reason for striking a black panelist applies just as

well to an otherwise-similar nonblack who is permitted to serve, that is evidence

tending to prove purposeful discrimination to be considered at Batson’ s third step.” 

Miller-El v. Dretke, 545 U.S. 231, 241 (2005). In this case, however, the United

States struck two other venire persons for the same reason as it struck an African

American venire person: these individuals all worked in educational settings. The

United States asserted that it was concerned that these individuals would apply their

own educational standards to the case. The district court found that the United States

exercised thisstrike for a legitimate reason. Reviewing the record, thisfinding is not

clearly erroneous. Appellants’ Batson challenge thus fails. 

-22-
III. Louper-Morris’s Claims

A. Allegation of Material Misrepresentation to the Grand Jury

Louper-Morris alleges that the district court erred by denying Appellants’ joint

motion to dismiss the indictment because the United States allegedly made a material

misrepresentation to the grand jury. “In reviewing the district court’s denial of a

motion to dismiss the indictment for alleged government misconduct, we review the

district court’s factual findings for clear error and its legal conclusions de novo.” 

United States v. Pumpkin Seed, 572 F.3d 552, 557 (8th Cir. 2009) (internal citations

and quotations omitted).

Approximately two months after the deadline for filing pretrial motions,

Appellants moved to dismiss the indictment. They alleged that the United States

misinformed the grand jury by representing to the grand jury that no program

materials or educational content existed on the CyberStudy website in 2000. 

The magistrate judge heard oral arguments on the motion. It concluded that

Appellants had no good cause for untimely filing the motion and also ruled that the

motion failed on the merits. Specifically, the magistrate judge found that the record

was devoid of any facts to support the proposition that the United States made any

misrepresentations in the indictment or to the grand jury. Thus, the magistrate judge

denied the motion. 

We find no reversible error in the district court’s denial of the dismissal of the

indictment, “because even assuming that there were errors in the charging decision

that may have followed from the conduct of the prosecution, the petit jury’s guilty

-23-
verdict rendered those errors harmless.” Id. (internal citation and quotation

omitted).

6

B. Prosecutorial Misconduct Allegation

Louper-Morris asserts that the district court erred in denying Appellants’ joint

motion for a new trial because the United States allegedly intimidated one of

Appellants’ witnesses thereby depriving her of the right to present a complete

defense. We review a district court’s denial of a motion for new trial for an abuse of

discretion. United States v. Perez, 663 F.3d 387, 391 (8th Cir. 2011). “Reversal of

a denial of a motion for new trial is rare.” Perez, 663 F.3d at 39. (citation omitted).

In the motion for a new trial, Appellants alleged that Michelle Garcia-Strait,

a potential defense witness, was intimidated by the United States. Garcia-Strait had

sent a fax and an email to the district court describing her unplanned meeting with a

governmental agent. The district court conducted an evidentiary hearing on the

matter. 

At the evidentiary hearing, Garcia-Strait testified to the following: on the day

she wasto testify, someone who she believed to be from the United States Attorney’s

office spoke with her in a conference room outside of the courtroom. The

governmental agent summoned Garcia-Strait from the defense’s conference room to

the United States’s conference room. The door was left partially open. For

approximately five to ten minutes, the agent asked her about CyberStudy and some

checks she had written. Garcia-Strait said thatshe felt intimidated by the experience. 

She did not recall telling either of Appellants’ attorneys that she was intimidated or

Moreover, we agree with the magistrate judge that the record is devoid of any

6

facts that the United States made any misrepresentations in the indictment or to the

grand jury. 

-24-
unwilling to testify. When asked by the district court if the governmental agent had

threatened her or told her not to testify, Garcia-Strait replied that the agent had not

done either of those things. Garcia-Strait could not recall if Appellants’ attorneys

dismissed her before or after she had spoken with the governmental agent. She also

indicated that Appellants were debating whether to call her to testify because of

Garcia-Strait’s pending felony fraud and forgery charges on which she could be cross

examined. The following colloquyoccurred between Garcia-Strait and Assistant U.S.

Attorney Timothy Rank:

Rank: You said that one of the things that [defense attorney] was

trying to figure out was whether you would get cross-examined on those

issues?

Garcia-Strait: Correct. This is exactly why I was afraid to testify,

yes.

Rank: You were afraid to testify because you could get crossexamined on –

Garcia-Strait: By you, yes.

Rank: -- on issues related to your pending felony fraud and

forgery charges?

Garcia-Strait: Yes.

After the hearing, the district court issued an order denying the motion for a

new trial. The district court expressly found that the United States did not threaten

Garcia-Strait, and that Appellants chose not to call her as a witness. The district court

noted that Garcia-Strait was concerned about testifying because she could be crossexamined about pending state court fraud and forgery charges. The district court

concluded that there was not any impermissible governmental interference and a new

trial was not warranted. 

-25-
In light of the record, Louper-Morris’s argument is unpersuasive. In fact, the

record directly refutes her argument. The record clearly showsthat Garcia-Strait was

afraid to testify because of the possibility of being cross-examined on her pending

fraud and forgery charges. Moreover, Garcia-Strait admitted that she was not

threatened in any way or instructed not to testify. Garcia-Strait was available to

testify, but Appellants’ attorneys chose not to call Garcia-Strait as a witness. The

United States’s conduct did not prevent Garcia-Strait from testifying and, therefore,

the United States did not compromise Louper-Morris’s right to a fair trial. See Dodd

v. Nix, 48 F.3d 1071, 1075-76 (8th Cir. 1995) (finding no due process violation when

defense counsel chose not to call witness without consideration to the prosecution’s

conduct). The district court did not abuse its discretion in denying Appellants’

motion for new trial on the ground of witness intimidation. 

C. Alleged Sentencing Error

Louper-Morris asserts that the district court erred by enhancing her base level

offense by four points for her role as a leader or organizer of a criminal activity

involving five or more participants under United States Sentencing Guidelines §

3B1.1. She argues that the United States failed to prove by a preponderance of the 7

evidence that one of the persons identified in the pre-sentence investigation report as

a participant, Jennifer Davis, was criminally responsible for the offense. Therefore, 8

she contends that the district court erred in applying the leadership enhancement

pursuant to § 3B1.1.

“When we review the imposition of sentences, whether inside or outside the

Guidelines range, we apply ‘a deferential abuse-of-discretion standard.’” United

The district court relied on the 2010 version of the United States Sentencing

7

Guidelines Manual. 

Louper-Morris does not challenge her role as a leader ofthe criminal activity. 

8

-26-
States v. Hayes, 518 F.3d 989, 995 (8th Cir. 2008) (quoting Gall v. United States, 552

U.S. 38, 41 (2007)). “In reviewing for procedural error, we review the district court’s

application of the [G]uidelines de novo and its factual findings for clear error.”

United States v. Bennett, 659 F.3d 711, 714 (8th Cir. 2011) (citations & quotation

omitted). “‘Procedural error’ includes ‘failing to calculate (or improperly calculating)

the Guidelines range, treating the Guidelines as mandatory, failing to consider the §

3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence—including an explanation for any deviation

from the Guidelines range.’” United States v. Feemster, 572 F.3d 455, 461 (8th Cir.

2009) (en banc) (quoting Gall, 552 U.S. at 51).

United States Sentencing Guidelines § 3B1.1(a) states, “Based on the

defendant’s role in the offense, increase the offense level as follows: ( a ) I f t h e

defendant was an organizer or leader of a criminal activity that involved five or more

participants or was otherwise extensive, increase by 4 levels.” (emphasis omitted). 

In order for the district court to apply the § 3B1.1(a) leadership enhancement, the

United States needed to prove by a preponderance ofthe evidence that Louper-Morris

led or organized five or more participants in the CyberStudy fraud or that the

organization was otherwise extensive. United States v. Cosey, 602 F.3d 943, 947-48

(8th Cir. 2010); United States v. Rodriguez-Ramos, 663 F.3d 356, 365 (8th Cir. 2011)

(stating burden of proof). “A ‘participant’ is a person who is criminally responsible

for the commission of the offense, but need not have been convicted.” U.S.S.G. §

3B1.1 cmt. n.1. 

The record conclusively shows that five or more individuals were participants

within the meaning of U.S.S.G. § 3B1.1. Denita Hollie testified Louper-Morris was

the leader of five or more “criminally responsible” individuals. She stated that in

addition to herself, Benita Williams, Morris, and Jennifer Davis all forged signatures

on the power-of-attorney forms in order for CyberStudy to receive the tax credit. 

Benita Williams corroborated this testimony. Cheryl Cardinal also testified that she

-27-
left the employment of CyberStudy because she no longer felt comfortable

“marketing something that wasn’t there”—that is, marketing CyberStudy 101 even

though it lacked educational content. Denita Hollie, Benita Williams, and Cheryl

Cardinal’s testimony all prove that Louper-Morris wasthe leader or organizer of five

or more participants who committed fraud either through forging signatures or

marketing CyberStudy 101's nonexistent educational content.

The leadership enhancement is also appropriate if the United States proves by

a preponderance of the evidence that the organization “was otherwise extensive.” 

U.S.S.G. § 3B1.1(a). A four-level leadership enhancement pursuant to U.S.S.G. §

3B1.1(a) is appropriate if the trial testimony shows that “the criminal activity was

otherwise extensive.” See United States v. Brown. 627 F.3d 1068, 1073 (8th Cir.

2010) (internal quotation omitted). “In accessing whether an organization is

‘otherwise extensive,’ all persons involved during the course of the entire offense are

to be considered. Thus, a fraud that involved only three participants but used the

unknowing services of many outsiders could be considered extensive.” U.S.S.G. §

3B1.1 cmt. n.3. 

Regarding the leadership enhancement, the district court stated:

As to the leadership role, I think there were many participants here. I

don’t know that we need to count to only five. There are many who

participated in one way or another to encourage people to participate in

this program, and I think the evidence was clear on that. So the fourlevel increase as a leader and organizer is appropriate in this case. 

We construe the district court’s statement as a finding that it believed not only that

the CyberStudy fraud involved more than five participants, but that the criminal

activity was otherwise extensive. The criminal activity “was otherwise extensive” in

that Louper-Morris recruited numerousindividuals to assist in CyberStudy’s customer

-28-
recruitment and tax form preparation. In addition, Rev. McAfee provided

“unknowing services” for CyberStudy by acting as a front for the pool loan. 

Therefore, we conclude that the district court did not err in applying a four-level

leadership enhancement to Louper-Morris’s sentence pursuant to U.S.S.G. § 3B1.1(a)

because the criminal activity was otherwise extensive. 

D. Claim of Cumulative Error

Lastly, Louper-Morris contendsthat cumulative trial errors warrantreversal or,

at least, remand. “We may reverse where the case as a whole presents an image of

unfairness that has resulted in the deprivation of a defendant’s constitutional rights,

even though none of the claimed errorsisitself sufficient to require reversal.” United

States v. Montgomery, 635 F.3d 1074, 1099 (8th Cir. 2011) (quoting United States

v. Samples, 456 F.3d 875, 887 (8th Cir. 2006)). We have painstakingly considered

the record and find that there is not even a specter of unfairness much less any

deprivation of Louper-Morris’s constitutional rights. Any error was harmless error. 

Louper-Morris’s claim of cumulative, reversible error is without merit.

IV. Morris’s Claims

A. Tenth Amendment Claim

Morris argues that the wire and mail fraud statutes, as applied to him, exceed

Congress’s authority to legislate in violation of the Tenth Amendment. Morris raises

this constitutional challenge for the first time on appeal. Defenses not raised or

litigated in the district court normally cannot be argued for the first time on appeal. 

Gardner v. Meyers, 491 F.2d 1184, 1190 (8th Cir. 1974). “This rule, however, is one

of prudence and discretion.” Ward v. Resolution Trust Corp., 972 F.2d 196, 199 (8th

Cir. 1992). 

-29-
Typically, constitutional challengesto the charging statute can be raised during

pretrial motions, specifically, in a motion to dismiss the indictment. E.g. United

States v. Smith, 655 F.3d 839, 848 (8th Cir. 2011) (reviewing claim when defendant

raised constitutional challenge in a motion to dismiss the indictment). In this case,

presenting this argument to the district court would have been futile because, at the

time, thisCourt denied “Tenth Amendment prudentialstanding to individuals ‘absent

the involvement of a state or its instrumentalities.’” Id. (quoting United States v.

Hacker, 565 F.3d 522, 526 (8th Cir. 2009)). However, the Supreme Court recently

held that criminal defendants may challenge statutes as violative of the Tenth

Amendment. Id. (citing Bond v. United States, --- U.S. ----, 131 S.Ct. 2355, 2366-67

(2011)). Morris did not have prudential standing until after the Bond decision

conferred it upon him, and accordingly, he could not make this constitutional

challenge to the charging statute. Therefore, we will address the merits of his

argument.

We review federal constitutional questions, such as whether Congress had the

power to enact a statute, de novo. United States v. Sabri, 326 F.3d 937, 945 (8th Cir.

2003). 

The Tenth Amendment provides that “powers not delegated to the United

States by the Constitution, nor prohibited by it to the States, are reserved to the States

respectively, or to the people.” U.S. Const. amend. X. A Tenth Amendment

challenge to a statute “necessarily” fails if the statute is a valid exercise of a power

relegated to Congress. United States v. Wright, 128 F.3d 1274, 1276 (8th Cir. 1997)

(finding challenged statute to be valid exercise of Congress’s power to regulate

commerce). 

Article I, Section 8, Clause 7 of the United States Constitution authorizes

Congress “To establish Post Offices and post Roads[.]” The Postal Power allows

Congress to regulate the entire postal system. Ex Parte Rapier, 143 U.S. 110, 113

-30-
(1892). “The overt act of putting a letter into the post office of the United States is

a matter that Congress may regulate. . . . Whatever the limits to its power, it may

forbid any such acts done in furtherance of a scheme it regards as contrary to public

policy, whether it can forbid the scheme or not.” Badders v. United States, 240 U.S.

391, 393 (1916) (internal citation omitted). Congress’s Postal Power provides the

jurisdictional basis for 18 U.S.C. § 1341, the mail fraud statute. United States v.

Elliott, 89 F.3d 1360, 1364 (8th Cir. 1996). Thus, Morris’s Tenth Amendment

challenge to the mail fraud statute “necessarily” fails because the mail fraud statute

is a legitimate exercise of Congress’s Postal Power. Wright, 128 F.3d at 1276.

Regarding Morris’s challenge to the wire fraud statute, 18 U.S.C. § 1343,

Morris ignores Article I, Section 8 of the United States Constitution, the Commerce

Clause, as a source of legislative authority. “[Section] 1343 [is] within the extensive

reach of the Commerce Clause.” United States v. Hook, 195 F.3d 299, 310 (7th Cir.

1999). Therefore, Morris’s Tenth Amendment challenge to thewire fraud statute also

“necessarily” fails. Wright, 128 F.3d at 1276.

B. Evidentiary Ruling Error

Morris asserts that the district court erred by not allowing the jury to view the

live CyberStudy website thereby denying him his Fifth and Sixth Amendment right

to a complete defense. “We review a district court’s evidentiary rulings for clear

abuse of discretion, reversing only when an improper evidentiary ruling affected the

defendant’s substantial rights or had more than a slight influence on the verdict.” 

United States v. Watson, 650 F.3d 1084, 1088 (8th Cir. 2011) (quoting United States

v. Shields, 497 F.3d 789, 792 (8th Cir. 2007)). 

At the beginning of the trial, Louper-Morrisrequested permission to introduce

the 2010 version of the online CyberStudy tutorial during her testimony. The district

court deferred the ruling until Louper-Morris was to testify. The district court again

-31-
raised the issue before Louper-Morris’s opening statement. It instructed counsel that 9

any demonstration of the tutorial should be done through “screen shots that can be

moved to on a shot by shot basis, much like clicking onto another site on the

Internet.” The district court expressed concern about the jury’s accessto exhibits and

opined that the screen shots would enable the jury to review the exhibit at a later time. 

Thus, the district court excluded admission of the live website. The United States

argued that the screen shots would not be representative of the website during the

relevant time period, 2000-2002. The district court noted the concern and stated that

the issue would be taken up later. Neither Louper-Morris nor Morris sought

admission of a screen-shot exhibit. 

The district court did not abuse its discretion in precluding admission of the

live 2010 CyberStudy website. First, the district court was clearly concerned about

the jury’s access to exhibits, which is a legitimate reason to change the format of the

evidence. Second, Morris has not demonstrated how a screen-shot exhibit is inferior

to live website or how a screen-shot exhibit is prejudicial to him. Third, we cannot

ignore the fact that once the district court ruled to allow only the screen-shot exhibit,

Appellants abandoned their efforts to proffer any representation of the CyberStudy

website for the jury’s viewing. Finally, Appellants sought admission of the 2010

website, which, as the United States pointed out at trial and on appeal, would have

limited probative value of the 2000-2002 website. In light of the overwhelming

evidence against Appellants and the limited relevance of the 2010 CyberStudy

website, the district court did not abuse its discretion in denying admission of the live

2010 website.

Louper-Morris had deferred her opening statement until after the United

9

States had presented its case. 

-32-
C. Sentencing Error

Morris contends that the district court improperly applied the two-level

sophisticated-means enhancement under U.S.S.G.§ 2B1.1(b)(9)(C) and the four-level

leadership enhancement under U.S.S.G. § 3B1.1(a). We apply “a deferential

abuse-of-discretion standard” when reviewing the imposition of sentences. Gall v.

United States, 552 U.S. at 41. “In reviewing for procedural error, we review the

district court’s application of the [G]uidelines de novo and its factual findings for

clear error.” Bennett, 659 F.3d at 714 (citations & quotation omitted). 

Under the sophisticated-means enhancement, a defendant’s base offense level

may be increased by two levels if “the offense otherwise involved sophisticated

means.” U.S.S.G. § 2B1.1(b)(9)(C). “Sophisticated means” is defined as “especially

complex or especially intricate offense conduct pertaining to the execution or

concealment of an offense.” U.S.S.G. § 2B1.1(b)(9)(C) cmt. n.8(B). The

sophisticated-means enhancement is appropriate when the offense conduct, viewed

as a whole, “was notably more intricate than that of the garden-variety [offense].”

United States v. Hance, 501 F.3d 900, 909 (8th Cir. 2007). “Even if any single step

is not complicated, repetitive and coordinated conduct can amount to a sophisticated

scheme.” United States v. Fiorito, 640 F.3d 338, 351 (8th Cir. 2011) (quoting United

States v. Bistrup, 449 F.3d 873, 882 (8th Cir. 2006)).

Morris does not dispute the district court’s factual findings that formed the

basis of the sophisticated-means enhancement. Rather, he contends that the district

court erred in its legal conclusion that the fraud wassophisticated. We disagree. The

CyberStudy fraud involved a vast marketing scheme that includedmobilizing various

community leaders. It involved lobbying state agencies including the Minnesota

Department of Revenue and the Minnesota Attorney General. The fraud required the

preparation of thousands of tax returns and power-of-attorney forms, endorsed with

fraudulent signatures. Cf. United States v. Septon, 557 F.3d 934, 937 (8th Cir. 2009)

-33-
(affirming application of the sophisticated-means enhancement where a scheme

involved “submitting numerous loan applications to lenders containing forged

signatures, forged notary stamps, and falsified or altered [documents]”). Finally, the

fraud required the creation of a fake pool loan allegedly financed by Rev. McAfee’s

organization, Salem, Inc. This coordinated conduct amounts to a sophisticated

scheme. The district court did not err in applying the sophisticated-means

enhancement.

Morris also argues that the district court erred in applying the four-level

leadership enhancement pursuant to U.S.S.G. § 3B1.1(a) because he was “at worse,

. . . a manager orsupervisor of the scheme[,]” and his mother, Louper-Morris, wasthe

true leader and figurehead of the organization. The district court considered and

rejected this argument. It stated:

As to the leader or organizer objection relative to paragraph 42, the

Court will overrule the defense objection. I have considered this

carefully and considered dropping this to an organizer or a manager, I

guess, rather than a leader/organizer which would be three points, but

having once again gone through the nature of the role that was played

by Mr. Morris in this, I just find that I cannot change that

recommendation that the probation office has made.

A leadership role is determined by “the nature of defendant’s role in the

offense, the recruitment of accomplices, the degree of participation in planning or

organizing the offense.” United States v. Williams, 605 F.3d 556, 570 (8th Cir. 2010)

(quoting United States v. Ortiz-Martinez, 1 F.3d 662, 677 (8th Cir. 1993)). A

defendant’s “decision-making authority. . . and the degree of control and authority

that the defendant exercised over others” is indicative of whether the defendant had

a leadership role in the offense. Id. (quoting United States v. Del Toro-Aguilera, 138

F.3d 340, 342 (8th Cir. 1998)). The leadership enhancement “does not apply solely

-34-
to those who first instigated the criminal activity, and the defendant need not be the

only organizer or leader.” United States v. Bolden, 596 F.3d 976, 984 (8th Cir.

2010).

Like the district court, we disagree with Morris’s characterization of his role

in the CyberStudy fraud. Denita Hollie testified that Morris had a leadership position

with CyberStudy. She stated that although he did not generate many of the ideasthat

propelled the scheme, he helped implement Louper-Morris’s ideas by instructing

employees. Morgan Brown, Denita Hollie, Benita Williams, and Lyman Locket each

testified that Morris acted as CyberStudy’s attorney. As the company’s attorney, he

had a degree of authority. He drafted all of the legal documents for the organization

including customer agreements and letters threatening collection actions and

immigration actions. He also negotiated the K-Mart–CyberStudy computer contract. 

Carlos Granados testified that Morris was also in charge of all banking for the

company. Lastly, Morris, like Louper-Morris, took a substantial amount of money

from CyberStudy’s bank account for personal use. These facts support the district

court’s determination that Morris was a leader or organizer within the context

U.S.S.G. § 3B.1.1(a). The district court did not err by enhancing Morris’s sentence

by four levels for his leadership role. 

D. Restitution Issue

Morris argues that the district court’s restitution order improperly included

restitution to K-Mart, who was already receiving compensation from a settlement

agreement. He asserts that the restitution order improperly “doubly compensates” 

 K-Mart through the civil settlement and criminal restitution.

After a few years of litigation, CyberStudy entered into a settlement agreement

in which it was to pay K-Mart $610,000 in compensation for breaching the computer

contract. CyberStudy failed to make any payments and, in October 2003, a judgment

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for $1,211,134.03 plus interest and attorney’s fees was entered against CyberStudy

for thisfailure. In this criminal case, the district court imposed mandatory restitution

in the amount of $3,562,502.74—$2,351,368.71 owed to the Minnesota Department

of Revenue and $1,211,134.03 owed to K-Mart. Appellants were held jointly and

severally responsible for the restitution payments. Morris admitted on crossexamination that Appellants had not paid any amount on the civil judgment.

Ordinarily, we review restitution awards for an abuse of discretion. United

States v. Jefferson, 652 F.3d 927, 932 (8th Cir. 2011). Morris, however, did not

challenge the restitution order at sentencing. We therefore review the restitution

order for plain error. United States v. Piggie, 303 F.3d 923, 928 (8th Cir. 2002);

United States v. Riebold, 135 F.3d 1226, 1231 (8th Cir.1998). Plain error review is

“extremely narrow and is limited to those errors which are so obvious or otherwise

flawed as to seriously undermine the fairness, integrity, or public reputation of

judicial proceedings.” Piggie, 303 F.3d at 928 (quoting United States v. Beck, 250

F.3d 1163, 1166 (8th Cir. 2001)).

The Mandatory Victims Restitution Act (MVRA), 18 U.S.C. §§ 3663A - 3664,

requires individuals who are convicted of wire fraud to pay restitution to their

victims. United States v. Mancini, 624 F.3d 879, 882 (8th Cir. 2010); 18 U.S.C. §

3663A(c)(1)(A)(ii) (ordering mandatory restitution for victims of “an offense against

property under this title, . . . including any offense committed by fraud or deceit”). 

The MVRA instructs that, “[a]ny amount paid to a victimunder an order of restitution

shall be reduced by any amount later recovered as compensatory damages for the

same loss by the victim in-- (A) any Federal civil proceeding[.]” 18 U.S.C. §

3664(j)(2)(A). Although the purpose of the MVRA is to make victims whole and

compensate them for their losses, United States v. Frazier, 651 F.3d 899, 904 (8th

Cir. 2011), the MVRA does not allow victims to obtain double recovery or a windfall

through restitution. Id. at 910-11; United States v. Ruff, 420 F.3d 772, 775 (8th Cir.

2005) (Ruff I); see also United States v. Manzer, 69 F.3d 222, 230 (8th Cir. 1995)

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(finding that the MVRA’s precursor, the Victim and Witness Protection Act of 1982,

does not allow “double recovery for the same lossthrough both a restitution order and

a civil judgment”); United States v. Gaultier, 727 F.2d 711, 716 (8th Cir. 1984). 

Nevertheless, Morris’s argument is without merit. ByMorris’s own admission,

K-Mart has yet to receive any payments in satisfaction of the civil judgment. 

Therefore, Morris has failed to show that enforcement of the restitution order would

result in double recovery for K-Mart. Cf. United States v. Ruff, 472 F.3d 1044, 1047

(8th Cir. 2007) (Ruff II) (finding that the district court did not plainly err in denying

Ruff’s request to offset the restitution amount with the forfeiture proceeds in part

because Ruff did not show that the victim was receiving double recovery). If either

Appellant begins to make payments on the civil judgment, either he or she may seek

in the district court a reduction of the restitution order to credit or offset amounts

recovered by K-Mart. Frazier, 651 F.3d at 910-11; Manzer, 69 F.3d at 230;

Gaultier, 727 F.2d at 716. Absent evidence of a double recovery, we can say that the

district court did not plainly err in awarding restitution to K-Mart even though

K-Mart can enforce a civil judgment against Appellants. 

V. Conclusion

For the foregoing reasons, we affirm the judgment of the district court and

Appellants’ sentences.

______________________________

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