1

The Honorable Ralph R. Erickson, United States District Judge for the District

of North Dakota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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Nos. 08-3402/3436

___________

United States of America, * 

*

Appellee, *

* Appeals from the United States

v. * District Court for the

* District of North Dakota.

Shane Jowell Anderson, *

* 

Appellant. *

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Submitted: June 10, 2009

Filed: July 6, 2009

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Before MURPHY, ARNOLD and GRUENDER, Circuit Judges.

___________

GRUENDER, Circuit Judge.

After a jury found Shane Jowell Anderson guilty of six counts of wire fraud in

violation of 18 U.S.C. § 1343, one count of making false statements in violation of 18

U.S.C. § 1014, and one count of failure to appear in violation of 18 U.S.C. § 3146, the

district court1

 sentenced him to 49 months’ imprisonment. Anderson appeals his

conviction and sentence, arguing that the evidence presented at trial was insufficient

to support the jury’s verdict, that the district court abused its discretion by not
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appointing new counsel, that the district court erred by applying the November 2007

United States Sentencing Guidelines (“U.S.S.G.”) manual, and that the district court

erred by denying his motion for a downward departure. For the reasons discussed

below, we affirm.

I. BACKGROUND

In August 2001, Anderson approached AgCountry Farm Credit Services

(“AgCountry”) to obtain a loan to expand his harvesting business. AgCountry granted

Anderson a loan based on its analysis of copies of federal income tax returns that he

claimed to have filed for 1998, 1999 and 2000. However, Anderson had not actually

filed those tax returns. AgCountry wired the loan proceeds from its branch in

Minnesota to Anderson’s North Dakota bank account. Using similarly fraudulent

copies of federal income tax returns for 2001 and 2002, Anderson also obtained loans

from AgCountry in March 2002 and March 2003. He eventually defaulted on the

loans.

In September 2006, a federal grand jury indicted Anderson on six counts of

wire fraud and one count of making false statements to a farm credit bank. Anderson

was eventually located and arrested on May 31, 2007. At Anderson’s arraignment,

the district court released him from custody pending trial subject to certain conditions,

including that he “appear at all proceedings as required” and that he “telephone his

[court-appointed] attorney at least twice a week and . . . his pretrial services officer at

least once a week.” After granting Anderson’s continuance motion, the district court

issued an order scheduling his trial date for September 4, 2007. 

On August 28, 2007, the district court held a status conference to determine

Anderson’s whereabouts because he had not been in contact with either his pretrial

services officer or his attorney. During the conference, Anderson’s attorney refused

to answer the court’s questions regarding Anderson’s location, claiming attorney-
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client privilege. The court then issued an arrest warrant for Anderson, stating that if

he was not arrested or otherwise located by August 31, 2007, the court would dismiss

the jury but “leave the trial date so if he shows up we’ll figure out where we go at that

point.” Anderson was not located by August 31, and, therefore, the district court

issued an order dismissing the jury and continuing the trial on a day-to-day basis.

Anderson did not appear on September 4, 2007, the date that the trial had been

scheduled to begin.

Anderson was eventually arrested in Arizona on October 29, 2007. A grand

jury returned a second indictment charging with him with failure to appear. On

December 17, 2007, Anderson filed a motion to dismiss the second indictment,

arguing that he could not have failed to appear for his trial because there was no trial

date scheduled after the district court dismissed the jury. The district court denied that

motion.

On January 2, 2008, Anderson entered into a written plea agreement with the

Government, whereby he pled guilty to one count of wire fraud and one count of

making false statements in exchange for the dismissal of the remaining counts of wire

fraud and the indictment containing the failure to appear charge. After his change of

plea hearing but before his sentencing hearing, Anderson wrote a letter to the district

court complaining about his court-appointed counsel, Richard Henderson, and the plea

agreement. At a February 1, 2008 hearing to discuss the issues Anderson raised in the

letter, Anderson stated that he did not want a new attorney. Accordingly, the district

court did not appoint new counsel. 

Anderson then sent two additional letters to the district court, again complaining

about Henderson but this time proclaiming his innocence as well. The district court

held a hearing on the two letters on February 26, 2008. At this hearing, Anderson

claimed that he was “backed into” the plea agreement, though he did not blame

Henderson. The district court then withdrew Anderson’s guilty plea. Anderson did
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not express any further dissatisfaction with Henderson, and Henderson stated that he

and Anderson had resolved the concerns Anderson mentioned in his letters.

Accordingly, the district court again did not appoint new counsel. 

On March 11, 2008, Henderson filed an ex parte motion to withdraw as counsel,

claiming that Anderson refused to communicate with him. After conducting another

hearing, the district court denied that motion. The court concluded that Anderson was

responsible for the lack of communication with Henderson and that Anderson was

trying to manipulate the judicial system. 

The district court joined Anderson’s wire fraud and false statements case with

his failure to appear case and scheduled the trial for April 28, 2008. After the

conclusion of the trial, the jury returned a guilty verdict on all counts.

Before the sentencing hearing, Anderson filed another motion for appointment

of new counsel. The district court granted this motion, stating that although “[t]he

Court is convinced that [Anderson’s] current request for a new attorney is still nothing

more than an attempt to manipulate the system[,]” there had been a “complete

breakdown of all communication[,] . . . [so] appointment of new counsel is

appropriate.”

At the sentencing hearing, the district court adopted the Presentence

Investigation Report (“PSR”) with minor factual changes. The PSR calculated an

advisory sentencing guidelines range of 46 to 57 months’ imprisonment based on a

total offense level of 21 and a criminal history category of III. The district court then

sentenced Anderson to 49 months’ imprisonment after denying his objection to the use

of the November 2007 U.S.S.G. manual and his motion for a downward departure

under U.S.S.G. § 4A1.3(b)(1). This appeal followed. 
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II. DISCUSSION

A. Sufficiency of the Evidence 

Anderson appeals his conviction, first arguing that the evidence presented at

trial was insufficient to sustain his convictions for wire fraud and failure to appear.

When reviewing the sufficiency of the evidence to sustain a conviction, we

“examin[e] the evidence in the light most favorable to the jury verdict and giv[e] the

verdict the benefit of all reasonable inferences.” United States v. Foxx, 544 F.3d 943,

949 (8th Cir. 2008). “The standard of review of an appeal concerning the sufficiency

of the evidence is very strict, and the verdict of the jury should not be overturned

lightly.” United States v. Scott, 64 F.3d 377, 380 (8th Cir. 1995). Because Anderson

“did not move for acquittal at the close of evidence, we review the district court’s

entry of judgment for plain error.” See United States v. Milam, 494 F.3d 640, 643 (8th

Cir. 2007). “Plain error exists when (1) there is error (2) which is plain and (3) affects

substantial rights, and we should only exercise our discretion to correct such error if

it seriously affects the fairness, integrity or public reputation of judicial proceedings.”

Id. We will find error only if, when viewing the evidence in the light most favorable

to the verdict, no reasonable fact-finder could have found Anderson guilty beyond a

reasonable doubt. See United States v. Londondio, 420 F.3d 777, 786 (8th Cir. 2005).

1. Wire Fraud

To convict a defendant of wire fraud, the Government must prove, beyond a

reasonable doubt, that the defendant “[1] voluntarily [participated in] a scheme to

defraud another out of money, [2] that he did so with intent to defraud, [3] that it was

reasonably foreseeable interstate wire communications would be used, and [4] that

interstate wire communications were used.” United States v. Slaughter, 128 F.3d 623,

628 (8th Cir. 1997). Anderson disputes the sufficiency of the Government’s evidence

on the third element—the reasonable foreseeability that interstate wire
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communications would be used. He contends that although the loan proceeds were

transferred interstate from AgCountry’s Minnesota branch to his bank in North

Dakota, the Government presented no evidence that he should have foreseen such an

interstate transfer, as opposed to an intrastate transfer from AgCountry’s North Dakota

branch to his North Dakota bank.

The Government presented evidence that Anderson used AgCountry’s online

banking system to receive and transfer money to his bank account. An AgCountry

employee testified that upon AgCountry’s approval of the loans, Anderson initiated

the wire transfers by accessing AgCountry’s online customer account and directing

the transfer of the loan proceeds to his bank account in North Dakota. The loan

proceeds were then wired from AgCountry’s branch in Minnesota to Anderson’s

North Dakota bank account. 

In United States v. Goodson, 155 F.3d 963 (8th Cir. 1998), we held that

interstate wire transfers were reasonably foreseeable to a defendant because his

deposit “statement contained the notation ‘EFT,’ an abbreviation for ‘electronic funds

transfer,’” id. at 966. Similarly, in this case, because the Government presented

evidence that Anderson used AgCountry’s electronic banking system to transfer the

loan proceeds into his account, a reasonable jury could determine that it was

reasonably foreseeable to Anderson that the loan proceeds would be transferred

interstate by wire. See id. at 966-67. Accordingly, because the evidence presented at

trial was sufficient to support Anderson’s conviction for wire fraud, “the district court

committed no error, much less plain error, in failing to sua sponte direct a judgment

of acquittal at the close of all the evidence.” See Londondio, 420 F.3d at 787 (italics

omitted). 
2

Section 3146 provides that “[w]hoever, having been released under this

chapter[,] . . . knowingly . . . fails to appear before a court as required by the

conditions of release,” commits the offense of failure to appear. Anderson’s

conditions of release required him to “appear at all proceedings as required.” The

indictment and jury instructions were more specific, however, charging Anderson with

“knowingly fail[ing] to appear for said jury trial as required by conditions of his

release.”

3

Anderson also contends in his reply brief that his failure to appear was not

willful, a challenge to the fourth element. However, Anderson did not raise this

argument in his opening brief, so it is waived. See United States v. Barnum, 564 F.3d

964, 968 n.4 (8th Cir. 2009). 

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2. Failure to Appear

To convict Anderson of failure to appear, the jury instructions stated that the

Government must prove, beyond a reasonable doubt, that “[1] [Anderson] was on

pretrial release; [2] [Anderson] was required to be in Court for his scheduled jury trial;

[3] [Anderson] was aware of this required appearance; and [4] [Anderson] willfully

failed to appear.”2

 Cf. United States v. Ray, 768 F.2d 991, 994 (8th Cir. 1985)

(observing that notice and willfulness are two essential elements of a failure to appear

charge), overruled on other grounds, Henderson v. United States, 476 U.S. 321, 330

(1986). Anderson challenges only the sufficiency of the evidence supporting the

second element—that he was required to be in court for his scheduled jury trial on

September 4, 2007.3

 He argues that because the district court dismissed the jury and

continued the trial on a day-to-day basis, his trial date was no longer set for September

4, 2007, and, therefore, he had no obligation to appear in court. 

We conclude that the district court did not err, plainly or otherwise, in failing

to sua sponte direct a judgment of acquittal because there was sufficient evidence to

support Anderson’s conviction for failure to appear. Although the district court

dismissed the jury before the scheduled September 4 trial date, the court did not vacate

the actual trial date. During the status conference in which the court inquired about
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Anderson’s whereabouts, the district court specifically stated that it would dismiss the

jury but “leave the trial date so if [Anderson] shows up we’ll figure out where to go

at that point.” (Emphasis added.) The district court’s order did not relieve Anderson

of his obligation to appear for trial. Rather, the court explained that it dismissed the

jury “for fiscal prudence reasons” but that if Anderson had shown up voluntarily on

September 4, the trial would have begun and jury selection would have begun shortly

thereafter. 

Anderson relies on United States v. Fisher, 137 F.3d 1158 (9th Cir. 1998), in

support of his argument. Fisher, however, is clearly distinguishable from the present

case. When Fisher failed to appear for his pretrial hearing, the district court vacated

his upcoming trial date. Id. at 1163. Accordingly, the Ninth Circuit concluded that

there was insufficient evidence that Fisher was required to appear for the vacated trial

date. Id. at 1162. In this case, the district court did not vacate Anderson’s September

4 trial date, meaning that Anderson was not relieved of his obligation to appear. Thus,

based on all of the evidence presented at trial, a reasonable jury could conclude that

Anderson was required to appear for trial on September 4. 

B. Requests for New Counsel

Anderson contends that the district court abused its discretion by denying his

requests for new counsel and that the court failed to make a thorough inquiry into his

dissatisfaction with Henderson following Anderson’s letters to the court. “We review

denial of a request for new counsel for abuse of discretion.” United States v. Boone,

437 F.3d 829, 839 (8th Cir. 2006). Anderson “must show justifiable dissatisfaction

with” Henderson, which “can arise from irreconcilable conflict, a complete breakdown

in communication, or any other factor interfering significantly with an attorney’s

ability to provide zealous representation.” See id. However, Anderson cannot

establish justifiable dissatisfaction merely by showing that he was frustrated with

Henderson’s performance or that he disagreed with Henderson’s “tactical decisions.”

See id.
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We find that the record does not support Anderson’s argument. With respect

to Anderson’s first letter complaining about Henderson, the court provided Anderson

with an opportunity to present his concerns during the February 1 hearing. Anderson

told the court that his letter never stated that he wanted new representation and that

“[t]here has been some reading between the lines there” when the district court

suggested the letter was a motion for new counsel. Given Anderson’s statements that

he did not want new counsel, we conclude that the district court made an adequate

inquiry into Anderson’s first complaint, see United States v. Webster, 84 F.3d 1056,

1062 n.2 (8th Cir. 1996) (finding that the district court made a satisfactory inquiry into

the basis of the defendant’s dissatisfaction where the court “granted [the defendant]

leave to freely explain the reason for his discontent”), and did not abuse its discretion

in finding that Anderson did not carry the burden of showing justifiable dissatisfaction

with appointed counsel, see United States v. Mentzos, 462 F.3d 830, 839 (8th Cir.

2006) (noting that “the defendant bears the burden of showing justifiable

dissatisfaction with appointed counsel”). 

The district court held another hearing on February 26, 2008, concerning

Anderson’s next two letters. The district court again questioned Anderson and

Henderson about their relationship. Henderson stated that he and Anderson had

discussed Anderson’s concerns and that they no longer had a disagreement about

tactics leading up to sentencing. Anderson spoke only of his problems with the plea

agreement, and he did not express further dissatisfaction with Henderson. As a result,

the district court withdrew Anderson’s guilty plea. Because the district court gave

Anderson the opportunity to present his position and Anderson raised no criticisms

of Henderson at the hearing, we conclude that the district court made an adequate

inquiry into Anderson’s concerns, see Webster, 84 F.3d at 1062 n.2, and did not abuse

its discretion in failing to appoint new counsel after receiving Anderson’s second and

third letters, see Mentzos, 462 F.3d at 839. 

Finally, at the hearing concerning Henderson’s ex parte motion to withdraw,

Henderson told the court that he “[did not] know exactly what the nature of
4

Anderson also raises an ineffective assistance of counsel claim on appeal,

arguing that Henderson was ineffective by failing to seek appellate review of the

district court’s decision to detain him before sentencing, failing to contact and

sufficiently prepare witnesses before trial, and pressuring him to sign the plea

agreement. “In general, an ineffective assistance of counsel claim is not cognizable

on direct appeal” because “such a claim is properly raised in a 28 U.S.C. § 2255

action.” United States v. Lewis, 483 F.3d 871, 873 n.2 (8th Cir. 2007). “We will

consider an ineffective assistance of counsel claim on direct appeal only in

exceptional cases where the district court has developed a record on the

ineffectiveness issue or where the result would otherwise be a plain miscarriage of

justice.” Id. Neither exception applies in this case; therefore, we decline to address

Anderson’s ineffective assistance claim. See id. 

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[Anderson’s] problem is” and that he believed Anderson “just does not want to work

with [me] as his counsel.” Anderson agreed with Henderson’s account of their

relationship. The district court concluded that “the problem is mostly the failure of

[Anderson] to communicate effectively with Mr. Henderson.” Accordingly, the court

denied the ex parte motion, finding that “the only purpose for this motion from Mr.

Anderson’s point of view is purposes of delay and to manipulate the court into giving

him the lawyer that he wants.” As with the other incidents, we conclude that the

district court conducted an adequate inquiry into the facts underlying Anderson’s

complaints at the March 13 hearing, see Webster, 84 F.3d at 1062 n.2, and did not

abuse its discretion in denying Henderson’s ex parte motion because Anderson failed

to show that there was a total communication breakdown rather than an unwillingness

on Anderson’s part to communicate with Henderson, see United States v. Barrow, 287

F.3d 733, 738 (8th Cir. 2002) (affirming a district court’s denial of a defendant’s

motion for new counsel where “there was no total breakdown in communication, only

an unwillingness on [the defendant’s] part to communicate with counsel”); see also

United States v. Redd, 318 F.3d 778, 783 (8th Cir. 2003) (assuming without deciding

that a defendant can raise a challenge to the district court’s denial of defense counsel’s

motion to withdraw).4

 
5

Anderson does not contest the district court’s use of the November 2007

U.S.S.G. manual for his failure to appear conviction. 

6

The higher advisory guidelines range is a result of an increase in the base

offense level for wire fraud offenses from 6 to 7, beginning with the November 2003

U.S.S.G. manual. 

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C. Sentencing Issues

Anderson argues that the district court erred by applying the wrong guidelines

manual and by denying his request for a downward departure. “We review a sentence

in two parts: first we review for significant procedural error, such as an improper

calculation of the advisory sentencing guidelines range; and second, absent significant

procedural error, we review for substantive reasonableness.” United States v. Barker,

556 F.3d 682, 690 (8th Cir. 2009). “In reviewing a sentence for procedural error, we

review the district court’s factual findings for clear error and its application of the

guidelines de novo.” Id. Application of the wrong guidelines manual would

constitute procedural error. See id. 

1. Ex Post Facto Clause

Anderson contends that the district court violated the Ex Post Facto Clause of

the United States Constitution by applying the November 2007 U.S.S.G. manual to

all of the offense conduct. He claims that the court should have applied the November

2002 U.S.S.G. manual to his convictions for wire fraud because the last act in his wire

fraud scheme occurred before the November 2003 U.S.S.G. manual became effective.5

Using the November 2002 U.S.S.G. manual for the wire fraud offenses would have

resulted in an advisory guidelines range of 41 to 51 months’ imprisonment, as

opposed to the advisory guidelines range of 46 to 57 months’ imprisonment that the

district court determined after applying the November 2007 U.S.S.G. manual.6

 
7

For purposes of Anderson’s appeal, we assume that the Ex Post Facto Clause

applies to a district court’s application of the sentencing guidelines even after the

Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005). See

United States v. Carter, 490 F.3d 641, 643 (8th Cir. 2007).

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The sentencing guidelines direct courts to apply the guidelines manual in effect

on the date of sentencing unless doing so would violate the Ex Post Facto Clause, in

which case the guidelines manual in effect on the date that the offense of conviction

was committed should be used. See U.S.S.G. § 1B1.11(a) and (b)(1).7

 However, the

so-called “one-book rule requires that the ‘Guidelines Manual in effect on a particular

date be applied in its entirety.’” Carter, 490 F.3d at 643-44 (quoting U.S.S.G. §

1B1.11(b)(2)). “If the defendant is convicted of two offenses, the first committed

before, and the second after, a revised edition of the Guidelines Manual became

effective, the revised edition of the Guidelines Manual is to be applied to both

offenses.” U.S.S.G. § 1B1.11(b)(3). We have held that the one-book rule does not

violate the Ex Post Facto Clause, even when it results in a higher guidelines range,

because defendants have “fair warning” that the revised guidelines manual will apply

to grouped offenses. See United States v. Cooper, 63 F.3d 761, 762 (8th Cir. 1995)

(per curiam); see also United States v. Duane, 533 F.3d 441, 448-49 (6th Cir. 2008)

(noting that “the majority of circuits” have concluded that the one-book rule does not

violate the Ex Post Facto Clause and collecting cases). 

Anderson’s wire fraud offenses continued through 2003. He failed to appear

for trial on those charges in September 2007. Pursuant to the one-book rule, because

Anderson had been convicted of two offenses, the first—wire fraud—committed

before, and the second—failure to appear—committed after, a revised edition of the

guidelines manual became effective, the revised edition of the guidelines should be

applied. See § 1B1.11(b)(3). Pursuant to § 1B1.11(a), the district court should use

the guidelines manual in effect on the date Anderson was sentenced, October 16,

2008, unless doing so would violate the Ex Post Facto Clause. Because there is no

relevant difference between the guidelines manual in effect on the date Anderson was
8

“After finding that the district court did not commit significant procedural

error, as we have here, we would ordinarily review the substantive reasonableness of

the district court’s sentence.” United States v. Fischer, 551 F.3d 751, 756 (8th Cir.

2008). But because Anderson “did not provide any argument in his briefs regarding

the reasonableness of his sentence, he is deemed to have waived this issue on appeal.”

See id. 

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sentenced, the November 2007 U.S.S.G. manual, and the version in effect on the date

the last offense was committed in September 2007, the November 2006 U.S.S.G.

manual, there is no additional Ex Post Facto Clause concern with using the November

2007 U.S.S.G. manual. Accordingly, we conclude that the district court properly

applied § 1B1.11(b)(3) and § 1B1.11(a) when it used the November 2007 U.S.S.G.

manual to sentence Anderson. Therefore, the district court did not commit significant

procedural error.

2. Downward Departure

Anderson argues that the district court erred by failing to grant a downward

departure under U.S.S.G. § 4A1.3(b)(1), claiming that his criminal history category

substantially over-represents the seriousness of his criminal history. However, we

have no authority to review the district court’s denial of Anderson’s request for a

downward departure because Anderson does not argue that the court had an

unconstitutional motive in denying his request and because the court recognized that

it had the authority to depart downward. See United States v. Saddler, 538 F.3d 879,

889-90 (8th Cir.), cert. denied, 555 U.S. ---, 129 S. Ct. 770 (2008).8

 

III. CONCLUSION

For the foregoing reasons, we affirm Anderson’s conviction and sentence. 

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