* Pursuant to Local Rule 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in Local Rule

47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 95-11193

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NORMAN DAVID EADS,

Defendant-Appellant.

 

Appeal from the United States District Court

for the Northern District of Texas

(4:95-CR-15-A)

 

September 13, 1996

Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Norman David Eads appeals his convictions for conspiracy to

commit mail and wire fraud and three counts of wire fraud,

including aiding and abetting. We affirm. 

Eads contends first that the evidence was not sufficient to

support his convictions for conspiracy and wire fraud. Viewing the

evidence in the light most favorable to the government, a rational
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jury could have concluded that Eads entered into a conspiracy to

defraud customers and that he and his co-conspirators employed the

mail and telephone wires in carrying out that scheme. The evidence

was sufficient. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Eads asserts next that the district court erred in refusing to

give his requested instruction on “good faith” and in giving the

Government’s instruction on “deliberate ignorance”. As for the

former, the charge included a detailed instruction on the meaning

of specific intent, and Eads, through closing argument, presented

his “good faith” defense to the jury. Therefore, the district

court did not abuse its discretion in refusing to give the

instruction. See United States v. Rochester, 898 F.2d 971, 978-79

(5th Cir. 1990). The instruction on “deliberate ignorance” was

proper, because the evidence supported an inference that Eads was

subjectively aware of the wrongdoing and that his alleged ignorance

was contrived. See United States v. Daniel, 957 F.2d 162, 169-70

(5th Cir. 1992). 

Eads maintains that the district court plainly erred in

failing to instruct the jury on the meaning of “material facts” in

violation of United States v. Gaudin, 115 S. Ct. 2310 (1995).

Because it is not settled that a materiality instruction is

required for either wire fraud or conspiracy to commit mail and

wire fraud, any error was not “plain”. See United States v.

Calverley, 37 F.3d 160, 162-63 (5th Cir. 1994) (en banc), cert.
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denied, 115 S. Ct. 1266 (1995). In the alternative, Eads’

substantial rights were not affected because the district court

effectively submitted materiality to the jury by instructing them

to determine whether Eads’s misrepresentations were material. Id.

at 164. 

Eads’ next contention is that the district court clearly erred

in enhancing his base offense level under the Sentencing Guidelines

for obstruction of justice based on his perjured trial testimony.

The record reflects that Eads made material and false statements

under oath at his trial. Therefore, the enhancement was proper.

See United States v. Storm, 36 F.3d 1289, 1295 (5th Cir. 1994),

cert. denied, 115 S. Ct. 1798 (1995); United States v. Laury, 985

F.2d 1293, 1308-09 (5th Cir. 1993).

Finally, Eads asserts that, for sentencing purposes, the

district court erred in determining the amount of intended loss

involved in the offense. The court’s determination that Eads

intended for the buyers to lose the amount of their purchases is

supported by the record and therefore is not clearly erroneous.

See United States v. Wimbish, 980 F.2d 312, 313 (5th Cir. 1992),

cert. denied, 508 U.S. 919 (1993). In addition, the district

court’s decision to hold Eads accountable for all of the company’s

sales was not clearly erroneous because Eads was engaged in joint

criminal activity with the officers and managers of the company,
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and the sales of the company were reasonably foreseeable to him.

See U.S.S.G. § 1B1.3(a)(1)(B).

AFFIRMED