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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-12027
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 1:13-cr-20834-KMM-2



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

CHARMAINE ANNE KING,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                             (August 4, 2015)

Before TJOFLAT, WILSON and MARTIN, Circuit Judges.

PER CURIAM:
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      Charmaine Anne King was sentenced to 57 months in prison after being

convicted of conspiracy to commit mail and wire fraud, three counts of mail fraud,

and two counts of wire fraud. At trial, the government introduced evidence

showing that King’s co-conspirators sent solicitation letters to elderly victims

falsely informing them that they had won a significant sum in a sweepstakes.

These letters included a fraudulent cashier’s check and asked the recipients to send

money back in order to cover assorted fees and taxes. Although King did not

directly contact any victims, she received these payments, kept a percentage for

herself, and sent the remainder to her co-conspirators.

      On appeal, King argues that the district court erred by (1) admitting evidence

related to a United States Postal Service administrative complaint which described

the fraudulent scheme; (2) failing to compel the government to turn over a postal

inspector’s handwritten notes pursuant to the Jencks Act; (3) allowing King’s co-

conspirator—who had previously pleaded guilty—to invoke her Fifth Amendment

right not to testify; (4) applying a twelve-level enhancement under United States

Sentencing Guidelines § 2B1.1(b)(1)(G) based on its finding that the fraudulent

scheme resulted in an actual financial loss of between $200,000 and $400,000; (5)

applying a two-level enhancement under § 2B1.1(b)(1)(B) based on its finding that

a substantial part of the scheme was committed from outside the United States; and




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(6) applying a two-level enhancement under § 3A1.1(b)(1) based on its finding that

the scheme targeted “vulnerable victims.” After careful review, we affirm.

                                          I.

      First, we address King’s argument that the district court erred by admitting a

USPS administrative complaint and cease-and-desist order describing the

fraudulent scheme. King’s defense was based in part on her testimony that she

believed she was working for a legitimate collections agency. In order to rebut this

testimony, the government argued that King knew the scheme was fraudulent

because she continued to participate in it even after inspectors from the USPS told

her in person and in writing (through the administrative complaint and cease-and-

desist order) that she was involved in fraud. King argues that the district court

should have excluded this evidence as unfairly prejudicial under Federal Rule of

Evidence 403 and as an inadmissible settlement offer under Federal Rule of

Evidence 408(a)(1).

      We review the district court’s evidentiary rulings for an abuse of discretion.

United States v. Henderson, 

, 1297 (11th Cir. 2005). Relevant

evidence is generally admissible, and evidence is relevant if it has “any tendency to

make a fact more or less probable than it would be without the evidence” and if

“the fact is of consequence in determining the action.” Fed. R. Evid. 401, 402.

Nonetheless, under Federal Rule of Evidence 403, relevant evidence may be


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excluded “if its probative value is substantially outweighed by a danger of one or

more of the following: unfair prejudice, confusing the issues, misleading the jury,

undue delay, wasting time, or needlessly presenting cumulative evidence.”

Because Rule 403 is “an extraordinary remedy that should be used sparingly . . .

we look at the evidence in the light most favorable to its admission, maximizing its

probative value and minimizing its undue prejudicial impact.” United States v.

Flanders, 

, 1335 (11th Cir. 2014) (quotation marks and citation

omitted).

      We find no abuse of discretion here. First, the evidence was relevant—it

tended to make it more likely that King acted with knowledge that she was

participating in a fraudulent scheme. The USPS complaint alleged that King

received money from victims of a fraudulent sweepstakes and forwarded the

money to others involved in the scheme. And the cease-and-desist order included

King’s acknowledgement that she had read the complaint well before her

participation in the scheme ended.

      Second, the probative value of the evidence was not substantially

outweighed by a danger of unfair prejudice, misleading the jury, or needlessly

presenting cumulative evidence. The probative value of the evidence was strong.

It directly rebutted King’s testimony that she was an unwitting participant in the

scheme and did not know that it was a fraud. And although the complaint made


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allegations against King, it did not state the allegations as fact. Similarly, the order

expressly stated that it did not constitute an admission of any unlawful conduct.

Finally, the evidence was not needlessly cumulative. While postal inspectors

testified that they told King she was involved in a fraud, the complaint and order

showed that King received a detailed description of the fraud and corroborated the

inspectors’ testimony.

         Neither was this evidence inadmissible under Federal Rule of Evidence

408(a)(1), which excludes evidence of “furnishing, promising, or offering—or

accepting, promising to accept, or offering to accept—a valuable consideration in

compromising or attempting to compromise” a claim in order to prove the validity

of a disputed claim. That rule simply has no application because this evidence was

not offered to prove the validity of the complaint’s allegations. Instead, it was

offered to show that King continued to participate in the scheme even after she was

told that it was fraudulent. See Fed. R. Evid. 408(b) (“The court may admit this

evidence for another purpose . . . .”). Thus, the district court did not abuse its

discretion by admitting the USPS administrative complaint and cease-and-desist

order.

                                           II.

         We next address King’s argument that the district court erred by failing to

compel the government to turn over a USPS inspector’s hand-written notes about


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his meeting with King. The Jencks Act provides that, after a government witness

has testified on direct examination, “the court shall, on motion of the defendant,

order the United States to produce any statement (as hereinafter defined) of the

witness in the possession of the United States which relates to the subject matter as

to which the witness has testified.” 18 U.S.C. § 3500(b). In turn, the Act defines a

statement as (1) a written statement made by the witness and “signed or otherwise

adopted or approved by him”; (2) “a stenographic, mechanical, electrical, or other

recording, or a transcript thereof, which is a substantially verbatim recital of an

oral statement made by said witness and recorded contemporaneously with the

making of such oral statement”; or (3) a statement made by the witness to a grand

jury. 

      Thus, “[g]overnment agents’ reports of witness interviews and summaries of

those interviews are not Jencks Act statements unless they are (1) substantially

verbatim, contemporaneously recorded transcripts, or (2) signed or otherwise

adopted by the witness.” United States v. Jordan, 

, 1255 (11th Cir.

2003). As used in the Jencks Act, “‘substantially verbatim’ means using the nearly

exact wording or phrasing the witness uttered during the interview; if only some of

the exact wording is used, it is not Jencks material.” 

has the burden of showing that the requested materials are

“statements” as defined by § 3500(e) and that they relate to the subject matter of


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the witness’s testimony. United States v. Pepe, 

, 657 (11th Cir.

1984). An agent’s notes about a witness interview do not constitute Jencks Act

material if a defendant provides no evidence that the witness adopted or approved

the report, or that the agent read back the report and asked the witness to confirm

its accuracy. See, e.g., 

; United States v. Delgado, 

, 1364 (11th Cir. 1995).

      The district court did not err by refusing to compel the government to

produce the postal inspector’s notes as Jencks Act material. King presented no

evidence that she adopted, approved, or confirmed the accuracy of the notes.

Although the inspector testified that he took notes to “keep track” of what King

told him, this falls well short of showing the inspector used “nearly the exact

wording or phrasing” said by King during the interview. See 

. Thus, King failed to show that the inspector’s handwritten notes are

“statement[s]” within the meaning of the Jencks Act.

                                         III.

      Next, we address King’s argument that the district court erred by allowing

her co-defendant Althea Peart, who had already pleaded guilty but had not yet been

sentenced, to invoke her Fifth Amendment privilege against self-incrimination.

The Fifth Amendment provides that “[n]o person . . . shall be compelled in any

criminal case to be a witness against himself.” U.S. Const. amend. V. A witness


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can assert her Fifth Amendment right in any proceeding where her answers might

incriminate her in future criminal proceedings. Minnesota v. Murphy, 

, 426, 

, 1141 (1984). And although a defendant has a Sixth

Amendment right to compulsory process to obtain favorable testimony, a “valid

assertion of the witness’ Fifth Amendment rights justifies a refusal to testify

despite the defendant’s Sixth Amendment rights.” United States v. Goodwin, 

, 700 (5th Cir. 1980). 1 We have previously held that “a defendant retains

the Fifth Amendment privilege against self-incrimination prior to sentencing,

despite having entered a guilty plea, because of the possible impact that compelled

testimony may have on the defendant’s as yet undetermined sentence.” United

States v. Kuku, 

, 1438 (11th Cir. 1997) (per curiam).

       Our holding in Kuku forecloses King’s argument here. Because Peart had

not yet been sentenced, she had “reasonable cause” to fear increased liability—her

testimony could have exposed her to a longer sentence based on the scheme’s

characteristics. See United States v. Argomaniz, 

, 1353 (11th Cir.

1991) (a witness’s privilege against self-incrimination can be invoked when she

has “reasonable cause to apprehend danger of criminal liability” (quotation

omitted)). Thus, the district court did not err by allowing Peart to invoke her Fifth


       1
          In Bonner v. City of Prichard, 

(11th Cir. 1981) (en banc), this Court
adopted as binding precedent the decisions of the Fifth Circuit rendered prior to October 1, 1981.

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Amendment right not to testify.

                                          IV.

      Finally, we address King’s argument that the district court misapplied the

Sentencing Guidelines. Specifically, she argues that the district court erred by

applying a twelve-level enhancement under USSG § 2B1.1(b)(1)(G) based on its

finding that the scheme resulted in an actual loss of $200,000 to $400,000; a two-

level enhancement under § 2B1.1 based on its finding that a substantial part of the

fraudulent scheme was committed from outside the United States; and a two-level

enhancement under § 3A1.1(b)(1) based on its finding that King knew or should

have known that the scheme targeted vulnerable victims. “In determining whether

the district court misapplied the Guidelines, we review those factual findings that

guide the court’s application of the Guidelines for clear error.” United States v.

Bradley, 

, 1283 (11th Cir. 2011). Under this deferential standard of

review, we will affirm the district court’s findings as long as they are “plausible in

light of the record reviewed in its entirety.” United States v. Ladson, 

, 1341 (11th Cir. 2011) (quotation omitted).

      To begin, the district court’s enhancement under § 2B1.1(b)(1)(G) is

supported by the record. That provision requires a twelve-level increase if a

defendant’s offense caused an actual loss of between $200,000 and $400,000.

Actual loss is defined as the “reasonably foreseeable pecuniary harm that resulted


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from the offense.” USSG § 2B1.1, comment. n. 3(A)(i). Although the district

court’s loss calculation may not be mere speculation, the court “is not required to

be completely precise, and its decision will survive review as long as it makes a

reasonable estimate.” United States v. Walker, 

, 1300 (11th Cir.

2007).

          Here, the district court first estimated a per-victim loss of $4,645.74 based

on payments made by 14 identified victims. It then multiplied this amount by the

52 total packages that victims sent to King or one of her co-conspirators, resulting

in a total actual loss of approximately $240,000. 2 This is the precise methodology

suggested by the Guidelines in cases where, as here, a district court does not have

full information about the loss suffered by each victim. USSG § 2B1.1, comment.

n. 3(C). Thus, the district court’s loss estimation was reasonable, and it did not err

by applying a twelve-level enhancement based on that estimate.

          Second, the district court did not err by applying a two-level enhancement

under § 2B1.1(b)(10)(B) based on its finding that “a substantial part of [the]

fraudulent scheme was committed from outside the United States.” As King

herself acknowledges, the government presented evidence showing that King sent

victims’ money to Jamaica and Africa, victims received mail postmarked in

Canada, victims received phone calls from Canadian phone numbers, and Peart


2
    The majority of victims had not been identified at the time that King was sentenced.
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sent a device used to mask telephone numbers to a co-conspirator in Canada.

Based on this evidence, and under our deferential standard of review, we cannot

say that the district court’s finding was implausible based on the record before us.

See United States v. Singh, 

, 759, 762 (11th Cir. 2002) (affirming

application of § 2B1.1(b)(10)(B) where defendant did not travel outside United

States, but “evidence clearly established that some of the conspiracy’s acts

occurred outside of the United States”).

      Finally, we affirm the district court’s application of a two-level enhancement

under § 3A1.1(b)(1) based on its finding that King “knew or should have known

that a victim of the offense was a vulnerable victim.” A vulnerable victim is

someone “who is unusually vulnerable due to age, physical or mental condition, or

who is otherwise particularly susceptible to the criminal conduct.” USSG

§ 3A1.1(b)(1), comment. n. 2. Beyond that, “[i]n fraud cases, the repeated

targeting of a victim . . . constitutes evidence that the defendant knew the victim

was particularly vulnerable to the fraud scheme.” United States v. Day, 

, 1296 (11th Cir. 2005). In this case, King knew that the scheme targeted

elderly victims, and that it extracted multiple payments from those victims. For

this reason, the district court did not clearly err by finding that King knew or

should have known that the scheme targeted vulnerable victims.

      AFFIRMED.


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