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Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 07a0385p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X Plaintiff-Appellee, - UNITED STATES OF AMERICA, - - - No. 05-4469 v. , > ANTHONY H. ROSS, - Defendant-Appellant. - - - - N Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 04-00611—Ann Aldrich, District Judge. Argued: June 5, 2007 Decided and Filed: September 21, 2007 Before: MARTIN, BATCHELDER, an
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 07a0385p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X Plaintiff-Appellee, - UNITED STATES OF AMERICA, - - - No. 05-4469 v. , > ANTHONY H. ROSS, - Defendant-Appellant. - - - - N Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 04-00611—Ann Aldrich, District Judge. Argued: June 5, 2007 Decided and Filed: September 21, 2007 Before: MARTIN, BATCHELDER, and..
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0385p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
-
-
-
No. 05-4469
v.
,
>
ANTHONY H. ROSS, -
Defendant-Appellant. -
-
-
-
N
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 04-00611—Ann Aldrich, District Judge.
Argued: June 5, 2007
Decided and Filed: September 21, 2007
Before: MARTIN, BATCHELDER, and CLAY, Circuit Judges
_________________
COUNSEL
ARGUED: Myron P. Watson, Cleveland, Ohio, for Appellant. Robert W. Kern, ASSISTANT
UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee. ON BRIEF: Myron P. Watson,
Cleveland, Ohio, for Appellant. Robert W. Kern, ASSISTANT UNITED STATES ATTORNEY,
Cleveland, Ohio, for Appellee.
MARTIN, J., delivered the opinion of the court, in which CLAY, J., joined.
BATCHELDER, J. (p. 9), delivered a separate opinion concurring in part and dissenting in part.
_________________
OPINION
_________________
BOYCE F. MARTIN, JR., Circuit Judge. Defendant Anthony H. Ross appeals his
conviction on two counts of bank fraud in violation of 18 U.S.C. §1344. Defendant challenges (1)
the deliberate ignorance jury instruction given by the district court, (2) the government’s questioning
of defendant regarding his personal bankruptcy petition, (3) the sufficiency of the evidence
supporting his conviction, and (4) the district court’s finding that the intended loss from the bank
fraud scheme totaled $634,300, resulting in a sentence enhancement. For the reasons that follow,
we find the district court did not abuse its discretion in giving a deliberate ignorance instruction or
in overruling Ross’s objection to the government’s cross-examination regarding his personal
1
No. 05-4469 United States v. Ross Page 2
bankruptcy petition, and that the evidence was sufficient to support both convictions for bank fraud.
We find, however, that the district court’s determination of intended loss at sentencing was in error.
Accordingly, we AFFIRM defendant’s conviction, VACATE his sentence, and REMAND for
resentencing.
I.
1. The Nigerian Counterfeit Check Scam
Defendant Anthony Ross is a residential and commercial real estate broker in Lorain County,
Ohio. Ross has been in real estate for approximately twenty years. After graduating from high
school, Ross joined the Navy, where he became involved in real estate part time. After receiving
an honorable discharge in 1993, Ross became a real estate agent in Lorain County. In 1997, after
working as an agent for Realty One for several years, Ross obtained his broker’s license and opened
his own business, Northshore Realty. At the time of trial, Northshore Realty had eight full-time
employees and seven affiliated independent agents. In 2001, Ross became a Certified Commercial
Industrial Management (CCIM) specialist, a designation of some renown in real estate, which
allowed him to conduct commercial real estate transactions. During his time as an agent in Lorain
County, Ross was involved with the Lorain County Board of Realtors and in 2001 was elected its
president.
When Ross opened Northshore Realty, he planned to develop and sell houses to low-income
residents of Lorain County. Ross created E.A.R. Investors, Inc., which was a general contracting
business affiliated with Northshore Realty for the express purpose of building low-income houses.
Ross obtained financing through FirstMerit Bank and also from family and friends who invested
between $15,000 and $20,000 in the project. Between 2001 and 2002, Ross sold 18 of these homes.
Unfortunately, he was never able to return a profit on them, and suffered a financial loss.
Throughout 2002, FirstMerit repeatedly reminded Ross to make timely payments on his credit line.
In 2003, FirstMerit foreclosed on his credit line and Ross was unable to repay the loans he obtained
from his family and friends. Also in 2003, Ross filed for personal bankruptcy, though his businesses
remained intact.
It was during these financial difficulties that Ross met a potential commercial real estate
investor. In 2001, Ross was attending a National Realtors’ Association convention in Washington,
D.C. where he met an individual by the name of Didi Duke. Duke and Ross agreed to develop
commercial real estate in Lorain County. Duke offered to gather approximately $12.5 million in
investment capital for the proposed project. Upon his return from the conference, Ross
memorialized his agreement with Duke in a contract to represent Duke and a “group of investors in
a development or an investment of about $12.5 million.” Ross and Duke corresponded several
times over the phone before agreeing to enter into this contract, and Ross had his attorney review
the contract prior to signing it. Testimony at trial did not, however, provide any insight into the
specifics of this alleged commercial real estate transaction other than $12.5 million was to be
invested in commercial real estate projects in Lorain County, Ohio.
According to Ross’s testimony, after the contract was signed, Duke mailed a $90,000 due
diligence check to him. Ross received this check via overnight mail on October 25, 2002. The
check was drawn on an Associates Credit Card Services Account with the Bank of New York. The
check itself appears to be printed on a British Petroleum check. Upon receipt of this $90,000 check,
Ross quickly went to a FirstMerit branch in Oakwood (nearest his office) to deposit it and to get
$5,000 cash back. The branch informed him a hold would be placed on a check of that size and he
would be unable to receive funds from the check until after the check cleared. Ross then decided
to take the check to the FirstMerit branch in Sheffield (nearest his home) because “they [knew him]
over there.” At the Sheffield branch, Ross was able to gain approval from the manager to deposit
No. 05-4469 United States v. Ross Page 3
the check in his E.A.R. Investors account and to receive $5,000 back. Ross needed the $5,000 in
order to make payroll at one of his low-income housing construction sites. A few days later, on
October 28, 2002, Ross withdrew another $8,000 from the E.A.R. Investors account in order to have
cash for a trip he was taking with his girlfriend (now wife) to New Orleans.
While in New Orleans, Ross’s bank card and credit card from FirstMerit were frozen and he
was unable to withdraw funds. Ross spoke with an official from the bank who informed him that
the $90,000 check he had deposited was counterfeit. Upon his return from New Orleans, Ross
contacted Duke to inquire about the counterfeit check. Duke informed Ross that his investors were
no longer interested in investing in the United States after the events of 9/11 and had backed out of
the transaction. Ross’s accounts at FirstMerit remained frozen through the time of trial. Ross’s
financial difficulties subsequently proved too much to bear, and he filed for personal bankruptcy
under Chapter 7 of the Bankruptcy Code on April 18, 2003. Ross was discharged from his
bankruptcy on July 29, 2003.
During the summer of 2003, several months after the failed transaction with Duke, Ross was
contacted by an individual named Didi Hassan. From May 2003 until sometime in the fall of that
year, there were several email and telephonic communications between Ross and Hassan discussing
the resurrection of the transaction originally arranged with Duke. Hassan led Ross to believe an
individual by the name of Bello from Canada was arranging financing for the deal. Ross spoke with
Bello on the phone and provided his personal information for purposes of securing financing.
In June 2003, Ross received via overnight mail a check for $346,990.60 drawn on the
account of Gregory Dodge Hyundai Car Dealership in Highland Park, Illinois. Ross believed this
check was from Mr. Bello and that Gregory Dodge Hyundai was an investor in the proposed real
estate deal. Ross called Gregory Dodge Hyundai to confirm they were actually investors in the deal
and discovered the check was counterfeit. Ross mailed the counterfeit check to Gregory Dodge
Hyundai at their request.
A few days later, Ross received a Bank of America cashier’s check for $5,000. Ross
deposited this check in his FirstMerit account, believing it to be money sent from Hassan for the
purposes of opening up an offshore account to facilitate the proposed deal. After depositing the
check, Ross was contacted by the bank and informed the check was counterfeit. Because Ross had
not withdrawn any funds from the check, the bank suffered no loss. Ross informed the bank he was
dealing with Nigerians who were interested in investing in Lorain County. Ross shared several
emails between himself and Hassan with the bank investigator. The bank investigator informed
Ross that this was likely a scam and to stop dealing with Hassan or any other Nigerians. Ross
promised to cut off his dealings with Hassan.
From August 2003 until May 2004 there was a break in the email communication between
Ross and Hassan. No evidence was presented as to why this break occurred other than Ross’s own
testimony that he was ignoring Hassan because he was angry about the counterfeit checks.
In the summer of 2004, Hassan contacted Ross again in an attempt to revive the deal with
new financing. Hoping to prevent any future counterfeit checks, Ross informed Hassan that he
would only accept payment by wire transfer from a United States bank. Hassan agreed to a wire
transfer and initiated negotiations with Ace Financial, allegedly based in Chicago, to secure
financing in the amount of $700,000. In June of 2004, Ross emailed Hassan stating that he had been
contacted by the Chicago financiers about the loan and that the disbursement would occur within
seven to ten business days.
On July 15, 2004, National City Bank received an envelope containing a United States
Treasury Check for $700,000 payable to A.H. Ross Corp. The account number for A.H. Ross Corp.
No. 05-4469 United States v. Ross Page 4
was typed on the endorsement line on the back of the check. Upon receipt of the check, National
City immediately deposited the check in the A.H. Ross Corporation account. No hold was placed
on the check as Treasury checks are considered guaranteed funds. At this time, Ross was out of
town. When he returned to town on Monday, July 19, 2004, Ross was greeted with an email from
Hassan asking if the funds had been credited to his account and a phone call and fax from Ace
Financial in Chicago stating that the funds had been disbursed to his account at National City in the
amount of $700,000. Ross testified that he believed the money to have been wired into his account.
Over the next three days, Ross purchased several cashier’s checks from the bank in order to
pay off debts owed to friends and family. He also moved $505,000 into an investment account at
Edward Jones which he had opened approximately a month earlier. Within days, the Treasury check
was returned to National City as counterfeit. Thanks to its own quick actions and the cooperation
of Ross, National City was able to recover all but $60,824.
Upon learning that the funds were from a check rather than a wire, Ross immediately
contacted Hassan and Ace Financial. At some point in the summer of 2004, the phone number for
Ace Financial was cut off and Hassan stopped communicating with Ross. At this time, Ross had
been in contact with the bank investigator and had attempted to negotiate a payment plan to pay back
the money lost by the bank, but the bank turned down his request and referred the case for
prosecution.
In November 2004, United States Secret Service agents showed up unannounced at Ross’s
office. One of the agents told Ross they were investigating a Nigerian counterfeit check scam of
which Ross may have been a victim. Believing the agents were there to help him, Ross happily
discussed all of his dealings with Duke and Hassan in detail. This meeting lasted several hours in
a conference room in Ross’s office. At some point during this meeting, Ross deduced that he was
the actual suspect. The agents informed Ross of his Miranda rights and Ross subsequently agreed
to offer a written statement. In his testimony and his written statement, Ross revealed that at some
point after receiving the first counterfeit check, he researched Nigerian scams on the internet. After
that research, Ross insisted that all transactions be done by wire transfer between United States
banks and received assurances from Hassan that he and his associates were not part of any scam.
Additionally, his written statement said that he was aware through his dealings with Duke and
Hassan that they were likely attempting to scam him, but he wanted to “get them before they got
me.” He also stated that his “business dealing should have been cut off. Greed got the better of
me.” Finally, he said in his written statement that he had no idea who sent the $700,000 Treasury
check.
On December 15, 2004, a federal grand jury in Cleveland, Ohio, returned an indictment
charging Ross with two counts of Bank Fraud, in violation of 18 U.S.C. § 1344. The first count
related to the $90,000 counterfeit check passed at FirstMerit, and the second count related to the
$700,000 check deposited at National City. On July 18, 2005, a jury found Ross guilty of both
counts of bank fraud. On October 20, 2005, Ross was sentenced to 37 months incarceration,
followed by four years of supervised release.
2. District Court’s Determination of Intended Loss At Sentencing
At Ross’s sentencing hearing, the district court adopted the findings of the probation officer
that the actual loss resulting from Ross’s bank fraud was $71,648.86 and that the intended loss was
$634,300.00.
In computing his sentence, the district court determined that the Sentencing Guideline for
violation of 18 U.S.C. § 1344 calls for a Base Offense Level of 7. The district court also found that
pursuant to U.S.S.G. § 2B1.1(b)(1)(H) the offense level should be increased by 14 because the loss
No. 05-4469 United States v. Ross Page 5
was between $400,000 and $1,000,000. The district court stated it was constrained by the definition
of “loss” contained in Application Note 3 to U.S.S.G. § 2B1.1(b)(1), which states that “loss is the
greater of actual loss or intended loss.” Ross objected to the intended loss amount of $634,300 but
the district court overruled his objection stating only that a jury found Ross guilty on both counts
of bank fraud for passing two counterfeit checks totaling $790,000.
The district court found that Ross had a Total Offense Level of 21; because Ross had no prior
convictions, he was placed in Criminal History Category I. The guidelines range for that Offense
Level and Criminal History Category is 37 to 46 months. The district court sentenced Ross to 37
months imprisonment and four years of supervised release. The district court noted this was at the
low end of the guidelines range.
II.
1. Deliberate Ignorance Instruction
This Court reviews a district court’s choice of jury instructions for abuse of discretion.
United States v. Prince, 214 F.3d 740, 761 (6th Cir. 2000). A trial court has broad discretion in
crafting jury instructions and does not abuse its discretion unless the jury charge “fails accurately
to reflect the law.” United States v. Layne,
192 F.3d 556, 574 (6th Cir. 1999) (quoting United States
v. Busacca,
863 F.2d 433, 435 (6th Cir. 1988)). Moreover, no single provision of the jury charge
may be viewed in isolation; rather, the charge must be considered as a whole. United States v. Lee,
991 F.2d 343, 350 (6th Cir. 1993). A judgment may be reversed based upon an improper jury
instruction “‘only if the instructions, viewed as a whole, were confusing, misleading, or
prejudicial.’” United States v. Harrod,
168 F.3d 887, 892 (6th Cir. 1999) (quoting Beard v.
Norwegian Caribbean Lines,
900 F.2d 71, 72-73 (6th Cir. 1990)).
The district court gave the following deliberate ignorance instruction:
Next I want to explain something about proving a defendant’s knowledge.
No one can avoid responsibility for a crime by deliberately ignoring the obvious. If
you are convinced that Anthony Ross deliberately ignored a high probability that any
checks or deposits received from Didi Hassan or any of his associates would be
counterfeit or otherwise fraudulent in nature, then you may find that Anthony Ross
knew that the $700,000 deposit into his National City Bank account on July 15, 2004
was also fraudulent in nature.
But to find this, you must be convinced beyond a reasonable doubt that
Anthony Ross was aware of a high probability that any checks or deposits received
from Didi Hassan or any of his associates would be counterfeit or fraudulent in
nature, and that Anthony Ross deliberately closed his eyes to what was obvious.
Carelessness or negligence or foolishness on his part is not the same as knowledge,
and is not enough to convict. This, of course, is all for you to decide.
This instruction tracks verbatim with the Sixth Circuit Pattern Instruction 2.09 on deliberate
ignorance. It appears the district court only instructed on deliberate ignorance with regard to the
second count of bank fraud, i.e. the count relating to the $700,000 Treasury check.
Ross argues that the district court abused its discretion because there was insufficient
evidence to support a deliberate ignorance instruction. Ross’s argument is largely controlled by
United States v. Mari, 47 F.3d 782 (6th Cir. 1995). In Mari, this Court held that when a district
court gives a deliberate ignorance instruction that does not misstate the law but is unsupported by
sufficient evidence, it is at most harmless error, so long as there is sufficient evidence of the
defendant’s actual knowledge to support a conviction.
Id. The Mari Court, relying on the Supreme
No. 05-4469 United States v. Ross Page 6
Court’s decision in Griffin v. United States,
502 U.S. 46 (1991), reasoned that if a jury instruction
does not misstate the law, but rather is unsupported by the evidence, the jury’s conviction will not
be overturned if there is evidence supporting a conviction on another instructed theory.
Id. at 786.
In subsequent cases this Circuit has reaffirmed Mari’s reasoning. See, e.g., United States v. Monus,
128 F.3d 376, 390-91 (6th Cir. 1997) (“[E]ven if there had been insufficient evidence to support a
deliberate ignorance instruction, we must assume that the jury followed the jury charge and did not
convict on the grounds of deliberate ignorance.”).
Here, Ross does not argue that the instruction given misstated the law on deliberate
ignorance.1 And, as the government points out, there is sufficient evidence to support a deliberate
ignorance instruction on the second count – the only count for which the instruction was given.
Over the course of two years, Ross received four counterfeit checks, one of which he found so
suspicious that he called the account holder to determine its validity, only to confirm his suspicion
that it was a fraud. After the $90,000 check was returned as counterfeit, Ross went so far as to
conduct research on Nigerian scams and testified that he believed his deal to be a scam. He even
promised National City Bank he would cease all dealings with the Nigerians. This pattern of
conduct shows Ross was aware that he might be the target of a scam and that counterfeit checks
were part of that scam, yet he continued to accept fraudulent checks. This evidentiary record
supports a deliberate ignorance instruction on the second count.
2. Ross’s Testimony Regarding His Personal Bankruptcy Petition
During direct examination, Ross testified that he filed a petition for personal bankruptcy
under Chapter 7 of the Bankruptcy Code. He testified that “all the loans and people that [he] owed
were put into the bankruptcy. . . .” On cross examination, it was elicited that Ross listed some
creditors related to his failed modular housing plan but failed to list others. Ross’s redirect
testimony explained that these alleged discrepancies were due to the fact that his bankruptcy was
personal, and some of his investors had contracts with his businesses and not with him personally.
At trial, Ross’s counsel timely objected to the prosecution’s cross-examination questions
regarding inconsistencies in Ross’s bankruptcy petition as improper Rule 404(b) evidence of other
crimes, wrongs or acts. Ross’s attorney argued that the government was attempting to improperly
elicit evidence of bankruptcy fraud. The district court overruled the objection and allowed the line
of questioning. Ross now renews this claim on appeal.
“[A] trial judge’s evidentiary decisions will not normally be reversed absent a clear showing
of abuse of discretion.” United States v. Daniels, 948 F.2d 1033, 1035 (6th Cir. 1991) (citing United
States v. Hickey,
917 F.2d 901, 904 (6th Cir. 1990)).
Ross’s argument falls flat. During his direct examination he testified that he listed all of his
personal creditors, including friends and family, opening the door for exploration of that statement
on cross-examination. Accordingly, the government attempted to elicit on cross-examination that
Ross had improperly excluded some personal creditors from his bankruptcy while including others.
The government is allowed to impeach any statement made by Ross in his direct examination
through cross-examination under Federal Rule of Evidence 607 (“The credibility of a witness may
be attacked by any party. . . .”). This was exactly what occurred at trial. The government’s
questions were intended to impeach Ross’s earlier testimony that he had listed all of his creditors
and thus were proper under Rule 607. See Virostek v.Liberty Twp. Police Dep’t/Trs., 14 F. App’x
1
Even if Ross had so argued, the district court strictly adhered to the wording of the Sixth Circuit Pattern Jury
Instruction 2.09, which this Court has held accurately states the law of deliberate ignorance. See e.g., United States v.
Beaty, 245 F.3d 617, 622 (6th Cir. 2001).
No. 05-4469 United States v. Ross Page 7
493, 506-07 (6th Cir. 2001). Accordingly, we hold that the district court did not abuse its discretion
in overruling Ross’s objection.
3. Sufficiency of the Evidence
Ross argues on appeal that the evidence was insufficient to support his convictions for bank
fraud. When considering such an argument this Court does not “weigh the evidence presented,
consider the credibility of witnesses, or substitute [its] judgment for that of the jury.” United States
v. M/G Trans. Servs., Inc., 173 F.3d 584, 588-89 (6th Cir. 1999). Our task is to determine “whether,
after viewing the evidence in the light most favorable to the prosecution, and after giving the
government the benefit of all inferences that could reasonably be drawn from the testimony, any
rational trier of fact could find the elements of the crime beyond a reasonable doubt.”
Id. at 589
(citing Jackson v. Virginia,
443 U.S. 307, 319 (1979)) (emphasis in original). Thus, Ross “bears a
very heavy burden” in his sufficiency of the evidence challenge. United States v. Davis,
397 F.3d
340, 344 (6th Cir. 2005) (internal citations omitted).
In order to prove a violation of 18 U.S.C. § 1344, the government must prove three elements:
“(1) that the defendant knowingly executed or attempt to execute a scheme to defraud a financial
institution; (2) that the defendant did so with the intent to defraud; and (3) that the financial
institution was insured by the Federal Deposit Insurance Corporation.” Davis, 397 F.3d at 344. At
issue is whether the government adequately proved beyond a reasonable doubt that Ross had the
requisite knowledge required to be convicted of bank fraud under 18 U.S.C. § 1344. In other words,
Ross must have “knowingly” participated in a scheme to defraud FirstMerit and National City Bank.
Ross argues that there is no evidence he knew the $90,000 check was counterfeit. He also
argues that he believed the $700,000 deposited to his account was via wire transfer and not by check,
and thus he had no knowledge a check was even used, let alone a counterfeit check.
As is often the case, direct evidence of knowledge and intent is hard to come by, and thus
must be proven by circumstantial evidence. This Circuit has stated that “circumstantial evidence
alone is sufficient to sustain a conviction, and such evidence need not remove every reasonable
hypothesis except that of guilt.” United States v. Winkle, 477 F.3d 407, 413 (6th Cir. 2007) (internal
quotation marks and citations omitted).
In the present case, the government offered evidence that over the course of two years Ross
passed a counterfeit $90,000 check, received a suspicious and counterfeit $346,000 check in the
mail, and deposited a counterfeit $5,000 check. Additionally, during that same period a counterfeit
$700,000 Treasury check was mailed to his bank with instructions to be deposited in his account.
The jury also considered more than forty emails between Ross and the “Nigerians” and listened to
Ross’s own testimony from the witness stand.
Ross presented evidence that he was in contact with investors from overseas and that he
believed those investors were legitimate. He also presented evidence that after he received the first
three counterfeit checks he became very upset with the overseas investors and required all future
transactions be done by wire transfer between United States banks. The evidence also appears to
show that he believed the $700,000 that was deposited in his account was a wire transfer and not a
Treasury check. Additionally, Ross did not run and hide from the alleged fraud. Instead, Ross
attempted to work out a payback program with the bank.
While this case presents a close evidentiary call, we do not believe Ross has met his very
heavy burden of showing the evidence was insufficient. The jury chose not to believe Ross’s
testimony and found that there was enough circumstantial evidence to prove Ross knowingly
intended to defraud a bank. The government offered evidence of Ross’s motive to commit bank
fraud. Ross was in dire financial straits. Ross had filed for personal bankruptcy. Ross needed
No. 05-4469 United States v. Ross Page 8
money to pay his debts and keep his businesses afloat. The government also called into question
Ross’s meeting with Duke. The Secret Service Agent could find no evidence of a Didi Duke
attending the Realtors’ conference in Washington, D.C. Ross also admitted to researching Nigerian
scams on the internet and that he believed this proposed deal was likely a scam. He even stated that
his greed had got the better of him. And ultimately, Ross did receive four counterfeit checks and
deposited three of them. This circumstantial evidence calls into doubt Ross’s story that he was
simply the victim of an elaborate Nigerian counterfeit check scam. Thus it cannot be said that no
rational trier of fact could have found beyond a reasonable doubt that Ross knowingly participated
in bank fraud.
4. The District Court’s Loss Determination at Sentencing
At sentencing, Ross objected to the probation office’s presentence report finding that the
intended loss from the two counts of bank fraud totaled $634,300. Ross argued the intended loss
was zero and that the government failed to prove he intended any loss. The district court rejected
Ross’s argument and adopted the presentence report’s finding that the intended loss was $634,300.
The district court gave the following statement on the record in support of its rejection of
Ross’s objection to the intended loss amount:
It seems that the jury heard the evidence, and the jury made up their mind as to what
is credible. That’s why we have a guilty verdict on both counts. So at this point I
think that the total offense level of 21 is an accurate calculation furnished by the
probation office . . . .
This Court has held that “Federal Rule of Criminal Procedure 32(i)(3)(B) requires the district
court at sentencing to rule on any disputed portion of the presentence report or other controverted
matter.” United States v. White, Nos. 05-3403/3442; 06-3239/3240, 2007 WL 1662021, at *27 (6th
Cir. June 11, 2007) (internal quotation marks omitted). Thus, if the defendant raises a dispute to the
presentence report, the “court may not merely summarily adopt the factual findings in the
presentence report or simply declare that the facts are supported by a preponderance of the
evidence.” United States v. Solorio,
337 F.3d 580, 598 (6th Cir. 2003) (internal citations omitted).
“Rather, the district court must affirmatively rule on a controverted matter where it could potentially
impact the defendant’s sentence;” that is, “the district court must actually find facts, and it must do
so by a preponderance of the evidence. White,
2007 WL 1662021, at *27, 28. We require this literal
compliance with Rule 32(i)(3)(B) because it “enhanc[es] the accuracy of the sentence and the clarity
of the record.” United States v. Treadway,
328 F.3d 878, 886 (6th Cir. 2003).
Here, the district court failed to make any factual findings on the record in support of its
intended loss calculation. Rather, the district court simply embraced the figures set forth in the
presentence report over Ross’s objections. “[R]eliance on the [presentence report] is insufficient
when the facts are in dispute.” Treadway, 328 F.3d at 886. Accordingly, we find the district court
erred in failing to explain its determination with actual factual findings supported by a
preponderance of the evidence that the intended loss amounted to $634,300.
III.
For the foregoing reasons, we AFFIRM the district court’s decision to give a deliberate
ignorance instruction, AFFIRM the district court’s decision to overrule Ross’s 404(b) objection,
AFFIRM the jury’s conviction on both counts of bank fraud, but VACATE Ross’s sentence and
REMAND for resentencing.
No. 05-4469 United States v. Ross Page 9
__________________________________________________
CONCURRING IN PART, DISSENTING IN PART
__________________________________________________
ALICE M. BATCHELDER, Circuit Judge, concurring in part and dissenting in part. I
concur in full with the majority’s decision to affirm Ross’s conviction, but I disagree that the district
court violated its duty under Fed. R. Crim. P. 32(i)(3)(B) and, for this reason, dissent from the
court’s decision to vacate Ross’s sentence and remand for resentencing.
Fed. R. Crim. P. 32(i)(3)(B) requires a district court to “rule” on “any disputed portion of the
presentence report or other controverted matter.” At sentencing, Ross argued that the intended loss
should have been zero because he “never intended a loss with regard to the bank.” When presented
with this credibility-based (rather than a fact-based) argument, the court reasonably adopted the
jury’s assessment of Ross’s credibility. In doing so, the district court responded to the only issue
raised by Ross and thus satisfied its duty to “rule” on this “controverted matter.”
This is not a case where the district court “summarily adopt[ed] the factual findings in the
presentence report or simply declare[d] that the facts [were] supported by a preponderance of the
evidence.” See United States v. Solorio, 337 F.3d 580, 598 (6th Cir. 2003). Ross did not contest
or ask the court to recalculate the loss figure in the presentence report, but merely argued that he did
not intend a loss to the bank. Under these circumstances, the court was under no duty to make an
independent loss calculation. The issue before the district court was clear: If Ross intended a loss
(i.e., if he sought to defraud the banks), then the loss calculation in the presentence report was
correct. If, however, he did not intend a loss (i.e., if he did not seek to defraud the banks), then the
loss calculation would be zero. Perhaps, the district court found this argument to be baffling in light
of the fact that Ross had been found guilty of bank fraud, one of the elements of which — as the
majority opinion correctly explains with regard to Ross’s claim of insufficient evidence — is the
“intent to defraud.” See also United States v. Everett,
270 F.3d 986, 989 (6th Cir. 2001). The court
nevertheless addressed Ross’s argument, adopted the jury’s adverse credibility finding, and
sentenced Ross as prescribed in the guidelines. Under these circumstances, that is all Fed. R. Crim.
P. 32(i)(3)(B) required.
