United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 06-4071
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Southern District of Iowa.
James Hance,                              *
                                          *
             Appellant.                   *
                                     ___________

                              Submitted: May 15, 2007
                                 Filed: August 16, 2007 (Corrected: 08/22/2007)
                                  ___________

Before BYE and SMITH, Circuit Judges, and NANGLE,1 District Judge.
                               ___________

SMITH, Circuit Judge.

        James Hance was indicted on five counts of mail fraud in violation of 18 U.S.C.
§§ 1341 and 1342. Hance moved the district court to dismiss the charges, contending
that the indictment was flawed. The district court rejected Hance's efforts to invalidate
the indictment. After trial, the district court sentenced Hance to 51 months'
imprisonment. Hance appeals the district court's denial of his motions to dismiss, one
of the court's evidentiary rulings, and three of six sentencing enhancements. We affirm



      1
        The Honorable John F. Nangle, United States District Judge for the Eastern
District of Missouri, sitting by designation.
the motions to dismiss and evidentiary ruling, but reverse and remand for
resentencing.

                                     I. Background
       Hance orchestrated a mail fraud scheme that began in 1995 by renting a post
office box in New York under an assumed name. Three years later, Hance began his
"Wealth Building Program," which required participants to send Hance $25.00 cash
and 10 first class postage stamps in exchange for a list of 200 "very responsive" names
and addresses. These participants would enroll a new generation of participants by
selling them a list of 200 names and addresses. Hance mailed an estimated 234,000
individuals his program, promising the recipients the opportunity to rapidly earn large
incomes. Hance received a commission at every level of sale.

       The program's information packet contained a two-page promotional flyer
detailing the program's mechanics, testimonials from several individuals who claimed
high financial reward from the program, a letter from an attorney—J.R.
Thompson—verifying the legality of the program, and a page answering frequently
asked questions. The information packet also included a telephone number for
Thompson and a guarantee that the "U.S. Postal Service [USPS] has determined that
this program is entirely legal . . . ."

        The USPS launched an investigation into Hance's Wealth Building Program,
initially focusing upon Hance's false claim that the USPS had approved the program.
In July 1999, federal authorities, pursuant to a warrant, searched Hance's home. They
found a list of nearly 24,000 participants, $30,000 worth of first class stamps, and
large amounts of cash in small denominations. Investigators testified that Hance told
them that he was simply a middle man, forwarding the cash, stamps, and other
materials to a corporate headquarters in Belize where all official records were kept.
But, postal investigators found no connection between Hance and any Belizean
corporation.

                                         -2-
       The investigators also could not find J.R. Thompson—the alleged attorney
whose name appeared in the information packet—or any of the individuals whose
names appeared in the testimonial. Hance later admitted that he did not know the
individuals appearing in the testimonial and that the information packet had been
copied from a different program run by business associates who had assured him that
the program was legal. He also admitted that he copied the Thompson letter from the
original program but changed the telephone number.

       On May 11, 2004, one month before the statute of limitations would have run,
the government charged Hance with five counts of mail fraud. A jury found Hance
guilty of four of them, and the district court sentenced him to 51 months'
imprisonment, a $10,000 fine, and $498,333 in restitution. Hance appeals, raising five
arguments challenging both his conviction and sentence. We affirm in part and reverse
in part.

                                     II. Discussion
       Hance avers that: (1) the indictment was flawed and filed impermissibly late in
violation of his due process and statutory rights; (2) the evidence was insufficient to
substantiate the jury's verdict; (3) an undisputed evidentiary error prejudiced his
defense; (4) the prosecutor engaged in misconduct; and (5) the district court erred by
enhancing his sentence based upon the total loss to victims, sophisticated means, and
obstruction of justice.

                                 A. The Indictment
      Prosecution for mail fraud is subject to a five-year statute of limitations
pursuant to 18 U.S.C. § 3282. To comply with the statute, the government was
required to file an indictment by July 21, 2004. The government filed a five-count
indictment on May 11, 2004. The government filed a superseding indictment on July,
27, 2004—six days after the statute of limitations expired—alleging the same five
counts and several additional facts; no new counts were added to this indictment.

                                         -3-
Hance avers that the district court erred by rejecting his motion to dismiss because the
indictment was: (1) time-barred by the five-year statute of limitations; (2) filed in a
manner that caused an unreasonable delay in violation of his due process rights; and
(3) insufficient as a matter of law.

                               1. Statute of Limitations
       We review de novo the district court's denial of Hance's motion to dismiss.
United States v. Dolan, 

, 867 (8th Cir. 1997). Hance contends that the
statute of limitations expired before the government filed the indictment. Hance
acknowledges that "a superseding indictment filed while the original indictment is
validly pending relates back to the time of filing of the original indictment if it does
not substantially broaden or amend the original charges." United States v. Gomez, 

, 1036 n.8 (8th Cir. 1994). But, Hance contends that the original filing was
substantially and unfairly broadened because the government's superceding indictment
added facts affecting sentencing. We disagree.

       The Supreme Court implicitly rejected this argument in Booker, where the
Court stated that requiring the government to allege sentencing facts in an indictment
"would create a system far more complex than Congress could have intended." United
States v. Booker, 

, 254 (2005). In fact, the Supreme Court explicitly
noted that requiring the government to allege sentencing facts in a complex mail fraud
case "would destroy the system." 

254; United States v. Glover, 

(10th Cir. 2005) ("However, the Court did not hold that facts supporting
sentencing factors had to be included in the indictment."). Because sentencing facts
are not required in the indictment, we conclude that their later inclusion does not
substantially broaden or amend the original charges and thus find no error in the
district court's denial of Hance's motion to dismiss the indictment.




                                          -4-
                                2. Unreasonable Delay
       Hance also avers that the government prejudiced his defense by unreasonably
delaying the filing of the indictment.2 Because Hance was indicted within the statute
of limitations period, he is required to show, inter alia, that the delayed filing caused
him actual prejudice. United States v. Bartlett, 

, 1289–1290 (8th Cir.
1986). We review for clear error the district court's finding that he did not make this
showing. United States v. Sturdy, 

, 452 (8th Cir. 2000). To show actual
prejudice, the defendant must identify specific, concrete, and germane testimony or
documents that were lost due to the delay. 

–1290. Hance
does not identify any absent witnesses or missing documents that prejudiced his
defense. Instead, he makes general grievances, arguing that alleged victims would
likely not remember mailing a pittance to his company years ago. Hance fails to show
unreasonable delay under our precedent. As we have noted before, "[s]peculative or
conclusory claims alleging 'possible' prejudice as a result of the passage of time are
insufficient." 

cannot offer concrete examples demonstrating that
his defense was prejudiced, we hold that the district court did not err.

                              3. Sufficiency of Indictment
       Hance also challenges the sufficiency of his indictment, contending that the
government failed to allege several vital facts. "A challenge to the sufficiency of the
indictment is a question of law that we review de novo." 

(internal quotation and citation omitted). "To be sufficient, an indictment must fairly
inform the defendant of the charges against him and allow him to plead double
jeopardy as a bar to future prosecution." 

indictment is not sufficient
only if an essential element of the offense is omitted from it." United States v. Cuervo,


      2
       Hance also alleges that the indictment violates the doctrine of laches; however,
he points to no cases where latches has been applied to a criminal proceedings.
Assuming, arguendo, that the doctrine does apply, we note that the application of the
doctrine would require Hance to make a showing of prejudice. For the reasons
outlined, we believe that he failed to make this showing.

                                          -5-


, 985 (8th Cir. 2004). Hance does not argue that his indictment failed to
list an essential element of his offense. Instead, he argues that the government failed
to list every false statement that he allegedly made to his victims. Hance may, as a
matter of course, have been entitled to those details; however, this information need
not be included in an indictment, but may be requested through a bill of particulars.
United States v. Arenal, 

(8th Cir. 1985) ("The purpose of a bill of
particulars is to inform the defendant of the nature of the charges against him, and to
prevent or minimize the element of surprise at trial."). The record does not reflect that
Hance requested a bill of particulars; therefore, the government was under no
obligation to volunteer such information. Accordingly, we hold that the indictment
was sufficient.

                             B. Sufficiency of Evidence
      Hance avers that the evidence was insufficient to sustain his conviction.
"Evidence is sufficient to sustain a conviction if, viewing the evidence in the light
most favorable to the government, a rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt." United States v. Craft,

, 900 (8th Cir. 2007). The government also receives the benefit of all
reasonable inferences that may be deduced from the evidence. 

set aside
a verdict only if the evidence weighs heavily enough against the verdict that a
miscarriage of justice may have occurred." 

charged Hance, in short, with intentionally causing four
individuals to mail materials containing false statements. Hance alleges that the
government failed to prove three elements of the offense: (1) the materials contained
false statements; (2) Hance knew that the statements were false; and (3) the false
statements caused the four participants to mail the materials associated with the
Wealth Building Program.




                                          -6-
       To support its charges, the government introduced evidence of Hance's
statements that the USPS had reviewed the Program and that an attorney, one "J.R.
Thompson," vouched for its authenticity. On this record, we have little difficulty
holding that a reasonable juror could find that these statements were false. Postal
authorities testified that they never approved Hance's Program. In fact, these
authorities testified that the USPS, as a matter of policy, does not offer advice
regarding the legitimacy of business models. Likewise, the government also showed
that the statements from Thompson were false. In fact, the government successfully
called into question whether Thompson even existed. The government also adduced
evidence showing that Hance created the fraudulent materials. The jury could have
reasonably deduced that Hance knew his statements were false when made. Lastly,
Hance's victims testified that they relied upon these false statements when they
enrolled in the program and when they attempted to enroll others.

       Hance attempted to present a good-faith defense at trial, but this defense would
only negate the allegation that he knew the evidence was false. To support his good-
faith defense, Hance offered only his own testimony. When viewing the evidence in
a light most favorable to the verdict, giving the government the benefit of reasonable
inferences that may be drawn from the evidence, the evidence was sufficient to sustain
the verdict.

                                C. Evidentiary Error
       At trial, Hance, in an effort to buttress his good-faith defense, attempted to
testify about his conversations with Rosemary Wilson, a business associate whom
Hance claims assured him that the Wealth Building Program was legitimate.3 The


      3
        Hance also avers that the district court erred when it refused to allow him to
testify about a conversation with Ray Durr, his lawyer who died shortly before trial
and whom Hance claims told him that the program was legal. Although the district
court originally refused to permit the jury to hear this testimony, it soon realized its
error and allowed him, in the same direct examination, to testify about his

                                          -7-
district court did not permit this testimony, concluding that the conversation was
hearsay. But, on a motion for a new trial, the court admitted error, noting that the
information was not being entered for the truth of the matter asserted—that the
operation was legal—but was offered to show the statement's impact upon the listener.
"We will reverse a conviction based on erroneous evidentiary rulings only if the error
had a substantial impact on the jury's verdict." United States v. Ryder, 

,
916 (8th Cir. 2005). As the district court concluded that it committed error, our
analysis is focused on whether the error prejudiced the defendant. United States v.
Lopez, 

, 942 (8th Cir. 2004).

       We conclude that Hance was not prejudiced. First, as we have already noted,
Hance's guilt was established with highly persuasive and largely unrebutted evidence.
Second, despite the error, Hance adduced testimony showing that he mistakenly
believed that his Wealth Building Program was legal. For example, Hance was able
to discuss a conversation with Raymond Durr, who Hance claims also advised him
that the Program was legal. Third, and perhaps most importantly, there is no evidence,
other than Hance's word, that witness Wilson even existed. In response to questions
from both government and defense counsel, Hance admitted that he did not have
Wilson's telephone number, mailing address, or e-mail address. Further, Hance never
mentioned Wilson to authorities before testifying. Based upon the strength of the
government's case, the weakness of the testimony regarding Wilson, and Hance's
opportunity to present other evidence supporting his good-faith defense, we conclude
that Hance was not prejudiced by the district court's error.

                            D. Prosecutorial Misconduct
       Hance also avers that the prosecutor engaged in misconduct, chiefly by telling
the jury during closing that Hance had no basis for asserting that the program was



conversation with Durr. Therefore, as Hance was able to testify about his conversation
with Durr, the court committed a harmless error.

                                         -8-
legal.4 Hance did not timely object to the prosecutor's remark; therefore, we review
under the plain-error standard and will reverse only "if there is 1) error 2) that is plain
and 3) affects the defendant's substantial rights." United States v. Robinson, 

, 780 (8th Cir. 2006). "To obtain a reversal for prosecutorial misconduct, the
defendant must show that (1) the prosecutor's remarks were improper, and (2) such
remarks prejudiced the defendant's rights in obtaining a fair trial." 

reach the
second step, we consider: (1) the cumulative effect of such misconduct (2) the strength
of the properly admitted evidence of [defendants'] guilt; and (3) the curative actions
taken by the trial court." United States v. Cannon, 

, 1502 (8th Cir. 1996).

       Even if we were to conclude that these comments were in error, we cannot say
that this error was plain or affected Hance's substantial rights. The adverse effects of
this conduct, if any, were negligible. The jury heard Hance's rather weak evidence
supporting his good-faith defense. The jury also saw the government effectively attack
Hance's credibility, calling into question whether Thompson and Durr had really
offered the legal advice that formed the foundation of Hance's good-faith defense.
Lastly, no curative action was taken by the court because the defendant did not object
in a timely manner. We conclude that Hance was not prejudiced.

                                   E. Sentencing5
      Hance was sentenced to 51 months' imprisonment, a sentence at the bottom of
his Guidelines range. The Presentence Report (PSR) set Hance's offender
characteristic at Category I and his base offense level at six. The district court
calculated a final offense level of twenty-four after imposing a ten-level increase


      4
       Hance also alleges a handful of smaller grievances, such as intentionally filing
the indictment unreasonably late. We find that these, independently or collectively,
do not constitute prosecutorial misconduct.
      5
       In order to avoid ex post facto concerns, the district court sentenced Hance
according to the 1998 version of the Guidelines.

                                           -9-
based upon the total loss to his victims, a two-level increase for committing a crime
involving more than minimal planning, a two-level increase for the use of mass-
marketing, a two-level increase for using sophisticated means, and a two-level
increase for obstruction of justice. Hance appeals the total-victim-loss enhancement,
sophisticated means enhancement, and obstruction of justice enhancement.

       We review the district court's application of the facts to the Guidelines de novo;
its factual findings for clear error, and the ultimate sentence that it imposed for
reasonableness. United States v. Tjaden, 

, 879 (8th Cir. 2007); United
States v. Watson, 

(8th Cir. 2007).

                                 1. Loss Calculation
      Hance avers that the district court erred in its calculation of the loss amount. We
disagree.

       We review the district court's loss calculation "for clear error and reverse only
if we are left with the definite and firm conviction that the district court erred." United
States v. Whatley, 

, 606 (8th Cir. 1998). The trial court must use a
rational calculation method that yields a reliable estimate of the loss; however, the
methodology does not have to be mathematically precise. 

Hance faces
a heavy burden as the district court's loss calculation is entitled to particular deference.
United States. v. Ameri, 

(8th Cir. 2005).

      The district court gave two independent justifications for its estimation that the
loss amount loss ranged between $500,000 and $800,000. The first justification is
rooted in Hance's own testimony. At trial, Hance testified that he earned roughly
$500,000 in gross income between January and July 1999. This testimony is
consistent with the ordered amount of restitution, $498,333, which Hance does not
challenge and was calculated based upon business receipts seized from Hance's home.
Hance's testimony and the restitution amount is more than sufficient to meet our

                                           -10-
rational-and-reliable standard. We note that, under the Guidelines, the court's estimate
is a very conservative figure. U.S.S.G.§ 2F1.1, cmt. n.4 (1998) ("The offender's gain
from committing the fraud is an alternative estimate that ordinarily will underestimate
the loss.").

       Because the district court's calculation based upon the defendant's testimony is
rational and reliable, we need not consider the court's alternative grounds for
calculating the total loss. Accordingly, we affirm the ten-level enhancement based
upon the district court's loss calculation.

                             2. Sophisticated Means
     Hance also avers that the district court erred by imposing a two-level
enhancement for sophisticated means. We agree.

       The 1998 Guidelines permit a court to enhance a sentence for sophisticated
means if the defendant's fraudulent conduct was "especially complex or especially
intricate . . . ." U.S.S.G. § 2F1.1, cmt. n.15.6 Whether a scheme is sophisticated must
be viewed in light of the fraudulent conduct and differentiated, by assessing the
intricacy or planning of the conduct, from similar offenses conducted by different
defendants. United States v. Lewis, 

, 1080 (2d Cir. 1996) (analyzing a
similar sophisticated means provision found in U.S.S.G. § 2T1.1(b)(2)). Therefore,
the government must show that Hance's mail fraud, when viewed as a whole, was
notably more intricate than that of the garden-variety mail fraud scheme.

       The PSR did not analyze whether Hance used sophisticated means. The district
court, however, found that Hance: (1) rented a post office box in New York under an
assumed name and, in the national mailings to his victims, used this post office box

      6
       As already noted, the district court sentenced Hance under the 1998
Guidelines. "Section 2F1.1 no longer exists under the current version of the
Guidelines." United States v. Edelmann, 

, 814 n.5 (8th Cir. 2006).

                                         -11-
as his return address and (2) included, in the mailings, the fake testimonials from
individuals and the letter from Thompson.7 The district court did not clearly err in
finding these facts, as they are supported by the record; however, these acts, when
measured for their complexity and intricacy, do not distinguish themselves from the
multitude of other mail fraud cases. Renting a post office box under an assumed name
is a common means of carrying out mail fraud.8

       The 1998 Guidelines' commentary offers an example of sophisticated means "in
a telemarketing scheme, locating the main office of the scheme in one jurisdiction but


      7
       At oral argument, the government also argued that Hance's formation of a
Delaware corporation to shield his activities is a strong factor justifying an
enhancement for sophisticated means. However, the government did not make this
argument in its response to the presentencing report, at sentencing, or in its brief to
this court. Therefore, the district court did not include the corporation in its factual
findings and we do not consider it here.
      8
        See e.g. United States v. Vanhorn, 

, 716 (8th Cir. 2002)
("Vanhorn was also using numerous other post office boxes under various names");
United States v. Borjesson, 

(9th Cir.1995) ("[t]he evidence showed that
Borjesson rented a post office box in the name of Amstar") (unpublished); United
States v. Lively, 

, 195 (6th Cir. 1994) ("Lively had been receiving
numerous mail parcels under various fictitious names at Post Office Box 1175");
United States v. Bell, 

, 7 (1st Cir. 1992) ("Bell had rented a post office box
using the alias 'Eric McGrath' prior to his arrest."); United States v. Piccione, 

, *2 (1st Cir. 1995) ("Piccione had rented Box 20256 in October 1992
under the alias Mark S. LaRoche.") (unpublished); United States v. Garza, 

, 169 (5th Cir. 2005) ("one of the misleading [ ] post office boxes used in the
scheme was opened in the name of defendant's company."); United States v. Bassfield,

(4th Cir. 2000) ("Bassfield applied for the post office box with a fake
identification card") (unpublished); United States. v. Adeniji, 

, 1027
(7th Cir. 2000) ("the evidence against Adediran . . . includ[ed] the use of aliases to
open a post office box"); United States v. Kesop, 

(6th Cir. 2000)
(unpublished) ("Both boxes were rented by Uwadia Osaghae [ ] and a companion in
February 1997, using the names 'Vanisree Suverna,' 'William Cox,' and 'Virginia
Bell.'").
                                         -12-
locating soliciting operations in another jurisdiction would ordinarily indicate
sophisticated means." Hance did not do this. Hance is a resident of Boonville, New
York. The post office box that he rented and the address that he used for business was
Boonville, New York.9

       Hance's actions, traditionally, are better evaluated under the more-than-minimal
planning enhancement, which the district court also imposed. U.S.S.G. §§ 2F1.1;
1B1.1, cmt. n.1(f) (defining more than minimal planning as an offense involving
"more planning than is typical for commission of the offense in a simple form" and
"is deemed present in any case involving repeated acts over a period of time."). Courts
have repeatedly upheld more-than-minimal-planning enhancements where the
defendant engaged in conduct similar to that of Hance's. See United States v. Hearrin,

, 759 (8th Cir. 1990) (upholding a more-than-minimal-planning
enhancement where "the Hearrins created a fictitious business name, opened both a
post office box and a bank account in that name, and submitted fraudulent payment
requests or completed fraudulent drafts resulting in seventy payments totaling
approximately $129,404."); United States v. Lublin, 

, 369 (8th Cir. 1992)
(upholding more-than-minimal-planning enhancement where defendant "Lublin rented
a post office box at the Austin, Minnesota, post office under the alias Allen Marx").10


      9
       As an aside, this case was tried in the Southern District of Iowa, because the
four victims alleged in the indictment were all residents of the district.
      10
        See also United States v. Alpert, 

, 1118 (11th Cir. 1994)
(upholding the imposition of more-than-minimal planning enhancement where
defendant was charged with "acquiring post office boxes in fictitious names"); United
States v. Licciardi, 

(9th Cir. 1994) (upholding the imposition of more-
than-minimal planning enhancement where defendant "arranged [ ] for the
establishment of a post office box in the name of a fictitious company, intending to
use the mails to keep his fraud secret."); United States v. Dawson, 

(4th
Cir. 2000) (upholding the imposition of more-than-minimal planning enhancement
where defendant "rented post office boxes where he could receive his ill-gotten gains,
completing the forms necessary to obtain money from insurance policies held by
                                         -13-
"The enhancement for sophisticated means [ ] requires conduct that is significantly
more complex or intricate than the conduct that may form the basis for an
enhancement for more than minimal planning. . . ." § 2F1.1, n.15.

       Establishing a post office box in one's own neighborhood under an assumed
name for the purpose of mailing fake letters and testimonials lacks the level of
intricacy, deliberation, or complexity to distinguish Hance's crime from a garden-
variety mail fraud offense or from the cases that courts have held qualified for the
more-than-minimal planning enhancement. Therefore, we hold that the district court
erred by imposing an enhancement for sophisticated means.

                               3. Obstruction of Justice
      A court may enhance a sentence for obstruction of justice if the defendant has
committed perjury or attempted to provide a materially false statement to a law
enforcement officer that significantly impeded the official investigation of the instant
offense. U.S.S.G. § 3C1.1. "We give great deference to a district court's decision to
impose an obstruction of justice enhancement, but we will reverse the enhancement
when the district court's findings are insufficient." 

.

       At sentencing, a postal inspector testified that during the course of the
investigation, Hance admitted to: (1) keeping only one-or-two dollars from each
enrollment fee and sending the rest to Belize; (2) keeping records of enrollment and
accounts in his head; and (3) personally knowing attorney Thompson. The investigator
also testified that he relied upon Hance's statements by conducting a search for a
Belizean Corporation and for purported attorney Thompson. But, Hance denied
making these statements at trial and testified to a set of facts that directly conflicted
with the statements that he allegedly made to the postal inspector. Based upon the



thirteen of his customers, forging their signatures on the paperwork and on the checks
he received in their names.").
                                          -14-
conflicting statements, the government sought an obstruction of justice enhancement.
U.S.S.G. § 3C1.1.11

       Hance, at sentencing and on appeal, denied making the admission to inspectors
and argues that the inspector’s memory is "faulty." If the district court believed Hance
deliberately misled investigators to search for a Belizean accomplice, it was
reasonable to find he had obstructed justice. The district court was forced to make a
credibility assessment between the postal inspector and Hance, electing to believe the
postal inspector. This credibility determination is "virtually never clearly erroneous."
United States v. Eis, 

(8th Cir. 2003). Accordingly, we affirm the
enhancement for obstruction of justice.

                                    III. Conclusion
       After a careful review of the record, we affirm each of the rulings of the district
court except the imposition of a two-level enhancement for sophisticated means. Thus,
we remand for re-sentencing consistent with this opinion.
                         ______________________________




      11
         It is not clear whether the government alleges that Hance misled investigators
or perjured himself at trial. In fact, the government's sentencing memorandum states
that, "[t]he inescapable conclusion is either that he committed perjury at trial, or he
made materially false statements during his investigation. In either instance, the
two-level enhancement provided in U.S.S.G. § 3C1.1 should be applied." While we
strongly encourage district courts to identify which statements were false, we do not
believe that the district court's failure to do so is grounds for an automatic reversal.
United States v. Thundershield, 

, 508 (8th Cir. 2007) ("Thundershield
either lied during the investigation, or during trial, or both. There is absolutely no
doubt that he lied.").
                                            -15-