In United States v. Wheeler, No. 17-15003 (Oct. 21, 2021) (Wilson, Lagoa, Brasher) (per curiam), the Court reversed a judgment of acquittal for two defendants and affirmed the convictions and sentences for three defendants involved in a telemarketing scheme that tricked investors into making stock purchases.

First, notwithstanding the district court’s judgment of acquittal, the Court found that the evidence was sufficient to support the substantive mail and wire fraud convictions.  Although not overwhelming, and some misrepresentations to the investors did not affect the nature of the bargain under Takhalov, the evidence was sufficient for a jury to find that the defendants intended to defraud the investors.  The evidence was also sufficient as to conspiracy because, even if they did not know the extent of the fraud, the evidence was sufficient that the defendants knew the objective of the conspiracy and decided to join it.

Second, the Court found that the evidence was sufficient to support the convictions for the other three defendants.  The evidence was sufficient that one defendant aided and abetting a transaction, even if he did not personally participate in it, by discouraging the victim from going to the authorities.  As to another count, the evidence was sufficient that the victim relied on the defendant’s statements.  As to another defendant, the evidence was sufficient that the defendant participated in the scheme even though he did not participate in the transactions or have any contact with the victims.  And the evidence was sufficient that his misrepresentations went to the nature of the bargain and were false.

Third, although the prosecutor said in closing that an aspect of the court’s theory of defense instruction was “not the law,” the Court held that this remark, when considered in context, was not improper.  Based on the court’s statements during the charge conference, which distinguished between the offense elements and the theory of defense, the prosecutor could have reasonably believed that his comments were proper.

Fourth, the Court found no abuse of discretion in admitting certain evidence at trial.  A government informant did not give an improper lay opinion by testifying about jargon used in recorded conversations and how “boiler rooms” typically functioned based on his own experience.  Victim testimony about the amount of their losses and its impact on them was properly admitted because it illustrated that the defendants learned about their victims’ personal lives and then exploited them, and the court instructed the jury not to be influenced by sympathy or prejudice.  Although a close question, the court did not abuse its discretion by allowing the government to impeach a defense witness on a collateral matter in order to label a defendant a drug dealer, since the line of questioning was relevant to establish that the witness might be biased.  Finally, the district court did not abuse its discretion by instructing the jury on overlapping conspiracies because the instruction merely said that the participants overlapped and did not permit the jury to lump the two conspiracies together.

As to sentencing, the district court did not clearly err by applying the sophisticated-means or managerially-role enhancements.  And, as to loss, the Court held that a defendant is liable for the total amount of loss of the conspiracy when she furthers its overall objective, and there was evidence that the defendant did so.

Judge Wilson, joined by Judge Lagoa, concurred to express concern with the prosecution’s conduct at closing and throughout the trial.  Although it did not rise to the level of misconduct, he opined that it fell short of the high level of professionalism he expected prosecutors to embody.  The district court was required to spend much effort “corralling the prosecution’s often wayward tactics,” and “the prosecution frequently appeared to ignore the court’s rulings when it disagreed with them.”