USA v. Allan Lohrman, et al
UNPUBLISHED OPINION FILED. [09-20686 Affirmed] Judge: RHB , Judge: JLD , Judge: PRO. Mandate pull date is 03/15/2011 for Appellant Jimmy Frazier and Appellant Allan Lohrman [09-20686]
Case: 09-20686 Document: 00511389302 Page: 1 Date Filed: 02/22/2011
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
February 22, 2011
Lyle W. Cayce
UNITED STATES OF AMERICA,
Plaintiff - Appellee
ALLAN LOHRMAN; JIMMY FRAZIER,
Defendants - Appellants
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:07-CR-392-1
Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
Allan Lohrman appeals: his convictions for conspiracy to commit mail
fraud and 31 counts of mail fraud, in violation of 18 U.S.C. §§ 1349 and 1341,
respectively; and his resulting sentence of 135 months’ imprisonment. Jimmy
Frazier appeals: his convictions for conspiracy to commit mail fraud and six
counts of mail fraud, in violation of 18 U.S.C. §§ 1349 and 1341, respectively; and
the award of restitution for $21,613.17 made against him, jointly and severally.
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
Case: 09-20686 Document: 00511389302 Page: 2 Date Filed: 02/22/2011
Lohrman and Frazier preserved their sufficiency-of-the-evidence claims
by moving for a judgment of acquittal at the close of the Government’s case and
renewing their motions at the close of all the evidence. E.g., United States v.
Ferguson, 211 F.3d 878, 882 (5th Cir. 2000). (The Government asserts Lohrman
waived his sufficiency-of-the-evidence claim by inadequately briefing it, in
violation of Federal Rule of Appellate Procedure 28(a)(9)(A). Although it is a
close call, Lohrman adequately briefed this issue.
Counsel is cautioned to
comply fully with the rules concerning briefing.)
The sufficiency claims having been preserved, the denials of the motions
for judgment of acquittal are reviewed de novo. Id. In reviewing the sufficiency
of the evidence, we ask whether, “viewing the evidence and the inferences that
may be drawn from it in the light most favorable to the verdict, a rational jury
could have found the essential elements of the offenses beyond a reasonable
doubt”. United States v. Clark, 577 F.3d 273, 284 (5th Cir. 2009) (internal
citations and quotation marks omitted).
Along this line, Lohrman contends the Government failed to produce
sufficient evidence showing he was involved in the below-described “back-door
sales pitch” and in selling nonexistent magazines. The evidence reflects that
Lohrman was a major player in the scheme to sell advertisements in nonexistent magazines, or published magazines without public circulation. He
admitted: he rented the office space where the scheme took place; leased the
mail boxes used for the scheme; chose to do business on a cash basis; paid the
participants; and the salesmen used a written sales pitch most likely written by
Guillory testified that the “back-door sales pitch” was the primary one
used to sell the advertisements.
This involved telling customers they had
previously agreed to purchase an ad, the magazine had been printed, and
payment was due.
The salesmen would confirm these sales to customers
through false backdated invoices. These invoices were found in the office during
Case: 09-20686 Document: 00511389302 Page: 3 Date Filed: 02/22/2011
a search and many of the victims testified about receiving such invoices and
being told to make an immediate payment.
Viewing the evidence in the light most favorable to the verdict, a rational
juror could have found, beyond a reasonable doubt, that Lohrman and his coconspirators agreed to enter into a fraudulent scheme to defraud victims through
use of the “back-door sales pitch”, as well as through other deceptive practices,
and used the mails to achieve their purpose of obtaining funds from their
victims. In short, there was sufficient evidence for a rational juror to find him
guilty of conspiracy to commit mail fraud and 31 charges of mail fraud. See, e.g.,
Clark, 577 F.3d at 286; United States v. Ingles, 445 F.3d 830, 838 (5th Cir. 2006).
Frazier contends the Government failed to prove he conspired to use the
mails to sell advertisements for fraudulent magazines or committed mail fraud
because: he was a mere salesman; he did not use the “back-door sales pitch”;
and there was no evidence tying him to the advertising sales for the Highway
Patrolman, which was the publication involved in the six mail fraud counts on
which he was found guilty.
There was sufficient evidence that Frazier was involved in the fraudulent
scheme and made sales for advertisements in the Highway Patrolman. The
“back-door sales pitch” was regularly used in the office as part of the scheme, in
conjunction with the mailing of backdated invoices to customers. Accordingly,
viewing the evidence in the light most favorable to the verdict, a rational juror
could have found that Frazier agreed to participate in the scheme to use
deceptive practices, including the use of the “back-door sales pitch”, and use the
mails to obtain payments from the victims. See, e.g., Clark, 577 F.3d at 286;
Ingles, 445 F.3d at 838.
Lohrman maintains the district court erred in finding the applicable
amount of loss was $455,000, and applying the resulting 14-level enhancement
pursuant to advisory sentencing Guideline § 2B1.1(b)(1)(H). He asserts the
Case: 09-20686 Document: 00511389302 Page: 4 Date Filed: 02/22/2011
district court erred in relying on undated documents not clearly used in the
Amount of loss is a factual finding reviewed only for clear error; the
district court “receives wide latitude to determine the amount of loss and should
make a reasonable estimate based on available information”. United States v.
Jones, 475 F.3d 701, 705 (5th Cir. 2007). Because the district court “is in a
unique position to assess the evidence and assess the loss based upon that
evidence”, its “loss determination is entitled to appropriate deference”. U.S.S.G.
§ 2B1.1 cmt. n.3(C). The “loss is the greater of actual loss or intended loss”, the
latter being determined by defendant’s actual intent. U.S.S.G. § 2B1.1 cmt.
n.3(A); see also United States v. Pennell, 409 F.3d 240, 244 (5th Cir. 2005).
The court determined: because the fraudulent conduct had continued over
an extended period of time, the inability to precisely determine the dates the
money was solicited was not fatal to the loss calculation. There was reliable
evidence, in addition to the information in the presentence investigation report,
that the loss amount was limited to evidence found at the business, and that the
intended-loss estimation was reasonable. See, e.g., Pennell, 409 F.3d at 244.
Many documents were excluded because they did not contain dollar amounts or
were found in Lohrman’s home.
Finally, regarding the district court’s ruling that Frazier was to make
$21,613.17 in restitution, he asserts the court erred because: none of the alleged
victims who lost money testified at trial; and he was not connected to any of
those victims. Because the offenses involved fraud or deceit, the court was
entitled to award restitution to the victims.
See 18 U.S.C. § 3663A(a)(1),
(c)(1)(A)(ii); United States v. Cothran, 302 F.3d 279, 289-90 (5th Cir. 2002). A
restitution award is reviewed for abuse of discretion. United States v. McMillan,
600 F.3d 434, 459 (5th Cir.), cert. denied, 131 S. Ct. 504 (2010). Such award
“must be limited to losses caused by the specific conduct underlying the offense
of conviction”. Id. (internal citation and quotation marks omitted).
Case: 09-20686 Document: 00511389302 Page: 5 Date Filed: 02/22/2011
The evidence shows that Frazier acted in furtherance of the fraudulent
scheme by selling advertisements in publications that were non-existent or, if
published, would not be circulated to the public. Accordingly, the district court
did not abuse its discretion in holding Frazier accountable for the actual losses
to victims arising from the fraudulent scheme.
See, e.g., United States v.
Gutierrez-Avascal, 542 F.3d 495, 498 (5th Cir. 2008).
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