                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            AUG 4 2000
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                       No. 99-3378
 MICHAEL K. FRIERSON,                             (D.C. No. 99-CR-10009-2)
                                                          (D.Kan.)
          Defendant-Appellant.




                                ORDER AND JUDGMENT       *




Before EBEL and BRISCOE, Circuit Judges, and         COOK , District Judge.   **




      Michael Frierson appeals his convictions and sentences on two counts of

interstate transportation of counterfeit securities, in violation of 18 U.S.C.

§§ 2314 and 2. We exercise jurisdiction under 28 U.S.C. § 1291, affirm in part,

reverse in part, and remand with directions to vacate.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
        The Honorable H. Dale Cook, Senior District Judge, Northern District
of Oklahoma, sitting by designation.
                                         I.

      On January 26, 1999, Frierson was indicted on two counts of interstate

transportation of counterfeit securities. The charges stemmed from two checks

that were mailed from San Leandro, California, to Wichita, Kansas, in February

1998. At trial, Jad Wolf testified that in February 1998 Frierson told him

arrangements were being made for fraudulent checks to be sent to Wichita. Wolf

was to deposit the checks, withdraw the cash, and give the cash to Frierson and

his brother, Brian Frierson. Gerald Farha, who ran Farha Enterprises Used Cars

in Goddard, Kansas, testified he received a Federal Express package with two

$400,000 checks in February 1998. The package had been shipped by Avery

Jackson, Parkridge Financial, 256 Suffolk Drive, San Leandro, California, which

was Frierson’s mailing address.

      Farha gave the envelope with the checks to Wolf, and Wolf then gave them

to Randy Wolverton, special agent for the Federal Bureau of Investigation in

Wichita. The checks were dated February 12, 1998, and were each in the amount

of $400,000. They were drawn on the account of “Dean Witter Reynolds Inc.” at

the Bank of America in Walnut Creek, California, and were payable to Farha

Used Cars. Phyllis Werneke, operations manager at Dean Witter in Wichita,

testified the checks did not conform to Dean Witter standards, the information on

the checks was incorrect, and to her knowledge the checks were not authorized


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by Dean Witter. Werneke also testified she had seen a third Dean Witter check

for $600,000.

      The government introduced audiotape recordings of monitored telephone

conversations in April 1998 between David Miller and Frierson. Frierson called

Miller and asked him to find out about the two checks. Firerson stated Farha and

Wolf had the checks and he wanted the money or the checks.

      There was also testimony at trial concerning a $1.5 million check. Miller

testified that in November or December 1997, Frierson asked him whether he

knew anyone who would cash a large check. Miller agreed to participate and had

the $1.5 million check sent to Las Vegas, where Farha and Wolf were to cash it.

Frierson told Miller that someone at Dean Witter was obtaining the check.

Wolverton testified that in January 1998 someone attempted to pass a $1.5

million check at a casino in Las Vegas. Wolf testified that in January 1998, he

went to Las Vegas and picked up the check made out to a fictitious name, along

with false identification. Farha accompanied Wolf when he tried to cash the

check at two casinos in Las Vegas. According to Wolf, Frierson’s brother came

to his hotel room and picked up the check after Wolf was unable to cash it. In a

recorded conversation between Frierson and Miller in April 1998, Frierson said

he had the Las Vegas check.

      The district court denied Frierson’s motion for judgment of acquittal and


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the jury convicted him on both charges. The district court sentenced Frierson to

37 months in prison for each count, to run concurrently; 3 years supervised

release for each count, to run concurrently; and a $100 special assessment on

each count.

                                             II.

Frierson’s Sentences

       The district curt determined Frierson had a criminal history category of 2

based on a prior conviction. Frierson argues his prior sentence was to a work

program, which was not a “sentence of imprisonment” under U.S.S.G. §

4A1.1(b). Frierson did not raise this objection in the district court, which would

normally preclude review by this court.      See United States v. Nelson , 36 F.3d

1001, 1003 (10th Cir. 1994). However, we recognize a narrow exception for

plain error when the error is “particularly egregious.”    Id.

       The presentence report stated Frierson had a 1995 California conviction for

vehicle theft and two counts of fraudulent use of an access device that resulted in

“3 years probation; 180 days custody in work release.” ROA Vol. X at 7.

Frierson’s attorney objected to the presentence report, stating:

              . . . I have a strong belief that Mr. Frierson’s criminal history
       significantly overrepresents his true criminal nature. He is in
       Category II based solely on a single misdemeanor conviction 4 years
       ago. The only reason he received 2 rather than 1 point is due to the
       fact that he was incarcerated in work release for part of the sentence.
       He did not have counsel, which he waived, and I feel this may have

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      affected the outcome of that case. In most situations, a first offender
      for such a minor offense would have received a straight probation
      with no jail which would have resulted in 1 criminal history point.

ROA Vol. X at 18. At the sentencing hearing, Frierson’s attorney stated

      [Frierson] also couldn’t remember that he had actually served any
      jail time . . . because the work release was the type where he [] drove
      to the place, checked in and they told him he needed to go to be
      assigned to work. Wasn’t really a confinement setting, from my
      understanding, based on what I talked to Mr. Frierson about, at all,
      and although I technically agree that it qualified , . . . it just was very
      unusual under the circumstances.

ROA Vol. IV at 223-24 (emphasis added). Frierson’s counsel then stated that

      it was simply one crime, but for the nature of the sentence imposed
      could have been in criminal history category 1 as opposed to 2. To
      me that takes it out of the heartland of those individuals who would
      typically be considered in a criminal history category 2. I ask the
      Court to consider . . . the appropriate departure under those
      circumstances, and that would be to drop one level to criminal
      history category 1 and impose the sentence in that range based on
      that.

Id. at 224. The district court concluded Frierson’s criminal history was not

overrepresented and overruled Frierson’s objection.

      U.S.S.G. § 4A1.1(b) provides that in calculating a defendant’s criminal

history category the district court is to “[a]dd 2 points for each prior sentence of

imprisonment of at least sixty days,” and less than one year and one month. The

guidelines define “sentence of imprisonment” as “a sentence of incarceration and

refer[] to the maximum sentence imposed.” U.S.S.G. § 4A1.2(b)(1). Frierson

did not object, and in fact agreed, to the district court’s determination that his

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previous sentence qualified as a term of imprisonment under § 4A1.2(b)(1).

       The application notes to § 4A1.2(b)(1) state that “[t]o qualify as a sentence

of imprisonment, the defendant must have actually served a period of

imprisonment on such sentence.” U.S.S.G. § 4A1.2, comment. (n.2). This court

has noted that the phrase “sentence of incarceration” in § 4A1.2(b) “suggests that

physical confinement is a key distinction between sentences of imprisonment and

other types of sentences.”    United States v. Vanderlaan , 921 F.2d 257, 259 (10th

Cir. 1990). The burden is on the government to prove by a preponderance of the

evidence whatever facts are necessary to justify adding criminal history points.

United States v. Torres , 182 F.3d 1156, 1162 (10th Cir. 1999). We conclude the

government met this burden. The presentence investigation report listed

Frierson’s prior sentence as “180 days custody in work release” and Frierson’s

attorney admitted this sentence qualified as a prior term of imprisonment under

§ 4A1.2(b)(1). Failure to object to a fact in a presentence report, or failure to

object at the sentencing hearing, acts as an admission of fact.   United States v.

Deninno , 29 F.3d 572, 580 (10th Cir. 1994). The district court’s determination

of Frierson’s criminal history was not plain error.

       Frierson argues the district court erred in determining that the $1.5 million

Las Vegas check was relevant conduct for offense level purposes. We review

“the district court’s legal interpretation and application of the sentencing


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guidelines de novo and review the court’s factual findings for clear error, giving

due deference to the district court’s application of the guidelines to the facts.”

United States v. Henry , 164 F.3d 1304, 1310 (10th Cir.),     cert. denied , 527 U.S.

1029 (1999). The district court concluded the Las Vegas check was relevant

conduct and increased Frierson’s base offense level by 12 levels because the loss

exceeded $1,500,000.    See U.S.S.G. § 2F1.1(b)(1)(M) (detailing offense levels).

      U.S.S.G. § 1B1.3(a) provides for the determination of a defendant’s

offense level when the guidelines specify more than one base offense level.

Section 3D1.2(d) requires grouping “[w]hen the offense level is determined

largely on the basis of the total amount of harm or loss,” as is the case here.

U.S.S.G. § 3D1.2(d); see U.S.S.G. § 2F1.1(b)(1). There are three requirements

for conduct to be relevant under § 1B1.3(a)(2): (1) “the offense in question

involved conduct described in §§ 1B1.3(a)(1)(A) and (B),” (2) “the offense must

be the type of offense that, if the defendant had been convicted of both offenses,

would require grouping with the offense of conviction for sentencing purposes

under U.S.S.G. § 3D1.2(d),” and (3) “the offense must have been ‘part of the

same course of conduct or common scheme or plan.’”          United States v. Taylor , 97

F.3d 1360, 1363 (10th Cir. 1996) (quoting U.S.S.G. § 1B1.3(a)(2)). Frierson

argues the government did not prove the offense was part of the same course of

conduct or common scheme or plan.


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      “To determine whether a prior offense is conduct related to the instant

offense, courts generally examine several factors, including the similarity,

temporal proximity, and regularity of the instant offense and the prior sentence.”

United States v. Torres , 182 F.3d 1156, 1160 (10th Cir. 1999). The government

must prove the facts of relevant conduct by a preponderance of the evidence.

United States v. Fortier , 180 F.3d 1217, 1225 (10th Cir. 1999).

      Here, the evidence showed Frierson was involved in a conspiracy to cash

fraudulent checks. The charged Wichita checks involved Frierson, his brother,

Farha, Miller, and Wolf. The Las Vegas check involved the same parties. The

check-cashing schemes were similar, if not in fact a continuation of the same

scheme. The Las Vegas check and the Wichita checks were sent less than a

month apart. The recorded conversations between Frierson and Miller show the

continuing nature of the scheme. We conclude the district court did not err in

considering the Las Vegas check as relevant conduct.



Frierson’s convictions

      Frierson argues there was insufficient evidence to convict him of interstate

transportation of counterfeit securities. In reviewing the sufficiency of evidence,

we review “the evidence to determine whether, if taken in the light most

favorable to the prosecution, it is sufficient for a reasonable jury to find the


                                           8
defendant[] guilty beyond a reasonable doubt.”      United States v. Mounkes , 204

F.3d 1024, 1027 (10th Cir.),   cert. denied , 120 S. Ct. 2661 (2000). “The evidence

supporting the conviction must be substantial and do more than raise a suspicion

of guilt.” Id. (citation omitted). To convict Frierson of interstate transportation

of counterfeit securities the government must prove (1) Frierson “caused the

securities to be transported in interstate commerce,” (2) at the time Frierson

caused “the transportation of the securities, the securities were altered,” (3)

Frierson “knew, at the time he caused the securities to be transported interstate,

that the securities were altered,” and (4) Frierson “acted with unlawful or

fraudulent intent.”   United States v. Yusufu , 63 F.3d 505, 509-10 (7th Cir. 1995).

       Frierson argues the witnesses were so incredible that a jury could not

convict him based on their testimony. Judging the credibility of witnesses is a

function of the jury, which this court will not second-guess on appeal.   See

United States v. Guidry , 199 F.3d 1150, 1156 (10th Cir. 1999). In any event,

Frierson’s credibility arguments were presented to the jury. While testifying,

Miller admitted the government had filed a motion to reduce his sentence based

on his cooperation in testifying and that he had a prior conviction for cocaine

possession. Frierson’s attorney stressed the credibility of witnesses in closing

argument. Frierson also presented the jury with his argument about the reliability

of the FedEx package.


                                            9
       After examining the record, we conclude there was sufficient evidence for

the jury to convict Frierson of interstate transportation of counterfeit securities.

Frierson was charged both as a principal and an aider and abettor. Wolf testified

Frierson said he was arranging for fraudulent checks to be sent to Wichita and

Frierson stated the checks were to be cashed at casinos. The audiotapes of

Frierson’s conversations with Miller show Frierson’s knowledge of, and

participation in, the scheme. The evidence showed that Frierson either sent the

checks from California to Wichita or was involved in having them sent, that

Frierson knew the checks were not legitimate before they were sent, and that

Frierson had the intent to defraud.

       Frierson contends the district court erred in admitting testimony about the

$1.5 million Las Vegas check and the $600,000 check. Frierson did not object to

the evidence at trial. This court generally reviews the district court’s evidentiary

rulings for abuse of discretion.      United States v. Brown , 200 F.3d 700, 708 (10th

Cir. 1999), cert. denied , 120 S. Ct. 1213 (2000),       cert. denied sub nom., Dixon v.

United States , 120 S. Ct. 1706 (2000). However, when the defendant does not

object to the admission of the testimony, we review the admission only for plain

error. United States v. McSwain , 197 F.3d 472, 482 (10th Cir. 1999),         cert.

denied , 120 S. Ct. 2024 (2000). “Plain error is that which is obvious, or which

seriously affects the fairness or integrity of the trial.”    United States v. Deters ,


                                               10
184 F.3d 1253, 1258 (10th Cir. 1999) (citation omitted).

      Federal Rule of Evidence 404(b) provides in relevant part:

      Evidence of other crimes, wrongs, or acts is not admissible to prove
      the character of a person in order to show action in conformity
      therewith. It may, however, be admissible for other purposes, such
      as proof of motive, opportunity, intent, preparation, plan,
      knowledge, identity, or absence of mistake or accident.

The questioning concerning the $1.5 million Las Vegas check focused on the

witnesses’ participation in that situation rather than on Frierson’s participation.

The evidence of this check showed the intent to pass fraudulent checks, which is

one of the stated bases for admitting prior crimes evidence under Rule 404(b).

Further, the record does not indicate that admission of the testimony seriously

affected the fairness of the trial.

      Evidence concerning the $600,000 check came in through Frierson’s cross-

examination of Werneke. During direct examination, Werneke stated she was

given copies of three different checks. She did not testify further concerning the

third check. During cross-examination, Frierson’s attorney asked Werneke

specific questions about the $600,000 check and moved for admission of the

check into evidence. Under the invited error doctrine, Frierson cannot now

contend that admission of the $600,000 check into evidence was erroneous.       See

United States v. Johnson , 183 F.3d 1175, 1179 n.2 (10th Cir. 1999) (stating that

“[t]he invited error doctrine prevents a party from inducing action by a court and


                                          11
later seeking reversal on the ground that the requested action was error”).

       Frierson also argues the district court erred in not   sua sponte giving the

jury a limiting instruction on its consideration of uncharged misconduct evidence.

Frierson did not request such an instruction at trial. “[W]e review a court’s

failure to instruct a jury for plain error if the defendant fails to raise the

contention at trial.”   United States v. Smith , 13 F.3d 1421, 1424 (10th Cir. 1994).

“Plain error, in this context, is error that affects the defendant’s right to a fair and

impartial trial.”   Id. To constitute plain error, the district court’s error must have

been both obvious and substantial.      Id. The failure of the district court to give a

limiting instruction was not plain error. As discussed above, there was sufficient

evidence without the $1.5 million check to convict Frierson of the charged

offenses.

       Frierson also contends this court should vacate his conviction and sentence

on the second count of interstate transportation of counterfeit securities because

both the first and second counts stem from the same “unit of prosecution.” The

government agrees. In United States v. Lovett , this court accepted the

defendant’s argument that “the appropriate unit of prosecution for a violation of

18 U.S.C. § 2314 is the number of transportations across state lines, not the

number of financial transactions with each financial institution.” 964 F.2d 1029,

1040-41 (10th Cir. 1992). Frierson was charged with two counts of interstate


                                             12
transportation of counterfeit securities for one transportation across state lines.

Therefore, we remand this case to the district court for the limited purpose of

vacating Frierson’s conviction, sentence, and special assessment on count two.

                                         III.

      We AFFIRM Frierson’s conviction, sentence, and special assessment on

count one, and REMAND this case to the district court with directions to

VACATE Frierson’s conviction, sentence, and special assessment on count two.

                                                Entered for the Court

                                                Mary Beck Briscoe
                                                Circuit Judge




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