                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                  F I L E D
                  UNITED STATES COURT OF APPEALS
                           FIFTH CIRCUIT                           June 19, 2006

                                                               Charles R. Fulbruge III
                                                                       Clerk
                              No. 05-40846


                        UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                   versus

                         JED STEWART LINEBERRY,

                                                     Defendant-Appellant.



           Appeal from the United States District Court
                 for the Eastern District of Texas
                          (4:04-CR-25-ALL)


Before KING, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:*

     Primarily at issue is whether Jed Lineberry’s indictment,

charging   him   with     laundering     monetary    instruments      (money

laundering), in violation of 18 U.S.C. § 1956(a)(1)(A)(i), was

constructively amended.      Also at issue are:       the denials of his

judgment-of-acquittal      (JOA)   and   new-trial   motions    for    money

laundering; the JOA denial for his false-declaration count; the

jury charge regarding money-laundering elements; and his criminal




     *
       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this opinion should not be published and is not precedent except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. R. 47.5.4.
history being based upon judicial findings for prior convictions.

AFFIRMED.

                                         I.

     In    February     2004,       Lineberry   was   indicted     on    19   money-

laundering counts and one count of false declaration before a

court.    At his trial that October, the Government offered evidence

that, beginning in mid-2001, Lineberry and his wife, Melissa

Skeens, recruited,       organized,       promoted,    and   managed      Worldwide

Escorts, a prostitution organization operating out of Plano, Texas.

Using    an   Internet    website,       they   listed    and    advertised       the

prostitutes,     including      their     physical     attributes       and   sexual

interests and inhibitions. Upon selecting a prostitute, the client

would call the 1-800 telephone number listed on the website.

Lineberry,    Skeens,    or     a    receptionist     answered    the    calls   and

prepared a customer information sheet, including the fees and

credit-card    number    for        customers   not   paying     cash,    and    made

arrangements for the customer and prostitute to meet.

     The organization was operated out of Lineberry and Skeens’

residence, which Lineberry used to interview prostitutes and to

take sexually explicit photographs of, and have sex with, them.

The prostitutes sometimes had sex with their customers in the house

while Lineberry was there.

     As part of the Government’s case, an undercover police officer

with the Plano Police Department testified she went to Lineberry’s



                                          2
residence to interview for a position with Worldwide Escorts.             She

was given an employment application asking whether she had a

problem being photographed nude and was willing, by having sex with

the interviewer, to display the skills that would make her suitable

for the job.     The latter question was followed by a sentence

stating that a negative reply meant she would not be hired.

      Lineberry and Skeens orchestrated the prostitution and money-

laundering activities of at least 40 prostitutes in multiple

States; Lineberry was the operation’s organizer and leader. By the

fall of 2002, Lineberry and Skeens generated approximately $560,000

from their illegal activities.        They transferred and distributed

these proceeds via the United States banking system and various

credit-card systems; portions were used to promote and carry on the

organization’s   activities,       such     as    recruiting,    advertising,

apartment   rental,    payroll       expenses       for   prostitutes,    and

communications expenses.

      The Government also offered evidence regarding Lineberry’s

false   declaration   before   a    court,       presenting   portions   of   a

transcript from a sentencing hearing for Lineberry’s earlier felon-

in-possession-of-a-firearm trial.           There, Lineberry testified he

never received any money from his escort business.              In response to

the   false-declaration    charge,        Lineberry   offered    supplemental

testimony showing he later clarified that money was used to make

house payments and pay bills.



                                      3
     Lineberry also presented evidence he was operating a legal

escort service.       He   claimed   he   contacted   the   Texas   Attorney

General’s office to ascertain how to operate within legal limits.

Although many prostitutes testified that having sex with customers

was an implied condition of employment, Lineberry pointed to their

employment contract, which stated: “I agree that I will never have

sex as part of a fee or for a fee”.

     At the close of the Government’s evidence, Lineberry moved for

JOA; it was denied.    This motion was not renewed, however, at the

close of all the evidence.

     The jury found Lineberry guilty of 18 of the 19 money-

laundering counts and the false-declaration count.           Pursuant to a

special verdict form, it also found:        Lineberry was the organizer

or leader of a criminal activity that involved five or more

participants or was otherwise extensive; he laundered funds between

$400,000 and $1 million; and his offense involved a commercial sex

act through the use of physical force, fraud, or coercion.

     Lineberry moved for a new trial claiming, inter alia, the

Government offered insufficient evidence to support the verdict and

the court erred in denying his motion to dismiss the indictment.

That motion was denied in November 2004.

     In May 2005, Lineberry was sentenced, inter alia, to 90 months

for each money-laundering, and 60 months for his false-declaration,




                                     4
conviction. The sentences were to run concurrently upon completion

of his earlier federal sentence.

                                   II.

     Lineberry claims:    his indictment was constructively amended;

his JOA and new-trial motions for money laundering were erroneously

denied; his JOA motion was erroneously denied for his false-

declaration conviction because the evidence was insufficient to

prove various elements of the offense; the jury charge improperly

stated the money-laundering elements; and his criminal history was

based erroneously upon judicial findings of prior convictions.

                                    A.

     Primarily at issue is whether Lineberry’s indictment was

constructively amended.       We review de novo.      United States v.

Alhalabi, 443 F.3d 605, 614 (7th Cir. 2006).

     As discussed infra, to prove the money-laundering charges

alleged in the indictment, the Government was required to prove,

inter alia, that Lineberry knew the property involved in the

financial transactions represented the proceeds of some form of a

felony.   See   18   U.S.C.   §   1956(a)(1)(A)(i)   and   (c)(1).   The

indictment stated:

          [Lineberry,] with the intent to promote the
          carrying on of a specific unlawful activity as
          defined in Title 18, United States Code,
          Section 1956(c)(7), 1961(1) and 1952(b),
          namely, the use of an interstate facility to
          distribute the proceeds and promote the
          unlawful   activity   of   prostitution,   did
          knowingly and willfully conduct and cause to

                                    5
              be conducted financial transactions designed
              to promote the carrying on of said unlawful
              activity, to wit: ... financial transactions
              ... which occurred in interstate commerce, and
              while conducting said financial transactions,
              [Lineberry] knew the property involved in the
              financial    transactions   represented    the
              proceeds of some form of unlawful activity,
              namely, prostitution in violation of the laws
              of the State of Texas.

(Emphasis added.)

       The indictment did not identify the specific underlying felony

offense    that      provided    the   unlawful     proceeds.      Accordingly,

Lineberry claims it was constructively amended, in violation of his

Fifth Amendment right to indictment by grand jury and his due

process right to a fair trial, when the jury was instructed it must

find   “the    financial    transaction      involved      the   proceeds         of   a

specified unlawful activity, namely the use of an interstate

facility to distribute the proceeds and promote the unlawful

activity   of       aggravated   promotion    of    prostitution”,       a    felony

offense. (Emphasis added.) Pursuant to Texas Penal Code Annotated

§ 43.04(a), aggravated promotion of prostitution occurs when a

person “knowingly owns, invests in, finances, controls, supervises,

or   manages    a    prostitution      enterprise   that    uses   two       or   more

prostitutes”.

       Lineberry’s challenge to the indictment was first raised only

five days before trial, when he moved to dismiss it for failure to

identify the specific felony offense he was alleged to have known

generated the proceeds involved in the indictment’s alleged money-

                                         6
laundering transactions.      After a telephonic hearing on 1 October

2004, the court orally denied the motion.            Lineberry renewed his

motion on the first day of trial, requesting the Government be

required to choose under which felony offense it was prosecuting.

The Government responded it intended to offer evidence that, with

regard to the proceeds, Lineberry violated felony prostitution law

of the State of Texas — the offense of aggravated promotion of

prostitution, in violation of Texas Penal Code Annotated § 43.04.

The motion was denied a second time; it was denied a third time

prior to the jury’s being charged.

     After trial, the court, by written order on 18 October,

explained the indictment sufficiently alleged all elements of 18

U.S.C. § 1956(a)(1)(A)(i):        “While a better Indictment would have

specifically cited Texas Penal Code Section 43.04, aggravated

promotion   of     prostitution,        the   specific     citation    is    not

constitutionally     required”.         United   States    v.   Lineberry,   No.

4:04CR25, order at 3 (E.D. Tex. 18 Oct. 2004).

     A constructive amendment “occurs when the jury is permitted to

convict   the    defendant   upon   a    factual   basis    that   effectively

modified an essential element of the offense charged”.                  United

States v. Chambers, 408 F.3d 237, 241 (5th Cir. 2005) (emphasis in

original; internal citation omitted).            Lineberry was charged with

money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i),

which states:


                                        7
           Whoever, knowing that the property involved in
           a   financial   transaction   represents   the
           proceeds of some form of unlawful activity,
           conducts or attempts to conduct such a
           financial transaction which in fact involves
           the proceeds of specified unlawful activity
           ... with the intent to promote the carrying on
           of specified unlawful activity ... shall be
           sentenced to a fine of not more than $500,000
           or twice the value of the property involved in
           the transaction, whichever is greater, or
           imprisonment for not more than twenty years,
           or both.

18 U.S.C. § 1956(a)(1)(A)(i) (emphasis added).       Section 1956(c)(1)

defines   “‘knowing   that   the   property   involved   in   a   financial

transaction represents the proceeds of some form of unlawful

activity’” as knowing “the property ... represented proceeds from

some form, though not necessarily which form, of activity that

constitutes a felony under State, Federal, or foreign law ....”

Id. § 1956(c)(1) (emphasis added).

     Lineberry’s indictment identified “prostitution in violation

of the laws of the State of Texas” as the activity through which he

knew he received his proceeds for money laundering.           Under Texas

law, however, prostitution is a misdemeanor, not a felony, offense.

TEX. PENAL CODE ANN. § 43.02.      Therefore, at issue is whether his

indictment sufficiently put him on notice both to prepare his

defense and for double-jeopardy purposes.         See United States v.

Webb, 747 F.2d 278, 284 (5th Cir. 1984) (“To be sufficient, an

indictment needs only to allege each essential element of the

offense charged so as to enable the accused to prepare his defense


                                     8
and to allow the accused to invoke the double jeopardy clause in

any subsequent proceeding.”), cert. denied, 469 U.S. 1226 (1985).

     In determining whether Lineberry’s indictment was sufficient,

we consider not “whether [it] could have been framed in a more

satisfactory    manner,     but   whether   it    conforms   to       minimal

constitutional standards”.        Id.    Furthermore, this inquiry is

“governed by practical and not technical considerations”.              Id.

     As a practical matter, Lineberry was sufficiently put on

notice that the felony of aggravated promotion of prostitution was

the underlying offense for his money-laundering charge.           Pursuant

to 18 U.S.C. § 1956(a)(1)(A)(i) and (c)(1)’s requirements, he knew

a felonious unlawful activity had to be the basis of his unlawful

money laundering proceeds.        Although the indictment referenced

prostitution in a generic fashion, Texas has only two types of

felony prostitution: (1) aggravated promotion of prostitution; and

(2) compelling prostitution.        The latter occurs when a person

“knowingly ... causes another by force, threat, or fraud to commit

prostitution; or ... causes by any means a person younger than 17

years to   commit   prostitution”.       TEX. PENAL CODE ANN.     §    43.05.

Lineberry’s    indictment   did   not   contain   any   allegations      even

remotely suggesting compelling prostitution by either of these

means.

     On the other hand, as stated above, aggravated promotion of

prostitution occurs when a person “knowingly owns, invests in,


                                    9
finances,     controls,      supervises,       or   manages      a    prostitution

enterprise that uses two or more prostitutes”.                TEX. PENAL CODE ANN.

§ 43.04(a) (emphasis added).             Although the indictment did not

contain specific      facts of the offense, its language and tenor, at

the very least, indicated aggravated promotion serving as the

underlying felony of which he had knowledge.

     United States v. Doucet, 994 F.2d 169 (5th Cir. 1993), relied

on by Lineberry to demonstrate that a change in the prosecution’s

theory is a constructive amendment of the indictment, is easily

distinguishable.      There, the Government changed its theory of the

case between its opening statement and closing argument and, on the

last day of trial, gave the court supplemental jury instructions

reflecting this change.        Id. at 171.      Accordingly, this court held

the indictment had been constructively amended because there was a

blatant   change    from     the    original    indictment     that       “seriously

undercut the defense ... to the original terms of the prosecution”.

Id. at 173.

     Here,    there    was    no    similar    change   during       trial   in   the

Government’s case.      It stated from the first day of trial that it

was prosecuting       the    money-laundering       charges   using       aggravated

promotion of prostitution as the underlying felony.                   Furthermore,

Federal Rule of Criminal Procedure 7(c)(3) provides:                   “Unless the

defendant    was   misled     and   thereby    prejudiced     ...     a   [specific

statutory] citation’s omission is [not] a ground to dismiss the


                                        10
indictment or information or to reverse a conviction”.                    FED. R.

CRIM. P. 7(c)(3); see United States v. Threadgill, 172 F.3d 357, 373

(5th Cir.), cert. denied, 528 U.S. 871 (1999).                     Accordingly,

Lineberry’s indictment was sufficient to put him on notice of the

charges against him and was “sufficiently specific for double

jeopardy purposes”.       Webb, 747 F.2d at 284.

                                      B.

       Maintaining     the   evidence      was   insufficient      to   prove   he

promoted aggravated prostitution, Lineberry claims his JOA and new-

trial motions should have been granted for his money-laundering

convictions. Similarly, for the former, he claims the evidence was

insufficient to prove the underlying statement for his false-

declaration conviction was material or made knowingly.

     As    noted,   Lineberry    moved     for   JOA   at   the   close   of    the

Government’s evidence but failed to do so at the close of all the

evidence.    Accordingly, concerning whether JOA should have been

granted,    we   review   only   to   determine        whether    affirming     his

conviction would result in a manifest miscarriage of justice.

United States v. McIntosh, 280 F.3d 479, 483 (5th Cir. 2002) (“[A

manifest miscarriage of justice occurs] only where the record is

devoid of evidence pointing to guilt or contains evidence on a key

element of the offense [that is] so tenuous that a conviction would

be shocking”.) (second alteration in original; internal quotation

omitted).    We view the evidence in the light most favorable to the


                                      11
Government, deferring to the jury’s credibility determinations.

See id.

     We review for abuse of discretion the denial of a new-trial

motion based on insufficiency of the evidence.           Burton v. United

States, 237 F.3d 490, 496-97 (5th Cir. 2000).

                                     1.

     At trial, Lineberry insisted his business was a legal escort

service.    On appeal, he claims the evidence was insufficient to

prove he committed promotion of aggravated prostitution, which, as

explained   supra,    was   the   underlying   offense   for   his   money-

laundering convictions.

     The Government was not required to prove a violation of the

underlying state-felony statute beyond a reasonable doubt; rather,

it needed only offer proof of its existence.       See United States v.

Conway, 507 F.2d 1047, 1051 (5th Cir. 1975). Lineberry conceded at

least twice at trial that the Government did not have to prove the

actual act of prostitution took place, but rather that the proceeds

at issue were from an unlawful activity.

                                     a.

     The evidence, viewed in the light most favorable to the

Government, was that Lineberry used credit-card systems to collect

prostitution fees and used financial institutions to distribute

those proceeds.      Accordingly, Lineberry has not shown a manifest




                                     12
miscarriage of justice.   See United States v. Green, 293 F.3d 886,

895 (5th Cir.), cert. denied, 537 U.S. 965 (2002).

                                b.

     In considering whether the court abused its discretion by

denying Lineberry’s new-trial motion, we are mindful that “[s]uch

motions are not favored and are viewed with great caution”. United

States v. Blackthorne, 378 F.3d 449, 452 (5th Cir. 2004).   Because

there was evidence to support the jury’s verdict, and because the

Government was not required to prove aggravated promotion of

prostitution beyond a reasonable doubt, the district court did not

abuse its discretion in denying a new trial.

                                2.

     Regarding his insufficiency-of-the-evidence claim for his

false-declaration conviction, Lineberry was convicted under 18

U.S.C. § 1623(a).    It provides:    “Whoever under oath [before a

court] ... knowingly makes any false material declaration ... shall

be fined under this title or imprisoned ....”   18 U.S.C. § 1623(a)

(emphasis added).   As noted, he claims the evidence fails for both

the knowingly and materiality elements.

                                a.

     A statement is material when it “has a natural tendency to

influence, or [is] capable of influencing, the decision of the

decisionmaking body to which it [is] addressed”.   Kungys v. United

States, 485 U.S. 759, 770 (1988) (internal quotation omitted).


                                13
Materiality is a question of law “to be decided by the court”, not

the jury.    See, e.g., United States v. Damato, 554 F.2d 1371, 1373

(5th Cir. 1977) (“The trial court should embody its finding on

materiality in an instruction to the jury.”).

     The court did not instruct the jury that, as a matter of law,

Lineberry’s statement was material; instead, it defined “material”

and explained it was an essential element for a false-declaration

conviction.   See Barnes v. United States, 378 F.2d 646, 650-51 (5th

Cir. 1967) (holding defendant was not prejudiced where jury was not

instructed testimony was material as a matter of law, but was

instead instructed it must find the testimony material to sustain

a conviction), cert. denied, 390 U.S. 972 (1968); Blackmon v.

United States, 108 F.2d 572, 574 (5th Cir. 1940) (holding, although

jury should have been directly charged that testimony was material,

the evidence amply supported the jury’s verdict and there was “[n]o

error affecting [appellant’s] substantial rights”).    In any event,

there was evidence of materiality.

                                  b.

     To convict under 18 U.S.C. § 1623, the Government had to

prove, inter alia, that Lineberry knew the statement was false when

he made it.    There was evidence the statement was made knowing it

was false.




                                  14
     In sum, Lineberry has failed to demonstrate the requisite

manifest miscarriage of justice.           His sufficiency-of-the-evidence

challenge to his false-declaration conviction fails.

                                      C.

     Lineberry contends the district court improperly charged the

jury on the elements of money laundering specifically related to

his intent to promote the carrying on of the specified unlawful

activity.    It instructed the jury must find Lineberry “intended to

promote the carrying on of the specified unlawful activity”, but,

despite     Lineberry’s    request,   did     not    define   “intended”   or

“intentionally”.

     Review is for abuse of discretion.             United States v. Garcia-

Lopez, 234 F.3d 217, 219 (5th Cir. 2000), cert. denied, 532 U.S.

935 (2001).    Lineberry must show his request:          “(1) was a correct

statement of the law, (2) was not substantially covered in the

charge as a whole, and (3) concerned an important point in the

trial such that the failure to instruct the jury on the issue

seriously impaired [his] ability to present a given defense”.

United States v. Smithson, 49 F.3d 138, 142 (5th Cir. 1995).

     The    court    did   not   define    “intentionally”,    but,   at   the

Government’s request, it defined “intended to promote” to include

reinvesting proceeds in the illegal enterprise and paying salaries

and expenses.       Furthermore, the instructions conformed with the

Fifth Circuit Pattern Jury Instructions regarding § 1956, which do


                                      15
not require a definition of “intentionally” as it relates to proof

that Lineberry intended to promote the carrying on of a specified

unlawful activity.    See Fifth Circuit Pattern Jury Instructions:

Criminal § 2.76.

     Lineberry has not shown the instructions as a whole failed to

correctly   reflect   the   law   or    that    the   failure   to   define

“intentionally” impaired his defense.          Rather, the jury’s finding

he “intended to promote” the specified unlawful activity was

consistent with evidence that he used credit cards to collect the

proceeds of prostitution and pay overhead expenses of the business,

and that he made or caused another to make bank wires or write

personal checks to pay salaries to prostitutes.

                                   D.

     Finally, Lineberry maintains the district court improperly

used a number of criminal history points based on prior convictions

in calculating his guideline sentencing range.           The points were

imposed for three offenses for which the presentence investigation

report stated the details were unavailable.

                                   1.

     Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998),

forecloses Lineberry’s claim that the court erred when increasing

his sentence based upon the facts of prior convictions neither

charged and proven beyond a reasonable doubt nor admitted by him.

Lineberry contends that case has been abrogated and that a majority


                                   16
of the Supreme Court would overrule it in the light of Apprendi v.

New Jersey, 530 U.S. 466 (2000), as recognized in Shepard v. United

States, 125 S. Ct. 1254, 1263-64 (2005) (Thomas, J., concurring in

part and concurring in the judgment).    Our court has repeatedly

rejected such contentions on the basis that Almendarez-Torres

remains binding. See, e.g., United States v. Garza-Lopez, 410 F.3d

268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).

                                 2.

     Lineberry next contends the district court relied on hearsay

and other information outside of the category of permissible proof

in finding the fact of his prior convictions.    See Shepard, 125 S.

Ct. at 1263 (limiting inquiry of whether a guilty plea to a crime,

defined by a nongeneric statute, equates admission of the generic

offense elements “to the terms of the charging document, the terms

of the plea agreement or transcript of colloquy between judge and

defendant”); United States v. Gutierrez-Ramirez, 405 F.3d 352, 359

(5th Cir.) (limiting determination of whether convicted offense was

a “drug trafficking offense” under Sentencing Guidelines to same

documents) (internal quotation omitted), cert. denied, 126 S. Ct.

217 (2005).   As the Government correctly notes, those cases are

distinguishable from this one, in which the district court was not

required to make any comparable factual determinations concerning

Lineberry’s   prior   convictions.    Instead,   the   only   factual



                                 17
determination required was that the convictions took place and that

Lineberry received the required sentences.

                                III.

      For the foregoing reasons, Lineberry’s conviction and sentence

are

                                                     AFFIRMED.




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