                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                    UNITED STATES COURT OF APPEALS             October 31, 2003

                        FOR THE FIFTH CIRCUIT              Charles R. Fulbruge III
                                                                   Clerk
                       _______________________

                             No. 02-60830
                       _______________________


                       United States of America

                                                Plaintiff - Appellee,

                                versus

                Harold J. Wheeler; Lawyer Wheeler, Jr.

                                           Defendants - Appellants.



          Appeals from the United States District Court
             For the Northern District of Mississippi
                          4:01-CR-109-1-B



Before REAVLEY, JONES and CLEMENT, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

          Harold J. Wheeler and Lawyer Wheeler, Jr. appeal their

convictions for knowingly making materially false statements or

representations to the Farm Service Agency (“FSA”), an arm of the

United States Department of Agriculture, in violation of 18 U.S.C.

§ 1001(a)(2).     Specifically, the jury found that the Wheelers

falsely stated in their 1998 applications for disaster relief that


     *
      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this opinion should not be published and is not precedent except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.
they had completely planted their cotton crop on May 25, 1998, and

May 26, 1998.     Harold J. Wheeler was sentenced to 18 months

imprisonment and fined $20,000.    Lawyer Wheeler, Jr. was sentenced

to 12 months and one day imprisonment and fined $5,000.   Finding no

error, we affirm the convictions.

                          I.   BACKGROUND

          Harold Wheeler, managing partner of CMC Farms, owned and

farmed several tracts of land in Leflore County and Carroll County,

Mississippi.    His brother, Lawyer Wheeler, was employed by CMC

Farms and also rented and farmed his own tract of land in Sunflower

County, Mississippi.   In the fall of 1997, the Wheelers decided to

plant wheat on their respective tracts of land.   The wheat came to

harvest in late May 1998 and a local trucking firm delivered the

wheat to grain elevators beginning May 23, 1998.          The final

delivery occurred on June 12, 1998.

          The Wheelers then decided to follow their wheat crop with

cotton.   Inventory receipts from Lewis Seed & Feed establish that

Lawyer Wheeler picked up the first shipment of thirty-three bags of

cotton seed on June 3, 1998.   Receipts also establish that Lawyer

Wheeler or another representative of CMC Farms picked up additional

shipments of cotton seed on June 4, 11, and 15, 1998.     Following

the harvest, the Wheeler tracts yielded a mere 70 bales from more

than 1,000 acres of cotton planted.




                                  -2-
               The Wheelers held crop insurance on their 1998 cotton

crop       through    Rural   Community    Insurance     Services.        Based    on

information provided by Lawyer Wheeler, insurance agent Jimmy Goss

filled out the crop insurance acreage reports, which included final

planting      dates    ranging   from     May   15,   1998,   to    May   23,   1998.

According to their applications, the Wheelers qualified for full

coverage.

               The FSA’s Crop Loss Disaster Assistance Program provides

compensation to farmers for loss associated with a particular

farming period.        Congress passed the disaster program covering the

1998 growing season in early 1999.              To qualify for full coverage

under the disaster program, cotton must have been completely

planted by May 25, 1998.         For every day past the 25th that planting

continues, the disaster benefits decrease.1

               On April 5, 1999, Harold Wheeler met with Brenda Ricks,

an employee of the Leflore County FSA office, to complete his

disaster application for non-irrigated acres.                      Based on Harold

Wheeler’s answers to her questions, Ricks noted that the planting

date for CMC Farms was May 25, 1998.                  Wheeler returned to the

Leflore County FSA office on May 12, 1999, to complete the same

       1
        For crops planted up to ten days past the final planting
date, the award would be reduced 1% per day late.        For crops
planted between eleven and twenty-four days past the final planting
date, the assigned production would be based on 10% of the payment
yield, and an additional 2% would be deducted for each day (between
11 and 24 days) late. Finally, for crops planted 25 days late or
more, the assigned production would be based on 50% of the payment
yield. See 7 C.F.R. § 1477.110(g)(1)—(3) (2003).

                                          -3-
disaster application for irrigated acres.                  Wheeler assured Ricks

that the planting date for the irrigated acres was the same as that

for the non-irrigated acres, i.e., May 25, 1998.                     Harold Wheeler

filled out a similar application in Carroll County, but was not

asked about his final planting date.

          Also   on     April    5,   1999,    Lawyer       Wheeler    visited     the

Sunflower County FSA office to complete a disaster application.

Lawyer Wheeler    met    with    Jo   Muzzi,       an    experienced      FSA   office

employee, who filled out the application based on his responses to

certain questions.       Muzzi noted on the application that Lawyer

Wheeler’s planting date was May 26, 1998.

          Both   Harold    Wheeler’s         and   Lawyer     Wheeler’s     disaster

applications were held up for investigation by the Office of the

Inspector General. Thus, neither Wheeler brother ever received any

disaster relief benefits.

          On September 19, 2001, Harold and Lawyer Wheeler were

indicted on six counts by a federal grand jury.                     The indictments

covered the allegedly materially false statements made by Harold

and Lawyer Wheeler on their crop insurance acreage reports and

disaster applications for Leflore County, Carroll County, and

Sunflower County.

          The    trial     was    originally            scheduled    to    begin   on

November 13, 2001, in Oxford, Mississippi, the seat of the Western

division of the Northern District of Mississippi.                     However, the

trial was continued several times on motions from the defendants

                                       -4-
and finally began on May 20, 2002, in Oxford.                  Before trial, the

Wheelers objected to holding the trial in the Western division and

requested a transfer to the Greenville division of the Northern

District, citing as reasons the convenience of the parties and the

larger percentage of African-American residents. On April 2, 2002,

the district judge denied the Wheelers’ request for a transfer,

noting the usefulness of the more modern courtroom facilities in

Oxford.   In addition, the district judge ordered a district-wide,

as opposed to division-wide, venire in response to the defendants’

concerns.

            On    May    22,     2002,   three   days   into       the   trial,   the

defendants filed a motion to quash the jury based on the divergent

percentages      of   African-American         and   farmer   residents      in   the

Northern District compared to the Greenville division.                           After

hearing arguments and testimony, the district judge denied the

motion.

            At the close of the government’s case, the defendants

filed motions for judgment of acquittal as to all counts.                         The

motion was granted as to count five against Harold Wheeler, which

dealt with his disaster application in Carroll County, but denied

as to the remaining counts.

            At the close of the trial, defendants unsuccessfully

reasserted their motion to quash the jury.                   The jury returned a

verdict finding         Harold    Wheeler   guilty    only    as    to   count    six,

relating to his disaster application in Leflore County, and Lawyer

                                         -5-
Wheeler guilty only as to count four, relating to his disaster

application in Sunflower County.                Defendants’ joint motion for

judgment of acquittal was denied.

             Sentencing took place on September 10, 2002.               Both the

government and defendants objected to the presentence report.                  The

defendants’ objections to the guideline loss determination were

overruled.     However, the government’s request for an inclusion for

more than minimal planning was sustained.

                                II.     DISCUSSION

A.   Venue

             This   court     reviews    a     district   court’s   decision   to

transfer venue for abuse of discretion.              United States v. Dickie,

775 F.2d 607, 609-10 (5th Cir. 1985).             In addition, a “substantial

ground for overturning the district court’s decision” must be

present.     United States v. Lipscomb, 299 F.3d 303, 339 (5th Cir.

2002).       Federal   Rule    of   Criminal      Procedure   18    requires   the

government to “prosecute an offense in a district where the offense

was committed.”        The district court, when setting the case for

trial within the district, must consider “the convenience of the

defendant and the witnesses, and the prompt administration of

justice.” Id. However, a defendant has no constitutional right to

be tried in a particular division within a district. United States

v. Duncan, 919 F.2d 981, 987 (5th Cir. 1990).




                                         -6-
            The offenses at issue all occurred in Mississippi’s

Northern District.     This case was originally set for trial in

Oxford, located in the Western division of the Northern District,

in compliance with Rule 18.     The defendants made a motion pursuant

to Rule 18, requesting an intradistrict transfer to the Greenville

division, which the district court denied.                To support their

motion, the defendants argued that (1) the alleged criminal conduct

arose from their farming activities in Leflore, Carroll, and

Sunflower counties, all in the Greenville division, (2) both

defendants resided in the Greenville division, (3) many of the

defense witnesses resided in the Greenville division, and (4) the

African-American population in the Greenville division exceeded

that of the Western division.

            The defendants cite Lipscomb, supra, in support of their

position.   Lipscomb involved the reversal of a Dallas City Council

member’s conspiracy and bribery convictions. The district judge in

Lipscomb transferred the case sua sponte from Dallas to Amarillo,

some five hours away, even though the defendant and all the

witnesses lived in Dallas.          299 F.3d at 337, 340.            However,

Lipscomb is inapposite to this case.

            A   district    court   is     not     required   to    grant    an

intradistrict    transfer    request      absent    a   “strong    showing   of

prejudice” by the defendants.            Duncan, 919 F.2d at 985.            In

overruling the motion, the district judge noted the electronic

courtroom in Oxford as one factor weighing against transfer.

                                    -7-
However, he also noted that Oxford is closer to Lawyer Wheeler’s

home   in    Clarksdale      (which   is    actually      located    in   the   Delta

division) than to Greenville, the seat of the Greenville division,

and that Harold Wheeler’s home in Carrollton is only a few miles

closer to Greenville than to Oxford. In addition, although some of

the defense witnesses lived closer to Greenville, others lived

closer to Oxford.       The Greenville division’s higher population of

African-American       residents      should      not    influence   the   transfer

decision.      See United States v. McKinney, 53 F.3d 664, 673 (5th

Cir. 1995) (noting that “an attempt to influence the racial balance

of the jury by setting a case in a particular division would not

have been appropriate or acceptable”).                   The convenience of the

defendants and the witnesses was duly considered by the district

judge in overruling the motion and, based on the foregoing, the

district court       did     not   abuse    its   discretion    by    declining    to

transfer the case to the Greenville division.

B.   Motion to Quash

              Appellants complain that the district judge erred in

denying their motion to quash the jury venire.                       They argue on

appeal      that   because    substantially       more    African-Americans       and

farmers reside in the Greenville division than in the larger

Northern District of Mississippi, they were denied a jury that

represented a fair cross-section of the population as guaranteed by




                                           -8-
the Sixth Amendment of the United States Constitution.2         See

McKinney, 53 F.3d at 671.      In denying the motion, the district

judged noted that the venire was selected by the computer at random

from registered voters within the Northern District.

          To establish a prima facie violation of the fair cross-

section requirement, the Appellants must show “(1) that the group

alleged to be excluded is a ‘distinctive’ group in the community;

(2) the representation of this group in the venire panel is not

reasonable in relation to the number of such persons in the

community; (3) that this under-representation is due to systematic

exclusion in the jury selection process.”      Id. (citing Duren v.

Missouri, 439 U.S. 357, 364 (1979)).    African-Americans qualify as

a “distinctive group” for purposes of the fair cross-section

requirement.    United States v. Williams, 264 F.3d 561, 569 (5th

Cir. 2001).    Because the district court determined that the selec-

tion process was random and computer-generated, there could be no

“systematic exclusion” of African-Americans.    This factual deter-

mination is reviewed for clear error.    McKinney, 53 F.3d at 670.

          The Appellants argue that the African-American population

in the Northern District of Mississippi amounts to 43.1%, but that


     2
            The defendants failed to move to stay the proceedings
prior to voir dire and failed to file a sworn statement of facts,
as required by statute. 28 U.S.C. § 1867(a), (d) (2000). Although
the defendants failed to comply with the statutory procedures for
challenging the jury venire, they may still assert a constitutional
violation. United States v. Williams, 264 F.3d 561, 567 n.3 (5th
Cir. 2001).

                                 -9-
only 22% of their venire panel was comprised of African-Americans.

However, the Appellants must prove not only that African-Americans

were       under-represented    in    their   case,    but     that    they    were

systematically under-represented in other venires drawn from the

Northern District.       Williams, 264 F.3d at 568.             The Appellants

offer no evidence tending to prove that African-Americans were so

under-represented      and     thus   fail    to   establish    a     prima   facie

violation of the fair cross-section requirement.                    The district

court did not err in denying the Appellants’ motion.3

C.   Sufficiency of the Evidence

              This court reviews denials of motions for judgment of

acquittal de novo.      United States v. Wise, 221 F.3d 140, 147 (5th

Cir. 2000).      The evidence is reviewed in the light most favorable

to the government to determine whether a reasonable factfinder

could find the evidence proves guilt beyond a reasonable doubt.

United States v. Bell, 678 F.2d 547, 549 (5th Cir. 1982) (en banc),

aff’d, 462 U.S. 356 (1983).

       1.     Knowingly False Statements




       3
       Appellants argue that the district court’s decision to move
the trial from Greenville to Oxford denied them a fair cross-
section of the community in the jury venire by diluting the
percentage of African-Americans in the venire. Because we find
that this case was originally set for trial in Oxford and, contrary
to Appellants’ assertions, never transferred, there is no issue
here as to whether a discretionary transfer to a location with a
significantly smaller African-American population would violate the
fair cross-section requirement.

                                       -10-
            A violation of 18 U.S.C. § 1001(a)(2) is committed by

knowingly making a materially false statement or representation, in

any   matter,    within    the   jurisdiction      of   the    United     States

Government, here, the United States Department of Agriculture.

18 U.S.C. § 1001(a)(2) (2000).         Harold and Lawyer Wheeler maintain

that they began planting cotton on May 26, 1998.              They assert that

the FSA employees’ questions regarding their planting dates were

ambiguous and that, consequently, their answers were not intended

to mislead the government.         They additionally contend that the

May 25th deadline was not known to them at the time they applied

for disaster relief.      All of these arguments were made to the jury.

            Sufficient evidence was adduced at trial for a reasonable

jury to believe that, contrary to their representations, Harold and

Lawyer Wheeler did not begin planting cotton on May 26, 1998.

Harold Wheeler continues to assert that he picked up 33 bags of

cotton seed on May 26, 1998, from Sanders Seed, Lewis Seed & Feed’s

supplier.    However, a Lewis truck driver testified that he picked

up the same 33 bags of cotton seed from Sanders and transported

them to Lewis Seed & Feed on May 26, 1998.                     Uncontradicted

documentary evidence proves that the same 33 bags were in fact

picked up by Lawyer Wheeler on June 3, 1998, at Lewis Seed & Feed.

In addition, the same documentary evidence proves that the Wheelers

continued to buy cotton seed from Lewis Seed & Feed through

June 15, 1998.     The government also produced several witnesses who

testified   that   the    appearance    of   the   Wheelers’     cotton    crops

                                    -11-
indicated an initial planting date of mid- to late June.   Given the

weight of evidence, a reasonable jury could properly conclude that

the Wheelers did not begin planting on May 26, 1998.

           Harold and Lawyer Wheeler further argue that the ques-

tions posed to them by FSA employees were ambiguous, such that they

believed they were to give their initial planting date, as opposed

to a final planting date.4   Harold Wheeler met with Brenda Ricks of

the Leflore County FSA office on April 5, 1999.   Ricks testified at

trial that she would ask farmers, “[W]hat’s your planting date or

you can give me a range or either what day did you finish. . . .”

Ricks testified that she remembered asking Harold Wheeler for his

planting date, stating that “I just asked him when was it planted

or the last day that he ended up planting it.”     Harold Wheeler’s

response was “May 25th.”     When he returned to the Leflore County

FSA office on May 12, 1999, to fill out an additional application

for irrigated acres, Ricks testified that she asked Wheeler if the

planting date was the same as for the non-irrigated acres, and

Wheeler responded “yes”.     Lawyer Wheeler filled out his disaster

application for Sunflower County with Jo Muzzi, who testified that

she has always asked farmers, “When did you finish planting your

cotton?”   When asked if she questioned Lawyer Wheeler about the

date he completed planting cotton, Muzzi responded that she did in

     4
        Even if the Wheelers believed they were to give their
initial planting date, the evidence at trial was sufficient to
prove that the date given — May 26, 1998 — was false even as a
starting date.

                                 -12-
fact ask him “when was your cotton planted.”    In response, Lawyer

Wheeler gave May 26, 1998, as the relevant date.

          The Wheelers argue that the questions were ambiguous and

that they believed they were to give their initial planting date.

However, testimony at trial proved that the final planting date of

May 25th was well-known in the farming community as an important

date for insurance and disaster relief purposes.    Ricks and Muzzi

testified that monthly newsletters were mailed to farm operators,

like Harold and Lawyer Wheeler, detailing the final planting dates

for various crops.     Several of these newsletters were introduced

into evidence and each one listed May 25th as the final planting

date for cotton.     Viewed in this context, the questions asked by

both Ricks and Muzzi were not ambiguous.        Thus, the evidence

adduced at trial is sufficient to support a jury finding that the

Wheelers made knowingly false statements to the FSA.

     2.   Material Statements

          The district court correctly instructed the jury that, in

order to be found guilty of violating 18 U.S.C. § 1001(a)(2), the

defendants’ false statements must have been material. That is, the

statement “must have ‘a natural tendency to influence, or [be]

capable of influencing, the decision of the decisionmaking body to

which it was addressed.’” United States v. Gaudin, 515 U.S. 506,

509 (1995) (internal citations omitted).    The Wheelers argue that

the final planting date was immaterial to the FSA’s award of


                                 -13-
disaster relief because (1) disaster form CCC-540A does not have a

specific blank for the planting date, (2) the FSA employee in

Carroll County did not ask Harold Wheeler for a planting date,

(3) the FSA downloaded the planting date from the crop insurance

form, and (4) entitlement forms had already been prepared.

            The   government   produced   ample   evidence   at   trial   to

convince a reasonable jury of the materiality of the final planting

date. John Tanner, the FSA State Office Specialist, testified that

the final planting date was “crucial” to the FSA’s determination of

benefits.    The final planting date was so important that disaster

benefits decreased the farther away from May 25th the farmer

planted.    In addition, both Ricks and Muzzi testified that they

were instructed to ask the farmers about their planting date

because it was important.      That a specific blank did not appear on

the disaster application for the final planting date does not alone

render the date immaterial.5

            The Appellants emphasize that the entitlement reports,

illustrating the possible monetary award, were already prepared

before their visits to the FSA offices and that the information was

merely downloaded from the crop insurance forms.             However, the

evidence at trial illustrated that the entitlement reports were

     5
       Count five against Harold Wheeler, relating to the Carroll
County property, was dismissed from the suit at the close of the
government’s case. Although the FSA employee in that particular
office failed to ask Wheeler for his final planting date, this
omission does not render the information immaterial given the
wealth of other evidence to the contrary.

                                   -14-
merely projections of the award for which the farmer would be

eligible if the disaster application were accepted.              In addition,

the downloaded crop insurance forms merely provided the certified

acreage or production, not the planting date.           These arguments do

not   warrant   disturbing    the   jury’s    verdict     with    regard   to

materiality.    The government produced sufficient evidence at trial

to support a finding of materiality, and thus, the convictions

should be affirmed.

D.    Sentencing

      1.   Loss Calculation

           When reviewing application of the Sentencing Guidelines,

“[w]e accept district court fact findings relating to sentencing

unless clearly erroneous, but review de novo application of the

Guidelines.”     United States v. Deavours, 219 F.3d 400, 402 (5th

Cir. 2000).     In addition, “[a] district court’s determination of

the amount of loss caused by fraud is given wide latitude.”            United

States v. Brewer, 60 F.3d 1142, 1145 (5th Cir. 1995).

           In   determining   the    amount   of   loss    under     U.S.S.G.

§ 2F1.1(b), the district court accepted the PSR’s recommendation of

$188,715 for Harold Wheeler and $58,470 for Lawyer Wheeler.                The

figures represent the amount of relief calculated by the FSA

entitlement reports based on the Wheelers’ fraudulent disaster




                                    -15-
applications.6         The Wheelers argue the amount of relief for which

they       would    have   been    entitled,      had   their   applications        been

completed          correctly,     should    be     subtracted     from        the   loss

calculation.         They also note that because their disaster applica-

tions were held up for investigation, they never actually received

any benefits.

               The commentary to U.S.S.G. § 2F1.1 prescribes, “if an

intended loss that the defendant was attempting to inflict can be

determined, this figure will be used if it is greater than the

actual loss.”          U.S. SENTENCING GUIDELINES MANUAL § 2F1.1, cmt. n.8

(1998). Thus, it is proper for a district court to “calculate loss

based on the risk engendered by the defendant[s’] criminal conduct,

even where the actual loss was lower.”                  Brewer, 60 F.3d at 1145.

By misrepresenting their planting date, the Wheelers intended to

receive as much disaster relief as they could, hence, they should

be charged with the full amount for sentencing.                         In addition,

evidence presented at trial and adopted by the district court at

sentencing         revealed     that   disaster    benefits     could    be    withheld

entirely if the farmer fraudulently misrepresented a fact, such as

       6
        Harold Wheeler argues for the first time on appeal that
$13,485, representing the disaster relief for the Carroll County
property, should not be included in the loss calculation because
count five of the indictment was dismissed. Assuming arguendo that
the inclusion of the Carroll County amount was error, it is
harmless. Subtracting the amount from the total guideline loss of
$188,715 leaves Harold Wheeler with a loss of $175,230, which
remains in the $120,000 to $200,000 range applicable for a seven-
level increase.    U.S. SENTENCING GUIDELINES MANUAL § 2F1.1(b)(1)(H)
(1998).

                                           -16-
a relevant date, when making his application.                  See 7 C.F.R.

§ 1477.109(c)(2) (2003).        Thus, given the Wheelers’ fraudulent

misrepresentation, they most likely would not have been entitled to

any disaster relief.        The district court did not err in its

determination of the appropriate sentencing loss.

      2.      More Than Minimum Planning

              The Appellants argue the district court erred by imposing

a   two-level    enhancement   for   “more   than    minimal   planning”   in

response to the government’s objection.             U.S. SENTENCING GUIDELINES

MANUAL § 2F1.1(b)(2)(A) (1998).        “More than minimal planning” is

defined as “more planning than is typical for commission of the

offense in a simple form,” or “any case involving repeated acts

over a period of time, unless it is clear that each instance was

purely opportune.”      Id. at § 1B1.1, cmt. n.1(f).           We review the

district court’s determination for clear error.            United States v.

Clements, 73 F.3d 1330, 1341 (5th Cir. 1996).

              The district court noted that Harold and Lawyer Wheeler

filed their false disaster applications in separate counties, but

on the same day.       Harold Wheeler visited the Leflore County FSA

office several weeks later and again confirmed the false planting

date.      Lawyer Wheeler, on behalf of CMC Farms and Harold Wheeler,

also reported false planting dates on the crop insurance forms.

See United States v. Carreon, 11 F.3d 1225, 1241 (5th Cir. 1994)

(for sentencing, a defendant may be held accountable for acquitted



                                     -17-
conduct).    Given that the Appellants’ false statements continued

for roughly one year, the district court determined that a two-

level enhancement for more than minimal planning was warranted.

This determination was not clearly erroneous.

                          III.   Conclusion

            For the foregoing reasons, the judgments of conviction

and sentences are AFFIRMED.




                                 -18-
