              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT

                       _____________________

                            No. 97-20889
                       _____________________

UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                               versus

ROGER MICHAEL REISSIG; JAY ALAN
BRAMLETT; LAVONNE O. LAMBERT
BAKER; KIMBERLY LYNN HOLICK;
HARVEY SCOTT BAKER,

                                           Defendants-Appellants.
_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
_________________________________________________________________

Before POLITZ, JOLLY, and DUHÉ, Circuit Judges.

PER CURIAM:

     This case involves a telemarketing operation outside Houston,

Texas, called American Land Liquidators (“ALL”).        Two of the

defendants, Harvey S. Baker and Jay A. Bramlett, organized the

operation as an advertising service for landowners interested in

selling their land.   The defendants also include Roger Reissig and

Kimberly Holick, who were managers of the telemarketers, and

Lavonne Baker, who was the office manager.      The defendants were

convicted of using ALL to carry out a fraudulent telemarketing

scheme.

     The defendants raise numerous objections to their conviction

on appeal. Because the defendants have raised three issues of some

merit, we write briefly to address them.       Those issues are (1)
whether there was sufficient evidence to support the defendants’

conviction, (2) whether the district court erred in delivering a

deliberate ignorance instruction (the issue for which publication

of this opinion is merited), and (3) whether the district court

erred when it enhanced Bramlett’s sentence, finding that he was an

organizer of the scheme.    Ultimately, however, we find no error on

the part of the district court and affirm the convictions and

sentences of each of the defendants.

     We now turn to addressing each of the three issues.

                                   I

     The defendants argue that they were conducting a legitimate

business and that there is insufficient evidence of wrongdoing to

support the convictions against them.           They argue that their

service was just like a dating service.            For a fee, they would

enter into their computer system information about a particular

plot of land that was for sale.          They would then advertise to

buyers that they could provide, free of charge, listings of plots

of land that were for sale in specific areas.               When a buyer

contacted them, they would record the buyer’s preferences, match

the buyer’s preferences to plots of land on their system and then

send the relevant “matches” to the buyer.           The buyer would then

contact the sellers with whom he wished to deal.

     Because   the   defendants   were   not   involved   in   the    actual

negotiations   between   buyer    and    seller,    the   record     is   not

particularly clear with respect to how many actual purchases




                                   2
resulted from matches being sent to buyers.                 It is clear, however,

that some matches were sent out to prospective buyers and that, in

some instances, buyers did purchase land listed in the defendants’

database.

       The government argued at trial, however, that the defendants’

telemarketing business amounted to a sham designed to get money

from sellers without providing any real advertising service.                         To

get sellers to purchase the advertising, the defendants sent

postcards to them claiming that they had a designated department

that was specifically designed to advertise for the particular area

where the seller owned land.          It is clear that, in fact, they did

not.    Once a seller called in, the seller would be subjected to a

high-pressure sales pitch by a telemarketer hired and managed by

the defendants.        The government produced multiple examples of

misleading     or    factually     incorrect          statements       made    by    the

telemarketers       during    these   sales       pitches.        Furthermore,       the

government introduced testimony that supports the conclusion that

the    defendants    were    not   only       aware    of   the    conduct      of   the

telemarketers but devoted their energies to generating income

through the telemarketers’ pitches.              For instance, the government

introduced evidence that Scott Baker told a dubious employee “not

to worry about [advertising], they just needed to be able to tell

their    clients     they     advertised.”            The    government         further

demonstrated    that    a    disproportionate         amount      of   the    operating

expenses incurred by the defendants’ company went toward generating




                                          3
contacts with sellers (i.e., generating new business) than went

toward attracting potential buyers who could be interested in the

packets of information they sent out.

     The defendants make an argument that any fraudulent activity

amounts to nothing more than the individual acts of a specific

telemarketer. A reasonable juror, however, could certainly look at

the evidence presented by the government and conclude that ALL was

a sham and that the defendants used it to perpetrate fraudulent

telemarketing scheme. In sum, the arguments made by the defendants

on   appeal   are    arguments    that    interpret     the   potentially

incriminating evidence in their favor.      Such arguments are for the

jury and not this appellate panel. We therefore find this evidence

sufficient to support the defendants’ convictions.

                                   II

     All of the defendants take issue with a deliberate ignorance

instruction given to the jury.1     In general, deliberate ignorance

instructions run the risk of encouraging the jury to convict on a

lesser   standard.    We   have   held   that   the   instruction   should

nonetheless be given when the evidence raises two inferences: “(1)


     1
      The instruction reads:

     You may find that a defendant had knowledge of a fact if
     you find that the defendant deliberately closed his eyes
     to what would otherwise be obvious to him.          While
     knowledge on the part of the defendant cannot be
     established merely by demonstrating that the defendant
     was negligent, careless or foolish, knowledge can be
     inferred if the defendant deliberately blinded himself to
     the existence of a fact.



                                    4
the defendant was subjectively aware of a high probability of the

illegal conduct; and (2) the defendant purposely contrived to avoid

learning of the illegal conduct.”   United States v. Gray, 105 F.3d

956, 967 (5th Cir. 1997).

     In this case, the government concedes that the instruction is

only applicable to Bramlett. Although Bramlett was a part owner of

the venture and both funded and organized it, he did not play much

of a role in the day-to-day activities.2   Because the instruction

is not appropriate with respect to any of the other defendants,

they argue that its effect was prejudicial.

     We are presented, then, with the question of how a district

court should proceed when a deliberate ignorance instruction is

appropriate only with respect to one of a group of co-defendants.

It is true that giving the instruction generally, without naming a

specific defendant, may prejudice the co-defendants with respect

to whom the evidence does not call for the instruction.     On the

other hand, however, singling out the defendant who merits the

instruction, based, perhaps, on disputed or equivocal evidence, may

be unfairly prejudicial to that defendant.    The district court’s

proposed solution was to give the instruction and indicate that the

instruction may not apply to all of the defendants.    This is the

approach followed by the First Circuit in United States v. Brandon,


     2
      Bramlett argues that, under Gray, the deliberate ignorance
instruction should not have been given to him. The evidence in the
record, however, supports both Gray inferences as applied to
Bramlett.



                                5
17 F.3d 409, 453 (1st Cir. 1994).            We agree both with the district

court and the First Circuit that this is the best solution to this

issue.    We therefore find no error on the part of the district

court.

                                    III

       Finally, Bramlett argues that the district court erred by

enhancing Bramlett’s sentence under U.S.S.G. § 3B1.1(a). There has

been a bit of confusion about the argument here because Bramlett’s

initial   brief     misstated   which   section         of   the   guidelines   the

district court applied. According to the brief, the enhancement is

pursuant to § 3B1.1(b).         The government’s brief continued the

error, also making an argument about § 3B1.1(b).                      In his reply

brief, Bramlett corrected the error, stating that his argument was

that the enhancement under § 3B1.1(b) (3 points for management)

applied to him, not the enhancement under § 3B1.1(a) (4 points for

organizing or leading).         Bramlett has since filed a motion to

correct his brief, which has been granted.

       Bramlett’s argument is essentially that he never controlled or

supervised anyone.      However, as comment 4 to § 3B1.1 illustrates,

Bramlett’s activity clearly fits into the role of a leader or

organizer.    He was a part owner of the business, which entitled him

to a larger share of the fruits of the crime.                 He also exercised a

degree of control and authority over the venture.                     We therefore

find   that   the   district    court       did   not   err    when   it   enhanced




                                        6
Bramlett’s sentence for organizing or leading the telemarketing

scheme.

                               IV

     For the foregoing reasons, the judgment of the district court

is

                                                 A F F I R M E D.




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