                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-2480
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
                                        * District Court for the Northern
                                        * District of Iowa.
Donald K. Washburn,                     *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: January 11, 2006
                                Filed: April 20, 2006
                                 ___________

Before WOLLMAN, JOHN R. GIBSON, and ARNOLD, Circuit Judges.
                          ___________

ARNOLD, Circuit Judge.

      Donald Washburn appeals his conviction on ten counts of wire fraud, see
18 U.S.C. § 1343, and two counts of money laundering, see 18 U.S.C.
1956(a)(1)(B)(i). The charges stemmed from Mr. Washburn's efforts to procure
money from six individuals for two enterprises: a dice game to be marketed to casinos
and an effort to obtain an international grant for DNA storage. The government's first
attempt to try Mr. Washburn ended when the district court1 declared a mistrial in
response to the statements of a witness. His second trial ended in his conviction. The

      1
        The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
district court sentenced Mr. Washburn to a term of 27 months. Mr. Washburn
challenges several aspects of his trial and sentencing. We affirm.

                                           I.
       Before Mr. Washburn's first trial, the government sought permission to
introduce evidence about another failed enterprise in which he was involved. The
investors in this earlier enterprise reported losing more than $1 million. The
government contended that this evidence was admissible under Federal Rule of
Evidence 404(b) because it established both the intent to defraud and a pattern of
deceitful financial transactions. The district court questioned the relevance of the
information, but agreed to admit it with one condition: the government was not to
refer to the amount lost in that enterprise because the district court believed that the
$1 million figure was more prejudicial than probative. On the first day of trial,
however, the government's third witness disclosed the $1 million amount while
answering questions on direct examination. The defense moved for a mistrial, and the
court granted the request. The court empaneled a second jury several months later,
and the government convicted Mr. Washburn without using any of the Rule 404(b)
evidence at issue in the first trial.

       Mr. Washburn maintains that the government intentionally provoked the
mistrial and therefore his retrial violated the fifth amendment. Because Mr. Washburn
failed to object to his retrial, we review his double-jeopardy claim for plain error. See
United States v. Sickinger, 179 F.3d 1091, 1093 (8th Cir. 1999). For Mr. Washburn
to obtain relief under this standard, the error must be plain, it must have affected his
substantial rights, and it must seriously have affected the fairness and integrity of
judicial proceedings. United States v. Willis, 433 F.3d 634, 637 (8th Cir. 2006).

      Reviewing the record in this case, we conclude that there was no double-
jeopardy error of any kind. "When a defendant moves for a mistrial, the [double-
jeopardy] doctrine does not bar retrial unless the prosecutor intentionally engaged in

                                          -2-
conduct designed to provoke the defendant's motion." United States v. Curry,
328 F.3d 970, 972 (8th Cir. 2003). The transcript from Mr. Washburn's first trial
amply supports a finding that the government did not intend to elicit the information
that led to the mistrial. The government had avoided any disclosure of the dollar
amount when its two previous witnesses were on the stand. The federal prosecutor
apologized to the court for the disclosure and said that he had instructed all of the
witnesses not to get into specific dollar amounts. The transcript reveals that even
Mr. Washburn's trial counsel, when moving for a mistrial, agreed that the government
did not intentionally elicit the information:

      MR. VAUGHN: Your honor, we have to object to this testimony and
      any further testimony on the part of this witness. Frankly, the
      Government has been very careful, and I've been very proud of the way
      they have presented these individuals and spoke in terms of "substantial
      amounts of money" and no dollar amounts have been mentioned. And
      out of the clear blue – I suppose I could have jumped up and said "I
      object," but I wasn't going to interrupt.

The record of the first trial does not reveal any evidence whatever of intentional
misconduct designed to produce the mistrial. At most, the government made a
mistake in questioning its witness. A mistake on the government's part that leads to
a mistrial does not bar the retrial of the defendant. Id.

                                           II.
        Before the first trial, Mr. Washburn filed a motion to strike several counts of
the second superseding indictment. Specifically, Mr. Washburn contended that the
government had improperly connected two separate enterprises (the dice game and the
DNA grant) to construct one overarching scheme to defraud. The trial court agreed
and dismissed the counts related to the dice game. The remaining case then proceeded
to a trial which ended, as described above, in a mistrial.




                                         -3-
       Between the declaration of the mistrial and the beginning of the second trial, the
government issued a third superseding indictment. That indictment again included the
charges related to the dice game, but made clear that they were part of a separate
scheme to defraud. Mr. Washburn argues on appeal that the reinstatement of the dice
game charges amounted to prosecutorial vindictiveness that violated his due process
rights. But because Mr. Washburn failed to object to the indictment before his retrial,
we again review for plain error. See United States v. Walls, 293 F.3d 959, 970 (6th
Cir. 2002), cert. denied, 537 U.S. 983 & 1022 (2002); cf. United States v. Rodriguez,
414 F.3d 837, 841-42 n.2 (8th Cir. 2005).

       Mr. Washburn has not presented any objective evidence of vindictiveness, nor
has he established that the government's conduct warrants a presumption of
vindictiveness, see United States v. Goodwin, 457 U.S. 368, 373-80 (1982); United
States v. Punelli, 892 F.2d 1364, 1371-72 (8th Cir. 1990). "[T]here can be no
prosecutorial vindictiveness ... if some events or combination of events [would]
indicate to a reasonable minded defendant that the prosecutor's decision to increase
the severity of charges was motivated by some purpose other than a vindictive desire
to punish for the exercise of a right." United States v. Rodgers, 18 F.3d 1425, 1430
(8th Cir. 1994) (internal quotations omitted). Here the mistrial provided the
government with an opportunity to obtain a superseding indictment that properly laid
out the charges that the district court had dismissed as improperly pleaded. Even if
Mr. Washburn's first trial had ended in a verdict, the government could have
proceeded to prosecute him for the dice game charges. The fact that it pursued those
charges at his retrial did not violate Mr. Washburn's due process rights.

                                         III.
      Mr. Washburn challenges the sufficiency of the evidence to support his
convictions. We will affirm a criminal conviction if, viewing the evidence in the light
most favorable to the government, a reasonable juror could have found the defendant



                                          -4-
guilty beyond a reasonable doubt. United States v. Liner, 435 F.3d 920, 924 (8th Cir.
2006), cert. denied, No. 05-9586, R46-018, 2006 WL 584125 (U.S. April 6, 2006).

       Mr. Washburn contends that with respect to Counts 1-11, the government failed
to prove any scheme to defraud on his part. He maintains that the transactions were
nothing more than personal loans, freely given, that took him longer than he originally
thought to repay. After reviewing the record, we are satisfied that the jury could
reasonably have believed that Mr. Washburn's inconsistent stories about the use of the
funds, along with his various excuses for why he was unable to repay the principal and
promised interest, demonstrated beyond a reasonable doubt that he deceived the
contributors and did not intend to repay them at the time that he obtained the
contributions.

       Mr. Washburn also argues that the judgment on Count 12 must be reversed
because the telephone call upon which that wire fraud charge was based was
insufficiently connected to any scheme to defraud. Count 12 stems from an interstate
telephone call that Mr. Washburn arranged between one of his contributors, Steven
David, and a Shad Ellison. Mr. Washburn contends that this call is not sufficiently
related to the scheme because it took place four months after he received money from
Mr. David. We note, however, that the use of a wire may be considered sufficiently
related to the scheme if it is used to "lull victims into a false sense of security,
postpone inquiries or complaints, or make the transaction less suspect." United States
v. Tackett, 646 F.2d 1240, 1243 (8th Cir. 1981) (citing United States v. Maze,
414 U.S. 395, 403 (1974)); cf. United States v. Conners, 894 F.2d 987, 994 (8th Cir.
1990). Viewing the evidence in the government's favor, we are satisfied that the jury
could have found beyond a reasonable doubt that Mr. Washburn set up the call to
reassure Mr. David and to prevent the discovery of his scheme.




                                         -5-
                                            IV.
                                             A.
       Mr. Washburn contends that the district court improperly shifted the burden of
proof by giving two flawed jury instructions. When reviewing for instructional error,
we generally will affirm if the entire charge to the jury, taken as a whole, fairly and
adequately instructs the jurors on the law applicable to the case. United States v.
Blazek, 431 F.3d 1104, 1109 (8th Cir. 2005). Mr. Washburn did not object to the
instructions at trial, and thus we will not reverse absent plain error. See United States
v. Gaona-Lopez, 408 F.3d 500, 506-07 (8th Cir. 2005).

      Mr. Washburn first challenges Instruction 17, which said:

             As to Counts 10 and 11, it is not necessary for the government to
      show that the transaction with a financial institution caused by the
      defendant, that is with Farmers State Bank, itself affected interstate or
      foreign commerce. All that is necessary is that at the time of the alleged
      offense, Farmers State Bank was engaged in or had other activities which
      affected interstate or foreign commerce in any way or degree.

            It has been stipulated that Farmers State Bank was engaged in or
      had other activities which affected interstate or foreign commerce. You
      must treat this fact as having been proved.

According to Mr. Washburn, this instruction led the jury to believe that he had, in fact,
caused the transaction with Farmers State Bank that was at issue, and that he had
stipulated to the same. We are not persuaded. We believe that a reasonable juror
would interpret the stipulation as extending only to the interstate commerce element
of the charges. This reading is supported by Instruction 16, which clearly explained
the elements of the offenses charged in Counts 10 and 11 and emphasized the
government's burden of proving all of the elements, including that "the defendant
voluntarily and intentionally" caused the transactions at issue. Instruction 19 also
reiterated the burden of proof. Viewing the instructions as a whole, we are satisfied


                                          -6-
that they adequately and fairly described the applicable law, and Instruction 17 did not
affect Mr. Washburn's substantial rights.

       Mr. Washburn also takes exception to the first sentence of Instruction 18: "You
have heard evidence that the defendant repaid the victims in this case the principal
amount of money they initially invested or loaned to the defendant as part of the
alleged schemes to defraud." By using the term "victims," Mr. Washburn contends,
the district court provided the jury with an opinion that he was guilty. We disagree.
Although the term "alleged victim," would have been more precise, the instruction did
refer to "alleged schemes to defraud" (emphasis added), and "jury instructions do not
need to be technically perfect or even a model of clarity." United States v. Gianakos,
415 F.3d 912, 920 (8th Cir. 2005), cert. denied, 126 S. Ct. 764 (2005). In any event,
a number of courts have determined that the use of the term "victim" in jury
instructions is not prejudicial to a defendant's rights when, as is the case here, the
instructions taken as a whole clarify the government's burden of proving all elements
of the crime. See e.g., Server v. Mizell, 902 F.2d 611, 615 (7th Cir. 1990); United
States v. Granbois, No. 03-30383, 119 Fed. Appx. 35, 38-39 (9th Cir. 2004)
(unpublished mem. decision), cert. denied, 543 U.S. 1014 (2004); Allen v. State,
683 So. 2d 38, 43-44 (Ala. Crim. App. 1996); State v. Nomura, 903 P.2d 718, 721-23
(Haw. Ct. App. 1995); Com v. Krepon, 32 Mass. App. Ct. 945, 947, 590 N.E.2d 1165,
1167 (1992); State v. Allen, 92 N.C. App. 168, 171, 374 S.E.2d 119, 121 (1988). The
wording of Instruction 18 does not entitle Mr. Washburn to plain error relief.

                                         B.
      In addition to challenging two of the jury instructions that were given,
Mr. Washburn maintains that the district court erred by failing to instruct the jury that
he was entitled to rely in good faith on the advice of counsel. Although
Mr. Washburn did not request such an instruction, he asserts that the district court
should have given it sua sponte to offset the government's implication that
Mr. Washburn's offer to repay investors in the dice game enterprise was an attempt

                                          -7-
to avoid liability. Again reviewing for plain error, see Edwards v. United States,
361 F.2d 732, 737 (8th Cir. 1966), we find nothing in the record requiring reversal.
Mr. Washburn asserts that he relied on the advice of his attorney when he made
arrangements to pay back the money that he had collected from the alleged victims of
his fraud. The repayment negotiations, however, had nothing to do with the crimes
charged. A court is not obligated to give a jury instruction on a particular defense if
that defense does not have an adequate factual basis. United States v. Parker,
364 F.3d 934, 945 (8th Cir. 2004). Because Mr. Washburn did not contend at trial,
and does not now contend, that he relied on the advice of counsel when he entered into
the transactions for which he was found guilty, we find no error in the court's failure
to give a jury instruction about the defense of reliance on counsel.

                                           V.
       Mr. Washburn appeals two aspects of his sentencing, both of which he contends
violated his sixth amendment rights. He first argues that the trial court improperly
determined that the loss attributable to his criminal activity was $45,000. At the time
Mr. Washburn was tried, there was a great deal of uncertainty about the
constitutionality of the federal sentencing guidelines because of the Supreme Court's
decision in Blakely v. Washington, 542 U.S. 296 (2004). In order to avoid any sixth
amendment difficulties at sentencing, the district court gave the jury a special
interrogatory on the amount of loss for which the defendant was responsible. The jury
found that the amount of loss was between $5,000 and $10,000. By the time
Mr. Washburn was sentenced, however, the Supreme Court had held that a judge
could make sentencing determinations so long as the guidelines were advisory, not
binding. United States v. Booker, 543 U.S. 220, 258-60 (2005). We later held that
when a district court makes sentencing findings, the applicable burden of proof is the
preponderance of the evidence. United States v. Pirani, 406 F.3d 543, 551 n.4 (en
banc). The district court explicitly recognized that standard when it calculated the
$45,000 loss amount at sentencing.



                                         -8-
       Mr. Washburn contends that once the jury returned its finding that the loss was
between $5,000 to $10,000, the district court was bound by that determination. We
disagree. It is true that "a fact proved beyond a reasonable doubt cannot
simultaneously be disproved by a preponderance of the evidence." United States v.
Campos, 362 F.3d 1013, 1016 (8th Cir. 2004). But the jury's finding was mere
surplusage, as there was no need to submit the matter of the loss amount to the jury.
Even if the jury's finding were somehow binding, it could establish only that there was
no reasonable doubt that Mr. Washburn was responsible for a loss between $5,000 and
$10,000. It does not preclude a finding by a preponderance of the evidence that
Mr. Washburn was responsible for a greater amount. Cf. United States v. Dabney,
367 F.3d 1040, 1043 (8th Cir. 2004). We find no error in the district court's
determining that Mr. Washburn was responsible for a loss of $45,000.

       Mr. Washburn also contends that the district court violated his sixth amendment
rights when it determined that his conduct warranted a two-level enhancement due to
an obstruction of justice. See U.S.S.G. § 3C1.1. We find no basis for Mr. Washburn's
constitutional argument. The district court's determination that an obstruction-of-
justice enhancement is warranted does not violate the sixth amendment under an
advisory-guidelines system. See Booker, 125 S. Ct. at 764-65; United States v.
Gutierrez, 437 F.3d 733, 736 (8th Cir. 2006).

       We also reject Mr. Washburn's contention that there was no basis in the record
for the two-level enhancement for obstruction of justice. The government's request
for the enhancement was based on affidavits that Mr. Washburn and one of his
attorneys at the time presented to some of his victims as a condition to repayment
while the government was investigating this case. Mr. Washburn's attorney testified
at the sentencing hearing that he prepared the affidavits in an effort to protect his
client's legal rights. The district court, however, determined that the affidavits
contained misleading information, and that Mr. Washburn had "his own agenda and
his own motives" in trying to get the victims to sign the affidavits. The district court

                                          -9-
found that Mr. Washburn sought the execution of these affidavits to interfere with the
government's case against him, and we cannot say that the district court's finding was
clearly erroneous. See United States v. Denton, 434 F.3d 1104, 1114 (8th Cir. 2006).

                                        VI.
      For the reasons stated, we affirm Mr. Washburn's convictions and sentence.
                       ______________________________




                                        -10-
