                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3919
                                   ___________

United States of America,
                                      *
           Plaintiff - Appellee,      *
                                      * Appeal from the United States
     v.                               * District Court for the
                                      * Eastern District of Missouri.
Johnny Green,                         *
                                      *
           Defendant - Appellant.     *
                                 ___________

                             Submitted: October 11, 2005
                                Filed: November 16, 2005
                                 ___________

Before BYE, BEAM, and SMITH, Circuit Judges.
                            ___________

BYE, Circuit Judge.

       Johnny Green appeals his convictions for three counts of social security fraud
in violation of 42 U.S.C. § 408(a)(7)(B), one count of accessing a computer to steal
information used fraudulently to gain credit in violation of 18 U.S.C. § 1030(a)(4),
and three counts of devising a scheme to defraud a financial institution in violation
of 18 U.S.C. §§ 1344 and 2. Green contends the district court1 erred by admitting
evidence relating to victims not listed in the Superceding Indictment, by admitting
posters into evidence without proper limiting instructions, and by not dismissing a

      1
       The Honorable E. Richard Webber, United States District Judge for the
Eastern District of Missouri.
juror Green claims was asleep during part of the proceedings. He also challenges his
sentence under United States v. Booker, 125 S.Ct. 738 (2005). We affirm.

                                            I

      Green organized an identity-theft scheme during which he paid two SBC
Communication, Inc. employees to steal names, addresses, and social security
numbers of California customers. Green then used this information to purchase flat-
screen televisions from Dell Computers (Dell) online, using instant credit provided
by Dell. The televisions were delivered to the houses of Green and his friends and
family in St. Louis, Missouri.

       Green was tried before a twelve-member jury, but no alternates remained
following the exercise of both sides' challenges. During the trial, the government
presented testimony from fifteen victims, only six of whom were specifically named
in the Superceding Indictment. Each of the victims traveled from California to St.
Louis to testify as to their experience, recounting the steps taken to prove they did not
purchase the equipment and to repair their credit. Two witnesses testified in lieu of
elderly or deceased parents.

      The government presented evidence connecting the victims to Green, including
voluminous records from Dell and SBC. Over Green's objections, the district court
allowed into evidence four large charts, two of which outlined individual transactions
and two of which summarized the evidence in spreadsheet form.

       During the second day of trial, Green noticed a juror who appeared to be
asleep. After bringing this to the attention of the court, the court ordered a brief
recess and noted the juror at issue "got up slower" than the others. The district court,
however, did not question the juror or make any findings on the record as to whether
the juror was asleep.

                                          -2-
       At the conclusion of the trial, the court gave the following instruction regarding
the charts: "You may use those summaries or charts as evidence. It is for you to
decide how much weight if any, you will give to them. In making that decision, you
should consider all of the testimony you heard about the way in which they were
prepared." The jury reached a verdict of guilty on all seven counts. During the
sentencing phase, the jury found beyond a reasonable doubt six sentencing
enhancements. However, it did not determine Green obstructed justice beyond a
reasonable doubt. Based on these factors, Green's offense level was twenty-six and
his criminal history was category two, resulting in a Guideline range of seventy to
eighty-seven months of imprisonment. During sentencing, the court stated although
the obstruction enhancement would have been warranted prior to Blakley v.
Washington, 542 U.S. 296 (2004), it was inapplicable under the circumstances.
Green was sentenced to seventy-two months of imprisonment to account for the
"serious nature" of the crimes committed and the "objectives of just punishment,
general deterrence, and incapacitation."

                                           II

       We review the district court's legal interpretation of an evidentiary rule de
novo, United States v. Blue Bird, 372 F.3d 989, 991 (8th Cir. 2004), but review the
district court's application of the rule for an abuse of discretion. United States v.
King, 351 F.3d 859, 866 (8th Cir. 2003). Green contends the district court abused its
discretion in allowing the testimony of nine victims who were not specifically
referenced in the Superceding Indictment because the prejudicial nature of the
evidence outweighed its probative value.

      Despite Green's argument to the contrary, the testimony of these victims is
relevant. United States v. Swinton, 75 F.3d 374, 378 (8th Cir. 1996) (holding facts
surrounding uncharged transactions can be admitted if the "collected transactions
were all part of a single scheme" or the "uncharged transactions were so blended or

                                          -3-
connected . . . that proof of one incidentally involves" the others) (quoting United
States v. Bass, 794 F.2d 1305, 1312 (8th Cir. 1986)). "Although relevant, evidence
may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice . . . or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence." Fed. R. Evid. 403. Even if evidence is
erroneously admitted, we will not overturn the conviction unless the substantial rights
of the defendant were affected. United States v. Buffalo, 358 F.3d 519, 527 (8th Cir.
2004).

      No such error occurred in this case. The evidence presented at trial may have
been emotional, but Green cannot show it "lure[d] the factfinder into declaring guilt
on a ground different from proof specific to the offense charged." Old Chief v.
United States, 519 U.S. 172, 180 (1997). Additionally, even if the district court erred
in admitting cumulative evidence, any error was harmless in light of the evidence
submitted regarding the victims named in the Superceding Indictment.

       Green next contends the district court erred in admitting charts without the
proper limiting instructions. The admissibility of summary charts, graphs, and
exhibits "rests within the sound discretion of the trial judge, whose action in allowing
their use may not be disturbed by an appellate court except for an abuse of
discretion." United States v. King, 616 F.2d 1034, 1041 (8th Cir. 1980). "The
contents of voluminous writings, . . . which cannot conveniently be examined in court
may be presented in the form of a chart, summary, or calculation." Fed. R. Evid.
1006. Summary evidence is properly admitted when (1) the charts "fairly summarize"
voluminous trial evidence; (2) they assist the jury in "understanding the testimony
already introduced"; and (3) "the witness who prepared the charts is subject to cross-
examination with all documents used to prepare the summary." King, 616 F.2d at
1041. Additionally, the charts may "include assumptions and conclusions, but said
assumptions and conclusions must be based upon evidence in the record." United
States v. Wainright, 351 F.3d 816, 821 (8th Cir. 2003). Charts properly admitted

                                          -4-
under Rule 1006 can be treated as evidence and allowed in the jury room during
deliberations, but the district court should issue proper limiting instructions. See
United States v. Possick, 849 F.2d 332, 339 (8th Cir. 1988).

       The four charts in this case summarized evidence already introduced at trial,
namely records from SBC and Dell. The charts assisted the jury in understanding
how the scheme was perpetrated, and the witness who prepared the charts was
available for cross examination. Thus, the charts were properly admitted.
Additionally, the district court did not err in instructing the jury to consider the charts
as evidence while also taking into account "all of the testimony" heard and the "way
in which [the charts] were prepared." See United States v. Parker, 364 F.3d 934, 951
(8th Cir. 2004) (holding reversal warranted only when instructions, when taken as a
whole, do not "fairly and adequately" contain the applicable law).

       The trial court also retains broad discretion in determining whether to dismiss
a juror accused of sleeping. United States v. Evans, 272 F.3d 1069, 1087 (8th Cir.
2001). We will not find an abuse of discretion if the record shows a legitimate reason
for the court’s decision to retain the juror. United States v. Wilcox, 50 F.3d 600, 603
(8th Cir. 1995) (finding no abuse of discretion when the district court believed the
juror accused of sleeping actually heard the testimony and was capable of issuing a
fair and impartial decision). In this case, Green alerted the district court of a juror
who may have been asleep during the proceedings. The government responded the
juror had been awake and looking around. The district court granted a short recess
to give the jury a chance to stretch but did not make any findings as to whether the
juror in question was actually asleep. Based on this scant evidence, we cannot say
the district court abused its discretion.

      Finally, Green contends his sentence should be vacated in light of Blakely and
Booker. Although Booker was not decided at the time of Green’s sentencing, his
objections based on Blakely are sufficient to preserve the non-constitutional error

                                           -5-
claimed. United States v. Brooks, 417 F.3d 982, 984 (8th Cir. 2005). We review this
claim for harmless error. United States v. Haidley, 400 F.3d 642, 645 (8th Cir. 2005).
The government, as the beneficiary of the error, bears the burden of proving no
“grave doubt” exists as to whether the “error substantially influenced the outcome of
the proceedings.” Id. As in United States v. Perez-Ramirez, 415 F.3d 876, 878 (8th
Cir. 2005), we have no “grave doubt” in this case because the district court “left
unused some of its discretion” when it sentenced Green two months above the
minimum Guideline range. The district court’s statements regarding the severity of
Green’s crime, coupled with its remarks concerning the applicability of an obstruction
enhancement under the pre-Blakely regime, leave us with no such “grave doubt.”
Furthermore, the sentence Green received is not unreasonable in light of the factors
listed in 18 U.S.C. § 3553(a). Accordingly, we affirm both Green's conviction and
his sentence.
                       ______________________________




                                         -6-
