                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-21-2001

USA v. Barrie
Precedential or Non-Precedential:

Docket 00-3839




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Recommended Citation
"USA v. Barrie" (2001). 2001 Decisions. Paper 217.
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Filed September 19, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-3839

UNITED STATES OF AMERICA

v.

JANE DURA BARRIE,
a/k/a JANE WOTAY DURA,
a/k/a JANE WOTAY BARRIE
       Jane Dura Barrie,
       Appellant

On Appeal from the United States District Court
for the District of New Jersey
D.C. Criminal No. 99-cr-00541-2
District Judge: Honorable Harold A. Ackerman

Argued April 3, 2001

Before: SCIRICA, ROSENN and GIBSON,*
Circuit Judges.

(Filed: September 19, 2001)



_________________________________________________________________
*The Honorable John R. Gibson, United States Court of Appeals for the
Eighth Circuit, sitting by designation.
       Kenneth W. Kayser, Esquire (Argued)
       P. O. Box 2087
       Livingston, New Jersey 07039

        Attorney for Appellant

       Jessica Stein, Esquire (Argued)
       George S. Leone, Esquire
       Office of United States Attorney
       970 Broad Street, Room 700
       Newark, New Jersey 07102

        Attorneys for Appellee

OPINION OF THE COURT

JOHN R. GIBSON, Circuit Judge:

The issue before us is whether the district court erred in
enhancing Jane Dura Barrie's sentencing offense level by
four levels for organizing or leading a criminal activity that
involved five or more participants.1 We hold that it did.

Jane Barrie pleaded guilty to knowingly conspiring to
transfer identification documents and false identification
documents knowing that such documents were produced
without lawful authority, 18 U.S.C. S 371 andS 1028(a)(2)
(1994). This charge arose from her involvement in a scheme
to sell Social Security cards to a number of West African
immigrants.

To obtain a valid Social Security card, the applicant must
submit an SS-5 form and provide supporting
documentation, such as a birth certificate or permanent
resident alien card, to verify that the applicant is entitled to
a card. A claims representative reviews the form and
supporting documentation to verify the applicant's identity
and entitlement to a Social Security card. The SS-5 form is
forwarded to a data entry employee who inputs the
_________________________________________________________________

1. Under the aggravating role guideline, a sentencing court must increase
a defendant's offense level by four levels "[i]f the defendant was an
organizer or leader of a criminal activity that involved five or more
participants or was otherwise extensive." U.S.S.G. S 3B1.1(a) (2000).

                                 2
information into the Social Security Administration's
mainframe computer. A Social Security number and card
are then generated and sent to the applicant's address as
listed on the SS-5 form.

Jane Barrie's daughter Yemma Barrie was employed by
the SSA as a clerk typist; one of her duties was entering
data from SS-5 forms into the computer. A periodic review
revealed that she had processed seventy-three Social
Security cards without corresponding SS-5 forms.
Investigators discovered that a number of these cards
corresponded with applications processed by claims
representative Angela Lucas and that Lucas failed to verify
the supporting documentation for these and other
applications.

Together, Yemma Barrie and Lucas unlawfully issued
over 100 Social Security cards. According to an
investigation report made part of the record by the district
court, Yemma Barrie produced seventy-nine cards and
Lucas produced sixty-four. At sentencing, the court found
that the activities of Jane Barrie, Yemma Barrie, and Lucas
resulted in the issuance of at least 108 Social Security
cards. All of the illegally generated cards, both replacement
cards for existing Social Security numbers and new cards,
were coded as authorized for employment.

Lucas was a friend of Jane Barrie's. They first met in
1991 when Jane Barrie had contact with her in connection
with Social Security benefits Jane Barrie received after the
death of her husband. Jane Barrie gave Lucas $200 for
helping to issue the illegal Social Security cards.

Yemma Barrie gave written statements to investigators in
which she admitted that she illegally generated Social
Security cards without applications. She stated that she
received no money and that she acted at the request of a
"friend."

Investigators interviewed some of the recipients and
would-be recipients of the Social Security cards at issue.
Most of those interviewed indicated that Jane Barrie had
approached them and offered them "clean" Social Security
cards (i.e., cards that could be used to obtain employment)
in exchange for money. Jane Barrie charged the recipients

                               3
approximately $200 to $600 per card. The individuals
either filled out SS-5 forms or gave Jane Barrie their
personal information. Jane Barrie then forwarded this
information to Lucas and Yemma Barrie and asked them to
generate the cards. Some paid Jane Barrie and received
cards, others paid and received nothing, and others did not
pay but still received Social Security cards. Some recipients
indicated that Yemma Barrie had gotten them Social
Security cards as a favor.

At sentencing, the district court referred to the
presentence investigation report, which recommended a
four-level increase in Jane Barrie's offense level for her role
as an organizer or leader of a criminal activity that involved
five or more participants. The court then read through all
of U.S.S.G. S 3B1.1, along with most of the commentary.
The court found that Jane Barrie solicited individuals to
buy Social Security cards, that she forwarded SS-5 forms to
Lucas and Yemma Barrie, and that although she needed
Lucas and her daughter, Jane Barrie "ran the show" "in a
very significant way." The court also found that the
recipients of the cards were participants in the criminal
activity because they had advance knowledge of the crime,
had to execute SS-5 forms or provide personal information
to Jane Barrie, and expected to receive clean Social
Security cards, which the court characterized as the
"proceeds" of the crime. The court made no finding on
whether the criminal activity was "otherwise extensive."2

The base offense level for Jane Barrie's crime was 11. The
district court's finding that there were more than 99 cards
involved in the conspiracy increased the level by 9, and its
finding that Jane Barrie was an organizer/leader increased
the offense level by 4. The district court then reduced the
offense level by 3 for acceptance of responsibility, resulting
in a total offense level of 21. Since Jane Barrie's criminal
history category was II, this meant a sentencing range of 41
to 51 months. The court sentenced her to 51 months in
prison.
_________________________________________________________________

2. The presentence report made no mention of whether the criminal
activity was otherwise extensive. At the sentencing hearing, the
government did not argue that the criminal activity was otherwise
extensive.

                               4
We review for clear error the district court's factual
determinations that Jane Barrie was an organizer or leader
and that her criminal activity involved five or more
participants. See United States v. Helbling, 209 F.3d 226,
242-43 (3d Cir. 2000), cert. denied, 121 S. Ct. 833 (2001).
We will reverse "only if we are left with a definite and firm
conviction that a mistake has been made." United States v.
Dent, 149 F.3d 180, 189 (3d Cir. 1998). We may not reverse
if the district court's findings are "plausible in light of the
record viewed in its entirety." Anderson v. City of Bessemer
City, 470 U.S. 564, 573-74 (1985). At the outset, we note
that the record in this case consists primarily of a five-and-
a-half page report prepared by the SSA's Office of the
Inspector General.

Factors to be considered in determining whether a
defendant was an organizer or leader of a criminal activity
include

       the exercise of decision making authority, the nature of
       participation in the commission of the offense, the
       recruitment of accomplices, the claimed right to a
       larger share of the fruits of the crime, the degree of
       participation in planning or organizing the offense, the
       nature and scope of the illegal activity, and the degree
       of control and authority exercised over others.

U.S.S.G. S 3B1.1, comment. (n.4). Jane Barrie solicited
individuals to purchase Social Security cards, received most
of the profits, and exercised control over Lucas and her
daughter, who generated the illegal cards. We see no clear
error in the district court's finding that she was an
organizer or leader.

We turn to the court's finding that the criminal activity
involved five or more participants. "A `participant' is a
person who is criminally responsible for the commission of
the offense, but need not have been convicted." U.S.S.G.
S 3B1.1, comment. (n.1). There is no doubt that Jane
Barrie, Yemma Barrie, and Lucas were participants in the
criminal activity. We conclude, however, that the district
court's finding that the recipients of the unlawfully
produced Social Security cards were participants is clearly
erroneous.

                               5
Our analysis is guided by our decision in United States v.
Belletiere, 971 F.2d 961 (3d Cir. 1992). In Belletiere, the
defendant was found guilty of conspiring with others to
distribute and possess cocaine with intent to distribute it.
Id. at 962-63. The district court adopted the
recommendations in the presentence investigation report,
which said Belletiere was the leader of an extensive drug
trafficking operation that involved five or more participants:
Craig, Mishinski, Yurkovic, Forte, and the DeAngelo
brothers. Id. at 964, 968-69. Belletiere regularly sold
cocaine to Craig, who used it and sold it to others,
including Mishinski, without direction from Belletiere. Id. at
971. Mishinski received several Federal Express packages
from Belletiere at Craig's request. Id. Craig also sold
cocaine to Yurkovic; Yurkovic decided to cut out the
middleman and purchased cocaine directly from Belletiere
several times. Id. Forte purchased drugs from Belletiere in
Miami in a deal that involved the DeAngelo brothers. Id. at
972. We held that the district court clearly erred in
increasing Belletiere's offense level by four levels for two
reasons. First, none of the buyers were led or organized by,
or answerable to, Belletiere. Id. at 971-72. Second, the
evidence did not show any connection between the
transactions, but instead

       demonstrate[d] that Belletiere made individual sales of
       drugs to Craig (which at times involved Mishinski) and
       Yurkovic, and one sale to Forte (which involved the
       DeAngelo brothers). Accordingly, it was improper for
       the district court to treat these two groups of
       individuals as "participants" in the same criminal
       activity or offense under section 3B1.1.

Id. at 972. In the case at bar, there was a series of one-time
transactions between Jane Barrie and some of the card
recipients, and as in Belletiere, the recipients were not
participants with each other in the same criminal activity.

The focus of the aggravating role guideline is on relative
culpability within a criminal organization, with the
adjustment to sentence increasing with the size of the
organization and with the level of responsibility. U.S.S.G.
S 3B1.1, comment. (backg'd). If Jane Barrie, with the help
of her daughter and Lucas, had obtained a Social Security

                               6
card for one individual rather than numerous individuals,
the size of the criminal organization would have been the
same. Jane Barrie was the most culpable participant in the
conspiracy, and Lucas and Yemma Barrie participated at
her direction. The card recipients were the least culpable of
all.

Jane Barrie argues that the Social Security card
recipients in this case are like the drug purchasers in
Belletiere and so are not participants. Customers of drug
dealers ordinarily cannot be counted as participants in a
drug distribution conspiracy. See United States v. Egge,
223 F.3d 1128, 1133-34 (9th Cir. 2000). Here, many of
those who paid to obtain a Social Security card may have
been in essentially the same situation as drug purchasers
who provide money and know they are obtaining something
unlawfully. Some, however, were more deeply involved
because they provided information to Jane Barrie or filled
out SS-5 forms. These recipients fall somewhere between
drug customers and full-blown participants. The problem
with the district court's finding that all recipients were
participants is that the record demonstrates that there were
individuals in a number of different circumstances. Some
paid, some did not; some were approached by Jane or
Yemma Barrie, others approached them; some filled out an
SS-5 form, some did not. We cannot sustain the district
court's broad brush approach to identifying participants
because it simply rests on too shaky an evidentiary
foundation.

The government argues that the recipients were
participants because they were aware of their involvement
in the scheme. The record does not demonstrate exactly
what the card recipients knew about the criminal activity.
Some received cards as a favor from Yemma Barrie and had
no involvement with Jane Barrie. Most recipients who were
interviewed by investigators stated that Jane Barrie
approached them and offered to obtain Social Security
cards for them. One recipient stated that after she learned
that Social Security cards are free, she refused to pay Jane
Barrie any more money. The district court's general finding
that the recipients had advance knowledge of the criminal
activity and participated in it from the outset, is not
substantiated by the record before us.

                               7
The government also argues that the recipients were
participants because they expected to receive proceeds of
the crime. The Social Security cards are no more proceeds
of Jane Barrie's criminal activity than purchased drugs are
proceeds of a distribution conspiracy. We are left with a
definite and firm conviction that the district court erred in
finding generally that the recipients were participants in the
criminal activity for purposes of section 3B1.1(a) of the
Guidelines.

The government argues that even if the criminal activity
did not involve five or more participants, it was otherwise
extensive. The presentence report did not identify Jane
Barrie as the organizer or leader of an otherwise extensive
criminal activity, the government did not argue that the
activity was otherwise extensive at sentencing, and the
district court did not make a finding on this issue. We need
not consider it. See Belletiere, 971 F.2d at 971 n.9.

While the district court erred in finding that the criminal
activity involved five or more participants and consequently
erred in increasing Jane Barrie's offense level by four, there
was no error in its finding that she was an organizer or
leader. She was therefore properly subject to a two-level
increase under section 3B1.1(c). We vacate the sentence of
the district court and remand with instructions to
resentence Jane Barrie using the offense level of 19 rather
than 21.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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