                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 00-3671
                                   No. 00-3682
                                   ___________

United States of America,                *
                                         *
            Appellee,                    *
                                         *
      v.                                 *   Appeals from the United States
                                         *   District Court for the Western
Charlotte and Danny Washington,          *   District of Arkansas
                                         *
            Appellants.                  *

                                   ___________

                              Submitted: May 14, 2001
                                  Filed: July 2, 2001
                                   ___________

Before McMILLIAN and BOWMAN, Circuit Judges, and BOGUE,1 District Judge.
                          ___________

BOGUE, District Judge.

      Charlotte and Danny Washington appeal from their convictions of five counts
of mail fraud under 18 U.S.C. § 1371. In their appeal, the Washingtons argue that an
improper Allen charge was given and that neither should have received a vulnerable
victim enhancement. Charlotte further argues that she should not have received an


      1
        The Honorable Andrew W. Bogue, Senior United States District Judge for the
District of South Dakota, sitting by designation.
organizer or leadership role enhancement, that the loss was miscalculated, and that she
did not receive the right of allocution. We affirm the district court on all issues except
we vacate and remand for re-sentencing based upon the right of allocution.

                                            I.

      The supplemental instruction given orally to the jury after they had announced
the deadlock on all but one count was as follows:

      Well, even if we recess for the night, this case has been extensive and
      expensive and I know you all devoted a lot of time to it, but we came
      back fresh in the morning, I think what you are telling me is, Mr. Thomas,
      even if we deliberate awhile this evening and then came back even in the
      morning, that it may not change much.

        The foreman agreed and then the judge stated, “I’m going to ask, then, that you
retire to the jury room and any verdicts that you agree on, agree on those, and the ones
you can’t, just tell me and that you’re unable to agree, bring those back in. We’ll
decide where to go from there.”

        The Washingtons argue that the statement “extensive and expensive” directed
the jury to find them guilty. Additionally, they argue that the judge improperly referred
to ‘verdicts,’ rather than ‘verdict,’ which they claim directed the jury to deliberate
further and find them guilty of additional crimes. Neither of these arguments have any
merit to them. First, the judge never directed the jury to deliberate any further, the jury
chose to do so on their own. Second, the statement of the cost and effort expended on
the trial did not reference any particular party and was not inherently coercive. Hodges
v. U.S., 408 F.2d 543 (8th Cir. 1969). Third, the pluralizing of the word ‘verdict’ did
not direct the jury to find for either party and simply was made to direct the jury to
complete the verdict forms. The judge is free to issue supplemental instructions to the
jury so long as the instruction is not impermissibly coercive. Jury coercion is

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determined by (1) the content of the instruction, (2) the length of the deliberation after
the instruction, (3) the total length of deliberations, and (4) any indica in the record of
coercion. U.S. v. Ramos-Torres, 187 F.3d 909, 912 (8th Cir. 1999).

       As demonstrated above, the content of the instruction was not coercive. The
length of deliberation after the instruction was 45 minutes. The jury had deliberated
for over four hours for a four-day trial. Neither of these facts establish the inference
of coercion under U.S. v. Hiland, 909 F.2d 1114, 1137 (8th Cir. 1990). Lastly, nothing
in the record points to the judge coercing the jury in favor of the government as
opposed to defendant.

                                            II.

       Sentencing Guideline § 3A1.1 calls for an increase the offense level by two if
“(1) the victim was either (a) unusually vulnerable due to age, physical, or mental
condition, or (b) otherwise particularly susceptible to the criminal conduct, and (2) the
defendant knew or should have known of the vulnerability or susceptibility.” In this
case, there was evidence that the Washingtons analyzed the tax rolls to find out-of-state
land owners because they would not check up on their land frequently or at all. The
Washingtons then clear cut the land and paid the landowners a small fraction of the
lumber’s true value. This scheme was accomplished by Charlotte telephoning each
victim and gaining their trust though lengthy and numerous high pressure conversations.
From these conversations, Charlotte easily acquired knowledge of the person’s age,
infirmities, and vulnerabilities. While many of the victims were educated individuals,
none of them had any dealings in the logging industry. It was further established that
Charlotte discovered and the Washingtons targeted elderly victims who were in
desperate need for money. Based upon these facts, the district court did not err in
applying the vulnerable victim enhancement.




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                                           III.

       Sentencing Guideline § 3B1.1(a) states that a four level enhancement is proper,
“If the defendant was an organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive.” Under U.S. v. Brockman, 183 F.3d
891, 899 (8th Cir. 1999), factors to be considered for an organizer or leader
enhancement are the decision-making authority, nature of participation, the recruitment
of accomplices, the claimed right to a large share of the fruits of the crime, degree of
participation in planning and organizing, the nature and scope of the activity, and the
degree of control over others. The Washingtons had at least two other participants and
utilized at least 11 logging companies to defraud at least 41 families in 13 states for
over $800,000 over three years. A co-conspirator of the Washingtons stated there were
“several hundred” victims, but the court limited the case to the 41 victims where the
loss could be fully established. As stated by the trial judge, all of these factors fit the
Washingtons’ scheme to a “T.” The “otherwise extensive” provision was easily met.
See Morphew v. U.S., 909 F.2d 1143, 1145 (8th Cir. 1990) (scheme for $250,000 is
“otherwise extensive”).

                                           IV.

       The Washingtons claim the loss should be calculated by the contract values set
forth in their agreements with the victims. This method of calculation is not proper and
lacks any prior legal support as the amounts the Washingtons sought to pay were the
basis of the fraud in the first instance. The court properly used the true market value
of the timber taken to calculate the loss.

                                            V.

       At sentencing, every convicted individual has the right to allocution. Fed R. Cr.
P. 32(c)(3)(C). Through an over-sight of the trial court, Charlotte was never given this

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opportunity to speak on her own behalf. This is clearly error and must be reversed.
U.S. v. Patterson, 128 F.3d 1259 (8th Cir. 1997). She has further demanded that
another judge sentence her, but she has failed to demonstrate any bias so this condition
is without merit.

       Accordingly, we affirm the district court on all issues except as to allocution.
Therefore, Charlotte Washington’s sentence is vacated and the matter is remanded to
the district court for a sentencing hearing and sentence.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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