                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-30-2005

USA v. Mornan
Precedential or Non-Precedential: Precedential

Docket No. 04-1319




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                                            PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   ____________

                         NO. 04-1319
                        ____________

              UNITED STATES OF AMERICA

                               v.

                 CHRISTOPHER MORNAN,


                                           Appellant
                        ____________

       On Appeal from the United States District Court
           for the Middle District of Pennsylvania
               (D.C. Criminal No. 02-cr-00242)
       District Judge: The Honorable Sylvia H. Rambo


                     Argued June 9, 2005

 BEFORE: AMBRO, VAN ANTWERPEN and TASHIMA * ,
                 Circuit Judges,


  *
   The Honorable A. Wallace Tashima, Senior United States Circuit
Judge for the Ninth Circuit, sitting by designation.
                   (Filed: June 30, 2005)

Dennis E. Boyle (Argued)
1525 Cedar Cliff Drive
Camp Hill, PA 17011
Counsel for Appellant

Thomas A. Marino
       United States Attorney
Theodore B. Smith, III (Argued)
       Assistant U.S. Attorney
Federal Building
228 Walnut Street
Harrisburg, PA 17108
Counsel for Appellee


                         OPINION


VAN ANTWERPEN, Circuit Judge

       Appellant Christopher Mornan was charged in an 18-
count indictment with mail fraud, wire fraud, and conspiracy
arising from an alleged telemarketing scheme. A jury found
Mornan guilty of 15 of the 18 counts, and he was sentenced in
accordance with the United States Sentencing Guidelines.
Mornan now challenges various evidentiary rulings made by
the District Court during his trial. He also appeals his
sentence in light of the Supreme Court’s decision in United
States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005). For the

                             2
reasons set forth below, we will affirm the District Court’s
evidentiary rulings and the conviction, vacate the sentence,
and remand for re-sentencing.

      I. FACTUAL AND PROCEDURAL HISTORY

A.     Background

        Mornan’s wire and mail fraud indictment alleged that
he was involved in a “cross-border advance fee scheme,”
whereby he and his co-conspirators, operating out of Canada,
placed newspaper advertisements in the United States offering
loans to high-risk borrowers. The advertisements provided a
toll-free number to call for details. When a customer called
the number, he or she reached one of many telephone sales
rooms located in Canada. A telephone sales representative
would instruct the customer to complete and return a loan
application. Once the application was completed, another
individual – a “closer” – would call the customer and
represent that the loan had been approved. The customer was
then told that he or she would have to purchase a life or
disability insurance policy to secure the loan. In many
instances, the “closer” would tell the customer that the
insurance premiums would be returned upon full repayment
of the loan amount.

       The customers who sent money orders for the
“insurance premiums” never actually received any loans, and
their payments were never returned. Mornan was an assistant
manager at one of the telephone sales rooms, and he also
worked as a “closer,” often using the alias “Richard Harding.”

                               3
The Government further alleged that Mornan eventually
became a “higher level manager” and had a leadership role in
the scheme.

        The telephone representatives would tell customers
that they worked on behalf of a number of loan brokerage
companies, one of which was Sun Corp. Financial Services
(“Sun Corp.”). On June 23, 1998, Canadian law enforcement
authorities conducted a search of the Sun Corp. offices in
Ontario. The police found Mornan and his alleged co-
conspirator, Leslie Card, in one of the offices. The police
confiscated a list of loan applicants, a list of United States
newspapers, and some Sun Corp. loan applications from the
desk Mornan was using.1

       The Canadian authorities also interviewed Mornan,
who stated that he was an “[a]ssistant manager/closer” and
that he and Card shared the role of office manager. (App. at
1110.) He also stated that his job was to answer phones, take
customers’ information, and tell them that their loan
application had been accepted. (Id. at 1112.) When asked
whether he believed that his company was actually providing
loans to customers, Mornan responded, “No. To my
knowledge it’s a referral agency.” (Id. at 1111.) When asked
who actually contacts lenders to arrange loans, Mornan
responded, “I don’t know, there is no lender.” (Id. at 1110.)


    1
      An office diagram indicated that the desk belonged to
Richard Harding, and Mornan admitted to the police that he was
working under that name.

                              4
B.    Trial and Sentencing

        At Mornan’s trial, conducted from April 8 to April 11,
2003, the Government presented the testimony of multiple
law enforcement officials who were involved in a “strategic
partnership” between the United States and Canada set up to
investigate “cross-border frauds.” The Government also
presented the testimony of 12 individuals who claimed to be
victims of the telemarketing scheme. In addition, the jury was
shown videotape depositions of Jeffrey Peters, the lessor of a
Toronto property that Mornan rented for use as a telephone
sales room, and Michelle Fulfit, one of the telephone
salespersons who fielded calls in Ontario.

       Also relevant to this appeal was the testimony of
Althea Burton, the cousin of Michael Willams, who owned
and operated Icon Cheque Cashing Services, Inc. (“Icon”) in
Ontario. Burton worked for her cousin at Icon from May
2000 to January 2001, and the Government attempted to
establish through her testimony that Mornan used Icon to cash
money orders that had been made out to various “insurance
companies.” The Government was permitted to show the jury
Burton’s testimony in the form of a videotape deposition that
she gave in Canada. During that testimony, Burton indicated
that she could no longer remember the particulars of her
employment at Icon.

      Faced with her purported memory lapse, the
Government directed Burton’s attention to a statement she
made to the prosecutor and United States Postal Inspector
Michael Hartman on September 12, 2001, wherein she

                              5
identified Mornan as the individual who routinely cashed
money orders at Icon that were made out to several “insurance
companies.” However, Burton stated that she did not
remember the particulars of the September 2001 statement
either. She attributed her memory loss to back and neck
injuries suffered during an August 19, 2002, automobile
accident.

        The Government then attempted to offer the substance
of the September 2001 statement into evidence as a past
recollection recorded under Fed. R. Evid. 803(5). The
District Court initially ruled that the statement did not qualify
under Rule 803(5). The Government alternatively argued that
the statement was admissible as a prior inconsistent statement
under Fed. R. Evid. 801(d)(1)(A), but the court also rejected
that argument. However, after reviewing Burton’s videotape
testimony, the District Court changed its ruling and admitted
the statement, over the defense’s objection, as a prior
inconsistent statement under Rule 801(d)(1)(A). The court
reasoned that “it can’t be concluded that the memory loss is
solely due to the accident as opposed to her own volition. . . .”
(App. at 383.)

       The final piece of evidence that is relevant to this
appeal is the testimony of Kirsten Jackson, a forensic
document examiner with the United States Postal Inspection
Service National Forensic Laboratory. The Government
called Jackson as a handwriting expert to give her opinion
regarding whether a signature on a lease, some handwritten
notes, and signatures on money orders were authored by
Mornan. Jackson testified as to her qualifications as a

                               6
document examiner, and the District Court permitted her to
testify “as an expert in the area of forensic document
examination.” (Id. at 399.) Defense counsel did not object at
trial to her testimony and expressly waived the opportunity to
conduct a voir dire of Jackson’s qualifications. (Id.)

        Jackson explained that she formed her opinions by
comparing the questioned documents with an example of
Mornan’s handwriting. She testified that her ability to form
an expert opinion regarding the author of a specific writing
falls along a “continuum,” depending on degrees of
similarities and differences between the questioned document
and the handwriting sample. She then went through a very
detailed presentation explaining the factors that contributed to
her conclusions in this case. Of 21 exhibits (or pages of
exhibits) examined, Jackson concluded that Mornan definitely
wrote four of them and “probably” wrote two others.
However, she could not reach a definitive conclusion as to 15
of the exhibits, testifying that she was only able to note
similarities between these documents and Mornan’s
handwriting, but not enough to conclude that he was
definitely, or even probably, the author. When asked on
cross-examination whether her opinions were rendered
“within a reasonable degree of scientific certainty,” she
responded, “I think they are.” (Id. at 455.) Again, although
defense counsel cross-examined Jackson regarding her degree
of certainty, the defense made no objection to her
qualifications as an expert or to the admissibility of her
testimony.

       At the close of the evidence, the jury found Mornan

                               7
guilty on 11 counts of mail fraud, three counts of wire fraud,
and one count of conspiracy to commit mail fraud and wire
fraud. The jury found Mornan not guilty on two counts of
mail fraud and one count of wire fraud. The jury’s verdict
was entered on April 15, 2003. The Probation Office
compiled a Presentence Investigation Report (“PSR”) in
preparation for sentencing. The PSR alleged that Mornan
worked with nine co-conspirators, that the crime involved
sophisticated means, that Mornan was an organizer or leader
of a crime involving five or more participants, and that he was
responsible for $557,305.00 in losses to 752 victims. Defense
counsel filed timely objections to these allegations.

       The District Court held a sentencing hearing on
January 29, 2004, and found that the factual allegations in the
PSR were established by a preponderance of the evidence. In
accordance with the United States Sentencing Guidelines, the
District Court applied a 24-level increase to Mornan’s base
offense level of 6. This raised his Guidelines sentencing
range from 0-6 months to 97-121 months. The District Court
sentenced Mornan to a prison term of 120 months, to be
followed by three years of supervised release. The court also
ordered Mornan to pay $145,464.90 in restitution and
imposed a special assessment of $1,500.00.

                     II. JURISDICTION

       Pursuant to 18 U.S.C. § 3231, the District Court
properly exercised subject matter jurisdiction over the federal
criminal charges arising under 18 U.S.C. §§ 371, 1341, and
1343. Mornan filed a timely Notice of Appeal on February 6,

                               8
2004, and this Court has jurisdiction over the appeal pursuant
to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

                        III. ANALYSIS

       Mornan raises four issues on appeal: the admissibility
of Althea Burton’s prior statement; the admissibility of
Kirsten Jackson’s expert testimony; the sufficiency of
evidence adduced at trial to sustain a judgment of conviction;
and the propriety of his sentence under the Sixth
Amendment.2 We will address each of these issues in turn.

A.       Admissibility of Burton’s Prior Statement

         1.    Standard of Review

       “To the extent that our review of the District Court’s
determination implicates its interpretation of the Federal
Rules of Evidence, our review is plenary, but where the
District Court’s ruling was ‘based on a permissible
interpretation of a rule,’ we review only for an abuse of


     2
    In his initial brief to this Court, Mornan raised a fifth issue,
claiming that the Government’s trial exhibits were never
properly admitted into evidence and thus should not have been
shown to the jury. However, the Government submitted a
Supplemental Appendix including portions of the trial transcript
wherein the court properly admitted the Government’s exhibits
into evidence without objection.           Accordingly, Mornan
expressly abandoned this issue in his Reply Brief.

                                 9
discretion.” United States v. Peppers, 302 F.3d 120, 137 (3d
Cir. 2002) (quoting United States v. Console, 13 F.3d 641,
656 (3d Cir. 1993)).

      2.     Discussion

       Although the District Court admitted Burton’s
September 2001 statement as a prior inconsistent statement
under Rule 801(d)(1)(A), both parties seem to agree that Rule
803(5) “is the better of the two proffered grounds for
admissibility.” (Brief for Appellee at 33, n.7.) The parties
therefore focus their arguments on the statement’s
admissibility as a past recollection recorded, and we will
address that issue first.

             a.     Analysis under Fed. R. Evid. 803(5)

       We agree with Mornan that Burton’s prior statement
did not meet the requirements of Rule 803(5) because Burton
neither adopted nor reviewed the statement prior to her
purported memory loss. The hearsay exception under Rule
803(5) provides:

      Recorded recollection. A memorandum or record
      concerning a matter about which a witness once had
      knowledge but now has insufficient recollection to
      enable the witness to testify fully and accurately,
      shown to have been made or adopted by the witness
      when the matter was fresh in the witness’ memory and
      to reflect that knowledge correctly. If admitted, the
      memorandum or record may be read into evidence but

                             10
       may not itself be received as an exhibit unless offered
       by an adverse party.

Fed. R. Evid. 803 (emphasis added). This rule requires the
witness to have either made the record herself, or to have
reviewed and adopted the statement, at a time when the matter
it concerned was fresh in her memory. See 5-803 Weinstein’s
Federal Evidence § 803.07[d] (“A memorandum written by
another is admissible as the witness’s recorded recollection if
the witness can testify (1) that the witness checked the
memorandum when the matter it concerned was fresh in his or
her memory, and (2) that the witness then knew it to be
correct.”). Where, as here, the statement was recorded by
someone other than the declarant, accuracy may be
established through the testimony of the person who recorded
the statement. United States v. Booz, 751 F.2d 719, 725 (3d
Cir. 1971).

        In this case, the recording was made by a typist and
attested to by an “official examiner” in Canada, and the
Government did not show that Burton either reviewed or
adopted the examiner’s recording. She testified that she could
not remember if she reviewed the statement, and the writing
does not bear Burton’s signature to indicate that she reviewed
it and attested to its accuracy at the time the record was made.
Burton also could not attest to the accuracy of her statement
during her current testimony. Although she remembered
being placed under oath before giving the September 2001
statement, when asked whether the recording was accurate,
Burton replied, “I don't know that for certain, but I would
hope so.” (App. at 805.) Moreover, the Government did not

                              11
call the official examiner as a witness to establish that the
recording accurately reflected Burton’s oral statement.

        The Government attempts to establish accuracy in this
case by pointing to various indicia of reliability, such as the
fact that Burton was under oath and was promised that the
statement would not be used against her. The Government
relies on the Sixth Circuit’s decision in United States v.
Porter, 986 F.2d 1014 (6th Cir. 1993), and the Second
Circuit’s decision in Parker v. Reda, 327 F.3d 211 (2d Cir.
2003), for the proposition that “Rule 803(5) does not specify
any particular method of establishing the knowledge of the
declarant nor the accuracy of the statement.” Porter, 986 F.2d
at 1017; see also Parker, 327 F.3d at 214. However, Porter
and Parker are distinguishable from this case because the
Government did not show that Burton made, reviewed, or
adopted the statement at issue here. In Porter, the witness
reviewed and signed the written statement at issue on each
page, 986 F.2d at 1017, and in Parker, the witness wrote and
signed the statement himself, 327 F.3d at 213.

        The indicia of reliability to which the Government
points may support the position that Burton spoke truthfully in
September 2001, but the Government has not established –
through Burton’s current testimony, the testimony of the
“official examiner,” or Burton’s signature on the writing –
that the written recording read to the jury was either made or
adopted by Burton, as is expressly required by Rule 803(5).
The District Court therefore correctly held that Rule 803(5)
does not apply to Burton’s September 2001 statement.


                               12
               b.    Analysis under Fed. R. Evid.
801(d)(1)(A)

        Although we will not rely on Rule 803(5) to affirm the
District Court’s admission of Burton’s prior statement, we
will affirm the court’s decision to admit the statement under
Fed. R. Evid. 801(d)(1)(A). That rule provides that a
witness’s prior statement is not considered hearsay where:

       The declarant testifies at the trial or hearing and is
       subject to cross-examination concerning the statement,
       and the statement is (A) inconsistent with the
       declarant’s testimony, and was given under oath
       subject to the penalty of perjury at a trial, hearing, or
       other proceeding, or in a deposition. . . .

Fed. R. Evid. 801(d)(1). That Burton’s September 2001
statement was given under oath at a prior deposition and that
she was subject to cross-examination during her current
testimony is not in dispute. Mornan argues on appeal,
however, that the prior statement was not actually inconsistent
with Burton’s current testimony. See United States v.
Palumbo, 639 F.2d 123, 128 n.6 (3d Cir. 1981) (“lack of
memory as to the substance of a prior statement may not be
inconsistent in certain circumstances with the prior
statement.”).

       We agree with Mornan that a witness’s lack of memory
regarding a prior statement is not diametrically opposed to the
substance of that statement. However, inconsistency under
Rule 801(d)(1)(A) is not limited to diametrically opposed

                              13
statements. See 5-801 Weinstein's Federal Evidence §
801.21[2][b] (“A witness’s statement that he or she has no
recollection of the subject may be treated as ‘inconsistent’
with a former statement concerning the now-forgotten
matter.”). Although this Court noted in Palumbo, 639 F.2d at
128 n.6, that a prior statement should not be admitted if the
witness’s current memory loss regarding that statement is
genuine, we join several other circuits in holding that a prior
statement may be admitted under Rule 801(d)(1)(A) where the
witness’s memory loss is not genuine. See, e.g., United States
v. Bigham, 812 F.2d 943, 946-47 (5th Cir. 1987) (prior grand
jury testimony is admissible where the witness “was
obviously an evasive and reluctant witness, and the trial judge
reasonably could have concluded that his loss of memory was
feigned”); United States v. Williams, 737 F.2d 594, 608 (7th
Cir. 1984) (in the context of a recalcitrant witness, lack of
memory is inconsistent with detailed grand jury testimony);
United States v. Thompson, 708 F.2d 1294, 1302 (8th Cir.
1983) (“The district court should have considerable discretion
to determine whether evasive answers are inconsistent with
statements previously given.”); see also United States v.
Owens, 484 U.S. 554, 565 (1988) (“It would seem strange . . .
to assert that a witness can avoid introduction of testimony
from a prior proceeding . . . by simply asserting lack of
memory of the facts to which the prior testimony related.”).

       In this case, the District Court acted within its
discretion when it found that Burton’s purported lack of
memory was not genuine. (See App. at 383.) Burton claimed
that her memory loss was caused by a relatively minor
automobile accident that occurred in August 2002. After the

                              14
accident, she was not hospitalized, and she was never treated
for memory loss. She was never given any medication
stronger than Tylenol 3 for her head and neck injuries.
Moreover, Burton testified that she was aware that her cousin,
Michael Williams, had been indicted for his alleged role in
the fraud, that she is close to her cousin, and that she had a
“family meeting of sorts” with Williams’ sister the night
before giving her videotaped testimony. (App. at 801.) Given
the circumstances surrounding Burton’s testimony, “[t]he
district court reasonably could have concluded that this
selective memory loss was more convenient than actual.”
Bigham, 812 F.2d at 947. We therefore find no abuse of
discretion in the admission of Burton’s September 2001
statement as a prior inconsistent statement under Rule
801(d)(1)(A).

B.    Admissibility of Jackson’s Expert Testimony

      1.     Standard of Review

        Where a defendant fails to object to the admission of
evidence (including expert testimony) during trial, this Court
reviews the decision to admit that evidence for plain error.
United States v. Adams, 252 F.3d 276, 278-79 (3d Cir. 2001)
(citing Johnson v. United States, 520 U.S. 461 (1997));
United States v. Watson, 260 F.3d 301, 306 (3d Cir. 2001);
see also Fed. R. Crim. P. 52(b). This Court recently explained
our role in exercising plain error review:

      Under plain error review, we may grant relief if (1) the
      District Court committed an “error,” (2) it was “plain,”

                             15
       and (3) it affected “substantial rights” of the defendant.
       United States v. Olano, 507 U.S. 725, 732 (1993). “A
       deviation from a legal rule is [an] ‘error.’” United
       States v. Russell, 134 F.3d 171, 180 (3d Cir. 1998)
       (citation omitted). It is “plain” when “‘clear’ or
       ‘obvious.’” Id. (citation omitted). In order for an error
       to affect “substantial rights,” it must have been
       “prejudicial”; in other words, “it must have affected
       the outcome of the district court proceedings.” Olano,
       507 U.S. at 734. If these requirements are satisfied, we
       should exercise our discretion to grant relief if the error
       “‘seriously affects the fairness, integrity or public
       reputation of judicial proceedings.’” Id. at 736
       (citation omitted); see also Adams, 252 F.3d at 284-85.

United States v. Plotts, 359 F.3d 247, 249 (3d Cir. 2004).

       2.     Discussion

        An expert witness may be permitted to testify
regarding “scientific, technical, or other specialized
knowledge” if it “will assist the trier of fact to understand the
evidence or to determine a fact in issue.” Fed. R. Evid. 702.
In order to qualify as expert testimony under the Federal
Rules, the following three requirements must be satisfied: (1)
the testimony must be “based upon sufficient facts or data”;
(2) the testimony must be “the product of reliable principles
and methods”; and (3) the witness must have “applied the
principles and methods reliably to the facts of the case.” Id.
This Court has previously held that handwriting analysis in
general is sufficiently technical in nature to be the subject of

                               16
expert testimony under Rule 702 and the standard articulated
by the Supreme Court in Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579 (1993). United States v. Velasquez, 64
F.3d 844, 850-51 (3d Cir. 1995). The issue here is thus
whether Jackson’s testimony in particular was sufficiently
detailed and reliable to be helpful to the jury.

        We are mindful that “whether Daubert’s specific
factors are, or are not, reasonable measures of reliability in a
particular case is a matter that the law grants the trial judge
broad latitude to determine. ” Kumho Tire Co. v. Carmichael,
526 U.S. 137, 152 (1999). Deference to the trial judge is
particularly warranted where the defendant does not object to
the admissibility of the expert’s testimony. Under Rule 702
and the Supreme Court’s ruling in Daubert, the District Court
has an obligation to evaluate the reliability of expert
testimony “where such testimony’s factual basis, data,
principles, methods, or their application are called sufficiently
into question,” Kumho Tire, 526 U.S. at 149. However,
where the opposing party does not sufficiently call these
issues into question, we will not find plain error merely
because the District Court did not conduct an extensive
Daubert analysis on the record. See Macsenti v. Becker, 237
F.3d 1223, 1231-32 (10th Cir.2001) (“Daubert does not
mandate an inquiry questioning and challenging the scientific
proffer absent a timely request by an objecting party.”); Hoult
v. Hoult, 57 F.3d 1, 4-5 (1st Cir.1995) (“We do not think,
however, that district courts are required, sua sponte, to make
explicit on-the-record rulings regarding the admissibility of
expert testimony.”); see also United States v. Evans, 272 F.3d
1069,1094 (8th Cir.2001) (“There is no requirement that the

                               17
District Court always hold a Daubert hearing prior to
qualifying an expert witness. . . .”).

       In this case, Jackson explained her qualifications, her
methodology, the bases for her conclusions, and the degrees
of certainty with which she was able to reach her conclusions.
Mornan nevertheless challenges the admissibility of her
testimony based on the answer to one question on cross-
examination. When the defense attorney asked Jackson
whether her opinions were rendered to a “reasonable degree
of scientific certainty,” she replied, “I think they are.” (App.
at 455.) As the Government has pointed out, however, “there
is nothing magical about the phrase, ‘to a reasonable degree
of scientific certainty.’” (Brief for Appellee at 52.) It is not
derived from the language of Rule 702 itself, and this Court
has been unable to find any authority to support the position
that questions regarding the expert’s “degree of scientific
certainty” categorically renders expert testimony inadmissible.


       Handwriting experts often give their opinions in terms
of probabilities rather than certainties. See, e.g., United
States v. Rosario, 118 F.3d 160, 163 (3d Cir. 1997)
(considering a handwriting expert’s testimony that the
defendant “probably” authored a forged check in affirming a
forgery conviction); United States v. McGlory, 968 F.2d 309,
346 (3d Cir. 1992) (handwriting testimony is admissible
“even if the handwriting expert is not absolutely certain that
the handwriting is that of the defendant.”); United States v.
Galvin, 394 F.2d 228, 229 n.1 (3d Cir. 1968) (handwriting
testimony is not rendered inadmissible merely “because it

                              18
expresses a probability”). Indeed, Jackson testified that
rendering “less-than-certain” opinions is an accepted practice
in her field.3 We therefore find no error (let alone a plain
error) in the District Court’s decision to allow Jackson’s
testimony and to allow the jury to determine what weight to
give her “less-than-certain” conclusions. See McGlory, 968
F.2d at 346 (“Any issue regarding the certainty of [the
handwriting expert’s] testimony goes to the weight given that
testimony and could be tested by cross-examination.”);


  3
    Jackson’s practice of giving opinions along a “continuum,”
is very similar to the practice commonly implemented by
document examiners, as described by this Court in Rosario:

       “Probable” is a term of art used by Secret Service
       document examiners. The “probable” category falls
       exactly in the middle of the six-point spectrum between
       “positive identification” and “positive elimination.”
       Thus, handwriting experts will use the term “probable”
       to describe times when the evidence falls considerably
       short of the “virtually certain” category and yet still
       points rather strongly toward the suspect, i.e., there are
       several significant similarities present between the
       questioned and known writings, but there are also a
       number of irreconcilable differences and the examiner
       suspects that they are due to some factor but cannot
       safely attribute the lack of agreement to the effect of that
       factor.

118 F.3d at 163

                               19
Galvin, 394 F.2d at 229 n.1 (“reservations in the expressed
opinion . . . go to the weight of the evidence and are a
determination for the jury or fact-finder to make. . . .”).

C.     Sufficiency of the Evidence

       1.     Standard of Review

       Where, as here, a defendant does not preserve the issue
of sufficiency of the evidence by making a timely motion for
judgment of acquittal at the close of the evidence, this Court
reviews the sufficiency of the evidence for plain error. United
States v. Wolfe, 245 F.3d 257, 260-61 (3d Cir. 2001); United
States v. Gaydos, 108 F.3d 505, 509 (3d Cir. 1997); see also
Fed. R. Crim. P. 52(b). In conducting plain error review, we
“view the evidence in the light most favorable to the
government and must sustain a jury’s verdict if ‘a reasonable
jury believing the government’s evidence could find beyond a
reasonable doubt that the government proved all the elements
of the offenses.’” Rosario, 188 F.3d at 163 (quoting United
States v. Salmon, 944 F.2d 1106, 1113 (3d Cir. 1991)). This
places a “very heavy burden” on the appellant. Id. (quoting
United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir. 1995)).

       2.     Discussion

       In this appeal, Mornan challenges the sufficiency of
the evidence to sustain his conspiracy conviction, essentially
claiming that the evidence offered at trial revealed “that
Mornan was merely an employee in this scheme” rather than a
willing participant in a conspiracy to defraud. (Brief for

                              20
Appellant at 40.) However, viewing the evidence adduced at
trial in the light most favorable to the Government, that
evidence suggested that Mornan was much more than an
employee.

       First, Mornan himself admitted to the police that he
was an office manager at the Sun Corp. offices in 1998.
Second, the police found a list of United States newspapers on
Mornan’s desk at Sun Corp., from which a jury could infer
that he had at least some responsibility for placing the
misleading advertisements that were at the heart of this
scheme. Finally, the Government produced evidence and
testimony tending to show that Mornan himself leased office
space, rented mailboxes, received mail, and cashed money
orders on behalf of the sham companies that were set up to
carry out the scheme. A reasonable jury believing this
evidence could certainly find beyond a reasonable doubt that
Mornan was guilty of wire fraud, mail fraud, and conspiracy.
We will therefore affirm his conviction.

D.    Mornan’s Sentencing Challenge

        As noted, Mornan received substantial enhancements
to his sentence based on facts not alleged in the indictment,
proven to the jury beyond a reasonable doubt, or admitted by
the defendant. Under a mandatory Guidelines system, this
would clearly constitute a violation of Mornan’s rights under
the Sixth Amendment as interpreted by the Supreme Court in
Booker, 543 U.S. __, 125 S. Ct. 738. Therefore, having
concluded that sentencing issues that arise in light of the
Booker decision are best determined by the District Court in

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the first instance, United States v. Davis, 407 F.3d 162, 165-
66 (3d Cir. 2005) (en banc), we will vacate the sentence and
remand for re-sentencing.




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