                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                 November 4, 2010
                                   TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 10-8031
 v.
                                              (D.C. No. 1:09-CR-00232-ABJ-1)
                                                          (D. Wyo.)
 RANDY LEE (a/k/a JIMMY LEE),

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before TACHA, KELLY, and GORSUCH, Circuit Judges.


      For his participation in a scheme to defraud used truck buyers, a jury

convicted Randy Lee of conspiracy, odometer tampering, and securities fraud.

Mr. Lee claims that insufficient evidence supports his convictions, that the district

court erred in admitting evidence of prior bad acts under Fed. R. Evid. 404(b),

and that the district court improperly accepted an ambiguous verdict. Finding no

merit in these contentions, we affirm.



      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
order and judgment is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                          I

       The government indicted Randy Lee and his brother-in-law, Jay Lee, for

scheming to defraud used car buyers from 2002 to 2006. According to the

indictment, the pair purchased high mileage used trucks on behalf of their

family’s used car dealership, “Lee’s RV’s.” The pair then rolled back the trucks’

odometers, submitted false documents to the Wyoming department of motor

vehicles to secure new title documents reflecting the new (false) mileage

readings, and then sold the trucks to unsuspecting buyers at prices inflated by

their (the Lees’s) illegal acts.

       At trial, the government amassed much evidence against Randy Lee. By

way of example, Judy Marshall, an employee of Spradley Barr Motors, testified

that her company sold a pick-up truck — referred to as vehicle 4 in the indictment

— to Lee’s RV’s for $7,800. Ms. Marshall identified a title reassignment form

signed by Randy Lee that listed the truck’s mileage at the time of the sale as

210,245. Sue Johns, manager of the auto title department at the Laramie County

Clerk’s Office, later testified that, within a week, Randy Lee transferred this same

truck to an “Anthony Romero,” an alias, it turns out, used by Jay Lee. The title

reassignment form for that transfer, however, listed the truck’s mileage as 46,400,

rather than 210,245. Ms. Johns further explained that, two days later, “Anthony

Romero” secured a new title for the truck, and transferred the vehicle back to

Lee’s RV’s through Randy Lee. The truck’s mileage was at that time listed as

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46,420. Ultimately, the truck was sold by Lee’s RV’s for $11,735 — $3,935

more than the price at which Lee’s RV’s had earlier bought the truck.

         Similar evidence came from David Pitt, vice president of Terry Pitt

Construction. He testified that he sold a truck — referred to as vehicle 5 in the

indictment — for $4,300 to an individual identified as “John Marks,” another of

Jay Lee’s aliases. Mr. Pitt testified that the truck’s mileage was 180,948 at the

time of sale. Nevertheless, Ms. Johns later testified that, when Randy Lee

presented the truck’s title to the Laramie County Clerk’s Office about three

months later, it had been altered to list the truck’s mileage as 80,998, rather than

180,948.

         The government presented similar evidence in connection with at least

three other transactions — involving trucks identified as vehicles 6, 7, and 8 in

the indictment. At the conclusion of trial, the jury returned a verdict finding

Randy Lee guilty of several felony counts. It is this result Mr. Lee now appeals

to us.

                                             II

         Mr. Lee says he is entitled to an acquittal as a matter of law, or at least a

new trial, for essentially three reasons. First, he argues, the evidence at trial was

insufficient to support the jury’s verdict. Second, he says the district court

improperly admitted certain Rule 404(b) evidence. Third, he contends the jury

returned an inconsistent verdict. We address each argument in turn.

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                                          A

      In reviewing challenges to the sufficiency of the evidence supporting a

jury’s verdict, we ask whether, viewing the evidence in the light most favorable to

the jury’s verdict, any rational trier of fact could have found as it did. United

States v. Rakes, 510 F.3d 1280, 1284 (10th Cir. 2007). Mindful of this standard,

we find the evidence amassed against Mr. Lee more than sufficient to sustain his

convictions — convictions for conspiracy, aiding and abetting odometer

tampering, and securities fraud.

      To prove that Randy Lee conspired with Jay Lee to defraud used car

buyers, the government had to show that (1) two or more persons agreed to

violate the law, (2) the defendant knew the essential objectives of the conspiracy,

(3) the defendant knowingly and voluntarily participated in the conspiracy, and

(4) the alleged co-conspirators were interdependent. United States v. Yehling,

456 F.3d 1236, 1240 (10th Cir. 2006). Our review of the record in this case, only

briefly summarized above, reveals it is replete with evidence of each of these

things. A reasonable jury could well have concluded (as this jury did) that Randy

Lee and his brother-in-law agreed to an effort to (among other things) defraud

truck buyers; that Randy Lee knew this was one objective of the conspiracy; that

he participated knowingly and freely; and that he and his brother-in-law were

interdependent — that is dependent on each other to facilitate the venture’s

success.

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      To convict Randy Lee for aiding and abetting odometer tampering, the

government had to show that he shared Jay Lee’s intent to cause the odometers to

inaccurately register mileage. 49 U.S.C. § 32703(2); United States v. Willis, 476

F.3d 1121, 1125 (10th Cir. 2007). Again, there was ample proof from which the

jury could have made such a finding: the jury learned that Randy Lee was

repeatedly provided with title documents that listed the correct mileage for the

used trucks; and yet, when he presented those same documents to the county

clerk’s office, the mileage was routinely altered.

      The jury was likewise entitled to find Randy Lee guilty of securities fraud.

To support the charged securities fraud violation, the government had to establish,

among other things, that Randy Lee uttered or possessed a security he knew to be

forged and that he did so with intent to deceive another person, organization, or

government. 18 U.S.C. § 513(a); cf. United States v. Bowser, 15 F. App’x 638,

639 (10th Cir. 2001) (unpublished). Randy Lee does not contest that vehicle

certificates of title qualify as securities for purposes of this charge. See 18 U.S.C.

§ 513(c)(3)(D); United States v. Reynolds, No. 99-4215, 2000 WL 84470, at *1

(4th Cir. Jan. 27, 2000) (per curiam) (unpublished). And neither are any of the

other elements before us open to serious contest: given the multiple instances in

which Randy Lee presented the county clerk’s office with vehicle titles that listed

new, lower mileages, the jury could have reasonably concluded that Randy Lee




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knew the titles were forged and intended to deceive that office and others in an

effort to increase the resale value of his trucks.

                                           B

      Even if the evidence amassed against him was sufficient to sustain his

convictions, Randy Lee argues the district court abused its discretion and so

committed reversible error when it admitted evidence of his participation in other,

similar transactions prior to the time period charged in the indictment.

      We cannot agree. Randy Lee’s primary trial strategy was to blame the

criminal scheme entirely on co-defendant Jay Lee, while portraying himself as a

hapless business who was duped by Jay Lee. Evidence showing that he engaged

in earlier, similar transactions — at a time before he became involved with Jay

Lee — is relevant to and tends to rebut this defense. The district court, thus,

properly admitted the evidence pursuant to Fed. R. Evid. 404(b) to show “intent,

preparation, plan . . . or absence of mistake.” The district court took care, as

well, to instruct the jury to consider this evidence only for purposes permitted by

Rule 404(b), and not as improper propensity evidence.

      To this, Randy Lee replies that his prior conduct was too old, too stale to be

probative of his mens rea or any other appropriate Rule 404(b) inquiry. But

we’ve stated that “[t]here is no absolute rule regarding the number of years that

can separate offenses.” United States v. Cuch, 842 F.2d 1173, 1178 (10th Cir.

1988) (quotations omitted). And here the Rule 404(b) evidence the district court


                                          -6-
admitted related to Randy Lee’s purchase of used vehicles from 1999 to 2002,

years immediately preceding the 2002 start of the conspiracy charged in the

indictment. We have upheld the use of Rule 404(b) evidence far older than this

as probative of a defendant’s intent. See id. at 1177-78 (over seven years).

      Perhaps recognizing this infirmity, Randy Lee points us to two cases he

claims are analogous, in which we reversed a court’s admission of Rule 404(b)

evidence, United States v. Temple, 862 F.2d 821 (10th Cir. 1988), and United

States v. Biswell, 700 F.2d 1310 (10th Cir. 1983). But these cases fail to aid his

cause. In Temple, we held that, in a defendant’s trial for conspiracy and aiding

and abetting the smuggling of illegal aliens, a substantially similar incident

occurring four years earlier was admissible, but two other, dissimilar incidents

nearer in time should have been excluded as “too thin and remote” to show a

common plan. 862 F.2d at 823-24. In Biswell, meanwhile, we held that, in a trial

for the unauthorized use and possession of food stamps, vague evidence of a

defendant’s gambling and dealings in stolen property should not have been

admitted under Rule 404(b). 700 F.2d at 1317-19. By contrast, the proffered

Rule 404(b) evidence admitted in this case was substantially similar to the

odometer tampering scheme charged in the indictment and clearly relevant to the

questions of Randy Lee’s mens rea and the absence of mistake.




                                         -7-
                                            C

      Finally, Randy Lee argues that the jury returned an inconsistent verdict

with respect to his convictions for aiding and abetting odometer tampering.

      To understand this argument, some background is helpful. Both the verdict

sheet and the indictment grouped together the substantive charges of odometer

tampering with the related charges of aiding and abetting that crime. So, for

example, the verdict sheet read this way:

      As to the charge contained in Count Two of the Indictment charging Randy
      Lee with odometer tampering with respect to Vehicle Number 4 . . . and
      aiding and abetting therein, we unanimously find Randy Lee: Guilty or Not
      Guilty.

Aplt. App. Vol. I, at 76 (emphasis added). This grouping prompted the jury, prior

to reaching a verdict, to submit the following question to the district court:

      The verdict sheets state the jury is to find the defendant Guilty or Not
      Guilty of a particular count and “aiding and abetting.”              The
      understanding the jury has . . . is that the jury can find the defendant
      Guilt[y] or Not Guilty of the count or “aiding and abetting.” We would
      appreciate clarification of the issue.

Aplt. App. Vol. I, at 104.      The court, in turn, responded with the following

instruction: “You are instructed that the charges may be decided according to your

finding either guilty or not guilty of the count, or guilty or not guilty of the count as

an aider and abetter.” Aplt. App. Vol. I, at 104.

      When it returned its verdict, the jury marked “not guilty” for each of the

substantive charges of odometer tampering, but wrote the words “guilty of aiding



                                          -8-
and abetting” under each count. The district court promptly discussed all this

with counsel for the government and Randy Lee, and both indicated that they saw

no inconsistency in the jury’s verdict — in their view, the jury was simply

clarifying its separate findings on the substantive odometer tampering charges and

the aiding and abetting charges. Aple. App. Vol. II, at 884-85. To confirm this

fact, the district court polled the jury; all members of the jury then confirmed that

they had found Randy Lee not guilty of the substantive counts of odometer

tampering but guilty of aiding and abetting that crime. Only several days later

did Randy Lee change course, arguing for the first time that the jury’s verdict was

inconsistent and so necessitated a new trial.

      The district court rejected that argument and we do as well. A verdict is

valid if “it . . . was certain, unqualified and unambiguous considering the

circumstances of the receipt of the verdict and poll of the jurors relative to their

verdict.” United States v. Ailsworth, 138 F.3d 843, 846 (10th Cir. 1998)

(quotations omitted); United States v. Morris, 612 F.2d 483, 490 (10th Cir. 1979).

We do not see how the jury’s verdict, as eventually accepted by the district court

after its discussions with counsel and poll of the jury, might be reasonably

understood as anything other than a clear, unqualified, unambiguous, and

unanimous conclusion that Randy Lee was guilty of aiding and abetting odometer

tampering.




                                          -9-
The judgment of the district court is affirmed.



                                ENTERED FOR THE COURT



                                Neil M. Gorsuch
                                Circuit Judge




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