                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         NOV 30 1999
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 99-5072
v.                                                (N. District of Oklahoma)
                                                   (D.C. No. 98-CR-68-K)
MICHAEL E. WEBB,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before TACHA, McKAY, and MURPHY, Circuit Judges.


                                  I. INTRODUCTION

      After examining the briefs and 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); 10th Cir. R. 34.1(G). The court,

therefore, honors the parties’ requests and orders this case 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       This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Michael E. Webb pleaded guilty to one count of conspiracy to falsify

claims to a government agency, through the filing of false income tax returns, in

violation of 18 U.S.C. § 286. In calculating Webb’s sentence under the United

States Sentencing Guidelines (“U.S.S.G”), the district court added four points to

Webb’s base offense level pursuant to U.S.S.G. § 3B1.1(a), finding that Webb

was “an organizer or leader of a criminal activity that involved five or more

participants.” Webb appeals, contending that the district court’s conclusion that

he was an organizer or leader of the conspiracy is arbitrary and without sufficient

evidentiary support. This court exercises jurisdiction pursuant to 28 U.S.C. 1291

and 18 U.S.C. § 3742 and affirms.



                               II. BACKGROUND

      The facts, stated in the light most favorable to the district court’s ruling

following the sentencing hearing, are as follows. In November of 1994, Derrick

Ward, Michael E. Webb, James W. Hart, and other unidentified inmates

befriended each other while they were serving state prison sentences in the

custody of the Oklahoma Department of Corrections. A few days into their

friendship, Webb and Hart entered into a conspiracy to falsify federal income tax

returns. Webb then recruited Ward to participate in the conspiracy to file false

federal income tax returns. Hart had access to the printing shop within the


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institution and the wherewithal to reproduce many of the necessary forms.

Furthermore, Hart had apparently participated in a similar scheme several years

earlier at a different correctional facility. Webb, on the other hand, had the

financial and accounting background necessary to develop a formula that would

be used to complete the false returns. Ward recruited his mother and girlfriend

into the conspiracy because the conspiracy needed individuals on the outside to

handle the false returns and refund checks.

      According to the testimony of Ward and Hart at the sentencing hearing,

Webb provided Hart with all of the necessary information to be entered on the

fraudulent tax forms. Webb instructed Hart as to the proper way to complete the

forms, and Hart utilized the equipment at the institution to copy and complete the

forms. After completion of the forms, Hart and Webb prepared the documents for

mailing.

      Hart provided the name and address of an aunt, Willie Mac Evans of Terry,

Mississippi, as a person to receive fraudulent income tax documents and forward

them to the IRS. Evans was mailed an envelope containing twelve fraudulent

income tax returns in 1995. The package containing the fraudulent tax returns

apparently bore the return address of Webb at the prison and Webb’s name and

inmate number. Evans was unwilling to participate in the criminal scheme and

returned the package containing the fraudulent documents to Webb at the


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Department of Corrections. The returned package was recovered by officials at

the prison.

      Ward recruited his mother into the criminal endeavor. Girva Ward agreed

that she would allow Webb to mail, from prison, fraudulent income tax returns,

marked as “legal mail,” to her personal post office box. Girva Ward also agreed

that upon receipt of Webb’s package, she would open the material and further

forward the pre-stamped contents to IRS centers throughout the United States for

processing. Ward also solicited his girlfriend, Bridgett Naytah, to receive and

forward fraudulent tax refunds in the same fashion.

      An investigator with the Oklahoma Department of Corrections identified as

suspicious one of the packets of false tax returns. The legal-sized envelope was

addressed to “Attorney: Girva Ward,” in Tulsa, Oklahoma, and it carried Webb’s

return address at the correctional center. The packet contained smaller envelopes,

each of which contained a 1994 federal income tax return, all of which were later

identified as fraudulent by IRS investigators.

      As a follow-up, the Oklahoma Department of Corrections contacted the IRS

and forwarded them the suspect tax returns. Within the next few days, the IRS

identified the thirteen tax returns as fraudulent and an investigative, controlled

delivery was arranged. The packet was sent to Girva Ward’s post office box;

Girva Ward removed the decoy envelope from her post office box and mailed the


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individual envelopes to the IRS. Authorities thereafter placed two decoy refund

checks into Girva Ward’s post office box. After investigators observed Ward

pickup the decoy checks, they followed her to her residence where she was

confronted and the checks were recovered.

      In addition to the twelve tax returns which had been returned to Webb by

Evans, and thirteen tax returns forwarded to Girva Ward, the IRS detected fifteen

additional returns which had been filed and were associated with this scheme.

None of the fraudulent returns filed with the IRS were subsequently paid out.

      Hart, Ward, and Girva Ward all entered pleas of guilty to violating 18

U.S.C. § 286. Hart and Ward are serving prison sentences in the custody of the

United States Bureau of Prisons; Girva Ward is serving a forty-two month

probationary sentence.



                                 III. ANALYSIS

      U.S.S.G. § 3B1.1(A) provides that a defendant’s offense level shall be

increased by four points “[i]f the defendant was an organizer or leader of a

criminal activity that involved five or more participants or was otherwise

extensive.” The government bears the burden of proving by a preponderance of

the evidence the facts necessary to establish the applicability of this enhancement.

See United States v. Cruz Camacho, 137 F.3d 1220, 1224 (10th Cir. 1998). In


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determining whether a defendant is a leader or organizer, a court should consider

the following factors:

      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. § 3B1.1, comment (n.4.). Nevertheless, “[t]he Guidelines do not require

that each of the factors be satisfied for § 3B1.1(a) to apply.” United States v.

Bernaugh, 969 F.2d 858, 863 (10th Cir. 1992).

      After conducting an evidentiary hearing at which, among others, two of

Webb’s coconspirators testified, the district court found as follows:

             The objection of the defendant to the four level enhancement is
      denied, although, it’s certainly hard to tell from the testimony and the
      Grand Jury testimony tody and the prior Grand Jury testimony when
      and if anyone in this conspiracy is telling the truth. The scheme, the
      Court finds likely started prior to this defendant’s imprisonment and
      in fact there’s some indication it may have been widespread in the
      prison system at the time.
             Mr. Hart indicates in his Grand Jury testimony that he received
      money from Marcus Miller in a similar scheme back as far as 1988 or
      1989. The initial idea may have been Hart’s, but Mr. Webb had the
      intelligence to create the formula and see that the returns were
      properly filled out. If he was recruited, once he was recruited he
      became an organizer and a leader. He recruited others to help with
      the returns, to provide information to fill out forms, to provide
      stamps. He made the agreement with Mr. Ward to provide his
      mother’s and girlfriend’s post office boxes. He took on a leadership
      role in that regard.
             He was to get at least half of the money, and there’s certainly
      evidence that he was to get a larger share than 50 percent. He and

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      Mr. Hart apparently signed the returns or the majority of the returns,
      and it appears from the evidence that the Defendant Webb mailed the
      packages. His fingerprints were on the returns. It appears from all
      of the evidence in the cases, even that evidence which is admittedly
      contradictory, that he had decision making authority and that he was
      an organizer or leader of a criminal activity that involved five or
      more participants.

      Webb’s challenge to the district court’s imposition of the four level upward

adjustment set out in § 3B1.1 is exceedingly narrow. He does not contest the

district court’s conclusion that the conspiracy involved at least five people and

does not contend that the district court’s decision is based on an erroneous

reading of the sentencing guidelines. Instead, he simply asserts that the district

court’s ultimate finding that he was a leader or organizer of the conspiracy is not

supported by sufficient evidence. This court reviews the district court’s ultimate

finding that Webb was a leader or organizer under the highly deferential clear

error standard. See Cruz Camacho, 137 F.3d at 1223-24 & n.2. Under that

deferential standard, this court will reverse the district court only if the district

court’s ultimate finding is without factual support in the record or, after

reviewing all of the evidence, “this court is left with the definite and firm

conviction that a mistake has been made.” United States v. Mandilakis, 23 F.3d

278, 280 (10th Cir. 1994).

      A close review of the transcript of the sentencing hearing reveals ample

evidentiary support for the district court’s finding that Webb was a leader and/or


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organizer, under those factors set forth in the commentary to § 3B1.1, of the

false-income-tax-return conspiracy. Webb’s coconspirators, Hart and Ward,

testified at the sentencing hearing that it was Webb and Hart that devised the

scheme to create the false tax returns. 1 Hart and Ward further testified that it was

Webb who provided the wherewithal to accomplish the criminal objective by

applying his college course work in personal income tax and accounting and his

access to IRS tax preparation instructional manuals to create a formula that could

be used to generate tax returns that would yield refunds. According to Hart and

Ward, Webb then helped coordinate the implementation of the conspiracy by: (1)

recruiting Ward to supply two sources on the outside of prison who would mail

the fraudulent returns and then receive the fraudulent refunds; (2) recruiting

inmates to reproduce and complete the necessary tax forms; and (3) recruiting




      1
       Webb asserts on appeal that this court should not credit the testimony of
Hart and Ward because the testimony of each is inconsistent with their earlier
testimony before the grand jury. Having read the transcript of the grand jury
proceedings prior to the sentencing hearing, the district court was fully aware of
the inconsistencies between the testimony of Hart and Ward before the grand jury
and their testimony at the sentencing hearing. Although it found these
inconsistencies troubling, the district court ultimately decided to credit the
testimony of Hart and Ward as it related to Webb’s involvement in the conspiracy.
This court is in no position to second guess the district court’s credibility
determination, made as it was after observing the demeanor of Hart and Ward
during the sentencing hearing. See United States v. Deninno, 26 F.3d 572, 578
(10th Cir. 1994) (“The credibility of a witness at sentencing is for the sentencing
court, who is the trier of fact, to analyze.”).

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individuals to procure postage stamps from the prison canteen. 2 Furthermore, as

noted by the district court, Webb signed many of the false tax returns himself as

evidenced by Webb’s finger prints appearing on five separate returns. 3 Ward and

Hart testified that Webb decided when the three large packages of returns should

be mailed and mailed those packages himself. Furthermore, Webb made the

arrangements to cash the refund checks in Oklahoma City when they were

received. Finally, although vigorously contested by Webb, the testimony of Ward,

Hart, and Agent Garner, support the district court’s finding that Webb was to

receive at least half, and possibly more, of the proceeds of the conspiracy. 4 In


      2
        Webb seems to take great comfort in Hart’s testimony at the sentencing
hearing to the effect that Hart considered himself and Webb to be co-equals in the
management of the conspiracy. The commentary to § 3B1.1 specifically provides,
however, that “There can, of course, be more than one person who qualifies as a
leader or organizer of a criminal association or conspiracy.” U.S.S.G. § 3B1.1,
comment (n.4.). That Hart might have also qualified as a leader or organizer of
the conspiracy in no way diminishes the district court’s conclusion that Webb was
also a leader and/or organizer of the conspiracy.
      3
        Webb seems to assert that the fact that his fingerprints only appeared on
five of the returns demonstrates he was only a minor player in the conspiracy.
The fact is, however, that no fingerprints were found on the majority of the
returns. Nevertheless, Webb’s fingerprints appeared on more returns than did the
fingerprints of any of the other co-conspirators.
      4
        For instance, Ward specifically testified that Webb told him that each of
the fraudulently obtained refund checks would be in the amount of $5400. Of that
amount, Ward would receive $1000 for each of the returns that flowed from the
packets sent to his mother’s and girlfriend’s post office boxes. Furthermore, Hart
testified that he was only to share in a percentage of those returns that flowed
from the packet sent to his aunt in Mississippi. Finally, based upon his analysis
of where the fraudulent refund checks were to be directed, Agent Garner

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light of this testimony and in light of those factors set out in the commentary to

the sentencing guidelines, this court concludes the district court did not clearly err

in concluding that Webb was a leader or organizer of the false-income-tax-return

conspiracy and, therefore, subject to a four-point increase in his offense level

pursuant to U.S.S.G. § 3B1.1(a).



                                IV. CONCLUSION

      For those reasons set out above, the sentence imposed by the United States
District Court for the Northern District of Oklahoma is hereby AFFIRMED.



                                        ENTERED FOR THE COURT:



                                        Michael R. Murphy
                                        Circuit Judge




concluded that Webb would have obtained the “lion’s share” of the fraudulent-
refund proceeds.

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