                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                   PUBLISH
                                                                       NOV 13 1997
                  UNITED STATES COURT OF APPEALS
                                                                     PATRICK FISHER
                                                                            Clerk
                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

 v.                                                    No. 96-3029

 VAN RAY YARNELL,

       Defendant-Appellant.


                 Appeal from the United States District Court
                          for the District of Kansas
                       (D.C. No. 95-CR-20028-2-DES)


Scott C. Gyllenborg, Norton, Hubbard, Ruzicka & Kreamer, Olathe, KS, argued
the cause for the appellant.

Robert S. Streepy, Assistant United States Attorney, Kansas City, KS, argued the
cause for the appellee. Jackie N. Williams, United States Attorney, Kansas City,
KS, assisted on the brief.


Before EBEL, LOGAN, and KELLY, Circuit Judges.


EBEL, Circuit Judge.



      Defendant-Appellant Van Ray Yarnell, through his wholly-owned company

Five Star Towing, recruited drivers to drive tow trucks. The drivers were
required to pay Five Star Towing about $4,000 each as down payments on their

tow truck leases. Thirty-six recruited drivers paid their money to Five Star

Towing, but received neither tow trucks nor refunds. Five Star Towing then went

bankrupt. A jury convicted Yarnell of two counts of mail fraud, although it

acquitted him on five other counts.

      At sentencing, the district court enhanced Yarnell's sentence based on the

total losses to forty drivers who paid down payments to Five Star Towing, even

though Yarnell had been acquitted of defrauding some of these drivers and had

not been charged with defrauding most of the rest. The district court also

enhanced Yarnell's sentence because Yarnell was the leader of a criminal activity

in which five or more people were involved.

      Yarnell now appeals both his conviction and his sentence. We affirm.

                                 BACKGROUND

      This is an appeal from a judgment of criminal conviction entered pursuant

to a jury verdict. Thus, the following statement of facts presents all disputed

evidence, and all reasonable inferences to be drawn from the evidence, in the

light most favorable to the government. See United States v. Meacham, 115 F.3d

1488, 1495 (10th Cir. 1997).

      In June or July 1990, defendant-appellant Van Ray Yarnell started Five Star

Towing, an automobile towing company located in the Kansas City, Kansas area.


                                        -2-
Yarnell appointed himself president of Five Star Towing, and appointed his

partner John Dawes vice-president. Soon, Yarnell and Dawes began recruiting

tow-truck drivers to work in Kansas City and in Denver. Five Star Towing towed

its first cars in Kansas City on October 16, 1990.

      Drivers for Five Star Towing were required to lease their own trucks. To

facilitate this process, Five Star Towing would help the drivers secure lease

financing. Usually, a driver would have to make a down payment of about $4,000

to obtain lease financing. The driver would generally tender this down payment

to Five Star Towing, which would assume the responsibility to forward the money

to a leasing company and arrange for the delivery of the tow-truck to the driver. 1

Some drivers were told that by leasing a truck and paying this downpayment to

Five Star Towing, they were also purchasing their own Five Star Towing

franchise. At least fifty-five drivers paid money to Five Star Towing. Thirty-six

of these drivers never received a truck or restitution. No driver ever received a

franchise.

      From the beginning, Five Star Towing suffered financial difficulties. In

late 1990, Five Star Towing mailed checks for its first set of tow truck lease

payments to its primary leasing company, Bush & Cook. The checks bounced.




      In exchange for the referral, the leasing company would pay Five Star
      1

Towing a brokerage fee for each truck lease.

                                         -3-
Five Star Towing had withheld revenues from its drivers' gross receipts to make

these lease payments. Because of the bounced checks to Bush & Cook, some

trucks were never delivered to drivers who had made their down payments to Five

Star Towing, and some trucks were repossessed.

      In December 1990, Five Star Towing entered into an agreement with

Leaseline, another truck leasing company, through which fourteen Five Star

Towing drivers received tow trucks. Although the first payment due to Leaseline

was paid in full, subsequent checks to Leaseline bounced. Five Star Towing's

relationship with Leaseline was therefore terminated in March 1991, and the

trucks were then repossessed by Leaseline.

      In January 1991, Yarnell made a $5,000 or $10,000 down payment towards

the purchase of a $600,000 home located on a golf course in Deer Creek, an

exclusive suburban Kansas City neighborhood. He agreed to make mortgage

payments of $5,000 per month to the owner, and moved into the house in late

January. 2 Subsequently, a few payments on the house were made out of Five Star

Towing's payroll account. At the same time, however, paychecks to Five Star

Towing's employees began to bounce. Including both his salary and the payments

on the Deer Creek house, Yarnell drew a total of about $35,000 in personal


      2
       Yarnell claimed at trial that he intended to use the house for Five Star
Towing's business purposes. However, the government presented evidence that
such a use would have violated the rules of the Deer Creek home association.

                                       -4-
expenses from the Five Star Towing payroll account during the company's seven-

month existence.

      In 1991, Yarnell (personally and through his subordinates) sought to raise

capital for Five Star Towing by holding recruiting presentations in other cities,

including Atlanta, Phoenix, and St. Louis. At these presentations, additional

drivers were recruited. Most of these drivers paid about $4000 each to Five Star

Towing for down payments on their tow trucks, although one driver claimed to

have paid $10,000, and another claimed to have paid $15,000 to Five Star

Towing. 3

      Some drivers recruited in Atlanta, Phoenix, and St. Louis were offered the

opportunity to purchase a Five Star Towing "franchise." Some of these drivers

were presented with a written "franchising agreement" or a circular represented to

be a franchise agreement which disclosed that "[t]he proceeds from the original

franchise fee are in part profit to Five Star Towing and are deposited into the

general working capital fund of Five Star Towing and will be used in part to pay

some . . . costs and expenses of Five Star Towing." No driver ever actually

received a Five Star Towing franchise in exchange for any "original franchise

fee" paid to Five Star Towing.




      The jury acquitted Yarnell on the counts pertaining to the drivers who
      3

claimed to have made $10,000 and $15,000 down payments.

                                         -5-
      After remitting their down payments to Five Star Towing, many drivers

recruited in Atlanta, Phoenix, and St. Louis received letters falsely telling them

that trucks had been ordered for them. No driver recruited in Atlanta or Phoenix

ever received a truck. Only a few drivers located in St. Louis ever received

trucks.

      In March 1991, Five Star Towing's Vice President John Dawes left the

company. In May, 1991, all of Five Star Towing's drivers quit en masse. At that

time, several of the drivers, with the assistance of Five Star Towing's bookkeeper

Shelly Haeberle, entered Yarnell's office and emptied it out, removing all of the

books, records, furniture, and other items to a storage facility.

      In March 1995, Yarnell and John Dawes were indicted by a federal grand

jury on seven counts stemming from the activities of Five Star Towing. The

indictment did not (and the government does not) contend that Five Star Towing

was started with fraudulent intent. Rather, the government's theory was that Five

Star Towing was started as a legitimate towing business, but that after it

developed financial problems, it defrauded drivers and other investors by telling

them that their money would be used for specific purposes such as making down

payments on trucks or obtaining a franchise, while actually intending to use the

money for other purposes including payroll, operating expenses, and repaying

loans, as well as Yarnell's and Dawes's personal expenses.


                                         -6-
      Dawes pled guilty to one of the counts of mail fraud (Count 3), and agreed

to testify against Yarnell. Yarnell proceeded to trial, over which the district court

exercised jurisdiction pursuant to 18 U.S.C. § 3231 (1994). In October, 1995,

after deliberating for three days, and after initially informing the trial judge that

they were unable to reach a verdict on some of the counts, a jury acquitted

Yarnell on five counts in the seven-count indictment, and convicted him of two

counts (Counts 2 and 3) alleging violations of 18 U.S.C.A. § 1341 (West Supp.

1997) (mail fraud).

      Specifically, the jury convicted Yarnell of using the mail to defraud Charlie

Parsons and Donald Voss out of $3500 and $4000, respectively. Charlie Parsons

was an elderly driver recruited in Atlanta who, in February 1991, tendered a

$3500 down payment to Five Star Towing for a truck lease, but never received the

truck. At trial, Yarnell admitted that he considered Parsons too old to drive a

Five Star Towing truck, although he did not know how old Parsons was when he

sent in his money. Donald Voss was a driver recruited in St. Louis who, in

January 1991, tendered a $4000 down payment to Five Star Towing for a truck

lease and franchise rights, but never received either the truck or the franchise. 4

Both Parsons and Voss tendered their down payments to Five Star Towing by




      In April, 1991, Donald Voss received a refund of $500 from Five Star
      4

Towing, after complaining about not receiving his truck.

                                          -7-
sending checks to Five Star Towing through the U.S. Mail. Although the jury

convicted Yarnell of using the mails to defraud Parsons and Voss out of a total of

$7500, it acquitted Yarnell of all the other charges against him.

      After denying Yarnell's Motion For Judgment of Acquittal or New Trial,

the district court sentenced Yarnell to 30 months in prison on each of the two

counts, sentences to run concurrently. 5 In computing this sentence, the court

enhanced Yarnell's sentence for all of the conduct alleged in Yarnell's indictment,

including the conduct for which Yarnell was acquitted by the jury. The court also

enhanced Yarnell's sentence significantly for conduct not alleged in Yarnell's

indictment. Finally, the court enhanced Yarnell's sentence for being the leader of

a criminal enterprise consisting of five or more persons. 6 The 1994 edition of the

U.S. Sentencing Guidelines Manual was used to compute Yarnell's sentence.

      Yarnell now appeals. He claims that: (1) the evidence was insufficient to

support his conviction; (2) a mistrial should have been declared when the jury

informed the judge that it was deadlocked on some of the counts; and (3) the




      5
       The court also sentenced Yarnell to 3 years of supervised release
following the prison term, and ordered Yarnell to pay restitution in the amount of
$3500 to Charlie Parsons and $4000 to Donald Voss.

      The district court also enhanced Yarnell's sentence by 2 points pursuant to
      6

U.S.S.G. § 2F1.1(b)(2)(A), because Yarnell's offense involved "more than
minimal planning." This is the only enhancement which Yarnell does not appeal.

                                         -8-
sentencing enhancers applied by the district court were erroneous. We exercise

appellate jurisdiction pursuant to 28 U.S.C. § 1291 (1994).

                                  DISCUSSION

                        I.   Insufficiency of the Evidence

      We review de novo the district court's conclusion that the evidence was

sufficient to support Yarnell's conviction. United States v. Voss, 82 F.3d 1521,

1524-25 (10th Cir.), cert. denied, 117 S. Ct. 226 (1996). However, Yarnell's

burden to succeed on this claim is high. Id. Like the district court, we ask only

whether the direct and circumstantial evidence, together with the reasonable

inferences to be drawn therefrom, all taken in the light most favorable to the

government, would allow a reasonable jury to find the defendant guilty beyond a

reasonable doubt. Id.

      In the present case, Yarnell was convicted of two counts of mail fraud

pursuant to 18 U.S.C. § 1341, which provides that:

      Whoever, having devised . . . any scheme or artifice to defraud, or
      for obtaining money or property by means of false or fraudulent
      pretenses, representations, or promises, . . . for the purpose of
      executing such scheme or artifice or attempting so to do, places in
      any post office . . . or takes or receives therefrom any such matter or
      thing . . . shall be fined under this title or imprisoned not more than
      five years, or both.

      Yarnell does not (and cannot) dispute that the government presented

evidence tending to establish that Charlie Parsons and Donald Voss mailed checks


                                        -9-
for $3500 and $4000, respectively, to Five Star Towing; that Five Star Towing, at

Yarnell's direction, told both Parsons and Voss that this money was for down

payments on tow trucks, and told Voss that this money would also go towards the

purchase of franchise rights; that Five Star Towing cashed the checks; and that

neither Parsons nor Voss ever received anything in exchange for their money

(although Voss received a partial refund of $500).

          Rather, Yarnell disputes that the government presented evidence tending to

establish Yarnell's intent to defraud. Specifically, Yarnell claims that evidence

demonstrating that Five Star Towing disclosed to Parsons and Voss that their

deposits might be used to cover Five Star Towing's general operating expenses

was presented and was not controverted. Yarnell argues that this allegedly

uncontroverted evidence tends to negate any reasonable inference of fraudulent

intent.

          "To prove a violation of the mail fraud statute, the government must prove

three things: (1) the devising of a scheme or artifice either (a) to defraud or (b)

for obtaining money by means of false or fraudulent pretenses, representations, or

promises, (2) the specific intent to defraud, and (3) the use of the United States

mails to execute the scheme." United States v. Kennedy, 64 F.3d 1465, 1475

(10th Cir. 1995) (emphasis added). Without a stringently enforced specific intent




                                          - 10 -
to defraud requirement, the proprietor of any bankrupt business might be

criminally at risk under 18 U.S.C. § 1341 (Supp. 1997).

      After examining the record, we cannot agree that the government failed to

present sufficient evidence for a reasonable jury to find fraudulent intent beyond a

reasonable doubt. Although a jury could reasonably have acquitted Yarnell based

on the evidence presented, the record contains several evidentiary bases upon

which Yarnell's conviction may be sustained.

      In support of his claim that evidence tending to negate an inference of

fraudulent intent was presented at trial and not controverted by the government,

Yarnell cites language from pages 13 and 14 of a written draft "franchising

agreement" which was presented to some drivers recruited in Atlanta, Phoenix,

and St. Louis. The draft "franchising agreement" disclosed to potential

"franchisees" that:

      The proceeds from the initial franchise fee are in part profit to Five
      Star Towing and are deposited into the general working capital fund
      of Five Star Towing and will be used in part to pay some of the
      following costs and expenses of Five Star Towing: . . . Supervision
      and assistance provided by Five Star, research and development of
      the Five Star Towing operations manual, legal fees, accounting fees
      in compliance with federal, state and other laws, employees' salaries
      and fringe benefits, selling, general and administrative expenses,
      research and development and costs of obtaining and screening
      franchisees.

      This evidence provides an insufficient basis for overturning Yarnell's

conviction, for several reasons. First, this disclaimer applies only to funds

                                        - 11 -
tendered to Five Star Towing as an "original franchise fee." There is no evidence

in the record indicating that Five Star Towing ever disclosed to any driver that

money tendered to Five Star Towing for a down payment on a tow truck lease

might be deposited into the general working capital fund of Five Star Towing, or

used for any purpose other than as a down payment on a tow truck lease. Yarnell

was convicted of fraudulently inducing drivers Charlie Parsons and Donald Voss

to tender money to Five Star Towing by convincing Parsons and Voss that the

money would be earmarked for down payments on tow truck leases. 7 Further, the

majority of the "related conduct" for which Yarnell's sentence was enhanced

pertained to fraudulent solicitation of funds which were purportedly to be used for

down payments on tow truck leases. Indeed, every individual recruited by Five

Star Towing, either as a driver or as a "franchisee," had to put money down for a

down payment on a tow truck lease. Yarnell's disclaimer, even if effective,

simply did not apply to such funds. The record contains no evidence showing that

Five Star Towing ever disclosed to Parsons, Voss, or any other driver, that their

tow truck down payment money might be diverted for other purposes. Yarnell's

disclaimer applied only to funds tendered to Five Star Towing as an "original

franchise fee."


      7
       Donald Voss was told that half of his $4,000 would be earmarked for a
down payment on a tow truck lease, and the other half would be applied towards
the purchase of Five Star Towing franchise rights.

                                        - 12 -
      In any event, the government presented evidence that Five Star Towing's

policy of selling illusory "franchises" was itself conceived with fraudulent intent.

Five Star Towing Vice President John Dawes testified that Yarnell decided to sell

"franchises" to drivers being recruited in Atlanta shortly after being told by

franchise attorney Don Culp that it would be illegal for Five Star Towing to do

so. Dawes further testified that, at Yarnell's direction, Dawes personally

represented to prospective recruits in Atlanta that they were buying Five Star

Towing franchises, while knowing that his representations were untrue. Dawes

identified a written franchise "offering circular" that he distributed, at Yarnell's

direction, in Atlanta, which purported to set forth the terms and conditions

governing a Five Star Towing franchise agreement. However, no driver who

tendered funds to Five Star Towing in reliance on the "offering circular" or on

Dawes's oral representations ever received a Five Star Towing franchise.

      Alternatively, in the present case, the jury could have found that Five Star

Towing formally made the disclaimers to which Yarnell testified, but intended

such disclaimers to be ineffective. Yarnell's victims, Parsons and Voss, were

unemployed people seeking to become tow truck drivers. The jury could have

inferred that Parsons and Voss were unsophisticated in business matters and that

the sales presentation was intended to, and did, cause them either not to focus on

such disclaimers or to disregard or misunderstand them.


                                         - 13 -
      In support of this conclusion, Voss testified that Five Star Towing told him

that "if I paid my $4,000 and they're going to--two thousand will go for a

franchise and two thousand for a truck." Parsons testified that his understanding

was that the entirety of the $3500 he paid to Five Star Towing was for a "down

payment for a tow truck." The evidence of the ineffectiveness of the written

disclaimer, combined with the evidence suggesting that representatives of Five

Star Towing had made oral assurances which contradicted the disclaimer, may

give rise to an inference that Yarnell intended for Parsons and Voss not to

understand the significance of the disclaimers.

      Finally, the government presented evidence that funds collected from

prospective tow truck drivers for lease down payments and franchise fee payments

were diverted to pay Yarnell's personal expenses, including expensive rent

payments on Yarnell's suburban luxury residence. Yarnell does not claim that he

disclosed to truck drivers that any of their payments to Five Star Towing might be

used to pay Yarnell's personal expenses. Therefore, the jury could have found

that Yarnell defrauded Parsons and Voss to the extent that he then diverted their

payments to cover such expenses.

      In sum, the record contained evidence sufficient to support the jury's

verdict under any of several theories of the case. Thus, we must reject Yarnell's




                                        - 14 -
claim that the evidence presented was legally insufficient to support his

conviction.

                               II.   Jury Misconduct

      Following closing arguments, and after deliberating for three days, the jury

sent a note informing the district court that "it appears we are deadlocked, and at

the time we cannot seem to agree." The court then read the letter to counsel for

the government and for Yarnell, and asked them for comments or suggestions. At

this juncture, the government requested that the jury be brought into the

courtroom and asked whether further deliberations would be of any assistance.

Counsel for Yarnell responded to the government's suggestion by saying:

      Judge, I know we inserted an instruction to kind of educate them on
      this kind of process, and they have the value of that instruction, and I
      don't have any other comment. It appears that they've been working
      hard. If they're at an impasse, we're just going to have to deal with
      it, I guess.

The judge then recalled the jury into the courtroom, and said:

      Members of the jury, I have your note here that says that it appears
      that you are deadlocked and cannot agree . . . . Do I take it that you
      have not--I don't want to know any numbers or anything like that.
      You have not agreed on any of the counts? Mr. Foreperson, is that
      correct?

      Mr. Foreperson answered in the negative, and informed the court that the

jury members all agreed on at least one of the counts, although the vote on the

other counts had changed in two different directions and had changed every time


                                        - 15 -
a vote was taken. Outside the presence of the jury, the judge suggested to counsel

for both parties that the jury should be sent back to determine whether it was in

agreement on any of the counts, and to report which counts it had agreed upon

and which counts it could not agree upon. Counsel for both parties indicated that

they agreed with this course of action.

      The court then gave the jury the following instruction:

      Members of the jury, I'm going to ask you to do one thing, and that is
      to return into deliberation and determine whether or not and how
      many of the counts you're agreed upon and how many you're not so
      that this can be reported back in court--in open court like this. I
      don't want a message to that effect. I want you all to be here when
      we get that report. Would you please withdraw and establish for us
      which counts, if any, you've agreed upon and which you have not. I
      don't want to know the vote on the ones that you have not, nor do I
      necessarily want to know the decision on the ones you have, but I
      just want to know if you've agreed on any and those you do not and
      give us a report of that. Would you do that?

Neither party objected to this instruction.

      After a recess, the jury returned with a final verdict. Yarnell did not object

in any way to the rendering of a verdict at that time. Subsequently, after being

convicted on two of the seven counts, Yarnell filed a motion for a new trial.

Even in this motion, however, which challenged the sufficiency of the evidence

underlying Yarnell's conviction, Yarnell raised no issue regarding the

circumstances under which the court accepted the jury's verdict. Now, for the

first time, Yarnell claims that it was improper for the court to accept the jury's


                                          - 16 -
verdict after the jury informed the court that it had been deadlocked on some of

the counts.

      As a general rule, this court will not consider an issue on appeal that was

not raised below, except to correct the most manifest error. Sac & Fox Nation v.

Hanson, 47 F.3d 1061, 1063 (10th Cir.), cert. denied, 116 S. Ct. 57 (1995);

compare Anixter v. Home-Stake Prod. Co., 77 F.3d 1215, 1228-29 (10th Cir.

1996). Far from representing "the most manifest error," the district court's

conduct in the present case was entirely proper, and Yarnell's argument to the

contrary borders on the frivolous.

      As the above-quoted instruction makes clear, the district court never

instructed the jurors to cease their deliberations, nor did Yarnell object below to

the procedure that was followed. Yarnell's claim that the jury disobeyed the

court's instructions is meritless. Consequently, we decline to consider this

claimed error on appeal.

                                III. Sentencing Issues

      In addition to challenging his conviction, Yarnell also challenges his

sentence. Specifically, in this regard, Yarnell claims that the district court erred

both in its application of the "total loss" sentencing enhancer, U.S.S.G.

§ 2F1.1(b)(1), and in its application of the "leader or organizer" sentencing

enhancer, U.S.S.G. § 3B1.1(a). We consider each of these arguments in turn. In


                                         - 17 -
reviewing a sentence, we "give due regard to the opportunity of the district court

to judge the credibility of the witnesses, . . . accept the findings of fact of the

district court unless clearly erroneous, and . . . give due deference to the district

court's application of the guidelines to the facts." 18 U.S.C. § 3742(e) (1994).

                                           A.

      Under U.S.S.G. § 2F1.1(a) (1994), the "base offense level" for a defendant

convicted of a charge involving "fraud and deceit" is six. This base offense level

generally must be enhanced to reflect the total amount of financial loss to the

defendant's victims. U.S.S.G. § 2F1.1(b)(1); see generally United States v. Rice,

52 F.3d 843, 848 (10th Cir. 1995) (describing the procedure under U.S.S.G.

§ 2F1.1(b)(1) for enhancing a sentence based on the amount of the victim's loss),

aff'd after remand, 76 F.3d 394 (10th Cir.) (table), cert. denied, 116 S. Ct. 2536

(1996). Yarnell was convicted of defrauding Charlie Parsons and Donald Voss

out of $3500 and $4000, respectively. Based on this conduct alone, Yarnell's base

offense level must be enhanced by two sentencing points pursuant to U.S.S.G.

§ 2F1.1(b)(1)(C).

      Relying on the government's presentence report, however, the district court

found that Yarnell had also engaged in other acts that were part of the same

course of conduct or common scheme or plan as the frauds against Parsons and

Voss. Specifically, the district court adopted the presentence report's conclusion


                                          - 18 -
that Five Star Towing had accepted down payment money from 55 prospective

tow truck drivers, and that 36 to 40 of those drivers received nothing of value

from Five Star Towing in return. The presentence report computed the total loss

to the 40 drivers to be $159,750. Accordingly, pursuant to U.S.S.G.

§ 2F1.1(b)(1)(H), the district court enhanced Yarnell's base offense level by seven

points (from six to thirteen).

      Yarnell concedes that under U.S.S.G. § 1B1.3(a)(2), a sentence may be

enhanced for "relevant conduct" of which the defendant has not been convicted.

However, he claims that the district court erred in the present case by including in

its "total loss" computation the gross losses rather than the net losses of Yarnell's

victims, and by including losses attributable to conduct allegedly not "relevant" to

the conduct for which Yarnell was convicted. In addition, Yarnell claims that the

government did not establish by a preponderance of the evidence that Yarnell

caused losses to the alleged victims with respect to whom Yarnell was acquitted.

      For sentencing purposes, "[w]e review a district court's determination of a

U.S.S.G. § 2F1.1 loss under the clearly erroneous standard, but the factors a

district court properly may consider are reviewed de novo." United States v. Fox,

999 F.2d 483, 485 (10th Cir. 1993) (quoting United States v. Gallegos, 975 F.2d

710, 712 (10th Cir.1992), appeal after remand, 39 F.3d 276 (10th Cir. 1994)).

The relevance of conduct for which Yarnell was not charged or of which he was


                                         - 19 -
acquitted is a question of law which we review de novo. Id. Whether Yarnell

actually engaged in such conduct is a question of fact, reviewed under the "clearly

erroneous" standard. See Fox, 999 F.2d at 485.

      With respect to sentence enhancements and reductions, "[t]he government

shall bear the burden of proof for sentence increases and the defendant shall bear

the burden of proof for sentence decreases. This rule requires neither party to

prove the negative of a proposition." Rice, 52 F.3d at 848 (quoting United States

v. Kirk, 894 F.2d 1162, 1164 (10th Cir.1990)). An enhancement under U.S.S.G.

§ 2F1.1(b)(1) "is a sentencing increase within the meaning of Kirk, so the

government bears the burden of proof." Id.

      Section 1B1.3(a)(2) of the Sentencing Guidelines provides that the offense

level for "offenses of a character for which U.S.S.G. § 3D1.2(d) would require

grouping of multiple counts" 8 shall be determined on the basis of "all acts and

omissions ... that were part of the same course of conduct or common scheme or

plan as the offense of conviction." In assessing the amount of loss under

U.S.S.G. § 2F1.1(b)(1), "[t]he district court is not necessarily limited to the funds

identified with the crime charged in the indictment, or which resulted in a



      8
       Mail fraud is an offense for which U.S.S.G. § 3D1.2(d) would require
grouping of multiple counts. See U.S.S.G. § 3D1.2(d) (stating that grouping of
multiple counts is required for all offenses covered by U.S.S.G. § 2F1.1).
Accordingly, U.S.S.G. § 1B1.3(a)(2) is applicable.

                                        - 20 -
judgment of guilty." United States v. Kunzman, 54 F.3d 1522, 1532 (10th Cir.

1995) (citing United States v. Johnson, 971 F.2d 562, 576 n.10 (10th Cir. 1992));

accord United States v. Kelly, 1 F.3d 1137, 1139 n.1 (10th Cir. 1993) ("The Tenth

Circuit allows a sentencing court to consider trial evidence that was applicable to

a charge upon which the defendant was acquitted."), aff'd after remand, 28 F.3d

114 (10th Cir. 1994) (table).

      Thus, the district court was entitled to consider all of Yarnell's conduct in

his capacity as president of Five Star Towing pertaining to the solicitation of

down payments from tow truck drivers, including such conduct for which Yarnell

was acquitted or was not indicted. Remaining at issue is whether the district

court committed clear error in accepting the presentence report's account of that

conduct as relevant and true.

      We agree with Yarnell that, in certain respects, the presentence report

inflated the magnitude of his victims' losses. In fact, our review of this

presentence report has revealed a number of instances of apparent inconsistency,

carelessness, and ambiguity. For example, in three instances, the presentence

report's computation included down payments obtained from drivers who did in

fact receive their tow trucks from Five Star Towing although they were later

repossessed. (Presentence Report at 10 ¶ 2, 11 ¶ 10, 12 ¶ 11). In three instances,

the amount of an individual's loss used in the presentence report's total loss


                                        - 21 -
computation inexplicably overstated the amount stated in the report's presentation

of the facts. Compare id. at 10 ¶ 2 with id. at 17 (Hedgpeth); id. at 14 ¶ 10 with

id. at 17 (Barthelman); id. at 14 ¶ 11 with id. at 17 (Boisvert). In several

instances, it inexplicably changes the surnames of Five Star Towing's victims.

Compare id. at 11 ¶ 6 with id. at 17 (Weingart); id. at 13 ¶ 2 with id. at 17

(Farrow); id. at 12 ¶ 3 with id. at 17 (Alstyne). The total loss of $159,750 which

Five Star Towing is alleged to have caused its drivers is erroneously calculated,

although the error favors Yarnell by $2500. See id. at 17. Finally, the

presentence report contains no indication of the basis of its information

concerning the identities and loss amounts of the 55 tow truck drivers whose

dealings with Five Star Towing it describes. See id. at 8-17. Yarnell was charged

with defrauding only 7 of the 55 drivers discussed in the presentence report, and

no evidence appears to have been presented at trial or at the sentencing hearing

regarding Five Star Towing's dealings with the remaining 48 drivers.

      "We repeatedly have held that a district court may not satisfy its obligation

by simply adopting the presentence report as its finding." United States v.

Farnsworth, 92 F.3d 1001, 1011 (10th Cir.) (citing cases), cert. denied, 117 S. Ct.

596 (1996). Nonetheless, the district court did not commit clear error in

calculating the loss of relevant conduct pursuant to U.S.S.G. § 1B1.3(a)(2).




                                         - 22 -
       Consistent with Rule 32(b)(6)(D), "[w]e have repeatedly held that if a

defendant fails to object to his presentence report, he waives his right to

challenge the district court's reliance on it, unless the district court's decision to

do so amounts to plain error." United States v. Ivy, 83 F.3d 1266, 1297 (10th

Cir.), cert. denied, 117 S. Ct. 253 (1996) (citing United States v. Saucedo, 950

F.2d 1508, 1518 (10th Cir. 1991), overruled in other respects, Stinson v. United

States, 508 U.S. 36 (1993)). In Saucedo, we held that "[a] factual dispute

concerning the applicability of a particular guideline, not brought to the attention

of the district court, does not rise to the level of plain error." 950 F.2d at 1518.

       Here, prior to the present appeal, Yarnell never challenged the factual

accuracy of the presentence report's account of the forty drivers who paid money

to Five Star Towing and never received trucks. Rather, prior to the present

appeal, Yarnell's objections to the presentence report focussed entirely on the fact

that Yarnell had not been convicted by the jury of defrauding any of these drivers

except for Parsons and Voss. Yarnell's legal theory was erroneous in this regard,

and because he did not pursue his present factual theory, he has therefore now

forfeited it. 9



       In addition, we note that the resolution of all the Presentence Report's
       9

internal inconsistencies in Yarnell's favor would have reduced the "total loss"
from $159,750 to $146,300. Because the seven point "total loss" enhancement
received by Yarnell applies to all "total losses" between $120,000 and $200,000,
U.S.S.G. § 2F1.1(b)(1)(H) (1994), any errors attributable to these inconsistencies

                                          - 23 -
                                          B.

      Finally, Yarnell claims that his sentence was improperly enhanced under

U.S.S.G. § 3B1.1(A) for two reasons: (1) Yarnell was not the "organizer or

leader" of Five Star Towing's operations because John Dawes participated in all

important decisions; and (2) Yarnell's criminal activity did not involve five or

more participants and was not otherwise extensive.

      With respect to whether Yarnell was the "organizer or leader" of Five Star

Towing's criminal operations, the standard of review appears to be in dispute.

Compare United States v. Albers, 93 F.3d 1469, 1486-87 (10th Cir. 1996) ("a

challenge to the conclusion reached that one is a supervisor as defined in

[U.S.S.G. § 3B1.1] is primarily legal, and the trial court's determination on it is

reviewed under a de novo standard") (quoting United States v. Brown, 995 F.2d

1493, 1501 (10th Cir. 1993)) with United States v. Owens, 70 F.3d 1118, 1127

(10th Cir. 1995) (the district court's finding that a defendant was an organizer or

leader of a criminal activity that involved five or more participants or was

otherwise extensive within the meaning of U.S.S.G. § 3B1.1(a) is reviewed only

for clear error, giving due deference to the district court's application of the

guidelines to the facts) (citing United States v. Torres, 53 F.3d 1129, 1142 (10th

Cir.1995), cert. denied, 115 S. Ct. 2599 (1995)).



would not have affected Yarnell's sentence.

                                         - 24 -
      Under either a de novo or a "clearly erroneous" standard, however, we

would affirm the district court's conclusion that Yarnell was the "organizer or

leader" of Five Star Towing's legal and illegal operations. Yarnell was the

founder of Five Star Towing and had the title of "president." Dawes, from the

outset, had the title of "vice president." Further, Dawes left Five Star Towing in

March 1991, halfway through its four-month active life span, while Yarnell

continued to run the company until the bitter end. There can be no serious

dispute that Yarnell was the "organizer or leader" of Five Star Towing.

      Yarnell also claims that the government did not prove that Five Star

Towing's criminal activity involved five or more participants or was otherwise

extensive. 10 Under U.S.S.G. § 3B1.1, an "organizer, leader, manager, or

supervisor" of a criminal enterprise receives only a two-point enhancement if the

enterprise was small, U.S.S.G. § 3B1.1(c), but receives a four-point enhancement

if the enterprise "involved five or more participants or was otherwise extensive."

U.S.S.G. § 3B1.1(a). The district court's finding that Yarnell's criminal activity

involved five or more participants or, in the alternative, that the operation was

otherwise extensive is a finding of fact which is reviewed under the "clearly

erroneous" standard. See United States v. Lacey, 86 F.3d 956, 967 (10th Cir.),


      10
        Unlike his pretrial response to the presentence report's "total loss" computation,
Yarnell clearly and properly objected to the presentence report's characterization of his
criminal activity as involving five or more participants or being otherwise extensive.

                                          - 25 -
cert. denied, 117 S. Ct. 331 (1996); United States v. Cordoba, 71 F.3d 1543, 1547

(10th Cir. 1995).

      Although we doubt that the record can support the district court's finding

that the enterprise involved five or more participants, there is no doubt that the

record does support the district court's finding that the enterprise was "extensive."

"Neither the Guidelines nor the cases interpreting § 3B1.1 provide a precise

definition of 'otherwise extensive.'" United States v. Eidson, 108 F.3d 1336, 1346

(11th Cir.), cert. denied, 118 S. Ct. 248 (1997). However, the application note to

§ 3B1.1 states, "In assessing whether an organization is 'otherwise extensive,' all

persons involved during the course of the entire offense are to be considered.

Thus, a fraud that involved only three participants but used the unknowing

services of many outsiders could be considered extensive." U.S.S.G. § 3B1.1(a),

comment. (n. 2) (1994). As a result, even where the activity involves less than

five participants, § 3B1.1(a) still applies if the defendant plays a leadership or

organizing role in criminal activity that is "otherwise extensive." See United

States v. Reid, 911 F.2d 1456, 1465 (10th Cir. 1990).

      We agree with the First Circuit's interpretation of the phrase "otherwise

extensive" as set forth in United States v. Dietz:

      [T]he sentencing court is free to consider the use of unwitting outsiders in
      determining if a criminal enterprise is "extensive" within the contemplation
      of section 3B1.1 . . . . The extensiveness of a criminal activity is not
      necessarily a function of the precise number of persons, criminally culpable

                                         - 26 -
      or otherwise, engaged in the activity. Rather, an inquiring court must
      examine the totality of the circumstances, including not only the number of
      participants but also the width, breadth, scope, complexity, and duration of
      the scheme.

950 F.2d 50, 53 (1st Cir. 1991). In Reid, this court upheld a § 3B1.1(a)

enhancement for a defendant who led a drug conspiracy that involved less than

five participants but that supplied hundreds of customers over a three-week

period. Id. Other circuits similarly have affirmed sentence enhancements under

§ 3B1.1(a) for extensive conduct involving less than five criminally culpable

participants. See, e.g. United States v. Patasnik, 89 F.3d 63, 69 (2nd Cir. 1996)

(upholding finding that two-man fraudulent operation affecting numerous victims

over two years qualified as "otherwise extensive" activity); United States v.

Briscoe, 65 F.3d 576, 590 (7th Cir. 1995) (fraudulent loan operation run by three

criminally culpable parties over four years and involving 59 fraudulent

transactions totalling $120,000 constituted an "otherwise extensive" enterprise);

United States v. Mullins, 992 F.2d 1472, 1479 (9th Cir. 1993) (fraudulent

acquisition of frequent flyer miles valued at $1.3 million by three persons was

"otherwise extensive" activity); United States v. Rodriguez, 981 F.2d 1199, 1200

(11th Cir. 1993) (drug operation that extended from Columbia to New York and

involved 100 kilograms of cocaine found to be "otherwise extensive"); Dietz, 950

F.2d at 53 (filing of fraudulent social security and unemployment claims by

defendant and three others in seven states over twelve years and involving several

                                        - 27 -
governmental agencies and elaborate planning constituted "otherwise extensive"

conduct).

      The fraudulent enterprise in this case spread from Denver to Phoenix, St.

Louis and Atlanta. It lasted four months, created at least 40 victims, and

generated losses in excess of $140,000. Yarnell's enterprise involved

considerable planning and complex execution, and included at least one other

culpable participant as well as a number of other participants who may not have

been culpable. 11

      Thus, we cannot say the district court was clearly erroneous in finding that

this enterprise was extensive.

                                  CONCLUSION

      The district court's judgment convicting Van Ray Yarnell on two counts of

violating 18 U.S.C. § 1341 and sentence is AFFIRMED.




      11
          Because the activity in this case involved at least two criminally culpable
participants, we need not address the question of whether a criminal operation that
involves only one criminally responsible party may be considered "otherwise extensive"
under § 3B1.1. Similarly, because more than five participants were involved overall,
although not all were criminally culpable, we need not consider whether a criminal
enterprise must involve a combination of at least five culpable and non-culpable
participants to qualify as an "otherwise extensive" activity.

                                        - 28 -
