United States v. Freeman

United States Court of Appeals
Fifth Circuit
F I L E D
December 23, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-30037
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JERRY W. FREEMAN,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
______________________________
Before JOLLY, SMITH, and DEMOSS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Jerry Freeman challenges his conviction of
and sentencing for conspiracy, wire fraud,
travel fraud, and money laundering. Although
the district court correctly decided most of the
issues on appeal, it did commit reversible error
under United States v. Booker, 543 U.S. 220,
125 S. Ct. 738 (2005). For this reason, we
affirm the conviction but vacate and remand
for resentencing.
I.
Freeman was indicted alongside co-defen-
dant Motillal Sudeen on 1 count of conspiracy
in violation of 18 U.S.C. § 371, 14 counts of
wire fraud in violation of 18 U.S.C. § 1343,
1 count of travel fraud in violation of 18
U.S.C. § 2314, and 22 counts of money laun-
dering in violation of 18 U.S.C. § 1957. Free-
man worked at Sudeen’s pharmacy and as-

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2
sisted Sudeen in various business ventures un-
related to pharmaceuticals.
The government presented evidence that
Sudeen had created a large Ponzi scheme that
involved telling investors that he would invest
their funds in high yield programs or “private
placement secured trading programs” involv-
ing overseas trades of financial instruments.
He told investors they would receive a higher-
than-market rate of return and that their princi-
pal would remain safe, exposed to little or no
risk, and would be returned on the expiration
of the investment returns. He represented that
the trading programs involved highly rated
banks, were monitored by the federal govern-
ment, and would fund humanitarian projects in
developing countries. He assured investors
that he had earned profits for himself and
others by making similar investments. The
funds, however, were never invested as prom-
ised, but instead were used for personal enric-
hment and to make “lulling payments” to prior
investors to make them believe that their initial
investments were profitable.1
Sudeen and Freeman increased the appear-
ance of legitimacy and safety of the invest-
ments by giving investors bogus “Private
Placement Agreements” or “Joint Venture
Agreements,” guarantees and promissory
notes. They also told investors that their funds
were guaranteed by Sudeen’s personal wealth.
They instructed investors to purchase Certifi-
cates of Deposit from banks to allow Sudeen
to use the credit as collateral for loans, the
proceeds of which would also be invested, and
they represented that a fictitious minimum
investment was required to participate.
Continued participation was ensured by
lulling payments, encouraging investors to roll
over their investments rather than seeking
immediate returns, and by reassuring investors
that the funds were safely invested and soon
would result in returns. When investors de-
manded proceeds, the defendants would claim
that the profits could not be paid because the
investors had failed to comply with false re-
quirements, that the profits were tied up by the
federal government, or that they could not be
liquidated from overseas investments.
The government presented evidence that
the defendants were involved in another fraud-
ulent Ponzi scheme involving the trade of in-
sulin contracts, although they were not indict-
ed for that scheme. Freeman was involved in
the insulin contracts by giving the investors
checks as initial, false profit returns; meeting
with investors to encourage and sign contracts
related to their continued participation in the
scheme; and assuring investors that “every-
thing is legal.” When one investor told Free-
man she wanted to withdraw money, Freeman
gave her three checks totaling $10,000 and
informed her that the remainder of her money
had “two more banks to clear” before being
returned. The money invested for insulin trade
was co-mingled with other investment funds
gained by the defendants’ various fraudulent
schemes, and the funds received from insulin
investors were used to make lulling payments.
Although the defendants were indicted to-
gether, the court severed the trials. Freeman
was convicted on all counts and was sentenced
to 108 months’ imprisonment.
1 More than fifty people participated in the
high-yield trading program, and the victims named
in the indictment gave over $17 million to the de-
fendants. The funds were used to make lulling
payments and to pay Freeman’s salary, remodel
Sudeen’s home, support Sudeen’s wife and chil-
dren, purchase property including luxury auto-
mobiles, and to make credit card payments.

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3
II.
Freeman argues that the district court erred
in admitting evidence regarding the insulin
investment scheme; he claims the evidence was
not intrinsic to the offenses enumerated in the
indictment and also did not satisfy Federal
Rules of Evidence 403 and 404(b). Freeman
properly objected on this ground; we review
the admission of the evidence for abuse of
discretion. See United States v. Hicks, 389
F.3d 514, 522 (5th Cir. 2004).
Extrinsic evidence is not admissible to
prove propensity to commit the charged crime,
see rule 404(a), but may be admissible for
other purposes enumerated under rule 404(b).
Intrinsic evidence is generally admissible, and
its admission is not subject to rule 404(b). See
United States v. Coleman, 78 F.3d 154, 156
(5th Cir. 1996). Evidence of acts other than
conduct related to the offense is intrinsic
“when the evidence of the other act and the
evidence of the crime charged are ‘inextricably
intertwined’ or both acts are part of a ‘single
criminal episode’ or the other acts were ‘neces-
sary preliminaries’ to the crime charged.”
United States v. Williams, 900 F.2d 823, 825
(5th Cir. 1990) (internal citations omitted).2
The district court did not abuse its discre-
tion in admitting the evidence regarding the
insulin investment scheme, because it was in-
trinsic to the charged offense, involving the
high yield investment scheme. The evidence
regarding the insulin investors was inexorably
intertwined with the charged scheme as “part
of a single criminal episode,” id.: The un-
charged offense arose out of the same series of
transactions, because the funds were co-min-
gled and used to make lulling payments to in-
vestors from both schemes.3
III.
Freeman contends the insulin scheme evi-
dence constituted an impermissible construc-
tive amendment of his indictment, or alterna-
tively a fatal variance. Although Freeman
broadly outlines the elements of each claim, he
does not specifically delineate how the intro-
duction of the evidence modified an essential
element of the offense so as to constitute a
constructive amendment. Therefore, the claim
of constructive amendment is waived for
inadequate briefing; we proceed to consider
only Freeman’s claim that there was a fatal
variance.
A variance occurs when the charging terms
of an indictment remain unaltered but the
evidence at trial proves facts other than those
alleged. See United States v. Puig-Infante, 19
F.3d 929, 935 (5th Cir. 1994). A variance is
reviewed for harmless error; “[a] defendant
cannot prevail on such a claim unless he dem-
onstrates that the variance was material and
prejudiced his substantial rights.” United
States v. Guidry, 406 F.3d 314, 322 (5th Cir.),
cert. denied, 126 S. Ct. 190 (2005). “As long
as the defendant receives notice and is not sub-
ject to the risk of double jeopardy, his sub-
stantial rights are not affected.” Id. (quoting
United States v. Mikolajczyk, 137 F.3d 237,
243 (5th Cir. 1998)).
As we have said, the insulin investment
scheme evidence was intrinsic to the charged
2 Such evidence is generally admissible to
“complete the story of the crime.” United States v.
Walters, 351 F.3d 159, 166 n.2 (5th Cir. 2003).
3 United States v. Dula, 989 F.2d 772, 777 (5th
Cir. 1993) (“Evidence of an uncharged offense
arising out of the same transaction or series of
transactions as the charged offense is not an ‘extrin-
sic’ offense within the meaning of rule 404(b), and
is therefore not barred by this rule.”)

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4
conspiracy offense, because the schemes were
inextricably intertwined. Because the insulin
investment scheme evidence proved facts that
were alleged in the indictment, there was no
variance.
IV.
Freeman claims the district court erred in
denying his motion for a mistrial made after
the government had elicited testimony barred
by a ruling of the district court. Freeman tes-
tified on direct examination that he assisted
Sudeen in business ventures relating to a failed
attempt to import shrimp from Guyana. On
cross-examination, he denied altering an in-
voice to help Sudeen receive more money
from a lawsuit filed against the shrimp sup-
plier.
The government called a witness who had
worked with the defendants when they were
involved in importing shrimp; he testified that
Sudeen wanted to strengthen the lawsuit and
asked him to increase the amount of the origi-
nal invoice. Freeman objected to this testi-
mony on the ground that it was impermissibly
offered to show his involvement in other bad
acts unrelated to the indictment. The district
court sustained the objection.
Despite the court’s admonition, the govern-
ment proceeded to show the witness an altered
invoice and asked whether he had a belief as to
who had altered the document and sent it in
connection with the lawsuit. Freeman ob-
jected again and moved for a mistrial. The
court granted the objection but denied the mo-
tion, and instructed the jury to disregard any
specific reference to the shrimp material.
Freeman argues that he was entitled to a
mistrial because he contends the curative in-
struction was insufficient to cure any preju-
dice. We review this claim for abuse of discre-
tion. See United States v. Honer, 225 F.3d
549, 555 (5th Cir. 2000). “[A] new trial is
required only if there is a significant possibility
that the prejudicial evidence had a substantial
impact upon the jury verdict, viewed in light of
the entire record.” United States v. Paul, 142
F.3d 836, 844 (5th Cir. 1998). “In determin-
ing whether a prosecutor’s remarks constitute
reversible error, [the court] consider[s] the
magnitude of the prejudicial effect of the
statements, the efficacy of any cautionary
instruction, and the strength of the evidence of
guilt.” United States v. Robles-Vertiz, 155
F.3d 725, 731 (5th Cir. 1998).
We dismiss Freeman’s argument because he
has failed to explain how the error would have
a substantial prejudicial impact on the verdict.
Although his theory is completely conclusion-
al, the government correctly points out that
even if the prosecutor asked an improper ques-
tion, prejudice was minimal; the question was
never answered by the witness. Moreover, the
curative instruction was sufficiently plain and
broad to prevent prejudice. The district court
did not abuse its discretion in denying a mis-
trial.
V.
Freeman avers that the evidence was insuf-
ficient to support a conviction. “In resolving
a sufficiency of the evidence claim, we must
decide whether a rational trier of fact could
have found that each element of the charged
criminal offense was proven beyond a reason-
able doubt.”4 We consider all the evidence in
a light most favorable to the government,
drawing all inferences and credibility choices in
4 United States v. Arnold, 416 F.3d 349, 358
(5th Cir.), cert. denied, 126 S. Ct. 504 (2005); see
also United States v. Ortega Reyna, 148 F.3d 540,
543 (5th Cir. 1998).

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5
its favor. Id. Freeman challenges t he suffi-
ciency of the evidence for the conspiracy
count, the travel fraud count, one count of
wire fraud, and one count of money launder-
ing.
A.
Count one charged Freeman with conspir-
acy to violate wire fraud, travel fraud, and
money laundering statutes in violation of 18
U.S.C. § 371. To establish a violation of
§ 371, the government must prove: “(1) an
agreement between two or more person to
pursue an unlawful objective; (2) the defen-
dant’s knowledge of the unlawful objective
and voluntary agreement to join the conspir-
acy; and (3) an overt act by one or more of the
members of the conspiracy in furtherance of
the objective of the conspiracy.” United States
v. Peterson, 244 F.3d 385, 389 (5th Cir.
2001).
Freeman claims the evidence was insuffi-
cient to pro ve the first elementSSwhether a
conspiratorial agreement existed. Freeman
suggests that the evidence was deficient be-
cause there was no direct evidence of an
agreement, because no testimony was intro-
duced from any alleged co-conspirator. This
argument is without merit, because it is well-
settled that the government does not need to
show that the conspiratorial agreement was
explicit or formalSSproof of a tacit agreement
is sufficient.5
There is a wealth of evidence from which a
reasonable jury could conclude that the agree-
ment element of the conspiracy charge was
satisfied,6 including Freeman’s admission that
he was aware that the investors’ funds were
being used for items unrelated to the invest-
ment program. This, combined with evidence
that Freeman was intimately familiar with
Sudeen’s business from being his only em-
ployee for many years, was sufficient to es-
tablish a conspiratorial agreement and to sup-
port Freeman’s conviction under § 371.
B.
Freeman urges that the evidence was insuf-
ficient to support his conviction of aiding and
abetting travel fraud under § 2314. The travel
fraud count of the indictment specifically
charged Freeman with aiding and abetting Su-
deen in inducing a particular investor, Joseph
D’Amico, to travel from New Orleans to Pop-
larville, Mississippi, as part of the fraudulent
high yield investment scheme. To prove travel
fraud, the government must demonstrate “(1)
that the defendant devised a scheme intending
to defraud a victim of money or property of a
minimum value of $5,000, and (2) that as a
result of this scheme, a victim was induced to
travel in interstate commerce.” United States
v. Richards, 204 F.3d 177, 206 (5th Cir. 2000)
(internal citations omitted). To show aiding
and abetting liability, the government had to
5 United States v. Westbrook; 119 F.3d 1176,
1189 (5th Cir. 1997) (“To be a conspiracy, an ex-
press, explicit agreement is not required; a tacit
agreement is enough.”); United States v. Robert-
son, 659 F.2d 652, 656 (Former 5th Cir. Oct.
1981) (“One may be convicted of conspiracy even
though the Government fails to prove an explicit or
formal agreement to establish the conspiracy.”).
6 Evidence indicated that Freeman was person-
ally involved in many of the aspects of the scheme,
including typing and witnessing many of the fraud-
ulent agreements, maintaining financial records of
the funds, and transferring funds used in the
scheme. He also made misrepresentations to the
investors, including claims that they could not
receive their funds promptly for false reasons and
reports that the funds they did receive in return
were investment profits, when in fact they were
funds from other investors.

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6
prove that Freeman knowingly and deliberately
associated with a criminal venture, participated
in the venture, and sought by his actions to
make it succeed. See United States v. Polk,
118 F.3d 286, 295 (5th Cir. 1997).
Freeman claims there was no evidence that
he was involved in any scheme to defraud
D’Amico, but this contention is without merit.
Evidence demonstrated that Freeman was per-
sonally involved7 and was sufficient for a rea-
sonable jury to find Freeman guilty on the
travel fraud count.
C.
Freeman challenges his conviction on one
of the wire fraud counts and one of the money
laundering counts, both dealing with a particu-
lar victim-investor, Krystoff Lukaszuk. To
prove wire fraud in violation of § 1343, the
government had to show that “a defendant
knowingly participated in a scheme to defraud,
that interstate wire communications were used
to further the scheme, and that the defendant[]
intended that some harm result from the
fraud.” Richards, 204 F.3d at 207. To prove
the money laundering count under § 1957, the
government had to prove that Freeman know-
ingly engaged in a monetary transaction in
criminally derived property of a value greater
than $10,000 and that the property was de-
rived from specified unlawful activity. See
United States v. Dupre, 117 F.3d 810, 821
(5th Cir. 1997).
Freeman argues that the evidence was de-
ficient because Lukaszuk was not a witness at
trial; Freeman claims the record is otherwise
devoid of evidence that false representations
were made to Lukaszuk. This is incorrect;
Lukaszuk’s testimony was not necessary, be-
cause Freeman typed Lukaszuk’s agreement;
Lukaszuk wired money to Freeman and Su-
deen that was not invested in high yield invest-
ments as promised; and Freeman made lulling
payments to Lukaszuk, as exhibited by re-
quests for wire transfers that Freeman signed.
Moreover, a government expert traced a
$10,500 personal expenditure made by the
defendants from Lukaszuk’s funds. The evi-
dence was sufficient to allow a reasonable jury
to find Freeman guilty of both the wire fraud
and money laundering counts dealing with
Lukaszuk.
VI.
Freeman posits that the district court gave
improper jury instructions. A properly object-
ed-to instruction is reviewed for abuse of dis-
cretion. See United States v. Daniels, 281
F.3d 168, 183 (5th Cir. 2002). We consider
whether the instruction, taken as a whole, “is
a correct statement of the law and whether it
clearly instructs jurors as to the principles of
law applicable to the factual issues confronting
them.” Id.
Freeman asserts that the district court com-
mitted reversible error in instructing the jury
that he acted “knowingly” if he acted with
deliberate ignorance or willful blindness, be-
cause, he claims, the instruction was not sup-
ported by the evidence. The deliberate indif-
ference charge permits “the jury to convict
without finding that the defendant was aware
of the existence of illegal conduct.” United
7 D’Amico testified that he gave Sudeen a $2
million check for investment in the high yield in-
vestment program, and Freeman admitted that he
typed and signed the private agreement that lured
his investment. D’Amico also testified that Free-
man attended the meeting at which Sudeen ex-
plained the structure of the investment. D’Amico’s
check was deposited in one of Sudeen’s accounts
for which Freeman was a signatory, the funds of
which were traced to lulling payments that Free-
man made to other investors.

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7
States v. Moreno, 185 F.3d 465, 476 (5th Cir.
1999).
We have previously upheld the deliberate
indifference instruction, provided it has the
required factual basis. See id. The proper
factual basis is present if the record supports
inferences that “(1) the defendant was subjec-
tively aware of a high probability of the exis-
tence of illegal conduct; and (2) the defendant
purposely contrived to avoid learning of the
illegal conduct.” United States v. Scott, 159
F.3d 916, 922 (5th Cir. 1998). In determining
whether the evidence supports the charge, the
evidence and all reasonable inferences that may
be drawn from it are viewed in the light most
favorable to the government. See United
States v. Sharpe, 193 F.3d 852, 871 (5th Cir.
1999).
First, there is a wealth of evidence that
supports an inference that Freeman was sub-
jectively aware of a high probability of the
existence of illegal conduct. He was involved
in typing and witnessing the agreements with
the investors that promised exorbitant returns,
and he was a signatory on the accounts into
which the investments were deposited. Al-
though he was aware of the arrangements, he
wired funds into the account and checked on
the balances on a daily basis and wrote checks
from them for items entirely unrelated to in-
vestments. Moreover, Freeman maintained
financial records that reflected that investor
funds were used to pay Sudeen’s corporate
and personal expenses and to make payments
to other investors. Freeman was aware that
Sudeen had been accused of fraud by several
investors and was being investigated by the
FBI.
Next, there is sufficient evidence to support
an inference that Freeman purposely contrived
to avoid learning of the illegal conduct in-
volved in this case. Although there is no evi-
dence that Freeman took any affirmative acts
to avoid knowledge, we have previously rec-
ognized that where the likelihood of criminal
wrongdoing is so high, and the circumstances
surrounding a defendant’s activities are ex-
tremely suspicious, a failure to conduct further
inquiry justifies an inference of deliberate in-
difference.8 Here, Freeman was intimately
involved in the finances of Sudeen’s operations
and should have made an inquiry into the
legitimacy of the transactions based on the im-
mense number suspicious circumstances previ-
ously described.
Finally, Freeman argues that the district
court erred by giving the deliberate indiffer-
ence instruction, where the government pro-
ceeded on a theory of actual knowledge at
trial. This argument is without meritSSwe
have previously held that a deliberate indiff-
erence instruction is not inconsistent with
8 United States v. Faulkner, 17 F.3d 745, 766
(5th Cir. 1994) (“We have held that in some cases
the likelihood of criminal wrongdoing is so high,
and the circumstance surrounding a defendant’s
activities and cohorts are so suspicious, that a fail-
ure to conduct further inquiry or inspection can
justify the inclusion of the deliberate ignorance in-
struction.”) (internal citations omitted); see United
States v. Gray, 105 F.3d 956, 967 (5th Cir. 1997)
(holding that the deliberate indifference instruction
was appropriate where the defendant handled calls
from irate loan applicants who received no money,
but made only made a trivial attempt to discern
whether anything was wrong); see also United
States v. Stouffer, 986 F.2d 916, 925 (5th Cir.
1993) (holding that the deliberate indifference in-
struction was appropriate where corporate officer
used investment company funds for personal pur-
poses, “blindly accept[ing]” co-defendant’s rep-
resentation that the company’s charter authorized
the expenditures).

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8
evidence of actual knowledge.9 The district
court did not commit reversible error in in-
structing the jury on deliberate indifference.
VII.
Freeman claims the district court improp-
erly used the 2002 edition of the sentencing
guidelines instead of the 2000 edition.10 Al-
though we discuss this issue as part of our
“Booker error” analysis, the objection actually
subdivides into two distinct inquiries, only one
of which Booker technically controls:
(1) whether the use of the 2002 edition con-
stitutes an independent Booker error and
(2) whether the use of the 2002 edition vio-
lated the Ex Post Facto Clause (a claim we
analyze the same as we would have before
Booker).
A.
Freeman claims his sentence is infirm under
Booker, in which the Court made plain that
under the Sixth Amendment, “[a]ny fact (other
than a prior conviction) which is necessary to
support a sentence exceeding the maximum
authorized by the facts established by a plea of
guilty or a jury verdict must be admitted by the
defendant or proved to the jury beyond a
reasonable doubt.” Booker, 543 U.S. at ___,
125 S. Ct. at 756. Freeman asserts that the
district court’s factual determination that the
conspiracy extended past the amendment of
the guidelines violated his Sixth Amendment
rights under Booker.
1.
The government, however, contends that
Freeman did not properly preserve his Booker
objection and that we should thus review his
challenge for plain error.11 The government is
incorrect.
At sentencing, Freeman argued that where,
“like Apprendi,” the factual determination of
when the conspiracy existed has the “practical
effect” of increasing the maximum for the of-
fense, it should be looked at as an issue that
the “jury has to decide.” Despite the fact that
he did not express reliance on Apprendi (ear-
lier, counsel stated that he could “not in good
faith argue Apprendi fits [the] case”), and al-
though he never explicitly mentioned the Sixth
Amendment or Blakely before the district
court, his objections adequately apprised the
court that he was raising a Sixth Amendment
violation to the guidelines edition issue based
on the ground that the government did not
prove to the jury beyond a reasonable doubt
that the conspiracy extended past November 1,
2001.12
9 United States v. Saucedo-Munoz, 307 F.3d
344, 349 (5th Cir. 2002) (noting that relevant cases
do not “suggest[] that a deliberate ignorance in-
struction is improper where evidence may be con-
strued as showing either actual knowledge or con-
trivance to avoid learning the truth. Instead, [the]
precedent suggests that a deliberate ignorance in-
struction may be given alongside evidence of actual
knowledge.”).
10 The government posits that the court actually
used the 2003 version, which was in effect on the
date of sentencing. The difference is irrelevant,
because § 2S1.1 is the same in both. Use of the
2000 version, as urged, would have yielded a sub-
stantially lower range.
11 See Guidry, 404 F.3d at 322 (reviewing
Booker error under plain error standard where de-
fendant failed to object on the appropriate Sixth
Amendment grounds at sentencing).
12 This case is analogous to the situation we
confronted in United States v. Akpan, 407 F.3d
360, 375 (5th Cir. 2005), in which the sentencing
range was increased based on the district court’s
(continued...)

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9
2.
a.
On the merits of the issue, Freeman also is
correct. Freeman asserts that, under Booker,
the district court cannot constitutionally have
made factual determinations regarding the end-
date of the conspiracy. Freeman neither ad-
mitted that end-date, nor was it found by a
jury beyond a reasonable doubt. Nevertheless,
that finding plainly increased his sentencing
range.
There is no dispute that if the conspiracy
was proven to extend to a date on or after No-
vember 1, 2001, a set of guidelines later than
the 2000 version would apply (in an advisory
capacity, of course, in the wake of Booker).
The indictment states that “[b]eginning in or
about March 1997, and continuing to the pres-
ent [meaning February 28, 2002], . . . the de-
fendants . . . did knowingly and willfully . . .
conspire . . . .” The indictment charges the
overt acts under the conspiracy with specifi-
city; the latest such charged act is Sudeen’s
promise to pay a particular investor additional
money, an act alleged to have occurred “[i]n
or about August 2001.”
In its brief on appeal, the government, in an
effort to avoid use of the 2000 guidelines,
points to proof of several acts occurring on or
after November 1, 2001.13 The government
12(...continued)
determination that the range of financial loss was
over one million dollars. We found that defendant
had preserved his objection on Booker grounds
because he repeatedly objected to the court’s deter-
mination of the amount of financial loss on the
ground that the “figure had not been proven at
trial.” Id. at 376. We concluded that “[a]lthough
[the defendant] never explicitly mentioned the Sixth
Amendment, Apprendi, or Blakely until his Rule
28(j) letter, we are satisfied that his objection
adequately apprised the district court that [the
defendant] was raising a Sixth Amendment object-
ion to the loss calculation because the government
did not prove to the jury beyond a reasonable doubt
that the loss was between five to ten million dol-
lars.” Id.
13 According to the government’s brief,
Freeman continued to receive biweekly salary
payments of $1,450 through January 17, 2002,
and $9,000 was wired to co-conspirator Walter
Lauren at an account in Switzerland as late as
February 27, 2002. Mortgage payments on the
Poplarville property using funds from investors
were made until January 15, 2002. In addition,
lulling payments of $10,000, $2,000, and
$2,500 were made to investors Frank Gunn,
Kenneth Breaux and Sheran Frickey, respec-
tively, on December 12, 2001. In November
2001, Sudeen promised that he would give a
bank guarantee to investor Mattias Baumeler.
In February 2002 Baumeler met with Sudeen in
Switzerland, and Sudeen promised that he
would remit all overdue profits within two
weeks.
Moreover, Alice Celestin testified at trial and
sentencing that every 120 days she and her hus-
band “rolled over” their principal and purported
interest payments into a new contract. When
she met with Freeman on July 1, 2001, and
signed a fifth contract, she advised him that she
was going to need $54,000 back in November.
When she didn’t receive the money, she tele-
phoned Freeman frequently. In December 2001
Freeman called her and said that he had both
good news and bad news: she was getting
money, but it was only $10,000. They met the
next day and he gave her three separate checks
totaling $10,000. She testified that at that time
she still believed that she had funds invested in
insulin. She continued calling Freeman and
during their last conversation in February 2002
he said that her funds had “two more banks to
(continued...)

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10
also accurately points to the fact that at sen-
tencing, the district court made a finding that
the conspiracy continued past November 1,
2001. The flaw in the government’s position,
however, is that the procedure it correctly
recounts is the very essence of a Booker viola-
tion.
The jury was charged in relevant part as
follows:
It is not essential that the Government
proved that the conspiracy started and end-
ed on those specific dates [i.e., March 1997
through February 2002]. Indeed it is suffi-
cient if you find that in fact a conspiracy
was formed and that it existed for some
time within the period set forth in the In-
dictment and that at least one overt act was
committed to further the conspiracy within
that period of time.
Accordingly, the fact of conviction does not
necessarily establish that the jury found the
existence of any overt acts on or after Novem-
ber 1, 2001. It was only the district court, and
not the jury, that found that the conspiracy
continued beyond the trigger date for the post-
2000 guidelines.14 This is specifically what
Booker prohibits: The
actual sentence . . . was . . . longer than the
Guidelines range supported by the jury ver-
dict alone. To reach this sentence, the
judge found facts beyond those found by
the jury . . . . ‘[T]he jury’s verdict alone
does not authorize the sentence. The judge
acquires that authority only upon finding
some additional fact’ [quoting Blakely v.
Washington, 542 U.S. 296, 305 (2004)].
Booker, 543 U.S. at ___, 125 S. Ct. at 751.
In short, the indictment charged no specific
acts after August 2001, and the jury was told
it could find defendants guilty without finding
any overt acts on or after November 1, 2001.
There is no basis on which, in the wake of
Booker, we can infer that any such acts indeed
occurred, i.e., that the jury, if asked, would
have found them beyond a reasonable doubt.15
13(...continued)
clear.” Freeman’s misrepresentations plainly
lulled Mrs. Celestin into the continued belief
that her funds were safely invested and that the
promises made at the time of her initial invest-
ment would be fulfilled.
(Record citations and footnote omitted.)
14 The government relies entirely on the fact that
the district court found that the conspiracy contin-
ued past November 1, 2001. At no point does the
government even attempt to argue that we may
(continued...)
14(...continued)
infer that the jury made any such finding, much
less that it did so beyond a reasonable doubt.
15 It is true that under the law of this circuit,
“[o]rdinarily, a defendant is presumed to continue
involvement in a conspiracy unless that defendant
makes a ‘substantial’ affirmative showing of with-
drawal, abandonment, or defeat of the conspirato-
rial purpose.” United States v. Puig-Infante, 19
F.3d 929, 945 (5th Cir. 1994) (citation and internal
quotation marks omitted). Accord United States v.
Schorovsky, 202 F.3d 727, 729 (5th Cir. 2000).
These authorities, although sound, address a
situation entirely different from the one presented
here; they involve multi-person conspiracies in
which the defendant claims he tried to withdraw
from the conspiracy that was continued by his co-
conspirators. Here, there were no acts found by a
jury after the trigger date, so there is no jury-found
conspiracy at all that existed on or after that date.
(continued...)

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11
b.
Because Freeman’s sentence is infected
with Booker error, and he properly preserved
his objection, we must vacate the sentence and
remand for resentencing unless we determine
that the error was harmless under Federal Rule
of Civil Procedure 52(a). See United States v.
Mares, 402 F.3d 511, 520 n.9 (5th Cir.), cert.
denied, 126 S. Ct. 43 (2005). “Harmless error
is ‘any defect, irregularity, or variance that
does not affect substantial rights of the defen-
dant,’ and ‘arises when the mistake fails to
prejudice the defendant.’”16 Under this stan-
dard the government must demonstrate, be-
yond a reasonable doubt, that the error did not
contribute to the sentence that the defendant
received. See United States v. Olano, 507
U.S. 725, 734 (1993).
The government does not meet this burden.
It points to nothing that would show beyond a
reasonable doubt that the court would have
imposed the same sentence under an advisory
guidelines regime. See Akpan, 407 F.3d
at 377.17
B.
We do not reach Freeman’s ex post facto
claim. Under Akpan, id. at 360 n.2, we have
the authority to leave to the district court the
discretion to consider this argument as long as
we have already determined there was a re-
versible Booker violation
In summary, the judgment of conviction is
AFFIRMED. The judgment of sentence is
VACATED and REMANDED for further
proceedings in accordance with this opinion.
15(...continued)
In other words, those authorities demonstrate
that the absence of an overt withdrawal can extend
the operative dates of an alleged withdrawing de-
fendant’s vicarious liability to the end of the con-
spiracy. Those authorities do not suggest, how-
ever, that the absence of an overt withdrawal ex-
tends the length of the conspiracy itself.
16 Akpan, 407 F.3d at 376-77 (quoting rule
52(a); United States v. Munoz, 150 F.3d 401, 413
(5th Cir. 1998)).
17 Without the factual finding made by the dis-
trict c ourt, it would have been required to apply
the 2000 edition of the guidelines manual, which
would have resulted in an offense level of 26,
rather than the level of 31 that was reached using
(continued...)
17(...continued)
the 2002 edition.

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12
E. GRADY JOLLY, Circuit Judge, dissenting in part:
I respectfully dissent from the majority’s finding of Booker
error based on the district court’s application of the 2002 version
of the Guidelines. I would affirm Freeman’s sentence: No Booker
error exists because whether the conspiracy continued until the
effective date of the 2002 Guidelines is in this case a question of
law, not a question of fact.
The Guidelines provide that the court apply the version of the
Guidelines in effect on the date that the defendant is sentenced;
if such use implicates the Ex Post Facto clause of the Constitu-
tion, the court is directed to apply the version in effect on the
date the offense of conviction was committed. USSG § 1B1.11.
Because the 2002 Guidelines became effective on November 1, 2001,
the proper inquiry in this case is whether the offense of convic-
tion, the criminal conspiracy, was committed before, on or after,
November 1, 2001.
The indictment filed against Freeman on February 28, 2002 alleged
a conspiracy “[b]eginning in or about March 1997, and continuing to
the present. . . .” Thus, the indictment clearly alleged that the
offense of conviction was committed when the 2002 Guidelines
applied. The jury returned a general verdict finding Freeman
guilty of the offense charged in the indictment. I would hold that
the jury’s general verdict against Freeman on the count alleged in
the indictment is sufficient to affirm the district court’s
sentence. No Booker error exists because Freeman was sentenced on

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18In fact, the jury instructions do not require that the jury find any specific date for any overt act. The
majority’s reliance on the jury instruction to explain that the jury could not have found an overt act to have
occurred after November 1, 2001 is misplaced. Because the jury returned a general verdict, we do not know
whether the jury may have relied on an unalleged overt act not appearing in the indictment.
13 13
the jury’s finding that he was guilty of participating in a
criminal conspiracy that continued until at least February 28,
2002.
The majority, however, relies on the jury instructions to
conclude that the jury’s verdict is insufficient to establish that
the conspiracy continued past the effective date of the 2002
Guidelines. The jury was instructed in relevant part:
It is not essential that the Government proved that the
conspiracy started and ended on those specific dates.
Indeed it is sufficient if you find that in fact a
conspiracy was formed and that it existed for some time
within the period set forth in the Indictment and that at
least one overt act was committed to further the conspir-
acy within that period of time.
Such an instruction, according to the majority, did not require
that the jury find the end date of the conspiracy beyond a
reasonable doubt. The majority further reads this instruction to
mean that the fact of conviction does not necessarily establish
that the jury found the commission of any overt acts on or after
November 1, 2001.18 Panel Opinion at __. Assuming that the majority is correct , I cannot
agree wit h the majority’s conclusion that the district court must have found facts in order to
determine that the conspiracy continued after November 1, 2001, resulting in Booker error. Panel
Opinion at __.
As a matter of law, a conspiracy continues until the evidence affirmatively shows that the

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19See 4 WHARTON'S CRIMINAL LAW § 688 (15th ed.) (“A conspiracy is terminated when its purpose has
been accomplished, i.e., the target offense has been committed, or when the conspirators agree to abandon their
criminal purpose; thereafter, no act or declaration of a former conspirator can be attributed to another.”); see
also United States v. Mayes, 512 F.2d 637, 642-43 (6th Cir. 1975) (“A conspiracy is completed when the
intended purpose of the conspiracy is accomplished. But where a conspiracy contemplates a continuity of
purpose and continued performance of acts, it is presumed to exist until there has been an affirmative showing
that it has terminated[.]”).
Further, as Judge Jones recently noted in United States v. Olis,
[t]his court has held that conspiracy “is a continuing offense” and that “[s]o
long as there is evidence that the conspiracy continued after the effective date
of the [amendments to the] guidelines, the Ex Post Facto Clause is not
violated.” Moreover, unless a conspirator effectively withdraws from the
conspiracy, he is to be sentenced under the amendments to the guidelines,
even if he did not commit an act in furtherance of the conspiracy after the
date of the new guidelines[.]
F.3d , No. 04-20322, 2005 WL 2842077 at *4 (5th Cir. Oct. 31, 2005) (second and third alterations in
original) (citation omitted) (quoting United States v. Buckhalter, 986 F.2d 875, 880 (5th Cir. 1993)).
14 14
conspirators terminate the alleged conspiracy, or with respect to conspirators individually, until the
conspirators withdraw.19 The unchallenged affirmative evidence establishes that the defendant’s
scheme and the purposes underlying the scheme continued well past November 1, 2001.
Furthermore, with respect to the defendant, “[a] defendant is presumed to continue involvement in
a conspiracy unless she makes a ‘substantial affirmative showing of withdrawal, abandonment, or
defeat of a conspiratorial purpose.’” United States v. Schorovsky, 202 F.3d 727, 729 (5th Cir. 2000)
(quoting United States v. Puig-Infante, 19 F.3d 929, 945 (5th Cir. 1994)). None of these events ever
occurred before the return of the indictment. “To establish withdrawal a defendant bears the burden
of demonstrating affirmative acts inconsistent with the object of the conspiracy that are communi-
cated in a manner reasonably calculated to reach conspirators.” Id. Freeman never claimed that he
withdrew from the conspiracy. As such, his guilt of engaging in a criminal conspiracy continued as
a matter of law through the time of the indictment. The district court , therefore, did not commit

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20The real question at issue here is whether Freeman’s sentence under the 2002 Guidelines violates the Ex
Post Facto clause of the Constitution. The Sixth Amendment is only incidental to that question, implicated only
if we determine that the sentence violates the Ex Post Facto clause. Because I would find, as explained supra,
that the offense continued past the effective date of the 2002 version of the Guidelines, the Ex Post Facto clause
of the Constitution is not violated by the application of the 2002 Guidelines to Freeman’s sentence.
15 15
Booker error by concluding that the conspiracy continued through the effective date of the 2002
Guidelines.
For the foregoing reasons, I would affirm Freeman’s sentence20 and, for that reason, I respectfully
dissent.

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