United States v. Wheeler

*Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
October 31, 2003
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 02-60830
_______________________
United States of America
Plaintiff - Appellee,
versus
Harold J. Wheeler; Lawyer Wheeler, Jr.
Defendants - Appellants.
Appeals from the United States District Court
For the Northern District of Mississippi
4:01-CR-109-1-B
Before REAVLEY, JONES and CLEMENT, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
Harold J. Wheeler and Lawyer Wheeler, Jr. appeal their
convictions for knowingly making materially false statements or
representations to the Farm Service Agency (“FSA”), an arm of the
United States Department of Agriculture, in violation of 18 U.S.C.
§ 1001(a)(2). Specifically, the jury found that the Wheelers
falsely stated in their 1998 applications for disaster relief that

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they had completely planted their cotton crop on May 25, 1998, and
May 26, 1998. Harold J. Wheeler was sentenced to 18 months
imprisonment and fined $20,000. Lawyer Wheeler, Jr. was sentenced
to 12 months and one day imprisonment and fined $5,000. Finding no
error, we affirm the convictions.
I. BACKGROUND
Harold Wheeler, managing partner of CMC Farms, owned and
farmed several tracts of land in Leflore County and Carroll County,
Mississippi. His brother, Lawyer Wheeler, was employed by CMC
Farms and also rented and farmed his own tract of land in Sunflower
County, Mississippi. In the fall of 1997, the Wheelers decided to
plant wheat on their respective tracts of land. The wheat came to
harvest in late May 1998 and a local trucking firm delivered the
wheat to grain elevators beginning May 23, 1998. The final
delivery occurred on June 12, 1998.
The Wheelers then decided to follow their wheat crop with
cotton. Inventory receipts from Lewis Seed & Feed establish that
Lawyer Wheeler picked up the first shipment of thirty-three bags of
cotton seed on June 3, 1998. Receipts also establish that Lawyer
Wheeler or another representative of CMC Farms picked up additional
shipments of cotton seed on June 4, 11, and 15, 1998. Following
the harvest, the Wheeler tracts yielded a mere 70 bales from more
than 1,000 acres of cotton planted.

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1 For crops planted up to ten days past the final planting
date, the award would be reduced 1% per day late. For crops
planted between eleven and twenty-four days past the final planting
date, the assigned production would be based on 10% of the payment
yield, and an additional 2% would be deducted for each day (between
11 and 24 days) late. Finally, for crops planted 25 days late or
more, the assigned production would be based on 50% of the payment
yield. See 7 C.F.R. § 1477.110(g)(1)—(3) (2003).
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The Wheelers held crop insurance on their 1998 cotton
crop through Rural Community Insurance Services. Based on
information provided by Lawyer Wheeler, insurance agent Jimmy Goss
filled out the crop insurance acreage reports, which included final
planting dates ranging from May 15, 1998, to May 23, 1998.
According to their applications, the Wheelers qualified for full
coverage.
The FSA’s Crop Loss Disaster Assistance Program provides
compensation to farmers for loss associated with a particular
farming period. Congress passed the disaster program covering the
1998 growing season in early 1999. To qualify for full coverage
under the disaster program, cotton must have been completely
planted by May 25, 1998. For every day past the 25th that planting
continues, the disaster benefits decrease.1
On April 5, 1999, Harold Wheeler met with Brenda Ricks,
an employee of the Leflore County FSA office, to complete his
disaster application for non-irrigated acres. Based on Harold
Wheeler’s answers to her questions, Ricks noted that the planting
date for CMC Farms was May 25, 1998. Wheeler returned to the
Leflore County FSA office on May 12, 1999, to complete the same

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disaster application for irrigated acres. Wheeler assured Ricks
that the planting date for the irrigated acres was the same as that
for the non-irrigated acres, i.e., May 25, 1998. Harold Wheeler
filled out a similar application in Carroll County, but was not
asked about his final planting date.
Also on April 5, 1999, Lawyer Wheeler visited the
Sunflower County FSA office to complete a disaster application.
Lawyer Wheeler met with Jo Muzzi, an experienced FSA office
employee, who filled out the application based on his responses to
certain questions. Muzzi noted on the application that Lawyer
Wheeler’s planting date was May 26, 1998.
Both Harold Wheeler’s and Lawyer Wheeler’s disaster
applications were held up for investigation by the Office of the
Inspector General. Thus, neither Wheeler brother ever received any
disaster relief benefits.
On September 19, 2001, Harold and Lawyer Wheeler were
indicted on six counts by a federal grand jury. The indictments
covered the allegedly materially false statements made by Harold
and Lawyer Wheeler on their crop insurance acreage reports and
disaster applications for Leflore County, Carroll County, and
Sunflower County.
The trial was originally scheduled to begin on
November 13, 2001, in Oxford, Mississippi, the seat of the Western
division of the Northern District of Mississippi. However, the
trial was continued several times on motions from the defendants

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and finally began on May 20, 2002, in Oxford. Before trial, the
Wheelers objected to holding the trial in the Western division and
requested a transfer to the Greenville division of the Northern
District, citing as reasons the convenience of the parties and the
larger percentage of African-American residents. On April 2, 2002,
the district judge denied the Wheelers’ request for a transfer,
noting the usefulness of the more modern courtroom facilities in
Oxford. In addition, the district judge ordered a district-wide,
as opposed to division-wide, venire in response to the defendants’
concerns.
On May 22, 2002, three days into the trial, the
defendants filed a motion to quash the jury based on the divergent
percentages of African-American and farmer residents in the
Northern District compared to the Greenville division. After
hearing arguments and testimony, the district judge denied the
motion.
At the close of the government’s case, the defendants
filed motions for judgment of acquittal as to all counts. The
motion was granted as to count five against Harold Wheeler, which
dealt with his disaster application in Carroll County, but denied
as to the remaining counts.
At the close of the trial, defendants unsuccessfully
reasserted their motion to quash the jury. The jury returned a
verdict finding Harold Wheeler guilty only as to count six,
relating to his disaster application in Leflore County, and Lawyer

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Wheeler guilty only as to count four, relating to his disaster
application in Sunflower County. Defendants’ joint motion for
judgment of acquittal was denied.
Sentencing took place on September 10, 2002. Both the
government and defendants objected to the presentence report. The
defendants’ objections to the guideline loss determination were
overruled. However, the government’s request for an inclusion for
more than minimal planning was sustained.
II. DISCUSSION
A. Venue
This court reviews a district court’s decision to
transfer venue for abuse of discretion. United States v. Dickie,
775 F.2d 607, 609-10 (5th Cir. 1985). In addition, a “substantial
ground for overturning the district court’s decision” must be
present. United States v. Lipscomb, 299 F.3d 303, 339 (5th Cir.
2002). Federal Rule of Criminal Procedure 18 requires the
government to “prosecute an offense in a district where the offense
was committed.” The district court, when setting the case for
trial within the district, must consider “the convenience of the
defendant and the witnesses, and the prompt administration of
justice.” Id. However, a defendant has no constitutional right to
be tried in a particular division within a district. United States
v. Duncan, 919 F.2d 981, 987 (5th Cir. 1990).

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The offenses at issue all occurred in Mississippi’s
Northern District. This case was originally set for trial in
Oxford, located in the Western division of the Northern District,
in compliance with Rule 18. The defendants made a motion pursuant
to Rule 18, requesting an intradistrict transfer to the Greenville
division, which the district court denied. To support their
motion, the defendants argued that (1) the alleged criminal conduct
arose from their farming activities in Leflore, Carroll, and
Sunflower counties, all in the Greenville division, (2) both
defendants resided in the Greenville division, (3) many of the
defense witnesses resided in the Greenville division, and (4) the
African-American population in the Greenville division exceeded
that of the Western division.
The defendants cite Lipscomb, supra, in support of their
position. Lipscomb involved the reversal of a Dallas City Council
member’s conspiracy and bribery convictions. The district judge in
Lipscomb transferred the case sua sponte from Dallas to Amarillo,
some five hours away, even though the defendant and all the
witnesses lived in Dallas. 299 F.3d at 337, 340. However,
Lipscomb is inapposite to this case.
A district court is not required to grant an
intradistrict transfer request absent a “strong showing of
prejudice” by the defendants. Duncan, 919 F.2d at 985. In
overruling the motion, the district judge noted the electronic
courtroom in Oxford as one factor weighing against transfer.

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However, he also noted that Oxford is closer to Lawyer Wheeler’s
home in Clarksdale (which is actually located in the Delta
division) than to Greenville, the seat of the Greenville division,
and that Harold Wheeler’s home in Carrollton is only a few miles
closer to Greenville than to Oxford. In addition, although some of
the defense witnesses lived closer to Greenville, others lived
closer to Oxford. The Greenville division’s higher population of
African-American residents should not influence the transfer
decision. See United States v. McKinney, 53 F.3d 664, 673 (5th
Cir. 1995) (noting that “an attempt to influence the racial balance
of the jury by setting a case in a particular division would not
have been appropriate or acceptable”). The convenience of the
defendants and the witnesses was duly considered by the district
judge in overruling the motion and, based on the foregoing, the
district court did not abuse its discretion by declining to
transfer the case to the Greenville division.
B. Motion to Quash
Appellants complain that the district judge erred in
denying their motion to quash the jury venire. They argue on
appeal that because substantially more African-Americans and
farmers reside in the Greenville division than in the larger
Northern District of Mississippi, they were denied a jury that
represented a fair cross-section of the population as guaranteed by

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2 The defendants failed to move to stay the proceedings
prior to voir dire and failed to file a sworn statement of facts,
as required by statute. 28 U.S.C. § 1867(a), (d) (2000). Although
the defendants failed to comply with the statutory procedures for
challenging the jury venire, they may still assert a constitutional
violation. United States v. Williams, 264 F.3d 561, 567 n.3 (5th
Cir. 2001).
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the Sixth Amendment of the United States Constitution.2 See
McKinney, 53 F.3d at 671. In denying the motion, the district
judged noted that the venire was selected by the computer at random
from registered voters within the Northern District.
To establish a prima facie violation of the fair cross-
section requirement, the Appellants must show “(1) that the group
alleged to be excluded is a ‘distinctive’ group in the community;
(2) the representation of this group in the venire panel is not
reasonable in relation to the number of such persons in the
community; (3) that this under-representation is due to systematic
exclusion in the jury selection process.” Id. (citing Duren v.
Missouri, 439 U.S. 357, 364 (1979)). African-Americans qualify as
a “distinctive group” for purposes of the fair cross-section
requirement. United States v. Williams, 264 F.3d 561, 569 (5th
Cir. 2001). Because the district court determined that the selec-
tion process was random and computer-generated, there could be no
“systematic exclusion” of African-Americans. This factual deter-
mination is reviewed for clear error. McKinney, 53 F.3d at 670.
The Appellants argue that the African-American population
in the Northern District of Mississippi amounts to 43.1%, but that

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3 Appellants argue that the district court’s decision to move
the trial from Greenville to Oxford denied them a fair cross-
section of the community in the jury venire by diluting the
percentage of African-Americans in the venire. Because we find
that this case was originally set for trial in Oxford and, contrary
to Appellants’ assertions, never transferred, there is no issue
here as to whether a discretionary transfer to a location with a
significantly smaller African-American population would violate the
fair cross-section requirement.
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only 22% of their venire panel was comprised of African-Americans.
However, the Appellants must prove not only that African-Americans
were under-represented in their case, but that they were
systematically under-represented in other venires drawn from the
Northern District. Williams, 264 F.3d at 568. The Appellants
offer no evidence tending to prove that African-Americans were so
under-represented and thus fail to establish a prima facie
violation of the fair cross-section requirement. The district
court did not err in denying the Appellants’ motion.3
C. Sufficiency of the Evidence
This court reviews denials of motions for judgment of
acquittal de novo. United States v. Wise, 221 F.3d 140, 147 (5th
Cir. 2000). The evidence is reviewed in the light most favorable
to the government to determine whether a reasonable factfinder
could find the evidence proves guilt beyond a reasonable doubt.
United States v. Bell, 678 F.2d 547, 549 (5th Cir. 1982) (en banc),
aff’d, 462 U.S. 356 (1983).
1. Knowingly False Statements

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A violation of 18 U.S.C. § 1001(a)(2) is committed by
knowingly making a materially false statement or representation, in
any matter, within the jurisdiction of the United States
Government, here, the United States Department of Agriculture.
18 U.S.C. § 1001(a)(2) (2000). Harold and Lawyer Wheeler maintain
that they began planting cotton on May 26, 1998. They assert that
the FSA employees’ questions regarding their planting dates were
ambiguous and that, consequently, their answers were not intended
to mislead the government. They additionally contend that the
May 25th deadline was not known to them at the time they applied
for disaster relief. All of these arguments were made to the jury.
Sufficient evidence was adduced at trial for a reasonable
jury to believe that, contrary to their representations, Harold and
Lawyer Wheeler did not begin planting cotton on May 26, 1998.
Harold Wheeler continues to assert that he picked up 33 bags of
cotton seed on May 26, 1998, from Sanders Seed, Lewis Seed & Feed’s
supplier. However, a Lewis truck driver testified that he picked
up the same 33 bags of cotton seed from Sanders and transported
them to Lewis Seed & Feed on May 26, 1998. Uncontradicted
documentary evidence proves that the same 33 bags were in fact
picked up by Lawyer Wheeler on June 3, 1998, at Lewis Seed & Feed.
In addition, the same documentary evidence proves that the Wheelers
continued to buy cotton seed from Lewis Seed & Feed through
June 15, 1998. The government also produced several witnesses who
testified that the appearance of the Wheelers’ cotton crops

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4 Even if the Wheelers believed they were to give their
initial planting date, the evidence at trial was sufficient to
prove that the date given — May 26, 1998 — was false even as a
starting date.
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indicated an initial planting date of mid- to late June. Given the
weight of evidence, a reasonable jury could properly conclude that
the Wheelers did not begin planting on May 26, 1998.
Harold and Lawyer Wheeler further argue that the ques-
tions posed to them by FSA employees were ambiguous, such that they
believed they were to give their initial planting date, as opposed
to a final planting date.4 Harold Wheeler met with Brenda Ricks of
the Leflore County FSA office on April 5, 1999. Ricks testified at
trial that she would ask farmers, “[W]hat’s your planting date or
you can give me a range or either what day did you finish. . . .”
Ricks testified that she remembered asking Harold Wheeler for his
planting date, stating that “I just asked him when was it planted
or the last day that he ended up planting it.” Harold Wheeler’s
response was “May 25th.” When he returned to the Leflore County
FSA office on May 12, 1999, to fill out an additional application
for irrigated acres, Ricks testified that she asked Wheeler if the
planting date was the same as for the non-irrigated acres, and
Wheeler responded “yes”. Lawyer Wheeler filled out his disaster
application for Sunflower County with Jo Muzzi, who testified that
she has always asked farmers, “When did you finish planting your
cotton?” When asked if she questioned Lawyer Wheeler about the
date he completed planting cotton, Muzzi responded that she did in

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fact ask him “when was your cotton planted.” In response, Lawyer
Wheeler gave May 26, 1998, as the relevant date.
The Wheelers argue that the questions were ambiguous and
that they believed they were to give their initial planting date.
However, testimony at trial proved that the final planting date of
May 25th was well-known in the farming community as an important
date for insurance and disaster relief purposes. Ricks and Muzzi
testified that monthly newsletters were mailed to farm operators,
like Harold and Lawyer Wheeler, detailing the final planting dates
for various crops. Several of these newsletters were introduced
into evidence and each one listed May 25th as the final planting
date for cotton. Viewed in this context, the questions asked by
both Ricks and Muzzi were not ambiguous. Thus, the evidence
adduced at trial is sufficient to support a jury finding that the
Wheelers made knowingly false statements to the FSA.
2. Material Statements
The district court correctly instructed the jury that, in
order to be found guilty of violating 18 U.S.C. § 1001(a)(2), the
defendants’ false statements must have been material. That is, the
statement “must have ‘a natural tendency to influence, or [be]
capable of influencing, the decision of the decisionmaking body to
which it was addressed.’” United States v. Gaudin, 515 U.S. 506,
509 (1995) (internal citations omitted). The Wheelers argue that
the final planting date was immaterial to the FSA’s award of

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5 Count five against Harold Wheeler, relating to the Carroll
County property, was dismissed from the suit at the close of the
government’s case. Although the FSA employee in that particular
office failed to ask Wheeler for his final planting date, this
omission does not render the information immaterial given the
wealth of other evidence to the contrary.
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disaster relief because (1) disaster form CCC-540A does not have a
specific blank for the planting date, (2) the FSA employee in
Carroll County did not ask Harold Wheeler for a planting date,
(3) the FSA downloaded the planting date from the crop insurance
form, and (4) entitlement forms had already been prepared.
The government produced ample evidence at trial to
convince a reasonable jury of the materiality of the final planting
date. John Tanner, the FSA State Office Specialist, testified that
the final planting date was “crucial” to the FSA’s determination of
benefits. The final planting date was so important that disaster
benefits decreased the farther away from May 25th the farmer
planted. In addition, both Ricks and Muzzi testified that they
were instructed to ask the farmers about their planting date
because it was important. That a specific blank did not appear on
the disaster application for the final planting date does not alone
render the date immaterial.5
The Appellants emphasize that the entitlement reports,
illustrating the possible monetary award, were already prepared
before their visits to the FSA offices and that the information was
merely downloaded from the crop insurance forms. However, the
evidence at trial illustrated that the entitlement reports were

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merely projections of the award for which the farmer would be
eligible if the disaster application were accepted. In addition,
the downloaded crop insurance forms merely provided the certified
acreage or production, not the planting date. These arguments do
not warrant disturbing the jury’s verdict with regard to
materiality. The government produced sufficient evidence at trial
to support a finding of materiality, and thus, the convictions
should be affirmed.
D. Sentencing
1. Loss Calculation
When reviewing application of the Sentencing Guidelines,
“[w]e accept district court fact findings relating to sentencing
unless clearly erroneous, but review de novo application of the
Guidelines.” United States v. Deavours, 219 F.3d 400, 402 (5th
Cir. 2000). In addition, “[a] district court’s determination of
the amount of loss caused by fraud is given wide latitude.” United
States v. Brewer, 60 F.3d 1142, 1145 (5th Cir. 1995).
In determining the amount of loss under U.S.S.G.
§ 2F1.1(b), the district court accepted the PSR’s recommendation of
$188,715 for Harold Wheeler and $58,470 for Lawyer Wheeler. The
figures represent the amount of relief calculated by the FSA
entitlement reports based on the Wheelers’ fraudulent disaster

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6 Harold Wheeler argues for the first time on appeal that
$13,485, representing the disaster relief for the Carroll County
property, should not be included in the loss calculation because
count five of the indictment was dismissed. Assuming arguendo that
the inclusion of the Carroll County amount was error, it is
harmless. Subtracting the amount from the total guideline loss of
$188,715 leaves Harold Wheeler with a loss of $175,230, which
remains in the $120,000 to $200,000 range applicable for a seven-
level increase. U.S. SENTENCING GUIDELINES MANUAL § 2F1.1(b)(1)(H)
(1998).
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applications.6 The Wheelers argue the amount of relief for which
they would have been entitled, had their applications been
completed correctly, should be subtracted from the loss
calculation. They also note that because their disaster applica-
tions were held up for investigation, they never actually received
any benefits.
The commentary to U.S.S.G. § 2F1.1 prescribes, “if an
intended loss that the defendant was attempting to inflict can be
determined, this figure will be used if it is greater than the
actual loss.” U.S. SENTENCING GUIDELINES MANUAL § 2F1.1, cmt. n.8
(1998). Thus, it is proper for a district court to “calculate loss
based on the risk engendered by the defendant[s’] criminal conduct,
even where the actual loss was lower.” Brewer, 60 F.3d at 1145.
By misrepresenting their planting date, the Wheelers intended to
receive as much disaster relief as they could, hence, they should
be charged with the full amount for sentencing. In addition,
evidence presented at trial and adopted by the district court at
sentencing revealed that disaster benefits could be withheld
entirely if the farmer fraudulently misrepresented a fact, such as

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a relevant date, when making his application. See 7 C.F.R.
§ 1477.109(c)(2) (2003). Thus, given the Wheelers’ fraudulent
misrepresentation, they most likely would not have been entitled to
any disaster relief. The district court did not err in its
determination of the appropriate sentencing loss.
2. More Than Minimum Planning
The Appellants argue the district court erred by imposing
a two-level enhancement for “more than minimal planning” in
response to the government’s objection. U.S. SENTENCING GUIDELINES
MANUAL § 2F1.1(b)(2)(A) (1998). “More than minimal planning” is
defined as “more planning than is typical for commission of the
offense in a simple form,” or “any case involving repeated acts
over a period of time, unless it is clear that each instance was
purely opportune.” Id. at § 1B1.1, cmt. n.1(f). We review the
district court’s determination for clear error. United States v.
Clements, 73 F.3d 1330, 1341 (5th Cir. 1996).
The district court noted that Harold and Lawyer Wheeler
filed their false disaster applications in separate counties, but
on the same day. Harold Wheeler visited the Leflore County FSA
office several weeks later and again confirmed the false planting
date. Lawyer Wheeler, on behalf of CMC Farms and Harold Wheeler,
also reported false planting dates on the crop insurance forms.
See United States v. Carreon, 11 F.3d 1225, 1241 (5th Cir. 1994)
(for sentencing, a defendant may be held accountable for acquitted

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conduct). Given that the Appellants’ false statements continued
for roughly one year, the district court determined that a two-
level enhancement for more than minimal planning was warranted.
This determination was not clearly erroneous.
III. Conclusion
For the foregoing reasons, the judgments of conviction
and sentences are AFFIRMED.

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