United States v. Xavier Franklin Lewis ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-13180
Non-Argument Calendar
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D.C. Docket No. 4:14-cr-00142-LGW-GRS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
XAVIER FRANKLIN LEWIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
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(June 14, 2016)
Before JORDAN, JULIE CARNES and BLACK, Circuit Judges.
PER CURIAM:
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Xavier Lewis appeals his sentence and conviction for four counts of false
claims, seven counts of theft of public money, seven counts of aggravated identity
theft, one count of operating an unlicensed money transmitting business, and three
counts of bank fraud. Although Lewis states that he challenges his conviction as to
all 22 counts, Lewis makes a sufficiency-of-the-evidence argument only as to his
conviction for seven counts of aggravated identity theft, in violation of 18 U.S.C. §
1028A. Lewis also contends the district court erred by limiting his cross-
examination of a Government witness at trial and by applying a two-level
enhancement for obstruction of justice under U.S.S.G. § 3C1.1 at sentencing.
After review,1 we affirm.
There was sufficient evidence for a reasonable jury to find Lewis guilty of
aggravated identity theft. The Government presented evidence that Lewis
deposited 92 federal income tax refund checks, including the seven related to the
aggravated identity theft charges, into accounts for which Lewis had signatory
authority. As to these seven checks, Lewis told bank officials that the named
payees were members of his church who had endorsed the check in his presence.
1
We review de novo “a district court’s denial of judgment of acquittal on sufficiency
evidence grounds.” United States v. Rodriquez, 732 F.3d 1299, 1303 (11th Cir. 2013). “We
must consider the evidence in the light most favorable to the government and draw all reasonable
inferences and credibility choices in favor of the jury’s verdict.” United States v. Wilson, 788
F.3d 1298, 1308 (11th Cir. 2015). We review for abuse of discretion a district court’s decision
limiting cross-examination. United States v. Barrington, 648 F.3d 1178, 1187 (11th Cir. 2011).
As to sentencing, we review for clear error the district court’s factual findings and review de
novo the district court’s application of factual findings to the Sentencing Guidelines. Doe, 661
F.3d at 565.
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The payees, however, testified that they never signed the checks, did not authorize
anyone to sign the checks on their behalf, and were not members of Lewis’s
church. Six of the seven payees testified that they did not know Lewis at all. This
testimony indicates that the checks were fraudulently endorsed without the payees’
authority. By possessing the checks and submitting them to banks for negotiation
with forged signatures, Lewis both knowingly possessed and used the means of
identification of the checks’ payees without lawful authority. See Wilson, 788 F.3d
at 1310 (“The use of a person’s name and forged signature sufficiently identifies a
specific individual to qualify as a ‘means of identification’ under the aggravated
identity theft statute.”). The Government need not have shown that Lewis himself
forged the checks (although circumstantial evidence permitted that inference) or
the means by which the payees’ identities were stolen. See 18 U.S.C. § 1028A;
Wilson, 788 F.3d at 1310. Therefore, the evidence permitted the jury to find Lewis
guilty of seven counts of aggravated identity theft.
The district court did not abuse its discretion in sustaining the Government’s
objection to Lewis’s attempt to cross-examine a Government witness regarding the
criminal history of a non-witness third party. Both the Government and the district
court understood Lewis’s questions to Agent Huebner regarding Brenda Berry’s
past conviction as an attempt to impeach the credibility and character of a non-
witness for whom Agent Huebner did not vouch. Such evidence would be neither
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relevant nor permissible. See Fed. R. Evid. 401, 404(b). Not until this appeal did
Lewis suggest that the questions were instead an effort to impeach the
thoroughness of Agent Huebner’s investigation, which Lewis did in numerous
other ways. 2 Given the manner in which this issue was presented to the district
court, we agree that the district court did not abuse its discretion by halting Lewis’s
attempted cross-examination of Agent Huebner on the past criminal convictions of
a non-witness third party for whom Agent Huebner did not vouch.
The district court did not clearly err in finding that Lewis willfully attempted
to impede or obstruct the Government’s prosecution of its case against him. At
sentencing, a potential trial witness testified that, before trial, Lewis went to her
place of work and told her that both she and another potential trial witness needed
to change their statements “or else.” The witness testified that Lewis’s demeanor
made her feel threatened. After finding the witness’s testimony to be “extremely
credible,” the district court accepted her account of the events. We decline to
disturb that determination. See Owens v. Wainwright, 698 F.2d 111, 1113 (11th
Cir. 1983) (“Appellate courts reviewing a cold record give particular deference to
credibility determinations of a fact-finder who had the opportunity to see live
2
Lewis introduced other evidence to impeach Agent Huebner’s investigation, including:
(1) her inability to determine how the payees’ identities were stolen and who prepared the
fraudulent tax returns; (2) her failure to locate certain victims; (3) her failure to investigate
suspicious tax preparers that prepared some of the victims’ tax returns; (4) her failure to research
the internet protocol addresses for the tax returns that were fraudulently filed; (5) her failure to
search Lewis’s home; (6) her failure to conduct handwriting analysis on the forged check
endorsements; and (7) her failure to wiretap Lewis’s telephone.
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testimony.”). Therefore, the district court did not err in applying the § 3C1.1
obstruction of justice enhancement. See United States v. Bradford, 277 F.3d 1311,
1313 (11th Cir. 2002) (“A defendant obstructs the administration of justice if he
threatens, intimidates, or otherwise unlawfully influences a witness, directly or
indirectly, or attempts to do so.” (citing U.S.S.G. § 3C1.1 cmt. n.4(a))).
AFFIRMED.
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