United States v. Leonard Herrington ( 2017 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 16-1198
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UNITED STATES OF AMERICA
v.
LEONARD HERRINGTON,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 2-14-cr-00315-005)
District Judge: Honorable Wendy Beetlestone
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Submitted Under Third Circuit L.A.R. 34.1(a)
September 11, 2017
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Before: VANASKIE, RENDELL and FISHER, Circuit Judges
(Filed: December 22, 2017)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
VANASKIE, Circuit Judge.
Appellant-Defendant Leonard Herrington appeals from the order of the District
Court denying his motion for a judgment of acquittal based on insufficient evidence and
from the judgment of sentence imposing restitution despite an untimely request by the
Government. Upon review, we will affirm both orders for the reasons that follow.
I.
Leonard Herrington was a member of a criminal group that defrauded banks by
cashing counterfeit checks and obtaining loans through fraudulent applications. The
group was led by Herrington’s cousin, Adolphus William Cato. According to the
testimony of Sean Finn, another member of the group, Cato would apply for bank loans
online using “somebody’s Social Security number, somebody’s name, birthdate and all
that”—information which Cato received from his wife. (App. 114.) Eventually, Cato
would follow up with the bank by phone to check on the status of the loan. When the
loan was approved, Cato would send a “runner” to the bank to sign the forms and collect
the money. These runners were provided with fake identification—produced by Cato—
matching the identity under which the loan application had been filed, and Cato would
instruct the runners on how to answer questions posed by bank officials.
Herrington’s role in the organization was to, among other things, recruit runners to
carry out Cato’s loan scam. Specific to the charges in this case, Herrington recruited his
friend Michael Jaje into the scheme. Herrington offered Jaje a chance to “make some
quick easy money.” (App. 140.) After Jaje expressed interest, Herrington met Jaje at a
CVS so that Jaje could obtain a passport photo that Cato would turn into a driver’s
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license. Herrington paid for the photo, and Herrington and his girlfriend, Zabrina, drove
Jaje to meet with Cato. Herrington explained to Jaje that Cato would make a fake
driver’s license with Jaje’s photo. Later that evening, Herrington sent Jaje a text message
explaining how to dress for his encounter at the bank. When Jaje expressed concern
about being caught, Herrington told him, “It’s cool. Don’t worry about it. Me and my
girl did it before.” (App. 143.)
Herrington and Zabrina picked Jaje up the next day, and together they drove to a
Wawa market where they met Cato. Herrington and Cato went into the Wawa and were
having a conversation when they emerged a short time later. Herrington eventually told
Jaje to join them. Cato gave Jaje a fake Pennsylvania driver’s license in the name of
Matthew Baker—a real person—but with Jaje’s photo. The license was wrapped in a
piece of paper with Matthew Baker’s name and social security number, the identity under
which the loan application had been filed. Cato reassured Jaje that that the scheme would
be “real easy,” and he would only have to sign the bank documents. (App. 146–47.)
Herrington and Zabrina then drove Jaje to the bank, where they again met with
Cato. Cato handed Jaje a cell phone and said, “Here, take this in case you need to call
somebody.” (App. 149.) Cato instructed Jaje to enter the bank and ask for Sonia, who
would then call Jaje into her office to sign for the loan. Jaje entered the bank and
followed Cato’s instructions. Jaje pretended to be Matthew Baker, and provided
information consistent with the identification and details Cato had given him. When Jaje
finished signing the paperwork, the police were waiting to arrest him.
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Herrington was indicted by a grand jury in the Eastern District of Pennsylvania
charging: (i) conspiracy to commit bank fraud and the use of unauthorized access
devices; (ii) bank fraud and aiding and abetting; and (iii) aggravated identity theft and
aiding and abetting. He was convicted of all three charges after a jury trial. Herrington
filed a post-trial motion for a judgment of acquittal directed against his aggravated
identity theft conviction, but the motion was denied by the District Court.
Herrington’s presentence report (“PSR”) was prepared on or about October 21,
2015. No restitution was assessed because Herrington’s conviction was limited to a
single attempted offense, and the Government filed no timely objection. On January 5,
2016, the day of Herrington’s sentencing, the Government sent a letter to the District
Court requesting restitution in the amount of $24,921.62. The Government’s position
was that, because Herrington had been convicted of conspiracy to commit bank fraud
between October 2013 and May 2014, and because another bank fraud committed by
Cato’s organization had occurred on March 11, 2014 and had yielded a loss of
$24,921.62, Herrington was eligible for consideration for joint and several restitution
regarding the March 11th fraud.
A separate hearing was scheduled for January 20, 2016, to address the availability
of restitution in light of Herrington’s claim that the Government had waived mandatory
restitution by failing to object to the PSR within the time required by Federal Rule of
Criminal Procedure 32(f)(1) and Eastern District of Pennsylvania Local Rule 32.3(4).
After argument, the District Court determined that the mandatory nature of restitution
under the Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A, overrides
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the federal and local rules. The District Court then ordered restitution in the amount
requested by the Government.
Herrington appeals the District Court’s denial of his post-trial motion for a
judgment of acquittal challenging the sufficiency of the evidence presented at trial with
regard to the aggravated identity theft conviction. He also appeals the District Court’s
imposition of restitution.
II.1
Herrington first challenges the District Court’s ruling on his post-trial motion for a
judgment of acquittal. Aggravated identity theft under 18 U.S.C. § 1028A(a)(1) “requires
the Government to show that the defendant knew that the means of identification at issue
belonged to another person.” Flores-Figueroa v. United States, 556 U.S. 646, 657
(2009). In other words, a defendant must know that he is using an identity belonging to a
real person rather than a fictitious person. Despite the jury verdict, Herrington asserts
that the evidence presented at trial was insufficient to prove that he knew the identity of a
real person was being used in obtaining the fraudulent bank loan.
A district court ruling on a motion for judgment of acquittal based on insufficiency
of the evidence must “review the record in the light most favorable to the prosecution to
determine whether any rational trier of fact could have found proof of guilt beyond a
reasonable doubt based on the available evidence.” United States v. Smith, 294 F.3d 473,
476 (3d Cir. 2002) (quoting United States v. Wolfe, 245 F.3d 257, 262 (3d Cir. 2001)).
1
The District Court had jurisdiction over this matter under 18 U.S.C. § 3231. We
have appellate jurisdiction under 28 U.S.C. § 1291.
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To avoid “usurp[ing] the role of the jury by weighing credibility and assigning weight to
the evidence, or by substituting its judgment for that of the jury,” United States v. Brodie,
403 F.3d 123, 133 (3d Cir. 2005) (internal citations omitted), insufficiency should be
found only “where the prosecution’s failure is clear.” Smith, 294 F.3d at 477 (quoting
United States v. Leon, 739 F.2d 885, 891 (3d Cir. 1984)). “The jury’s verdict will be
overturned ‘only when the record contains no evidence, regardless of how it is weighted,
from which the jury could find guilt beyond a reasonable doubt.’” United States v. Riley,
621 F.3d 312, 329 (3d Cir. 2010) (quoting United States v. Miller, 527 F.3d 54, 62 (3d
Cir. 2008)). We exercise plenary review over such appeals and independently apply the
same standard as the district court. Brodie, 403 F.3d at 133.
Herrington asserts that the Government never proved that he was aware that M.B.
or Matthew Baker, the victim whose identity was used in the loan scam, was a real
person. In Herrington’s view, the Government was only able to show that he was
involved in recruiting Jaje as the runner—a role that did not necessarily require
knowledge of the victim’s identity. Cato, on the other hand, had applied for the loan in
Baker’s name, called the bank to check on the status of the application, created the fake
documents from Baker’s identity, and instructed Jaje on how to proceed.
The Government’s theory rests largely on circumstantial evidence and inferences.
First, the Government argues that Herrington, through experience and common sense,
would have realized that a sophisticated financial institution like a bank would perform
even a minimal level of due diligence on a loan application for a significant sum of
money. This diligence would include checking whether the loan application is associated
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with a real person. Thus, the Government asserts that the jury could have concluded that
anyone would know that a bank loan would only be granted to a real person with a real
social security number.
Second, the Government highlights the testimony of Sean Finn, a former associate
of Cato’s who appears to have played roughly the same “recruiter” role as Herrington in
the loan scam operation. Finn testified that, through his role, he was aware that real
identities were used in the loan scam. Finn also explained that he knew the scam would
not work unless the victims were real. The Government argues that the jury could have
concluded that Herrington had the same knowledge of the operation as Finn given their
similar roles. The Government also emphasizes that the amount and quality of contacts
between Herrington and Cato bolsters such an inference.
Finally, the Government argues that the jury could have concluded from
Herrington’s reassurance to Jaje—i.e., his indication that “me and my girl did it
before”—that Herrington had acted as a runner in the past and therefore would
understand that a real identity was required to complete the scam. (App. 143.)
Because we are reviewing a jury verdict, we view the evidence in the light most
favorable to the prosecution. Through this lens, we conclude that the aforementioned
pieces of evidence could lead a rational trier of fact to find proof beyond a reasonable
doubt that Herrington knew that M.B. or Matthew Baker was a real person.2 Thus, we
2
Even if the evidence had been insufficient to allow a reasonable juror to conclude
that Herrington knew that Matthew Baker was a real person, his challenge would still fail
under the Pinkerton theory pursued by the Government. The Government had alleged
that Herrington was a conspirator and thus responsible for any reasonably foreseeable
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find no error in the District Court’s denial of Herrington’s motion for judgment of
acquittal.
III.
Herrington additionally challenges the District Court’s decision to impose
restitution at sentencing despite the Government’s failure to file a timely objection to the
PSR, which recommended no restitution. As explained above, the Government waited
until the day of Herrington’s sentencing to request restitution. Herrington argues that the
Government’s request for restitution was untimely under Federal Rule of Criminal
Procedure 32(f)(1) and Eastern District of Pennsylvania Local Rule 32.3(4), which
require that objections to the PSR be made within 14 days of the PSR’s receipt. The
District Court decided that it was bound to impose restitution due to the “mandatory
nature” of the MVRA. Appellant’s Br. at 4.
“We review a restitution order ‘under a bifurcated standard: plenary review as to
whether restitution is permitted by law, and abuse of discretion as to the appropriateness
of the particular award.’” United States v. Simmonds, 235 F.3d 826, 829 (3d Cir. 2000)
(quoting United States v. Crandon, 173 F.3d 122, 125 (3d Cir. 1999)). Because
Herrington’s only challenge is to the legality, rather than the amount, of the restitution,
our review is plenary. United States v. Quillen, 335 F.3d 219, 221-22 (3d Cir. 2003).
crimes committed by his co-conspirators as long as they were committed during and in
furtherance of the conspiracy. United States v. Ramos, 147 F.3d 281, 286 (3d Cir. 1998).
At a minimum, the evidence clearly shows that Cato was aware that Matthew Baker was
a real person and that the use of a real identity was reasonably foreseeable. Thus,
Herrington bears responsibility as a co-conspirator.
8
The purpose of the MVRA is, “to the extent possible, to make victims whole, to fully
compensate victims for their losses, and to restore victims to their original state of well-
being.” Id. at 222 (quoting Simmonds, 235 F.3d at 831). To aid in effectuating this
purpose, the MVRA states:“Notwithstanding any other provision of law, when sentencing
a defendant convicted of an offense described in subsection (c), the court shall order, in
addition to, or in the case of a misdemeanor, in addition to or in lieu of, any other penalty
authorized by law, that the defendant make restitution to the victim . . . .” 18 U.S.C. §
3663A(a)(1). Our sister circuits have held that the “notwithstanding” language in §
3663A(a)(1) should be read as “Congress’s indication that the statute containing that
language is intended to take precedence over any preexisting or subsequently-enacted
legislation on the same subject.” United States v. Puentes, 803 F.3d 597, 606 (11th Cir.
2015) (quoting Castro v. Sec’y of Homeland Sec., 472 F.3d 1334, 1337 (11th Cir. 2006)).
In United States v. Puentes, the Eleventh Circuit held that a district court acted beyond its
authority when it reduced a defendant’s mandatory restitution obligation under Federal
Rule of Criminal Procedure 35(b) because allowing such a reduction under Rule 35(b)
would “conflict with the scheme enacted by Congress in the MVRA.” Id. at 606–07; see
also United States v. Williams, 612 F.3d 500, 513 (6th Cir. 2010) (concluding that “the
mandatory language of the MVRA trumps the equitable policies underlying the
discretionary doctrines of collateral estoppel and judicial estoppel”). In much the same
way, a finding that restitution was foreclosed by an untimely request under Federal Rule
of Criminal Procedure 32(f)(1) or Eastern District of Pennsylvania Local Rule 32.3(4)
would plainly conflict with the mandatory nature of restitution under the MVRA. The
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District Court did not err in adhering to the MVRA by imposing restitution upon
Herrington.
IV.
For the foregoing reasons, we will affirm the District Court’s October 15, 2015,
order denying Herrington’s motion for a judgment of acquittal and the District Court’s
judgment of sentence entered January 21, 2016.
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