United States v. Terry Bowman ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4674
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRY MICHAEL BOWMAN,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge. (1:14-cr-00302-CCB-2)
Argued: October 25, 2017 Decided: December 29, 2017
Before DIAZ, THACKER, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Gary E. Proctor, LAW OFFICES OF GARY E. PROCTOR, LLC, Baltimore,
Maryland, for Appellant. Tamera Lynn Fine, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Terry Michael Bowman (“Appellant”) appeals his conviction and sentence for
aggravated identity theft arising from his involvement in an elaborate fraudulent scheme.
He argues that the Government produced insufficient evidence to support his conviction.
To the contrary, we hold that the evidence supports the jury’s verdict. Further, Appellant
argues that the district court abused its discretion by denying his motion for a new trial, but
we agree with the district court’s reasoning that the verdict was not against the weight of
the evidence.
Finally, Appellant contends that at sentencing, the district court committed
procedural error by assuming without deciding that a two level decrease for acceptance of
responsibility applied to his United States Sentencing Guidelines (“Guidelines” or
“U.S.S.G.”) calculation. We hold that any error committed was harmless. Therefore, we
affirm Appellant’s conviction and sentence.
I.
On June 19, 2014, a federal grand jury in Maryland returned a 23 count indictment
against Appellant and nine co-defendants. Appellant was charged in four counts:
conspiracy to commit bank fraud (Count 1), bank fraud (Count 14), aggravated identity
theft (Count 15), and conspiracy to defraud the government (Count 23). The Government
subsequently dismissed Count 23.
At trial, which commenced June 6, 2016, the evidence established that prior to 2012,
two individuals, Akintunde Akinlosotu and Friday James, began a sophisticated check
kiting scheme. As part of the scheme, Akinlosotu and James, using real identities,
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established fake businesses and fake business bank accounts on which to draw fraudulent
checks. Although the exact date is unknown, on or before October 20, 2012, Appellant
was introduced to Akinlosotu by a mutual friend so that Appellant could cash checks as
part of the scheme. Three or four days after Appellant and Akinlosotu initially met, they
coincidentally met again at a gas station. Akinlosotu first testified that he “told [Appellant]
everything” at the gas station. J.A. 144. 1 Later, however, he stated that the two only
exchanged phone numbers and did not discuss the scheme. Another three or four days after
the gas station meeting (six or eight days after the initial meeting), Appellant provided his
social security number and copies of photo identification to Akinlosotu. After Appellant
had established a working relationship with Akinlosotu, he met James.
The evidence at trial also revealed that Appellant cashed checks on the account of a
fraudulent business, Douglas Konn Investment Company, LLC (“DK”), which was created
with the stolen identity of an individual, Douglas Konn. Appellant cashed a check on the
DK account on three occasions: October 20, 2012, October 22, 2012, and November 2,
2012. Either James or Akinlosotu forged each of the checks. 2
After November 2, 2012, Appellant’s involvement in the scheme deepened.
Appellant’s identity was used to incorporate at least one fraudulent business, “Teebee
Ventures,” on June 28, 2013. He also opened fraudulent bank accounts associated with
1
Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.
2
James and Akinlosotu both testified that the handwriting on check #1036 was his
own. James and Akinlosotu both testified that the handwriting on checks #1038 and #1041
belonged to Akinlosotu.
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Teebee Ventures, endorsed checks for those bank accounts, and secured a commercial
mailbox for the fake business. Further, Appellant grew the check kiting scheme by
recruiting and involving others -- including his own brother.
At the close of the Government’s case, Appellant moved for a judgment of acquittal
on the aggravated identity theft charge, arguing that the Government had not produced
sufficient evidence for conviction. The district court denied the motion. On June 9, 2016,
the jury convicted Appellant on all three of the remaining counts against him, that is,
conspiracy to commit bank fraud, bank fraud, and aggravated identity theft. Appellant
renewed his motion for a judgment of acquittal notwithstanding the verdict as to the
aggravated identity theft conviction pursuant to Federal Rule of Criminal Procedure 29. In
the alternative, Appellant moved for a new trial pursuant to Federal Rule of Criminal
Procedure 33. The district court denied the motions. Specifically, the district court found
that there was sufficient evidence to prove that Appellant knew he was using a real identity
to cash the DK checks.
At sentencing, the parties disputed whether a two level reduction for acceptance of
responsibility applied under the Guidelines. The district court assumed without deciding
that the two level decrease applied. Accordingly, the district court calculated a Guidelines
range of 51 to 63 months for conspiracy to commit bank fraud and bank fraud, with 24
months to run consecutively for aggravated identity theft. The district court ultimately
imposed a sentence of 42 months imprisonment for conspiracy to commit bank fraud and
bank fraud, with 24 months to run consecutively for aggravated identity theft, for a total of
66 months imprisonment. Appellant timely appealed.
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II.
A.
Appellant first attacks the sufficiency of the evidence supporting his aggravated
identity theft conviction. “We review the sufficiency of the evidence de novo.” United
States v. McLean, 715 F.3d 129, 137 (4th Cir. 2013).
When an Appellant makes a sufficiency challenge, he or she
“must overcome a heavy burden, and reversal for insufficiency must be confined to cases
where the prosecution’s failure is clear.” United States v. Engle, 676 F.3d 405, 419 (4th
Cir. 2012) (internal quotation marks and citations omitted). Viewing the evidence in the
light most favorable to the government, we review whether “the jury’s verdict is supported
by ‘substantial evidence,’ that is, ‘evidence that a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendant’s guilt beyond a reasonable
doubt.’” McLean, 715 F.3d at 137 (quoting United States v. Burgos, 94 F.3d 849, 862 (4th
Cir. 1996) (en banc)). “[D]eterminations of credibility are within the sole province of the
jury and are not susceptible to judicial review.” Burgos, 94 F.3d at 863 (internal quotation
omitted).
B.
Appellant contests only his conviction on Count 15, which charged him with
aggravated identity theft for cashing checks associated with a stolen identity (Douglas
Konn) between October 20, 2012, and November 2, 2012. To establish aggravated identity
theft in violation of 18 U.S.C. § 1028A(a)(1), “the Government must prove the defendant
(1) knowingly transferred, possessed, or used, (2) without lawful authority, (3) a means of
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identification of another person, (4) during and in relation to a predicate felony offense.”
United States v. Abdelshafi, 592 F.3d 602, 607 (4th Cir. 2010). Appellant argues that the
Government produced insufficient evidence to prove he acted knowingly. We disagree.
To prove knowledge, the Government must demonstrate that the defendant knew
the means of identification at issue belonged to another person. See Flores-Figueroa v.
United States, 556 U.S. 646, 657 (2009). At trial, the Government adduced (1) a timeline
suggesting that before November 2, 2012, Appellant was fully apprised of the nature of the
scheme and the use of real identities to effectuate it; and (2) evidence that Appellant had
opened a personal bank account prior to October 20, 2012, indicating that he knew a real
identity was necessary to open a bank account.
The Government used Akinlosotu’s testimony to establish its timeline. Although
Akinlosotu could not remember when he first met Appellant, he testified that within three
or four days of their initial meeting, the pair met by chance at a gas station. Akinlosotu’s
testimony was inconsistent about what happened at the gas station. First, he testified that
he explained the scheme -- including the use of real identities -- to Appellant at the gas
station. But, Akinlosotu later retracted that statement and stated that the pair merely
exchanged phone numbers at the gas station. Regardless, within three or four days of the
gas station encounter, Appellant provided his social security number and copies of his
driver’s license and work ID in order to facilitate the scheme.
Based on the Government’s evidence, a rational trier of fact could conclude that
prior to November 2, Appellant was fully apprised of the scheme and knew real identities
were used to cash the DK checks. Indeed, a rational trier of fact could credit Akinlosotu’s
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testimony that this explanation occurred at the gas station, an encounter that occurred no
later than October 24, 2012. Moreover, Appellant’s delivery of his personal identifying
documents to Akinlosotu is highly probative that Appellant had the requisite knowledge at
that time. Appellant’s delivery of his personal identifying documents occurred no later
than October 28, 2012.
The transfer of Appellant’s personal identifying documents, combined with
Appellant’s prior experience opening a personal bank account and Akinlosotu’s testimony
that he informed Appellant of the details of the scheme at the gas station, is sufficient to
prove knowledge and thus, support the guilty verdict on Count 15.
III.
Appellant next appeals the district court’s denial of his motion for a new trial. We
review the district court’s denial of a motion for a new trial for abuse of discretion. See
United States v. Arrington, 757 F.2d 1484, 1486 (4th Cir. 1985). Pursuant to Rule 33 of
the Federal Rules of Criminal Procedure, the district court may grant the defendant’s
motion for new trial if “the interest of justice so requires.” Fed. R. Crim. P. 33. In making
this determination, the district court “may evaluate the credibility of the witnesses” and “is
not constrained by the requirement that it view the evidence in the light most favorable to
the government.” Arrington, 757 F.2d at 1485. “When the evidence weighs so heavily
against the verdict that it would be unjust to enter judgment, the court should grant a new
trial.” Id. This court has recognized, “[T]he trial court’s discretion should be exercised
sparingly, and a new trial should be granted only when the evidence weighs heavily against
the verdict.” Id. at 1486.
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Here, the district court found that the verdict was not against the weight of the
evidence, and its interpretation of the evidence is entirely consistent with the record.
Accordingly, the district court did not abuse its discretion in denying Appellant’s Rule 33
motion.
IV.
Finally, Appellant argues that the district court committed procedural error at
sentencing by not ruling on whether a two level decrease for acceptance of responsibility
applied to his Guidelines calculation. We apply a deferential abuse of discretion standard
of review and may use an assumed error harmlessness inquiry. See United States v.
Savillon-Matute, 636 F.3d 119, 122–24 (4th Cir. 2011).
Under the assumed error harmlessness inquiry, “an appellate court may assume that
a sentencing error occurred and proceed to examine whether the error affected the sentence
imposed.” United States v. McDonald, 850 F.3d 640, 643 (4th Cir. 2017). In applying this
inquiry, we require “(1) knowledge that the district court would have reached the same
result even if it had decided the guidelines issue the other way[;] and (2) a determination
that the sentence would be reasonable even if the guidelines issue had been decided in the
defendant’s favor.” Savillon-Matute, 636 F.3d at 123 (internal quotations omitted).
A.
We begin by assuming that the district court procedurally erred. As to the first prong
of the assumed error harmlessness inquiry, it is important to note that Appellant actually
received the benefit of the reduction. The district court assumed without deciding that the
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two level decrease applied and utilized the corresponding Guidelines range to account for
the decrease.
Indeed, the two level reduction was of no consequence to Appellant’s sentence
because the district court varied downward after accounting for the decrease. Specifically,
using a 51 to 63 month Guidelines range, the district court imposed a below Guidelines
sentence of 42 months imprisonment for Counts 1 and 14. The district court also imposed
a mandatory 24 months imprisonment to run consecutively for Count 15.
Furthermore, the district court made clear that the issue of whether the two level
decrease applied was irrelevant to the ultimate sentencing decision. In addressing this
dispute, the district court first surmised: “[I]t may be that a decision about the precise
guideline level becomes irrelevant and therefore not necessary to carry forward as a
dispute.” J.A. 577–78. And later, during its statement of reasons for the sentence imposed,
the court explicitly confirmed its earlier view, noting:
If it ever becomes relevant as to whether he was truly entitled
to those two levels, then I will get back to that, but, given where
we are, . . . I think . . . the practical matter for me to consider
under § 3553(a) is that, to some extent, certainly [Appellant]
did accept responsibility on those two charges.
Id. at 586–87.
B.
Although Appellant has not challenged the substantive reasonableness of his
sentence, we perceive no substantive error.
The district court explained the necessity of a 66 month sentence of imprisonment
under the framework of 18 U.S.C. § 3553(a). The district court fully considered the
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“serious and extensive” nature of the offense, Appellant’s criminal history, Appellant’s
personal mitigating factors, and Appellant’s relative culpability. J.A. 587.
Given the deference due to the district court, and because the district court
adequately explained its sentence as necessary pursuant to 18 U.S.C. § 3553(a), we
conclude that the sentence is substantively reasonable. See McDonald, 850 F.3d at 645.
V.
For the foregoing reasons, Appellant’s conviction and sentence are
AFFIRMED.
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