United States v. Akinkoye ( 1999 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4133
AKIN AKINKOYE, a/k/a A. Sam
Akins,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4169
NOUYIBATOU AFOLABI,
Defendant-Appellant.
Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CR-97-151-PJM)
Argued: January 29, 1999
Decided: July 19, 1999
Before WIDENER, MURNAGHAN, and HAMILTON,
Circuit Judges.
_________________________________________________________________
Affirmed by published opinion. Judge Murnaghan wrote the opinion,
in which Judge Widener and Judge Hamilton joined.
_________________________________________________________________
COUNSEL
ARGUED: Margaret Nottingham Nemetz, Bowie, Maryland, for
Appellant Afolabi; Michael Daniel Montemarano, MICHAEL D.
MONTEMARANO, P.A., Baltimore, Maryland, for Appellant
Akinkoye. Steven Michael Dettelbach, Assistant United States Attor-
ney, Greenbelt, Maryland, for Appellee. ON BRIEF: Lynne A. Bat-
taglia, United States Attorney, Greenbelt, Maryland, for Appellee.
_________________________________________________________________
OPINION
MURNAGHAN, Circuit Judge:
Before us is a criminal appeal from two defendants, Akin
Akinkoye and Nouyibatou Afolabi, who were convicted of credit card
fraud. They raise a number of challenges to the conviction, including
claims that the district court erred in denying their motion to sever,
failing to hold a Franks hearing to determine whether probable cause
existed, failing to grant their motions for a judgment of acquittal, and
in enhancing their sentences under the sentencing guidelines. Individ-
ually, defendant Afolabi also alleges that she did not meet the $1,000
threshold for one of the crimes charged, the district judge should have
decreased her sentence because she only played a minimal role in the
criminal endeavor and the entire loss was not reasonably foreseeable
to her. Defendant Akinkoye claims that the enhancement for abuse of
trust was not warranted because he was not in a position of trust, and
that a two level increase for obstruction of justice was not warranted
because the statements he made had no effect on the prosecution of
his case. All in all, the district court's decisions are in order and we
therefore affirm.
I.
Akinkoye was a real estate agent employed by Re/Max real estate
agency and worked in its Burtonsville, Maryland office. Having
determined that he needed money to invest in certain legitimate busi-
ness opportunities, he planned an elaborate scheme to defraud clients
of Re/Max and various financial institutions by using the clients'
2
financial and credit information to obtain credit cards from the finan-
cial institutions ("credit card companies").
On or about May 12, 1995, Akinkoye put his plan into effect. He
effected the scheme by reviewing the files of clients of Re/Max, sub-
mitting credit card applications to the credit card companies and
obtaining from them genuine credit cards issued in the names of the
clients. He used the addresses of the properties owned by the clients
to receive the credit cards. To the extent that the clients' mail was
delivered into secured places -- such as inside the home or in a
locked mailbox -- Akinkoye would access the mail by using the keys
to the home provided by the clients. Through that process, Akinkoye
managed to obtain numerous credit cards over a nineteen-month span
and incurred losses of more than $200,000.1 None of the clients was
aware that their names, information and property were being used
fraudulently.
Akinkoye did not work alone. Because some of the clients were
women, he enlisted Afolabi's assistance in carrying out the scheme.
She admitted that she gave Akinkoye pictures of herself that were
ultimately used to provide photo identification for the cards. In addi-
tion, she signed the back of some of the cards that were used to obtain
goods and services. She also personally used at least one of the cards
in Nordstrom's.
Postal Inspectors became suspicious in December 1996 when they
were contacted by credit card companies whose investigators believed
that fraud was afoot. Conversations with the companies led Postal
Inspector Patrick Bernardo to contact victims of the scheme. After
compiling handwriting samples and descriptions resembling
Akinkoye, inspectors obtained a warrant and searched Akinkoye's
home. Inspectors found numerous credit cards, credit card applica-
tions, pictures of Afolabi, and other inculpating evidence. The gov-
ernment charged Akinkoye and Afolabi with conspiracy to violate
and violations of 18 U.S.C. § 1029(a)(2), which criminalizes the
unauthorized use of access devices. Afolabi was also charged with
aiding and abetting violations of that statute. Both defendants made
statements to police regarding their respective roles in the offenses.
_________________________________________________________________
1 The district court found that the total actual loss was $214,245.28.
3
The two defendants were tried by jury, convicted and sentenced. The
instant appeal ensued.
II.
The defendants first argue that the district court erred in denying
their motion for severance. They argue that because each defendant's
confession implicated the other, their trials should have been held
separately. The failure to do so, they argue, was highly prejudicial.
We review decisions to deny motions to sever for abuse of discretion.
See United States v. Brooks, 957 F.2d 1138, 1145 (4th Cir.), cert.
denied, 505 U.S. 1228 (1992).
Generally, we adhere to the rule that defendants charged with par-
ticipation in the same conspiracy are to be tried jointly. See United
States v. Roberts, 881 F.2d 95, 102 (4th Cir. 1989). A defendant is not
entitled to severance merely because separate trials would more likely
result in acquittal, see Brooks, 957 F.2d at 1145, or because the evi-
dence against one defendant is not as strong as that against the other.
2645 30 4 See id. Rather, the defendant must show prejudice
. See FED. R. CRIM.
P. 14.
In the instant case, the defendants base their assignment of error on
the admission of their respective redacted confessions, which they
argue implicate the other party. Where the unredacted out-of-court
confession of a non-testifying codefendant clearly implicates a defen-
dant, severance is required to preserve that defendant's Sixth Amend-
ment right to confront his accusers. See Bruton v. United States, 391
U.S. 123, 135-36 (1968). Moreover, if a redacted confession of a non-
testifying codefendant given to the jury (by testimony or in writing)
shows signs of alteration such that it is clear that a particular defen-
dant is implicated, the Sixth Amendment has been violated. See Gray
v. Maryland, 118 S. Ct. 1151, 1157 (1998).
In Gray, the non-testifying codefendant's statement was redacted
by the government and read into evidence. See id. at 1153. The state-
ment was redacted by simply replacing the defendant's name with
blank spaces or the word "deleted." Id. The officer who read the state-
ment into evidence indicated where the blanks and deletions were in
the statement. For example, one exchange proceeded as follows:
4
Q: Who was in the group that beat [the victim]?
A: Me, [an empty space was left here],[another empty
space] and a few other guys.
Id. at 1158.
When that passage was read to the jury, the officer reading it said
"deleted" where the blank spaces appeared. See id. at 1153. The
Supreme Court concluded that the statements obviously referred to
the existence of the defendant and implicated him, in light of the
follow-up questions asked by the prosecutor. Id. at 1157.
By contrast, statements that, when redacted, do not even refer to
the existence of the defendant are admissible and do not require sev-
erance. See Richardson v. Marsh, 481 U.S. 200, 211 (1987). But,
Richardson expressly left open the question before us here -- namely,
whether redacted statements that refer to the existence of another
party who may be the defendant through symbols or neutral pronouns
are admissible. See id. at n.5.
The Supreme Court has strongly implied that such statements do
not offend the Sixth Amendment. In Gray, the court used as an exam-
ple the exchange quoted above and expressly wondered"[w]hy could
the witness not, instead, have said: ``Question: Who was in the group
that beat [the victim]? Answer: Me and a few other guys.'" Id. at
1157.
It is that type of neutral phrase that the prosecutor used in the
instant case. The prosecutor had the confessions retyped, and replaced
the defendants' respective names with the phrase"another person" or
"another individual." Because the retyped versions of the confessions
were read to the jury, the jury neither saw nor heard anything in the
confessions that directly pointed to the other defendant.
Given the neutral phrases used in the statements the defendants
were not prejudiced in any way. For example, Akinkoye's statement
at one point refers to "a guy in New York." Since that reference could
not possibly refer to Afolabi (who is a woman) the one gender neutral
5
reference to "another person" appearing in Akinkoye's confession
does not facially implicate her. Likewise, in an argument below,
Akinkoye himself argued that Afolabi's confession did not implicate
him because she lived with a number of males and she could have
been referring to one of them. Using his own logic then, a reference
to "another person" in Afolabi's confession does not facially implicate
him.
Furthermore, as discussed below, there was sufficient evidence to
convict both defendants without the confessions, particularly
Akinkoye. Therefore, the motion to sever was properly denied.
III.
Akinkoye next argues that the district court erred in failing to hold
a Franks hearing to determine whether errors in the warrant were
made intentionally to mislead the magistrate into concluding that
probable cause existed to search Akinkoye's home. Under the rule the
Supreme Court enunciated in Franks v. Delaware , 438 U.S. 154, 155-
56 (1978), where a defendant can show that the officers made mis-
statements of fact upon which the magistrate relied in issuing a war-
rant, the court will hold a hearing to determine whether the
misstatements were intentional. See id.A court will hold a Franks hearing after the defendant makes a
"substantial preliminary showing" that the police misstated the facts
upon which the warrant was based. See Franks, 438 U.S. at 155. Mere
conclusory statements are insufficient, as is a request for a hearing
simply to have more cross-examination. See id. at 171.
The district court correctly determined that a hearing was unneces-
sary. The warrant was issued based on facts provided by Inspector
Bernardo. The inspector's affidavit averred several things, including
that: credit card companies had complained of fraudulent activity,
handwriting samples showed that Akinkoye's handwriting was very
similar to the perpetrator's, there were photo identifications of
Akinkoye as the perpetrator, and Thomas Kulina, a victim, stated that
he had been defrauded.
6
Akinkoye argues that there were two major misstatements in the
affidavit submitted in support of the warrant application. First, he
points out that the name on the credit card used at a gas station
(whose attendant identified Akinkoye) was not Thomas Kulina, but
was LeeAnn Kulina, his wife. Second, he asserts that the employees
of an auto dealership who made photographic identifications of him
only told Bernardo that Akinkoye was in their store and that they did
not see him actually using the credit card. He states that Bernardo's
assertion that the employees identified Akinkoye as the person who
used the Kulina card is therefore false.
However, neither of the inconsistencies warrants a Franks hearing.
The purpose of Franks hearings is to determine whether the probable
cause determination was based on intentionally incorrect information.
Here, the record indicates that no intentionally incorrect information
was given.
The gas station attendant specifically identified Akinkoye as the
person who used a Kulina card and identified himself as Thomas
Kulina. Akinkoye does not challenge the attendant's account, only
that the card used was issued to LeeAnn Kulina. Therefore, even if
Bernardo used the husband's name where he should have used the
wife's, the attendant's identification of Akinkoye still links Akinkoye
to criminal activity prohibited by 18 U.S.C. § 1029. Moreover, Ber-
nardo relied on the attendant's statements. Thus, even if the attendant
lied to Bernardo, Bernardo's statements would not be intentionally or
recklessly misleading unless he had strong reason to believe that the
attendant was lying. Akinkoye has not shown that.
The inconsistencies with respect to the employees of the automo-
bile dealer do not create a need for a Franks hearing, either. The two
employees identified Akinkoye through a photo spread as the person
who used Kulina's credit card when paying for automobile parts.
Akinkoye points out that the two employees never actually saw him
sign the receipt or tender the card to the cashier for payment. How-
ever, the employees did state that they saw him with a credit card in
his hand, and the record shows that the credit card used at the gas sta-
tion was used at the automobile dealership on the same day. More-
over, we must again bear in mind that Bernardo relied on their
7
statements to him. Those facts were sufficient to give Bernardo prob-
able cause to conduct his search.
In any event, probable cause existed even without those identifica-
tions. Bernardo averred that he was contacted by a bank and a victim
and was told that fraud was afoot. A comparison of the fraudulent
receipts he received from the bank with samples of Akinkoye's hand-
writing he obtained pursuant to another tip he received revealed strik-
ing similarities. Based on the handwriting analysis, Bernardo would
have had probable cause to conduct a search even without the other
evidence. Therefore, the district court's determination that a Franks
hearing was unnecessary will not be disturbed.
IV.
The defendants next claim that their convictions under 18 U.S.C.
§ 1029(a)(3) should be reversed because that statute did not contem-
plate the use of legitimate credit cards fraudulently obtained from the
credit card company itself -- i.e., cards for which the person named
never actually applied. The defendants were convicted of conspiracy
to violate, and violating 18 U.S.C. § 1029(a)(2), which proscribes an
individual from "knowingly and with intent to defraud traffic[king] in
or us[ing] one or more unauthorized access devices during any one-
year period, and by such conduct obtain[ing] anything of value aggre-
gating $1,000 or more during that period." Id. The statute defines "un-
authorized access devices" as "any access device that is lost, stolen,
expired, revoked, canceled, or obtained with intent to defraud." 18
U.S.C.A. § 1029(e)(3) (West Supp. 1998).
The defendants contend that the legislative history of the statute
suggests that Congress intended the statute to apply only to credit
cards that are "genuine, but being misused."See H.R. REP. NO. 98-
894, 98TH CONG., 2D SESS. 14 (1984). They argue that the credit cards
were not "genuine" because they were never legitimately obtained by
the victims, but were obtained by Akinkoye "by false applications."
See Appellants' Br. at 19.
We disagree. First, Appellants ignore a well-established canon of
statutory construction: if the statute is unambiguous on its face, the
court will not look to the legislative history. See Ex Parte Collett, 337
8
U.S. 55, 61 (1949); First United Methodist Church v. United States
Gypsum Co., 882 F.2d 862, 865 (4th Cir. 1989), cert. denied, 493
U.S. 1270 (1990). The statute unambiguously criminalizes the obtain-
ing of an access device with the intent to defraud, since that conduct
is specifically included in the definition of "unauthorized use." See 18
U.S.C.A. § 1029(e)(3). None of the statutory language suggests that
the cards must have been originally obtained by the rightful card-
holder. In fact, the phrase "obtain with intent to defraud" is not modi-
fied in any way at all. Id.The Appellants concede that Akinkoye "obtained[the credit cards]
by false applications," and that he and Afolabi signed and used some
of them. There is no dispute that credit cards are"access devices"
within the meaning of 18 U.S.C. § 1029 (e)(1), or that Akinkoye acted
intentionally or knowingly in originally obtaining them or that
Afolabi acted intentionally or knowingly in obtaining the cards from
Akinkoye and using them. Since they intended to defraud the person
whose credit was relied upon and the companies issuing the cards,
there is no doubt that the defendants' conduct fits squarely within the
language of the statute. There is no need to look any further than the
statute's plain wording.
Even if we were required to review the language the Appellants
quoted, their convictions would stand. Akinkoye did not create or
manufacture the cards. Rather, the credit card companies issued actual
credit cards to him. As Akinkoye proved, the cards could be -- and
were -- used in commerce just like all of the other credit cards the
companies regularly issue. Therefore, they are "genuine" cards.
Moreover, the cards certainly were "misused." Akinkoye and
Afolabi confessed to using the cards to obtain goods and services.
They had no permission to avail themselves of the lines of credit the
credit card companies intended to extend to the victims. In fact, the
victims did not know that the lines of credit had been extended to
them. Therefore, the cards were "misused." In short, the Appellants'
convictions should stand.
V.
Afolabi claims that there was insufficient evidence to convict her
of violating § 1029(a)(2) because she only defrauded one person, one
9
time, for an aggregate cost of $647. The statute requires the defendant
to "traffic[ ] in or use[ ] one or more unauthorized access devices dur-
ing any one-year period, and by such conduct obtain[ ] anything of
value aggregating $1,000 or more during that period." Id. Challenges
to the sufficiency of the evidence require that the reviewing court
view the evidence in the light most favorable to the government to
determine whether a reasonable fact finder could rationally find the
defendant guilty beyond a reasonable doubt. See United States v.
Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).
Viewed in the light most favorable to the government, there is suf-
ficient evidence to convict Afolabi. Under § 1029(a)(2), the use of the
unauthorized access device is made criminal. As stated above, the
phrase "obtain with intent to defraud" is not modified. Nowhere in its
plain language or its legislative history does that section require that
the unauthorized user obtain the credit card directly from the victim.
Nor does the definition of "unauthorized access device," from which
the "obtain with the intent to defraud" language is taken, require that
the defendant acquire the card directly from the victim. All the statute
requires is that the defendant obtain the credit card with the intent to
defraud. Since Afolabi obtained the cards with the intent to defraud
the persons whose names appear on the cards and the issuers of the
cards, she is an "unauthorized" user of the cards.
Afolabi also meets the threshold amount in 18 U.S.C.§ 1029(a)(2).
Afolabi claims that she made only $647 worth of charges, having
used a Nordstrom's card ostensibly issued to a former Re/Max client.
However, Afolabi indicated to the police that she used two cards
issued to that woman.2 The evidence presented showed that only two
cards were issued in that woman's name. That second card, a Bloom-
ingdale's card, was used the same day as the Nordstrom's card and
$522.89 was charged. Thus, the evidence shows that more than
$1,100 was charged on that person's accounts alone on one day.
Therefore, there was sufficient evidence for a reasonable jury to con-
clude beyond a reasonable doubt that Afolabi violated 18 U.S.C.
§ 1029(a)(2).
_________________________________________________________________
2 The record shows that Afolabi initialed the pages of police documents
containing the names of the persons whose identities appeared on the
cards she actually used.
10
Moreover, Afolabi was also convicted of aiding and abetting viola-
tions of that statute. Aiders and abettors are liable to the same extent
as the principal. See 18 U.S.C.A. § 2(b) (West Supp. 1998). Accord-
ing to Afolabi's signed confession, she used five of the fraudulently
obtained credit cards. She signed several others that she did not per-
sonally use. The record reveals that those cards were used to charge
thousands of dollars worth of merchandise. Therefore, there is suffi-
cient evidence to sustain her convictions.
VI.
Finally, the defendants raise several challenges to their respective
sentences. Afolabi claims that she should have received a reduction
for her role in the offense and that the total loss was not reasonably
foreseeable to her. Akinkoye claims that he did not abuse a position
of trust as that term is defined in the Guidelines and that the district
court erred in enhancing his sentence for obstruction of justice. We
will address the enhancements in turn, bearing in mind that the district
court's factual determinations underlying the enhancements are
reviewed for clear error, while the legal interpretations are reviewed
de novo. See 18 U.S.C.A. § 3742(e) (West Supp. 1998); United States
v. Daughtrey, 874 F.2d 213, 217-18 (4th Cir. 1989).
A. The Refusal To Reduce Afolabi's Sentence
Afolabi contends that the district court erred in refusing to adjust
her sentence downward because she merely signed the back of some
of the cards and occasionally accompanied Akinkoye when he used
the cards. She argues that since she never applied for any of the cards
and never held on to any of them, she is entitled to the downward
adjustment given to those who play a minimal role in the offense. See
U.S.S.G. § 3B1.2 (West Supp. 1998).
Under U.S.S.G. § 3B1.2, a district court must reduce the defen-
dant's sentence if it finds that the defendant played a minimal or
minor role in the offense. A defendant is entitled to a four-level
adjustment if his or her role was minimal, see U.S.S.G. § 3B1.2(a),
and a two-level adjustment if his or her role was minor, but not mini-
mal. See U.S.S.G. § 3B1.2(b). If the defendant's role fell between
those two descriptions, then a three-level adjustment is prescribed.
11
See U.S.S.G. § 3B1.2. A defendant seeking a downward adjustment
for his or her minor role in the offense must prove that he or she is
entitled to it by a preponderance of the evidence. See United States
v. Gordon, 895 F.2d 932, 935 (4th Cir.), cert. denied, 498 U.S. 846(1990).
The commentary to U.S.S.G. § 3B1.2 makes clear that these adjust-
ments are targeted at defendants who are "substantially less culpable
than the average participant." U.S.S.G. § 3B1.2 cmt., backg'd. In
determining whether the adjustments apply, we not only look at the
defendant's conduct relative to the other defendants, but also at his or
her conduct relative to the elements of conviction. See Daughtrey,
874 F.2d at 216. In doing so, we ask whether "the defendant's con-
duct is material or essential to committing the offense." United States
v. Palinkas, 938 F.2d 456, 460 (4th Cir. 1991), judgment vacated on
other grounds by, Kochekian v. United States , 503 U.S. 931 (1992),
op. reinstated by, United States v. Kochekian, 977 F.2d 905 (1992).
While it is true that Afolabi was less culpable than Akinkoye, she
surely was "material or essential" to the offense. As recounted above,
Afolabi not only signed the back of some of the credit cards, but she
also accompanied Akinkoye into various retail establishments where
the cards were used. Indeed, the very point of including Afolabi in the
scheme was to facilitate Akinkoye's use of cards with women's
names on them. The cards signed by Afolabi were used to purchase
thousands of dollars worth of goods and services. 3 Therefore, Afolabi
cannot establish that she played a minimal or minor role in the offense
and the district court's conclusion to that effect was not clearly erro-
neous.
B. Reasonable Foreseeability Of Loss
Afolabi also contends that the total loss occasioned by the scheme,
$214,245.28, was not reasonably foreseeable to her because she only
used one card for a total loss of $647. Under U.S.S.G.
_________________________________________________________________
3 The record establishes that cards issued in women's names were used
to obtain nearly $70,000 worth of material goods. See J.A. at 644-45.
Afolabi admitted to signing cards bearing the names of many of the
women.
12
§ 1B1.3(a)(1)(B), a conspirator may be held responsible not only for
the losses his own conduct personally caused, but also for any other
losses resulting from the furtherance of the conspiracy that were rea-
sonably foreseeable to him. The commentary to § 1B1.3(a)(1)(B)
makes clear, however, that only those losses resulting from conduct
occurring in furtherance of the jointly undertaken criminal enterprise
are relevant. See id. In the instant case, the district court concluded
that the entire loss caused by the conspiracy was reasonably foresee-
able to Afolabi.
Afolabi continues to maintain that the only loss reasonably foresee-
able to her was the $647 charge that she detailed in her confession.
However, the weight of the evidence reflects that the district court did
not err in concluding that Afolabi could foresee the additional losses.
First, Afolabi's continued efforts to cling to the one $647 loss as
her only participation miss the mark. The record reflects that Afolabi
indicated through her initialing certain pages of police documents that
she used five of the cards at issue. She later stated that she signed the
backs of other cards but did not personally use all of those cards. She
also accompanied Akinkoye during many of his transactions. Cer-
tainly, losses occasioned by the use of those cards were reasonably
foreseeable to her.
The losses resulting from the use of the cards with men's names
on them presents a much closer question. There is no direct evidence
that Afolabi helped Akinkoye use the men's cards. As a result,
Afolabi argues that she could not reasonably foresee any of the losses
resulting from their use.
However, the record establishes that: (1) there is great overlap in
the days during which men's and women's cards were used;4 (2)
Afolabi accompanied Akinkoye whenever the women's cards were
used; (3) Akinkoye ultimately retained the possession of all of the
cards; and (4) many of the overlapping fraudulent transactions
_________________________________________________________________
4 As one example, Inspector Bernardo testified that in the case of one
husband and wife who were victimized, the dates of eight of the eleven
transactions in which the wife's card was involved also showed use of
the husband's card.
13
occurred within close geographic proximity of each other. In light of
those facts, the district court could reasonably infer that Afolabi was
with Akinkoye during the transactions and that the use of the cards
was within the scope of the conspiracy. Therefore, the district court
did not clearly err in its conclusion that Afolabi could reasonably
foresee the entire loss.
C. The Abuse Of Trust Enhancement
Akinkoye disputes the district court's decision to increase his sen-
tence because he abused a position of trust. Akinkoye contends that
real estate agents do not occupy a position of trust, or, in the alterna-
tive, that the only victims were the banks, with whom he held no posi-
tion of trust. Under U.S.S.G. § 3B1.3 (1998), a district court must
increase the defendant's sentence by two levels if it determines that
the defendant abused a position of trust and that abuse significantly
contributed to the commission or concealment of the crime. See id.
We review the district court's factual determination that Akinkoye
abused a position of trust for clear error. See United States v. Mackey,
114 F.3d 470, 476 (4th Cir. 1997).
Akinkoye's first argument is unpersuasive. He cites a series of
cases in other circuits where defendants of various occupations were
held not to have abused trust.5 In our circuit, however, we have
rejected a mechanistic approach to the abuse of trust enhancement
that excludes defendants from consideration based on their job titles.
See United States v. Gordon, 61 F.3d 263, 269 (4th Cir. 1995) ("The
abuse of trust enhancement was not designed to turn on formalistic
definitions of job type.").6 Instead, we examine several factors in
_________________________________________________________________
5 See, e.g., United States v. Ragland, 72 F.3d 500, 502-03 (6th Cir.
1995) (holding that a particular bank clerk did not abuse trust); United
States v. Brown, 47 F.3d 198, 205-06 (7th Cir. 1995) (individuals selling
real estate to victims had only a commercial, not a trust, relationship with
them); United States v. Smaw, 22 F.3d 330, 332 (D.C. Cir. 1994)
(accounting clerk with access to Social Security Numbers did not abuse
trust).
6 In Gordon, for example, we permitted the enhancement for a head
bank teller who gave security and other information to individuals seek-
ing to rob the bank for which she worked. See id. at 269-70. In general,
the abuse of trust enhancement does not apply to bank tellers because
they generally do not have sufficient managerial discretion to create a
trust relationship. See U.S.S.G. § 3B1.3, Application Note 1.
14
determining whether a particular defendant abused a position of trust.
Those factors include: (1) whether the defendant had either special
duties or "``special access to information not available to other
employees'"; (2) the extent of discretion the defendant possesses; (3)
whether the defendant's acts indicate that he is"``more culpable' than
others" who are in positions similar to his and who engage in criminal
acts; and (4) viewing the entire question of abuse of trust from the
victim's perspective. See id. (citations omitted).
In reviewing the factors mentioned above, we cannot conclude that
the district court clearly erred in determining that Akinkoye held a
position of trust and abused it. First, Akinkoye had special access to
information as a real estate agent. Re/Max's clients not only gave
Re/Max confidential information (such as Social Security Numbers),
but also the keys to their respective homes. These items were given
to Re/Max to facilitate Re/Max's representation of them in the sale of
their homes.
Although the confidential information and the keys were located
where any Re/Max employee theoretically could have accessed them,
a real estate agent's use of them is far less likely to arouse suspicion
than another staffer's. Akinkoye entered clients' homes and took files
home with him without much concern on Re/Max's part because such
activities are consistent with his duties as an agent. By contrast, a
Re/Max secretary undoubtedly would have aroused suspicion much
more quickly by engaging in those activities. Akinkoye's ability to set
his own schedule and work odd hours with little supervision and little
concern from Re/Max also facilitated the crimes. Those facts show
that Akinkoye's position made his criminal activity difficult to detect,
which is a basis for the enhancement. See U.S.S.G. § 3B1.3, n.1.
The second and third factors also are met. Akinkoye had great dis-
cretion. The manager of the Re/Max office in which Akinkoye
worked testified that the agents enjoy broad discretion in the hours
they work, freedom of access to information and other matters. She
also stated that the agents are subject to little supervision. Based on
her uncontroverted testimony, the second factor is met.
In addition, the third factor is met because of the nature and extent
of Akinkoye's crime. Over a nineteen-month span, Akinkoye
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acquired dozens of credit cards through his scheme and caused an
actual loss of $214,245.28. He wrote more than $30,000 worth of
fraudulent checks to the credit card companies in an effort to increase
the limits of the cards. He also enlisted the help of a woman, Afolabi,
to facilitate the use of the cards with women's names on them. In all,
Akinkoye is more culpable than other real estate agents who may
commit crimes.
Finally, we must view Akinkoye's position from the perspective of
the victim. Akinkoye first asserts that the banks were the real victims
and from their perspective, he had an ordinary commercial relation-
ship (credit card applicant to credit card company relationship). See
United States v. Moore, 29 F.3d 175, 178 (4th Cir. 1994) (holding that
an ordinary commercial relationship between the perpetrator and vic-
tim is insufficient to support the abuse of trust enhancement). How-
ever, it seems to us that although the banks ultimately have borne the
financial burden, the Re/Max clients have been victimized as well.
Their identities and credit histories were used to facilitate the crime,
and several of the clients testified to the difficulties they experienced
in clearing up matters with the various credit agencies. One client
received constant harassment at home and work from creditors.
Another victim's search for a new home was impeded because of the
credit problems caused by Akinkoye's activity. Thus, Akinkoye's
focus on the ultimate financial burden ignores the emotional, financial
and other burdens borne by the clients until the extent of the fraud
scheme was exposed and corrected.
Moreover, Akinkoye need not have personally known the Re/Max
clients he defrauded to be subject to the enhancement. The clients
trusted Re/Max to represent them. Their personal information was
made available to all of Re/Max's agents in order to facilitate effec-
tive representation. Akinkoye would not have had access to the homes
and information if not for his status as an agent.
Furthermore, Akinkoye's reading of the Guidelines would lead to
absurd results. If we were to adopt his interpretation of the Guide-
lines, then, for example, the managing partner of a law firm could not
be held to have abused trust of clients of the firm whom he or she had
not met. Yet, that partner is precisely the type of person to whom the
enhancement was intended to apply, because the clients engaged the
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firm to represent them. Similarly, Re/max's clients engaged Re/max
to represent them, and they placed their confidence in Re/max's
agents as their representatives. Akinkoye used that trust to obtain
credit cards and execute a fraud scheme. Therefore, the district court's
determination that Akinkoye abused a position of trust was not clearly
erroneous.
D. The Obstruction Of Justice Enhancement
Finally, Akinkoye disputes the district court's enhancement for
obstruction of justice. The district court enhanced Akinkoye's sen-
tence by two levels because it found that Akinkoye committed perjury
during a pretrial hearing. While testifying under oath during a hearing
pursuant to his motion to suppress evidence, Akinkoye uncategori-
cally denied ever having given any statement to the police about the
credit card scheme. Several days earlier, Akinkoye confessed to his
role in the scheme and gave a detailed statement.
The enhancement for obstruction of justice may properly be based
on perjurious testimony. See U.S.S.G. § 3C1.1, n.3 (1998). We have
held that perjurious testimony given in pretrial proceedings may be
considered in determining whether to apply the enhancement. See
Gordon, 61 F.3d at 270. In applying the enhancement, the district
court must specifically identify the perjurious statements and make a
finding either as to each element of perjury or"``that encompasses all
of the factual predicates for a finding of perjury.'" Id. (quoting United
States v. Dunnigan, 507 U.S. 87, 95 (1993)).
In the instant case, Akinkoye repeatedly denied that he ever told
Inspector Bernardo of his involvement in the scheme. However, the
Inspector recounted in detail Akinkoye's account of the events. The
district judge expressly found that Akinkoye lied when he stated that
he did not make any of the statements attributed to him, and that the
issue of whether the statements were lawfully obtained "was the
whole hearing." J.A. at 540. Based on that record, we conclude that
the district court neither erred in finding perjury nor erred in applying
the enhancement for obstruction of justice.
As the district court's determinations appear to be in order, the
judgment is hereby
AFFIRMED.
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