United States v. Lenora Banks-Davis ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4217
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LENORA BANKS-DAVIS, a/k/a Jacqui Banks-Davis,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. John A. Gibney, Jr.,
District Judge. (3:12-cr-00082-JAG-1)
Submitted: December 27, 2013 Decided: January 13, 2014
Before AGEE and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Andrew A. Protogyrou, PROTOGYROU & RIGNEY, P.L.C., Norfolk,
Virginia, for Appellant. Dana J. Boente, Acting United States
Attorney, Michael R. Gill, Dominick S. Gerace, Assistant United
States Attorneys, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lenora Banks-Davis was convicted following a jury
trial of bank fraud, in violation of 18 U.S.C. § 1344 (2012)
(Count One), and unauthorized use of an access device, in
violation of 18 U.S.C. § 1029(a)(5), (c)(1)(A)(ii) (2012) (Count
Two). The district court sentenced Banks-Davis to 120 months’
imprisonment on each count, to run concurrently, and ordered
restitution in the amount of $10,912.56. On appeal, counsel
challenges the sufficiency of the evidence presented in support
of the convictions, contending that the government failed to
prove that Banks-Davis acted with the requisite intent to
defraud. Banks-Davis has moved to file a pro se supplemental
brief, which raises additional issues. We affirm.
We review de novo the sufficiency of the evidence
supporting a conviction. United States v. McLean, 715 F.3d 129,
137 (4th Cir. 2013). In assessing evidentiary sufficiency, we
must determine whether, viewing the evidence in the light most
favorable to the government and accepting the factfinder’s
determinations of credibility, the 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.” United States v. King, 628 F.3d 693, 700 (4th Cir.
2011) (internal quotation marks omitted). “A defendant bringing
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a sufficiency challenge 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.) (internal quotation marks and citations
omitted), cert. denied, 133 S. Ct. 179 (2012).
As to Count One, bank fraud, the statute under which
Banks-Davis was convicted proscribes “knowingly execut[ing]
. . . a scheme or artifice: (1) to defraud a financial
institution; or (2) to obtain any of the moneys, funds . . . or
other property owned by . . . a financial institution, by means
of false or fraudulent pretenses, representations, or promises.”
18 U.S.C. § 1344. Although “[t]he two subsections contained in
§ 1344 proscribe slightly different conduct, . . . a person may
commit bank fraud by violating either subsection.” United
States v. Brandon, 298 F.3d 307, 311 (4th Cir. 2002). “The
‘scheme to defraud’ clause of Section 1344(1) is to be
interpreted broadly, and requires that the defendant act with
the specific intent to deceive or cheat, for the purpose of
getting financial gain for one’s self or causing financial loss
to another.” Id. (internal quotation marks, citations, and
alterations omitted). To prove Count Two, unauthorized use of
an access device, the government must establish that the
defendant “knowingly and with intent to defraud effect[ed]
transactions, with [one] or more access devices issued to
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another person . . . , to receive payment” equal to or greater
than $1,000 within a one-year period. 18 U.S.C. § 1029(a)(5).
Thus, both the bank fraud statute and the unauthorized use of an
access device statute have as an element the specific intent to
defraud.
“[A] conviction under § 1344 is not supportable by
evidence merely that some person other than a federally insured
financial institution was defrauded in a way that happened to
involve banking, without evidence that such an institution was
an intended victim.” Brandon, 298 F.3d at 311 (internal
quotation marks omitted). “However, the bank need not be the
immediate victim of the fraudulent scheme, and the victim bank
need not have suffered an actual loss.” Id. at 312 (citations
and internal quotation marks omitted). Rather, the government
satisfies the intent element with proof that “a financial
institution was exposed to an actual or potential risk of loss.”
Id. (internal quotation marks and alterations omitted).
Banks-Davis challenges both convictions by arguing
that the government failed to establish that she lacked the
authority to use Banks-Davis’ credit card. Upon careful review
of the record, however, we conclude that the evidence
establishes that Banks-Davis acted with the requisite fraudulent
intent to support her convictions. Banks-Davis obtained a
credit card in the victim’s name under the pretense that she
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would use the card to consolidate certain of the victim’s bills,
but instead she used the card for her own personal expenses. In
total, Banks-Davis incurred nearly $11,000 in unpaid charges
that were not authorized by the victim, thereby exposing BB&T to
this risk of loss. Moreover, evidence presented at trial
establishes that Banks-Davis knew that she was not authorized to
use the victim’s credit card for her own personal expenses.
Banks-Davis has filed a motion to submit a
supplemental pro se brief, in which she raises additional
challenges to her convictions. Although we grant the motion to
file the supplemental brief, we have assessed the claims raised
therein and conclude that they lack merit. Accordingly, we
affirm the district court’s judgment. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
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