United States v. Haidara ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4305
ABRAHAM HAIDARA, a/k/a Abraham
Harrison,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, District Judge.
(CR-95-138-MU)
Submitted: February 25, 1997
Decided: April 28, 1997
Before ERVIN and WILLIAMS, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Aaron E. Michel, Charlotte, North Carolina, for Appellant. Mark T.
Calloway, United States Attorney, David A. Brown, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Abraham Haidara appeals from a district court judgment entered
pursuant to a jury verdict finding him guilty of conspiring to use and
of using counterfeit credit cards in violation of 18 U.S.C. § 1029(1994). Haidara challenges the district court's decision to admit the
testimony of certain Government witnesses at his trial, the sufficiency
of the evidence to support his conviction, and the court's decision, at
sentencing, to depart upward from the sentencing range provided by
the United States Sentencing Guidelines. Finding no reversible error,
we affirm.
Initially, we find that the district court did not abuse its discretion
by permitting United States Secret Service Agent Winand to testify
regarding the counterfeit nature of the credit cards used by Haidara
and his co-defendant, Betty Woods, in their scheme. Haidara com-
plains that he did not receive proper notice of Agent Winand's testi-
mony prior to trial under Fed. R. Crim. P. 16(a)(1)(E). The rule,
however, requires notice only when the defendant requests such dis-
closure, and Haidara does not even allege that he requested disclosure
in this case. Moreover, we find that Haidara cannot claim surprise
because this information was available at all times to the defense by
virtue of the Government's "open file" policy. See United States v.
Amend, 791 F.2d 1120, 1124-25 (4th Cir. 1986).
Haidara also contends that the testimony was irrelevant and redun-
dant because he had already stipulated to the counterfeit nature of the
credit cards. To the extent that Agent Winand's testimony was redun-
dant, we find that Haidara has shown no prejudice resulting from such
redundancy. Moreover, it is clear that Agent Winand's testimony was
not irrelevant, as he testified not only to the counterfeit nature of the
cards but also to the technology and methods used to create the cards.
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Haidara also objects on appeal to the district court's decision to
admit the testimony of Secret Service Agent Stone, who summarized
evidence of credit card charges and wire transfers. Because Haidara
did not object to this testimony at trial, he has waived appellate
review of this contention absent plain error. See Fed. R. Crim. P. 52;
United States v. Olano, 507 U.S. 725 (1993); United States v.
Castner, 50 F.3d 1267, 1277 (4th Cir. 1995). Plain error exists where
there is: (1) an error; (2) which is plain; (3) which is so prejudicial
as to affect the outcome of the proceedings; and (4) which seriously
affects the fairness, integrity, or public reputation of judicial proceed-
ings. United States v. Hanno, 21 F.3d 42, 45 (4th Cir. 1994). We find
no error in the admission of Agent Stone's testimony.
Stone summarized for the jury business records provided by West-
ern Union and the banks that had issued the legitimate credit card
numbers used by Haidara and Woods in their scheme. These records
were admitted into evidence prior to Stone's testimony and reflected
information such as the dates and locations in which unauthorized
persons used legitimate credit card numbers to fraudulently obtain
cash, goods, or services. Haidara avers that by admitting Stone's testi-
mony, the court impermissibly permitted him to vouch for the credi-
bility of these records, and to infer that the defendants were the
persons who actually made the fraudulent credit card charges, even
though in some instances, there were no credit card imprints available
to prove the actual card used in the transactions.
Haidara's contentions are without merit. Stone's testimony was
admissible under Federal Rule of Evidence 1006, which permits the
presentation of summary testimony to describe the contents of "volu-
minous writings, recordings, or photographs which cannot conve-
niently be examined in court." Id. While Haidara relies on our
decision in United States v. Johnson, 54 F.3d 1150 (4th Cir. 1995),
where we noted general concerns about the use of summaries and
charts in federal drug prosecutions, such reliance is misplaced
because that case involved the use of charts and summary testimony
to describe earlier testimony, rather than the use of summary testi-
mony to describe written records. Id. at 1158 n.8. Moreover, in
Johnson, we found that summary testimony may be properly admitted
under Rule 611(a) of the Federal Rules of Evidence if the evidence
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aids the jury in ascertaining the truth and is not overly prejudicial to
the defendant. Id.In this case, Stone testified that some of the records he summarized
were difficult to read, and the information therein was sometimes dif-
ficult to discern. His testimony therefore assisted the jury to ascertain
the truth. Moreover, we find no basis for concluding that the summary
testimony was prejudicial to Haidara. We note that Haidara identifies
no instance where Stone went beyond a mere description of the infor-
mation in the documents and, as he maintains, "told the jury that his
investigation . . . [justified] the assumption that the charges for which
there were no imprints or any documentation as to where they
occurred were made by the defendants." Moreover, the trial court pro-
vided defense counsel every opportunity to cross-examine Stone, and
explicitly instructed the jury that Stone's testimony was offered for
the purpose of summarizing documentary evidence. Stone's testimony
was therefore admissible under either Rule 1006 or Rule 611(a).
Stone next challenges the district court's decision to deny his
motions for acquittal. A denial of a motion for acquittal is reviewed
under a sufficiency of the evidence standard. Fed. R. Crim. P. 29. To
sustain a conviction, substantial evidence viewed in the light most
favorable to the government must support the conviction beyond a
reasonable doubt. See United States v. Burgos , 94 F.3d 849, 860 (4th
Cir. 1996) (en banc); see Glasser v. United States, 315 U.S. 60, 80
(1942).
The Government in this case submitted evidence showing that Hai-
dara traveled with Woods for several weeks in North Carolina obtain-
ing tens of thousands of dollars worth of cash, goods, and services
through the use of counterfeit credit cards. On the day that Haidara
and Woods were arrested, Haidara drove Woods to three different
banks located within a mile and a half of each other where Woods
obtained or attempted to obtain cash advances of $2,000 from each
bank. Officials at the third bank visited by the defendants recognized
that the cards and identification submitted by Woods were counterfeit
and contacted the Secret Service. The secret service agent who
arrived at the scene just as Woods was leaving the bank and entering
the car driven by Haidara.
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Upon noticing that he was being followed, Haidara led the agent
on a high-speed chase through a residential area before finally pulling
over. A search of the vehicle uncovered five counterfeit credit cards
in a man's sock in the trunk, and another counterfeit card over the sun
visor on the driver's side of the car. The agent also recovered cash
denominations on Haidara's person matching almost exactly the
denominations Woods received from the second bank the two visited
on the day of their arrest. During his pretrial detention, Haidara con-
fessed his involvement in the scheme to two other inmates and tried
to recruit them for another scheme he planned to begin upon their
release. While Haidara attacks the credibility of these inmates, it was
within the province of the jury to decide whether these witnesses were
believable. See United States v. Johnson, 55 F.3d 976, 979 (4th Cir.
1995). While the record contains further evidence of guilt, we find
that the evidence discussed is more than sufficient to support the
jury's verdict.
We turn next to the district court's decisions at sentencing to depart
upward from the guidelines. The court departed upward by four levels
based on Haidara's subornation of Woods's perjury. The court found
that Woods's testimony at trial that Haidara was unaware of her ille-
gal activities was "absolutely unbelievable." It further found that Hai-
dara had persuaded Woods prior to their arrests to lie for him if they
got caught. The court acknowledged that the guidelines ordinarily
contemplate only a two-level enhancement for subornation of perjury,
see U.S. Sentencing Guidelines Manual § 3C1.1 (1995), but found
that enhancement inadequate to suit the nature of the offense in this
case.
A sentencing court may depart from the specified sentencing range
of the guidelines where it finds that the circumstances or conse-
quences of a case are so atypical as to fall outside the "heartland" of
cases to which the guidelines ordinarily apply. See United States v.
Rybicki, 96 F.3d 754, 757 (4th Cir. 1996). The court may depart "even
though the reason for departure is taken into consideration in the
guidelines . . . if the court determines that, in light of unusual circum-
stances, the guideline level attached to that factor is inadequate."
U.S.S.G. § 5K2.0. We first note that, contrary to Haidara's assertions,
the evidence firmly supports the district court's factual determination
that Haidara persuaded Woods to lie for him. The evidence therefore
5
clearly supports at least a two-level enhancement under section
3C1.1.
We find, however, that the district court committed no error by
finding this case outside the heartland of typical cases involving sub-
ornation of perjury. Section 5K2.7 of the guidelines authorizes depar-
tures for conduct involving disruption of a governmental function. In
this case, Haidara and Woods concocted a scheme to obstruct justice
by agreeing that Woods would enter into a favorable plea agreement
in which she would admit to Haidara's involvement, but would then
testify inconsistently with this admission at Haidara's trial in order to
absolve Haidara. In United States v. Pulley, 922 F.2d 1283 (6th Cir.
1991), the Sixth Circuit rejected the defendant's contention that
§ 3C1.1 adequately considered his conduct where he similarly con-
cocted a scheme in which he persuaded several people to lie for him
in order to absolve himself and his co-defendant. Id. at 1289. Accord-
ingly, we conclude that the court did not err by departing upward in
this case.
The district court also departed upward three additional levels
based on the sophistication of the counterfeit cards used by the defen-
dants. We reject Haidara's contention that the evidence was insuffi-
cient to conclude that the cards were unusually sophisticated. The
testimony of Secret Service Agents Winand and Morris at trial and at
sentencing amply supported the court's finding.
The court also correctly found that the applicable guideline did not
take this factor into account. See U.S.S.G.§ 2F1.1.* The court then
determined that this unmentioned factor was an aggravating factor
which made the defendants' scheme particularly dangerous, and war-
ranted an upward departure of three levels. We find that the district
court did not abuse its discretion by finding that the sophisticated
nature of the cards took this case outside the heartland of the applica-
ble guideline. See Rybicki, 96 F.3d at 757-58. The court's finding that
the sophisticated nature of the cards rendered this credit card scheme
atypically dangerous was supported by Agent Morris's testimony that
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*We disagree with Haidara's contention that the court's upward
adjustment for loss in excess of $40,000 already took into account the
sophisticated nature of the cards.
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the technology used to create some of the cards rendered detection of
the fraudulent nature of the cards difficult.
Accordingly, the judgment order of the district court is affirmed.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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