United States v. Sherry Taylor ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4855
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SHERRY TAYLOR,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:11-cv-00049-GBL-1)
Argued: September 20, 2012 Decided: November 26, 2012
Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Geremy C. Kamens, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Kosta S. Stojilkovic,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Caroline S. Platt, Appellate Attorney, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant.
Neil H. MacBride, United States Attorney, Alexandria, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sherry Taylor was convicted of four counts of bank
fraud, in violation of 18 U.S.C. § 1344, and one count of access
device fraud, in violation of 18 U.S.C. § 1029(a)(2). On
appeal, Taylor challenges the sufficiency of the evidence
presented in support of her bank fraud convictions, contending
that the government failed to prove that she had the requisite
intent to defraud a financial institution. We conclude,
however, that the government’s proof as to Taylor’s intent to
commit bank fraud was more than sufficient to meet its burden.
Accordingly, we affirm.
I.
Between March and October 2010, Taylor made a series
of fraudulent purchases of electronics using American Express
cards with false names at Costco and Safeway stores in Virginia. *
Taylor used the credit cards to make purchases in amounts
ranging from $3,035.70 to $19,372.31 and totaling $38,378.55.
The government presented evidence showing that American Express
bore the loss of both Safeway transactions. A Costco loss
prevention regional manager testified regarding how the risk of
*
Because the government prevailed at trial, we view the
facts in the light most favorable to it. United States v.
Herder, 594 F.3d 352, 358 (4th Cir. 2010).
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fraudulent purchases was allocated between Costco and American
Express. Namely, if the cashier swiped the card through an
electronic reader, American Express would provide an approval
code and consequently bore the risk of any loss due to fraud.
If the cashier keyed in the card number, however, American
Express sent a temporary approval code and the risk of loss was
borne by Costco. Under this arrangement, both Costco and
American Express were responsible for losses at various times as
a result of Taylor’s fraudulent purchases. Taylor also
stipulated that at all times relevant to this case, American
Express was a “financial institution” within the meaning of the
bank fraud statute. See 18 U.S.C. § 1344.
At the close of the government’s evidence, Taylor
moved for a judgment of acquittal, pursuant to Rule 29 of the
Federal Rules of Criminal Procedure, contending that there was
insufficient evidence of her intent to defraud a financial
institution. The district court denied Taylor’s motion, ruling
that “the defendant knew her fraudulent actions would expose at
least some bank, American Express here, to a risk of loss.”
J.A. 305. After reciting the elements required for a conviction
under the bank fraud statute, the court explained that “[§] 1344
does not require that the scheme be directed solely at a
particular institution. It is sufficient that the defendant
knowingly exposed a bank to a risk of loss.” Id. 304.
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Taylor testified in her own defense. On cross
examination, Taylor, who had worked as a store clerk,
acknowledged that she understood “how the process works with [a]
credit card.” Id. 309-10. Specifically, she admitted that she
understood “[t]he card is swiped . . . [an] electronic message
of some sort is sent to the bank, and then the bank pays the
retailer.” Id. 310.
At the close of all the evidence, Taylor renewed her
Rule 29 motion, which the court again denied. The court found
Taylor guilty on all counts, concluding that by using
fraudulently obtained credit cards to make large purchases of
electronics, Taylor engaged in “a scheme to defraud that was
knowingly undertaken.” Id. 361. The court later sentenced
Taylor to thirty-six months in prison as to each of the counts,
to run concurrently, and ordered restitution in the amount of
$429,033.08. This appeal followed.
II.
We review a district court’s denial of a motion for
judgment of acquittal de novo. United States v. Abdelshafi, 592
F.3d 602, 606 (4th Cir. 2010). “We review the sufficiency of
the evidence to support a conviction by determining whether
there is substantial evidence in the record, when viewed in the
light most favorable to the government, to support the
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conviction.” United States v. Jaensch, 665 F.3d 83, 93 (4th
Cir. 2011) (internal quotation marks omitted). “[S]ubstantial
evidence 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.
Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).
III.
Taylor first argues that the government failed to
present sufficient evidence to support the conclusion that
victimizing a bank was a part of her scheme--in other words,
Taylor argues that her scheme to defraud was complete once she
obtained the goods. In a related argument, Taylor contends that
her intended victims were the merchants, rather than the bank.
Finally, Taylor argues that allowing the government to obtain a
conviction under the bank fraud statute by simply showing a risk
of loss to the bank renders the access device statute
superfluous. We address these arguments in turn.
A.
The federal bank fraud statute at issue in this appeal
provides as follows:
Whoever knowingly executes, or attempts to
execute, a scheme or artifice—
(1) to defraud a financial institution; or
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(2) to obtain any of the moneys, funds, credits,
assets, securities, or other property owned by, or
under the custody or control of, a financial
institution, by means of false or fraudulent
pretenses, representations, or promises;
shall be fined not more than $1,000,000 or imprisoned
not more than 30 years, or both.
18 U.S.C. § 1344. Although the two subsections of § 1344
criminalize slightly different conduct, both require that the
defendant act knowingly. United States v. Brandon, 298 F.3d
307, 311 (4th Cir. 2002). We have explained that “[b]ecause
§ 1344 focuses on the bank . . . 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
institution was an intended victim.” Id. at 311 (quoting United
States v. Laljie, 184 F.3d 180, 189-90 (2d Cir. 1999)). We
clarified, however, that “the bank need not be the immediate
victim of the fraudulent scheme” and that the “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 the defendant
knowingly exposed a financial institution to an actual or
potential risk of loss through the scheme to defraud. Id.Taylor argues that she lacked this intent because her
scheme to defraud was complete once she obtained the goods from
the merchants. In support of this contention, Taylor relies on
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United States v. Maze, 414 U.S. 395 (1974). In Maze, the
defendant stole his roommate’s bank credit card and used it to
obtain food and lodging at motels in three states. Id. at 396-
97. The motels, in turn, mailed the invoices to the bank, which
then mailed them to the roommate for payment. Id. at 397. The
government charged Maze with mail fraud, contending that Maze
knew that each merchant would eventually mail the credit card
invoices to the banks. Id. at 396-97.
The Supreme Court, however, concluded that the mailing
of invoices was not “sufficiently closely related to [the
defendant’s] scheme to bring his conduct within the statute.”
Id. at 399. The Court explained that Maze’s “scheme reached
fruition when he checked out of the motel, and there is no
indication that the success of his scheme depended in any way on
which of his victims ultimately bore the loss.” Id. at 402.
Although Maze was charged with mail fraud, Taylor asks
this court to read into the bank fraud statute a similar
limiting principle. Taylor’s reliance on Maze, however, is
misplaced because the bank fraud statute does not require a
proof of mailing, or other means of transmission, in furtherance
of the scheme. As we explained in Brandon, it is sufficient for
a conviction under the bank fraud statute that the defendant
knowingly exposed the financial institution to a risk of loss,
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see Brandon, 298 F.3d at 312, which is precisely what the
government proved here.
B.
Taylor next argues that her intent in executing her
fraudulent scheme was to defraud the merchants, not the bank.
Citing the Third Circuit's decision in United States v. Thomas,
315 F.3d 190 (3d Cir. 2002), Taylor contends that the government
failed to produce sufficient evidence to prove that the bank was
anything more than an incidental victim. Appellant’s Br. 24.
In Thomas, the defendant was a home health care aide
employed by an 88-year-old stroke victim. 315 F.3d at 194. The
defendant induced her employer to sign checks made out to cash,
providing a pretext that she was transferring money or
purchasing groceries as part of her position. Id. The
defendant would then cash the checks at the bank, at times
bringing her employer to authorize the transactions in front of
the teller. Id. The Third Circuit reversed the defendant’s
bank fraud conviction, reasoning that the deception of the bank
was an incidental aspect of a scheme primarily designed to
defraud the defendant’s employer. Id. at 200. The court
concluded that cases in which the cashed checks are facially
valid do not implicate the federal interest that the statute was
created to protect–-that is, those cases do not expose the bank
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to liability or undermine the integrity of the bank in a way
that constitutes bank fraud. Id.
Thomas, however, is inapposite given the bank's role
in Taylor's scheme, which we find more akin to that assumed by
the bank in Brandon. See 298 F.3d 307. In Brandon, the
defendant was charged with bank fraud for engaging in a scheme
in which she stole checks from others, forged their signatures,
and used the checks to make purchases from various merchants.
Id. at 309-10. On appeal, the defendant challenged the
sufficiency of the indictment, contending that her scheme
involved presenting the forged checks to retail merchants and
that the merchants–-rather than the bank-–were the victims of
her fraud. Id. at 310. We rejected that argument, concluding
that “[a] defendant’s knowing negotiation of a bank check
bearing a forged endorsement satisfies the requirement that a
bank be an actual or intended victim of the defendant’s scheme,
even if the forged instrument is presented to a third party and
not directly to a bank.” Id. at 312 (quoting United States v.
Crisci, 273 F.3d 235, 240 (2d Cir. 2001)) (internal quotation
marks omitted).
We see no material distinction between the defendant's
use of stolen checks in Brandon and Taylor’s similar scheme
involving stolen bank credit cards. Accord United States v.
Ayewoh, 627 F.3d 914 (1st Cir. 2010) (rejecting a defendant's
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argument that he intended to defraud credit card holders, whose
account numbers he fraudulently used, rather than the bank).
And unlike in Thomas, the payment presented--here, a credit
card--was falsified, and the bank was exposed to liability.
Accordingly, the district court correctly determined that the
government’s evidence alone was sufficient to meet its burden as
to Taylor’s intent. Taylor also admitted, however, that she had
previously handled credit cards as a store clerk and that she
understood that when a credit card is swiped, the issuing entity
is contacted and pays the retailer. Thus, the record contains
ample evidence that Taylor knowingly exposed American Express to
a risk of loss.
C.
Finally, we turn to Taylor's contention that affirming
her bank fraud convictions based on her fraudulent use of credit
cards would render the access device fraud statute superfluous.
This argument fails on several fronts. To begin with,
the access device fraud statute criminalizes the fraudulent use
of a variety of financial instruments other than credit cards,
including electronic serial numbers and mobile identification
numbers. See 18 U.S.C. § 1029(e)(1) (defining “access device”).
Second, the statute criminalizes conduct beyond the mere
unauthorized use of an access device, encompassing, inter alia,
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the trafficking and possession of access devices as well. See
id. § 1029(a)(1), (3)-(4). Finally, not all credit card
companies are “financial institutions” as defined in the bank
fraud statute, see id. § 20, and thus the government may
properly look to the access device fraud statute in such
instances. In sum, we have no concern that affirming Taylor’s
conviction for bank fraud on the facts before us risks
obliterating the utility of the access device fraud statute.
IV.
For the foregoing reasons, we affirm the judgment of
the district court.
AFFIRMED
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