United States v. Lessingto ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4873
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STANLEY LESSINGTON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Sol Blatt, Jr., Senior District
Judge. (2:04-cr-01092-SB-1)
Submitted: February 25, 2010 Decided: March 18, 2010
Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ray Coit Yarborough, Jr., LAW OFFICE OF RAY COIT YARBOROUGH,
JR., Florence, South Carolina, for Appellant. Michael Rhett
DeHart, Assistant United States Attorney, Charleston, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stanley Lessington appeals from the 121-month sentence
imposed following his jury conviction on two counts of
conspiracy to make and pass counterfeit business checks, in
violation of 18 U.S.C. § 371 (2006), one count of passing
counterfeit checks, in violation of 18 U.S.C. §§ 513(a), 3147(1)
(2006), and two counts of identity theft, in violation of 18
U.S.C. § 1028(a)(7), (b)(1)(D) (2006). Lessington’s counsel
filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), asserting that there are no meritorious grounds for
appeal, but questioning whether the district court erred in
denying Lessington’s motions to substitute counsel and for
acquittal pursuant to Federal Rule of Criminal Procedure 29.
Lessington filed a pro se supplemental brief, arguing the same
issues and raising several additional claims. The Government
has not filed a brief. Finding no error, we affirm.
We review the district court’s denial of a motion to
substitute counsel for abuse of discretion. United States v.
Reevey, 364 F.3d 151, 156 (4th Cir. 2004). Upon review, we
consider the following factors: “(1) the timeliness of [the]
[m]otion[]; (2) the adequacy of the court’s inquiry into his
complaint about counsel; and (3) whether [the defendant] and his
counsel experienced a total lack of communication preventing an
adequate defense.” Id. (internal quotation marks omitted). We
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then “weigh these factors against the trial court’s interest in
the orderly administration of justice.” Id. at 157.
Lessington’s trial was set to begin on Monday,
October 30, 2006; however, he did not request a new attorney
until Thursday, October 26, 2006. The day of trial, the
district court allowed Lessington to explain the reasons he was
dissatisfied with counsel, addressing each point Lessington
raised in depth. The district court also questioned counsel,
who admitted that he and Lessington had a breakdown in
communication because they did not see the evidence in the same
light. However, counsel believed he could articulate a defense
nonetheless. On these facts, we find that the district court
did not abuse its discretion in denying Lessington’s motion to
substitute counsel.
We review the district court’s denial of a Rule 29
motion for acquittal de novo. United States v. Perkins, 470
F.3d 150, 160 (4th Cir. 2006). A jury verdict must be upheld
“if there is substantial evidence, viewed in the light most
favorable to the Government, to support it.” Id. We consider
both circumstantial and direct evidence, drawing all reasonable
inferences from such evidence in the government’s favor. United
States v. Harvey, 532 F.3d 326, 333 (4th Cir. 2008).
Count 1 charged that Lessington and an unindicted co-
conspirator conspired, in violation of § 371, to possess and
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pass counterfeit business checks with the intent to deceive
another person and organization, in violation of § 513(a), based
on a transaction at McElveen Chevrolet. A conviction under
§ 371 requires the government to prove: “(1) an agreement
between two or more people to commit a crime,” in this case a
violation of § 513(a), and “(2) an overt act in furtherance of
the conspiracy.” United States v. Ellis, 121 F.3d 908, 922 (4th
Cir. 1997). “The existence of a tacit or mutual understanding
between conspirators is sufficient evidence of a conspiratorial
agreement.” Id. (internal quotation marks omitted). To
establish a violation of § 513(a), the government must prove
that the defendant: (1) uttered or possessed; (2) a counterfeit
security; (3) of an organization that operates in or affects
interstate commerce; (4) with the intent to deceive another
person or organization. 18 U.S.C. § 513(a), (c)(4). A security
is counterfeit if it “purports to be genuine but is not, because
it has been falsely made or manufactured in its entirety.” 18
U.S.C. § 513(c)(1).
At trial, a former McElveen salesman testified that
Lessington came to McElveen to purchase a vehicle and that, at
Lessington’s direction, he drew up the sales contract in the
name of Michael Anthony, knowing the name was fictitious.
Lessington forged Michael Anthony’s name on the contract and
took possession of the vehicle, passing a business check for
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$37,500 drawn on a construction company’s account as payment.
The contract further provided that an excess payment in the
amount of $5500 would be refunded to Lessington. Testimony from
co-conspirators confirms that Lessington passed the counterfeit
check with the intent to deceive McElveen. The following day,
the salesman passed the check at the bank and returned $5500 to
Lessington, as promised in the fraudulent sales contract.
Count 2 charged Lessington and several named co-
conspirators with violating §§ 371 and 513(a) based on a
conspiracy that took place between 2003 and October 2005. Two
co-conspirators testified that they witnessed Lessington print
counterfeit payroll and personal checks. Additionally, several
co-conspirators testified that Lessington recruited them to pass
counterfeit payroll checks at several stores and to open bank
accounts to deposit counterfeit checks in exchange for payment.
Further, a former cashier at the St. Stephen IGA testified that
Lessington recruited her to cash a number of counterfeit checks
for himself and others at the IGA in exchange for payment.
Count 3 charged Lessington with knowingly passing a
counterfeit security of Nationwide Insurance made payable to
David Jones with intent to deceive the St. Stephen IGA, in
violation of § 513(a), while on release, in violation of § 3147.
At trial, the former IGA cashier testified that she cashed a
counterfeit check from Lessington made out to David Jones at the
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St. Stephen IGA on September 27, 2005. At the time Lessington
passed the check, he was on pretrial release after entering a
not guilty plea to the original indictment in this case.
Finally, Counts 4 and 5 charged Lessington with
identity theft, in violation of § 1028(a)(7), (b)(1)(D), for
knowingly possessing, transferring, and using others’ Social
Security numbers, dates of birth, names, driver’s licenses, and
identification cards with the intent to commit, and to aid and
abet in the commission of, passing counterfeit business checks.
To establish a violation of § 1028(a)(7), the government is
required to prove that the defendant: (1) knowingly;
(2) transferred, possessed, or used without lawful authority;
(3) another person’s means of identification; (4) with intent to
commit, or to aid or abet, any unlawful activity. 18 U.S.C.
§ 1028(a)(7).
Here, in executing the search warrant, officers found
numerous forms of identification in Lessington’s bedroom,
including a Social Security card and birth certificate belonging
to Juan Francisco Arteaga. Law enforcement officials involved
with the case confirmed that Juan Arteaga’s Social Security card
and birth certificate were used to obtain the fraudulent
driver’s license used by Lessington’s cousin to pass counterfeit
checks and that Lessington used a fraudulent driver’s license in
a relative’s name to cash a counterfeit check at the IGA.
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Lessington admitted to obtaining and possessing the second
fraudulent driver’s license, though he denied using it to pass
counterfeit checks.
Based on the above, we conclude that there is
substantial evidence supporting the jury verdict on each count.
Therefore, the district court properly denied Lessington’s Rule
29 motion for acquittal. We have also reviewed the issues
raised in Lessington’s pro se supplemental brief and find them
to be without merit.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Lessington, in writing, of his
right to petition the Supreme Court of the United States for
further review. If Lessington requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, counsel may move in this court for leave to withdraw
from representation. Counsel’s motion must state that a copy
thereof was served on Lessington. We dispense with oral
argument because the facts and legal conclusions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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