United States v. Turpin ( 2009 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0210n.06
Filed: March 19, 2009
No. 07-3554
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) NORTHERN DISTRICT OF OHIO
RHONDA J. TURPIN, )
)
Defendant-Appellant. )
Before: NORRIS, COOK, and GRIFFIN, Circuit Judges.
COOK, Circuit Judge. Rhonda Turpin appeals her conviction and sentence for multiple
conspiracy, forgery, identity-theft, fraud, and counterfeiting offenses. After a bench trial, the district
court sentenced Turpin to 188 months for each count, to run concurrently. She timely appealed,
challenging her sentence, asserting a right to acquittal, and pressing two Fifth Amendment double-
jeopardy challenges. Only one argument has merit—that the district court erred in imposing a 188-
month sentence for each count. We remand for resentencing and affirm the conviction.
I.
A grand jury indicted Turpin on 61 counts related to conspiracy, forgery, counterfeiting,
fraud, and identity theft. These counts stemmed from Turpin’s leadership of two conspiracies, the
first of which involved identity theft. Turpin and her coconspirators used stolen personal
No. 07-3554
United States v. Turpin
information to obtain unsecured loans, open credit card and bank accounts, and deposit stolen,
counterfeited, and forged checks. In the second conspiracy, Turpin and another codefendant filed
multiple false federal income tax returns for 2000–2002 using the personal information of various
victims to claim illegitimate tax refunds.
Following a bench trial, the court found her guilty on 55 of the 61 counts and sentenced her
to 188 months on each (running concurrently), followed by five years supervised release. Turpin
appeals both her sentence and conviction.
II.
A. Sentencing Error
The government concedes that the district court erred in imposing sentences that exceed the
statutory maximum for all but two of the 55 counts. This error requires remand for resentencing on
53 of the counts.
B. Challenges to the Conviction
1. Forgery Counts
First, Turpin argues for acquittal by contending that endorsing checks with another’s name
is not forgery within the meaning of 18 U.S.C. § 513(a). She and her coconspirators obtained loans
in the names of their identity-theft victims by using the victims’ personal and financial information.
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Turpin maintains that this is not forgery because the checks were genuine, albeit signed by a
fraudster. But the statute defines a “forged” document as “a document that purports to be genuine
but is not because it has been falsely . . . endorsed . . .” 18 U.S.C. § 513(c)(2) (emphasis added); see
United States v. Hunt, 456 F.3d 1255, 1260 (10th Cir. 2006) (“In the paradigmatic case of forgery
at common law, the instrument ‘is not what it purports to be’ because it purports to be written by
someone who did not actually write it.”); see also United States v. Wilkins, 213 F. Supp. 332, 338
(S.D.N.Y. 1963) (“Under the common law a person signing a check in the name of another commits
forgery . . . .”). Consequently, her argument fails. And Turpin’s argument that checks are not
securities is equally frivolous; the statute includes checks in the definition of “security.” 18 U.S.C.
§ 513(c)(3).
2. Possession of Counterfeiting Implements
Second, Turpin contends that she was entitled to acquittal on Count 33—possession of
counterfeiting implements in violation of 18 U.S.C. 513(b)—because a date discrepancy between
the indictment and the court’s factual findings renders her guilt factually impossible. That is, though
the indictment alleged that Turpin possessed the implements on April 30, 2004, the district court’s
findings of fact recites that the seizure occurred on May 20, 2003—a year earlier. Because no
evidence questions the indictment’s correctness as to the seizure date, we see this as plainly a
typographical error.
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Because Turpin seeks acquittal on this count, the question is not whether the dates agree, but
rather, does the record include sufficient evidence to support this count? United States v. Bashaw,
982 F.2d 168, 171 (6th Cir. 1992). “Even when a defendant is convicted after a bench trial, the test
is whether the evidence is sufficient to justify the trial judge, as trier of facts, in concluding beyond
a reasonable doubt that the defendant was guilty.” Id. (internal quotation marks omitted). The
record amply supports guilt here.
Turpin raises another argument regarding a second scrivener’s error on the same count. She
insists that the court’s use of the phrase “fraudulent identification documents. . . .” instead of
“counterfeit securities” entitles her to acquittal. But again, the record amply supports her conviction
on this count for possessing implements to make counterfeit securities, namely the stolen and
cancelled checks, blank check paper, and check printing software found at Turpin’s residence.
Cancelled, unsigned, and blank checks are implements for making counterfeit securities within the
meaning of 18 U.S.C. 513(b). See United States v. Wade, 266 F.3d 574, 584 (6th Cir. 2001)
(unsigned checks); United States v. Pebworth, 112 F.3d 168, 169 (4th Cir. 1997) (blank checks);
United States v. Holloman, 981 F.2d 690, 692 (3d Cir. 1992) (cancelled checks).
Thus, while the district court’s written findings do not specifically support Count 33, the
uncontroverted record supports Turpin’s conviction under 18 U.S.C. 513(b).
3. Sufficiency of the Evidence
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Third, Turpin presses a catch-all sufficiency challenge to all 55 counts of conviction,
premised on the unreliable characters who offered evidence to support her conviction—“the
[t]estimony of [s]erial [f]elons, [t]hieves, [a]ddicts, [l]iars and [k]naves,” she insists. In reviewing
de novo, this court should affirm “if the evidence, viewed in the light most favorable to the
government, would allow a rational trier of fact to find the defendant guilty beyond a reasonable
doubt.” United States v. Solorio, 337 F.3d 580, 588 (6th Cir. 2003); see also Jackson v. Virginia,
443 U.S. 307, 319 (1979).
In ten excruciatingly detailed pages of her brief, Turpin sets forth the “chain of liars, crooks,
thieves, knaves and addicts,” and maintains that their various crimes render them not credible. But
the witnesses’ “knavery” does not mean that their testimony is insufficient evidence; even “the
uncorroborated testimony of an accomplice may support a conviction under federal law.” United
States v. Gallo, 763 F.2d 1504, 1518 (6th Cir. 1985) (rejecting a sufficiency-of-the-evidence
challenge). Here, a host of accomplices testified against Turpin, and that testimony supported the
court’s conclusions. Nor was their testimony uncorroborated; the court also reviewed hundreds of
relevant documents supporting conviction and a collection of counterfeiting and identification-
making implements seized from Turpin’s house. Viewed in context, the testimony sufficiently
justified the court finding Turpin guilty beyond a reasonable doubt.
4. Double Jeopardy Challenges
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Finally, Turpin raises two Fifth Amendment challenges for the first time on appeal. Because
she did not raise double jeopardy before the district court, she forfeits these claims. United States
v. Branham, 97 F.3d 835, 841–42 (6th Cir. 1996). Although plain error might save Turpin’s claims
for our review, we find no error at all, much less plain error. See id. Applying the well-established
Blockburger v. United States test, 284 U.S. 299 (1932), we find that the statutory offenses have
different elements, and therefore pass muster. Id. at 304. (“[W]here the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether
there are two offenses or only one, is whether each provision requires proof of a fact which the other
does not.”).
III.
We remand for resentencing on those counts where the sentence imposed exceeds the
statutory maximum and we affirm Turpin’s conviction.
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