United States v. Anthony Tucker ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________
No. 01-3028EM
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United States of America, *
*
Appellee, *
* On Appeal from the
v. * United States District Court
* for the Eastern District of
* Missouri.
Anthony Tucker, *
*
Appellee. *
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Submitted: February 12, 2002
Filed: April 11, 2002 (Corrected: 4/19/02)
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Before BOWMAN, RICHARD S. ARNOLD, and WOLLMAN, Circuit Judges.
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RICHARD S. ARNOLD, Circuit Judge.
Anthony Tucker was charged with committing bank fraud, in violation of 18
U.S.C. §§ 2, 1344(1) and (2). Mr. Tucker pleaded guilty, admitting that he had
cashed one counterfeit check in the amount of $1,206.15 at an FDIC-insured bank.
The District Court sentenced him to eighteen months of imprisonment and ordered
him to pay restitution in the amount of $116,015.30. Mr. Tucker appeals his sentence
and the Court’s restitution order.
Mr. Tucker makes several arguments in his appeal: first, that the District Court
erred in determining that he was a leader or organizer of five or more people in the
check-cashing scheme, for which the Court imposed a four-point sentencing
enhancement; second, that the Court erred in finding him accountable for a loss of
funds of at least $70,000, and as a consequence imposed a six-point sentencing
enhancement; and third, that the Court incorrectly ordered him to pay restitution in
the amount of $116,015.30. Mr. Tucker contends that the evidence presented at the
sentencing hearing consisted mostly of hearsay and was not reliable enough to
support the sentence and restitution order imposed by the District Court.
We affirm, with a minor exception.
I.
The defendant pleaded guilty to one count of bank fraud in violation of 18
U.S.C. §§ 2, 1344(1) and (2). Under the United States Sentencing Guidelines, this
offense has a base offense level of six. Mr. Tucker’s Pre-Sentence Report (PSR)
concluded that he also organized and led a conspiracy to cash or attempt to cash
counterfeit checks that resulted in bank losses aggregating $116,015.30. His PSR
suggested a four-level enhancement for his role as an organizer or leader in criminal
activity which involved five or more participants, and a six-level sentencing
enhancement because the offense resulted in a loss of more than $70,000 but less than
$120,000. U.S.S.G. § 2F1.1(b)(2)(A) and (B) and § 2F1.1(b)(1)(G). Mr. Tucker
objected to the government’s relevant-conduct findings. He acknowledged that he
was responsible for a loss of $17,146.29, but contested the additional $98,869.01.1
Defendant also claimed that he was a minor participant in the bank-fraud scheme and
should therefore receive a two-point downward departure.
1
Defendant acknowledged his involvement with Sharon Jones and Joseph
Blackwell, causing a loss of $17,146.29. Applt. Brief at 19.
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A sentencing hearing was held to determine defendant’s role in the offense and
the loss attributable to him. The evidence presented at the sentencing hearing
indicates that there were five accounts on which counterfeit checks were drawn in the
scheme. These include: sixteen checks drawn on the account of ATKearney, totaling
$29,994.53; twelve checks drawn on the account of Castle Metals, totaling
$21,781.27; seventeen checks drawn on the account of Follett Educational Services,
totaling $22,540.62; fourteen checks drawn on the account of United Rentals, totaling
$24,713.73; and twelve checks drawn on the account of Waste Management, totaling
$16,985.15. The evidence presented also implicated the following individuals:
Joseph Blackwell, Crystal Conaway, Robert Cole, Terrance Esters, Arnetta Giles,
Donald Harris, James Johnson, Sharon Jones, Debra Powers, Steven Smith, Anthony
Tucker, and Tita Vaughn.
The government called two witnesses, Sharon Jones, a co-defendant of Mr.
Tucker,2 and FBI Special Agent David Rizi, the investigator of the bank fraud scheme
that led to the indictment of Mr. Tucker and Ms. Jones, as well as Mr. Cole, Ms.
Conaway, Mr. Harris, Ms. Hayes, and Mr. Johnson.
Ms. Jones testified that she received a total of seven checks from defendant
totaling $12,481.88. Sent. Tr. 5. Six of these checks were drawn on the account of
United Rentals, and one was drawn on the account of Follett Educational Services.
She stated that Mr. Tucker contacted her and, after meeting with her, discussed the
mechanics of the counterfeit-check-cashing scheme. She allegedly cashed the checks
for Mr. Tucker on two different occasions. Both times, defendant drove Ms. Jones
2
Ms. Jones pleaded guilty to bank fraud in violation of 18 U.S.C. § 1344.
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to the various banks to cash the checks.3 After she did so, Mr. Tucker paid her $500
for negotiating the seven checks.
Ms. Jones further testified to the involvement of various other individuals in
the check-cashing scheme. The first person that she implicated was Donald Harris,
a cousin of defendant. She stated that she overheard a conversation between
defendant and Mr. Harris in which they discussed cashing checks. Because this
conversation took place over the phone, Ms. Johnson heard only Mr. Tucker’s side
of the conversation. Supposedly, there was a discussion about taking a female’s
identification into a bank. However, Ms. Jones was unable to provide any other
details of Mr. Harris’s involvement.
Next, Ms. Jones testified to the involvement of Joseph Blackwell and Robert
Cole. According to Ms. Jones’s testimony, Mr. Blackwell and Mr. Cole told Ms.
Jones that they had also “cashed some checks” for Mr. Tucker. Sent. Tr. 10-11. The
only other person that Ms. Jones allegedly knew was involved with the check-cashing
scheme was Terrance Esters, another cousin of Mr. Tucker’s. Ms. Jones testified that
defendant told her that he had a “source inside the Bank of America,” and that “it was
his cousin.” Sent. Tr. 12.
The next witness to testify at the sentencing hearing was Special Agent Rizi.
Like Ms. Johnson, he testified to the involvement of several individuals in the check-
cashing scheme.
3
Ms. Jones did state that another person by the name of Tyree was with Mr.
Tucker on one of these occasions. She stated that he also had some checks, and that
they were the same type of checks that she was given. However, she did not know
if he received the checks from Mr. Tucker or if he cashed the checks while with Mr.
Tucker.
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Agent Rizi first described his interview of Tita Vaughn. Ms. Vaughn, the agent
testified, became familiar with the scheme because of the involvement of Cassaundra
Hayes. Ms. Vaughn told Agent Rizi that she asked to accompany Ms. Hayes and
Tyree Lockett to several banks to cash a few checks on one occasion. Ms. Vaughn
said that she was contacted by Mr. Lockett, and she told him that “she wanted to get
involved in what [Ms. Hayes] was involved in.” Sent. Tr. 48. Mr. Lockett recorded
her telephone number and address. Then Ms. Vaughn was contacted by Mr. Tucker
to discuss the mechanics of the check-cashing scheme and her compensation. Ms.
Vaughn told Agent Rizi that she was supposed to get half of the amount of the first
check. Ms. Vaughn stated that she then received a check from someone by the name
of “James” and attempted to cash it at a Bank of America branch.4 Sent. Tr. 44-45.
However, she was arrested when attempting to cash this check, which was drawn on
the account of United Rentals for the amount of $1,808.42.
Agent Rizi then testified about his interview with Cassaundra Hayes. Agent
Rizi testified that Ms. Hayes was approached by Mr. Tucker and a friend of his by the
name of “John,” and that Mr. Tucker organized a “deal” in which Ms. Hayes would
take part in the check-cashing scheme. Sent. Tr. 51. Ms. Hayes cashed seven checks
totaling $11,840.91 and attempted to cash another in the amount of $1,057.09. Four
of these checks were drawn on the account of Waste Management, including the
attempt, and the other three were drawn on the account of United Rentals.
Next, Agent Rizi described his interview with Joseph Blackwell. Mr.
Blackwell told Agent Rizi that he cashed three checks totaling $4,662.76, drawn on
the account of Follett Educational Services. He said that he received the checks from
4
During the course of Agent Rizi’s investigation, he discovered that “James”
was actually Donald Harris. Mr. Harris also drove Ms. Vaughn to the bank to cash
the counterfeit check.
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Mr. Tucker.5 Mr. Blackwell also stated that he was aware that Sharon Jones was
involved in the “check ring bank fraud.” Sent. Tr. 55.
Agent Rizi also testified to the contents of Mr. Tucker’s residence that were
discovered during the execution of a search warrant. Agent Rizi found a logo for
United Rentals on Mr. Tucker’s computer.6 He testified that this logo was probably
downloaded from the internet during December 2000. However, Agent Rizi could
not establish that any of the checks were printed at Mr. Tucker’s residence. He did
not find any software used to reproduce the series of numbers printed on the bottoms
of checks nor did he discover any “check stock” (paper) on which the checks could
have been printed. Sent. Tr. 80. Agent Rizi did find a piece of paper that contained
the name, telephone number, and address of Ms. Vaughn in Mr. Tucker’s wallet. He
also discovered $1,000 cash in Mr. Tucker’s home.
Mr. Tucker’s cellular telephone records were also analyzed at the sentencing
hearing. Agent Rizi testified as to the contents of the records. The telephone records
cover the time period beginning November 1, 2000, and ending January 16, 2001.
Sent. Tr. 58. The records indicate that during this time Mr. Tucker either received
calls from or made calls to Mr. Esters, Mr. Harris, Ms. Hayes, Ms. Jones, Mr. Smith,
and Ms. Vaughn.7 The dates that these phone calls were made coincide with the dates
5
Mr. Blackwell also told Agent Rizi that Donald Harris threatened him and told
him not to tell anyone about the checks. He did not state that Mr. Tucker sent Mr.
Harris. This incident occurred after the indictment of Mr. Tucker.
6
Fourteen checks of the checks involved in the bank fraud scheme, including
two attempts, were drawn on the account of United Rentals. These checks totaled
$24,713.73.
7
There were six calls made to Mr. Esters’s then current residence, nineteen calls
to Mr. Harris, twenty-seven calls to Ms. Hayes, thirty-nine calls to Ms. Jones, two
calls to Mr. Smith, and five calls to Ms. Vaughn. The records indicate that no phone
calls were ever made to or received by the following individuals: Joseph Blackwell,
Crystal Conaway, Arnetta Giles, James Johnson, and Debra Powers.
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that these individuals cashed the checks at issue in the bank-fraud scheme. Sent. Tr.
59-60.
At the conclusion of the sentencing hearing, Mr. Tucker was sentenced to
eighteen months of imprisonment and ordered to pay restitution in the amount of
$116,015.30.
II.
Mr. Tucker contends that the evidence presented at the sentencing hearing
consisted mostly of hearsay and was not reliable enough to support his sentence and
restitution order. We review the Court’s findings on relevant conduct for clear error
only. United States v. Balano, 8 F.3d 629, 630 (8th Cir. 1993).
First, defendant argues that the District Court clearly erred in determining that
he was a leader or organizer of five or more individuals in the check-cashing scheme,
a finding which resulted in a four-point sentencing enhancement. Instead, defendant
argues that he was only a minimal participant in the scheme and that he should have
received a downward departure from his sentence.
The sentencing enhancement for defendant’s role as a leader or organizer in the
check-cashing scheme was based primarily on the testimony of Ms. Jones and Agent
Rizi. Defendant contends that their testimony was based on statements made by
others and should have been excluded following the hearsay objections made to the
testimony.
Hearsay is admissible in sentencing hearings. United State v. Wise, 976 F.2d
393, 401-03 (8th Cir. 1992), cert. denied, 507 U.S. 989 (1993). Additionally, a
sentence based on hearsay will be sustained if the testimony is reliable enough. See
U.S. Sentencing Guidelines Manual § 6A1.3(a) (2000) (courts may consider evidence
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which might be inadmissible at other proceedings if information has “sufficient
indicia of reliability”).
Two individuals testified at the sentencing hearing to Mr. Tucker’s role in the
offense. First, Ms. Jones stated that she received and cashed checks for Mr. Tucker.
She then testified to the involvement of Mr. Harris, Mr. Blackwell, Mr. Cole, and Mr.
Esters. Much of this testimony was corroborated by Agent Rizi, who also stated that
Mr. Blackwell and Ms. Jones were involved in the offense. Additionally, Agent Rizi
testified to the involvement of Ms. Vaughn and Ms. Hayes. His testimony was based
on various interviews he conducted with the above-named individuals during his
investigation of the bank fraud scheme. Many of these statements were made against
these individuals’ penal interests. Therefore, we cannot agree that the evidence
presented was not reliable enough to support his sentence.
After close analysis, we hold that the District Court did not clearly err in
determining that defendant’s role in the offense was that of a leader or organizer of
five or more individuals. By defendant’s own admission, he is responsible for the
actions of two others, Ms. Jones and Mr. Blackwell. Ms. Jones and Agent Rizi
testified to at least four other individuals’ involvement in the scheme. According to
their testimony, Ms. Jones, Mr. Blackwell, Mr. Cole, and Ms. Hayes also received
checks directly from defendant. Additionally, though Ms. Vaughn did not receive a
check directly from defendant, it was he who contacted her about the check-cashing
scheme and the method of payment for her services. Following this investigation,
three of these individuals, Mr. Harris, Mr. Cole, and Ms. Hayes, were indicted for
bank fraud in violation of 18 U.S.C. § 1344. Moreover, Mr. Tucker’s cellular
telephone records also suggest that he was in contact with one Steve Smith.8
Therefore, the District Court’s finding that defendant was a leader of five or more
individuals was not clearly erroneous.
8
Mr. Smith is allegedly responsible for $2,506.27.
-8-
Defendant’s second argument is that the District Court erred in determining
that he was responsible for a loss of funds of at least $70,000 but less than $120,000
for which the Court imposed a six-point sentencing enhancement. Again, defendant
contends that the evidence presented at the sentencing hearing consisted mainly of
hearsay and lacked the indicia of reliability needed to support his sentence. We
disagree.
By Mr. Tucker’s own admission, he is responsible for the loss of at least
$17,146.29 drawn on the accounts of Waste Management, Follett Educational
Services, and United Rentals.9 Testimony presented at the sentencing hearing showed
that defendant also supplied checks to two other individuals, Mr. Cole and Ms.
Hayes, totaling a loss of $25,407.10. These two individuals cashed checks, or
attempted to cash checks, drawn on the accounts of ATKearney, Castle Metals,
United Rentals, and Waste Management. Significantly, all checks involved in the
scheme were drawn on one of these five checking accounts: Waste Management,
Follett Educational Services, Castle Metals, ATKearney, and United Metals, and Mr.
Tucker was the source for at least one counterfeit check drawn on each of these five
accounts. Additionally, the logo for United Rentals was found on Mr. Tucker’s home
computer. The loss attributable to counterfeit checks drawn on this account alone
totals $24,713.73. Mr. Tucker’s cellular telephone records also indicate that he had
telephone contact with at least four other individuals also involved in the scheme, Mr.
Esters, Mr. Harris, Mr. Smith, and Ms. Vaughn. The District Court did not clearly err
in finding defendant responsible for at least $70,000. Because the evidence presented
at the sentencing hearing was sufficiently reliable to uphold Mr. Tucker’s sentence,
we affirm the six-point sentencing enhancement based on the amount of loss
attributable to him.
9
This figure includes the check that Mr. Tucker cashed for $1,206.15 drawn on
the account of Waste Management, the checks that Ms. Jones cashed for $12,481.88
drawn on Follett Educational Services and United Rentals, and the checks that Mr.
Blackwell cashed for $4,662.76 drawn on Follett Educational Services.
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Mr. Tucker’s final argument is that the District Court erred in ordering him to
pay restitution in the amount of $116,015.30. Defendant is responsible for his own
check-cashing activity, as well as that of Ms. Jones and Mr. Blackwell, by his own
admission. This totals $17,146.29. He also should be held responsible for checks
cashed by Mr. Cole and Ms. Hayes, because he allegedly provided them with
counterfeit checks. These checks total $25,407.10. Additionally, because the logo
for United Rentals was found on defendant’s computer, it was not error to hold
defendant responsible for all checks drawn on the United Rental account. These total
$24,713.73.10 Defendant also had telephone contact with Mr. Esters, Mr. Harris, Mr.
Smith, and Ms. Vaughn. The amount of checks cashed by these persons totals
$11,636.90. We cannot say that it was clear error for the Court to attribute this
amount to Mr. Tucker.
Four other individuals cashed checks drawn on one of the five bank accounts
involved. These persons are Crystal Conaway, Arnetta Giles, James Johnson, and
Debra Powers. No testimony at the sentencing hearing indicated direct contact
between them and defendant. They are responsible for this loss of $60,620.51. Four
checks cashed by Mr. Johnson were drawn on the account of United Rentals, whose
logo was found on defendant’s home computer. Given this connection between the
two parties, it was not clear error for the Court below to conclude that Mr. Tucker
was responsible for Mr. Johnson’s check-cashing activity, which totals $14,232.75.
Ms. Conaway received checks from defendant’s brother and sister-in-law, and
Ms. Powers received checks from Mr. Harris. Although defendant has not been
charged with conspiracy, he is responsible for all relevant conduct, the definition of
which includes check cashing reasonably foreseeable by him as part of the overall
scheme. U.S.S.G. § 1B1.3(a) (2000). The inferences are substantial, though not
compelling, that defendant was connected with all of the checks as to which the
10
However, when compiling the total loss attributable to Mr. Tucker for the
restitution order, the entire amount of $24,713.73 drawn on United Rentals has been
accounted for in the calculations of loss per person.
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District Court heard testimony, except Mr. Tucker should not be held responsible for
the actions of Ms. Giles. There is no evidence that defendant had any contact with
her, by telephone or otherwise. She was responsible for a loss of $5,707.29. Because
this amount is not de minimis, the restitution order should be reduced by $5,707.29.
Accordingly, the sentence is affirmed, and the restitution order is reduced by
$5,707.29.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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