United States v. Chandra Jenkins-Watts ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-2287
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United States of America, *
*
Appellee, *
*
v. *
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Chandra L. Jenkins-Watts, *
*
Appellant. *
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Appeals from the United States
No. 08-2291 District Court for the
___________ Western District of Missouri.
United States of America, *
*
Appellee, *
*
v. *
*
Tarik I. Liwaru, *
*
Appellant. *
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No. 08-2295
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United States of America, *
*
Appellee, *
*
v. *
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Carlton P. Strother, *
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Appellant. *
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Submitted: May 13, 2009
Filed: August 4, 2009
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Before WOLLMAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.
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WOLLMAN, Circuit Judge.
Carlton Strother, Tarik Liwaru, and Chandra Jenkins-Watts,1 along with thirteen
co-defendants, were indicted for their involvement in an instant credit fraud scheme
and a loan fraud scheme. Strother, Liwaru, and Jenkins were tried jointly and
convicted of the charges against them. Strother and Liwaru were convicted of
conspiracy to commit aggravated identity theft, in violation of 18 U.S.C. §§ 371,
1028A, and 1029; Strother and Jenkins were convicted of conspiracy to commit
identity theft and aggravated identity theft, in violation of 18 U.S.C. §§ 371, 1028,
1028A, and 1029; and Strother was convicted of access device fraud, in violation of
18 U.S.C. § 1029(a)(5).
The appellants raise a number of issues. Strother and Liwaru challenge their
sentences and the sufficiency of the evidence to support their convictions. Liwaru
1
Consistent with her appellate briefs, we will refer to Chandra Jenkins-Watts
as Jenkins.
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argues that the district court2 erred in submitting a demonstrative exhibit to the jury
and in providing supplemental instructions to the jury’s questions. Jenkins contends
that her speedy trial rights were violated, that the district court erred in denying her
motions to sever and to suppress, that the indictment was defective, and that there was
insufficient evidence to convict her of aggravated identity theft. We affirm.
I. Background
We state the facts in the light most favorable to the jury verdict. United States
v. Johnson, 450 F.3d 366, 369 (8th Cir. 2006).
A. Instant Credit Fraud Scheme
The instant credit fraud scheme in this case involved the use by Strother and his
associates of counterfeit Kansas driver’s licenses to apply for instant credit,
purchasing big-ticket items, and reselling them for about half their retail value. The
resale proceeds usually would be split between Strother, who was providing the
counterfeit identification, and the associate who utilized the instant credit.
Strother chose identity theft victims based on their credit scores. He received
credit reports from coconspirators, including Liwaru, who acquired the reports from
legitimate businesses. A victim testified that he had refinanced his mortgage with
Hearthside Lending before his identity was stolen, and the parties stipulated that the
victims had applied for credit at either Hearthside Lending or an auto dealership
before their identities were stolen. Coconspirator Michelle Williams testified that she
witnessed Liwaru bring boxes of credit reports to Strother on two or three occasions
and that those reports came from a mortgage company called “Heartland Mortgage.”
2
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
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Strother and his associates would review the credit reports, setting aside the ones with
a credit score of around 700. Williams stated that she would look for women with
good credit scores who were approximately her age.
Strother supplied the counterfeit Kansas driver’s licenses to the coconspirators.
To create them, Strother would take a digital photograph of the person assuming the
counterfeit identification or one would be given to him. Strother would then leave and
return shortly thereafter with a counterfeit Kansas driver’s license, complete with the
identity theft victim’s information, the coconspirator’s picture, and, in some cases, the
holographic seal of Kansas. Toni Baker, a woman who had been involved in earlier
identity theft schemes with Strother, testified that she had observed him making the
counterfeit licenses. According to Baker, Strother would go to a friend’s house and
create the licenses on the computer. Several witnesses attested to the quality of
Strother’s work. For example, he made several counterfeit licenses for Williams, none
of which were detected as fraudulent, even though she used them dozens of times.
The coconspirators, and sometimes Strother himself, would travel to retailers
throughout the lower Midwest to open instant credit accounts.3 After the retailer
approved the instant credit, the shopper would spend the entire amount for which she
or he was approved. Strother often had buyers lined up to purchase the stolen goods,
and he frequently told the shoppers which items to purchase.
In September 2005, a coconspirator was arrested at a Sam’s Club in Lenexa,
Kansas, after attempting to open an instant credit account. Employees indicated that
he had arrived in a blue Crown Victoria, which a responding officer saw leaving the
parking lot. The officer stopped the vehicle, and the driver identified himself as
3
Several retailers offer instant credit, a practice that allows consumers to
purchase items on credit immediately after their applications are approved.
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Liwaru. He said he was coming from a friend’s house, but he could not remember the
friend’s name or address.
Law enforcement officers established video surveillance of Strother’s residence
in January or February 2006 and tapped Strother’s phone in March 2006. In April
2006, Liwaru called Strother to inform him that a coconspirator was arrested in
Topeka, Kansas, to which Strother replied that he needed “to clean up house.”
B. Loan Fraud Scheme
In late 2004, Miles Thomas and Maurice Ragland recruited Stephen Edenfield
and his girlfriend to join them in a mortgage fraud conspiracy. Thomas testified that
he purchased counterfeit driver’s licenses in the names of Mr. and Mrs. Doe4 from
Bryant Griffin-Bey, who served as the middleman between Thomas and Strother.
Edenfield and his girlfriend then posed as the Does, applying for mortgage loans and
appearing at real estate closings. The scheme was successful, and some of the loan
proceeds were wired to a fraudulent bank account that Edenfield had opened. In early
2006, Edenfield, Thomas, and Ragland discussed continuing the scheme in Dallas,
Texas, but the plan was delayed when Edenfield was arrested in February 2006.
After Edenfield’s arrest, Ragland, Thomas, and Ryan Miller revised the
conspiracy, deciding to pursue business loans or lines of credit in Dallas. They chose
Dallas because Jenkins, Ragland’s then-girlfriend, worked there as a business
specialist at a bank, handling small business activity such as opening accounts and
processing loans. Jenkins could serve as their inside connection and assist them with
processing the fraudulent transactions.
4
We will refer to the mortgage fraud identity theft victims as the Does.
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Ragland, Miller, Thomas, and Jenkins met at a casino in Kansas City to discuss
the scheme. The plan involved acquiring the identity of an individual with a good
credit score, finding someone to pose as that individual, purchasing a counterfeit
identification card, registering a business, opening an account at the bank where
Jenkins worked, and applying for credit and loans for the registered business. Miller
announced that they would use the identity of Jane Doe5 and provided her social
security number and birth date to Thomas.
Thomas gave the information to a friend who worked at a mortgage company
and asked her to pull Jane Doe’s credit report, which she did. The friend gave the
report to Thomas, who in turn, gave it to Ragland, who said that he would fax it to
Jenkins.
A woman, unnamed at trial, originally agreed to pose as Jane Doe, and Thomas
purchased a counterfeit identification from Griffin-Bey. After the unnamed woman
withdrew, Miller and Ragland persuaded Sheri Zuber to join the scheme, and Thomas
purchased a second identification from Griffin-Bey. Griffin-Bey knew that Thomas
had been involved in fraudulent real estate transactions, but Thomas told Griffin-Bey
that he was going to use the Jane Doe identification to pass checks, so Griffin-Bey
charged him less than usual: $500 for the first license, $250 for the second license.
Griffin-Bey brought the women’s digital photos to Strother, who created the
counterfeit Kansas driver’s licenses, charging Griffin-Bey $250-300 for the first
license, half that for the second. The Secret Service was monitoring Strother at the
time and searching his trash. On March 29, 2006, an agent found photo paper with
the images of two Kansas driver’s licenses, both displaying the identity information
of Jane Doe.
5
We will refer to the loan fraud identity theft victim as Jane Doe.
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Miller, Thomas, and Zuber drove overnight to Dallas, arriving on March 24,
2006. They purchased a post office box in Jane Doe’s name and registered a business
named Brooke Investments. They then drove to the bank where Jenkins worked.
Zuber entered the bank alone, armed with Jane Doe’s identification and paperwork
regarding Brooke Investments. Zuber asked to speak to Jenkins and gave Jenkins the
paperwork.
Jenkins submitted four loan applications over the course of fifty minutes. The
first was an application for Brooke Investments, a Plano, Texas, construction company
listed as having a gross annual revenue of $650,000. Shortly thereafter, Jenkins
submitted an application for Brooke Agency, a Shawnee, Kansas, consulting business
with a gross annual revenue of $300,000. Jenkins submitted a third loan application
under the name Brooke Investments and a fourth under Brooke Agency. The
applications requested business loans, lines of credit, and credit cards.
After the bank learned that Jenkins was the subject of a federal criminal
investigation, an investigator from the company interviewed her. Jenkins admitted
that she suspected the customer identifying herself as Jane Doe was a straw buyer.
The investigator searched Jenkins’s workspace and found a credit report for Jane Doe,
which had been faxed to Jenkins on March 3, 2006. A business specialist would not
have had access to credit reports, and the investigator interviewed Jenkins for a second
time to ask her about the report. Jenkins said she did not remember receiving the fax
and had no explanation for why it was in her workspace. Before terminating the
interview, Jenkins told the investigator that she made up the business name Brooke
Agency and had altered the dates of establishment of the business in an attempt to get
the loans approved.
C. Procedural Background
The government charged sixteen defendants in a thirty-seven count superseding
indictment on August 9, 2006. The conduct charged in the indictment included both
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the instant credit and loan fraud schemes. Some of the defendants had not previously
been charged, and the district court granted several trial continuances, one of which
was requested by the government. The district court denied Jenkins’s motions to
dismiss, to sever, and to suppress evidence.
Strother, Liwaru, and Jenkins exercised their right to a jury trial, which
commenced on October 22, 2007. The government presented substantial evidence of
both the instant credit and loan fraud schemes over the course of the five-day trial,
including the testimony of several coconspirators, identity theft victims, and law
enforcement officials. After the close of the government’s evidence and again after
the close of all evidence, Liwaru moved for a judgment of acquittal. The district court
denied the motions, and the case was submitted to the jury.
During the deliberations, the jury submitted a note requesting Exhibit 29A, a
poster board showing Liwaru’s photo at the top of the “Hearthside Lending” scheme.
There was some discussion about whether the exhibit was demonstrative or whether
it had been admitted. The district court referred to its notes and determined that, “it
was offered and admitted and unless everyone is in agreement that it was admitted
only for demonstrative purposes, with the understanding that it wouldn’t be provided
to the jury if requested, I’m going to send it back.” Exhibit 29A was then delivered
to the jury without objection.
The jury sent two notes concerning Liwaru and his connection to Hearthside
Lending. The first asked, “[C]an we verify employment of Tarik Liwaru with
Hearthside as a fact?” Liwaru’s attorney agreed with the district court’s response that
“there’s no evidence that responds to the question,” and the jury was instructed “there
was no evidence admitted which responds to your question.” The second note stated
that “there seems to be no specific evidence admitted that Tarik Liwaru was employed
at Hearthside however since no one, including Mr. Tarik Liwaru’s attorney, disputed
the reference to his employment at Hearthside, can we, using our common sense,
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assume that he was, in fact, an employee of Hearthside?” After some discussion, the
district court responded, “You must rely on your collective memory of the evidence
and the instructions. Beyond that I am unable to respond. You may use your common
sense however you should not guess or speculate.” None of the defendants objected
to this response.
Following the jury’s verdicts against Strother, Liwaru, and Jenkins on all of the
charges against them, the district court sentenced the defendants and denied Jenkins’s
motion for dismissal based on the insufficiency of the indictment. This appeal
followed.
II. Carlton Strother
Strother was convicted of two counts of conspiracy, thirteen counts of
aggravated identity theft, and ten counts of access device fraud, in violation of 18
U.S.C. §§ 371, 1028A, and 1029. He was sentenced to 234 months’ imprisonment.
On appeal, he argues that the evidence was insufficient to support his conviction on
the conspiracy count related to the loan fraud scheme and that the district court erred
in enhancing his sentence under several sections in the United States Sentencing
Guidelines (Guidelines or U.S.S.G.).
A. Evidence Was Sufficient To Convict Strother of the Loan Fraud Conspiracy.
Strother contends that the evidence was insufficient to convict him of the loan
fraud conspiracy because he did not knowingly form an agreement to commit such
fraud. We review the sufficiency of the evidence de novo. Johnson, 450 F.3d at 372.
“[W]e will affirm if the record, viewed most favorably to the government, contains
substantial evidence supporting the jury’s verdict, which means evidence sufficient
to prove the elements of the crime beyond a reasonable doubt.” United States v.
Lopez, 443 F.3d 1026, 1030 (8th Cir. 2006) (en banc).
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To convict a defendant of conspiracy, the government must prove that there was
an agreement to achieve an illegal purpose, that the defendant knew of the agreement,
and that the defendant knowingly became part of that agreement. United States v.
McAdory, 501 F.3d 868, 871 (8th Cir. 2007). “[A] defendant may be convicted for
even a minor role in a conspiracy, so long as the government proves beyond a
reasonable doubt that he or she was a member of the conspiracy.” Lopez, 443 F.3d
at 1030. Moreover, “each member of a conspiracy may be held criminally liable for
any substantive crime committed by a co-conspirator in the course and in furtherance
of the conspiracy, even though those members did not participate or agree to the
specific criminal act.” United States v. Hayes, 391 F.3d 958, 962 (8th Cir. 2004)
(quoting United States v. Navarrete-Barron, 192 F.3d 786, 792 (8th Cir. 1999)); see
also Pinkerton v. United States, 328 U.S. 640, 647 (1946). “A conspiracy may be
proved by direct or circumstantial evidence.” United States v. Alama, 486 F.3d 1062,
1064 (8th Cir. 2007).
We conclude that the evidence was sufficient to support Strother’s conviction.
Griffin-Bey testified that he purchased counterfeit licenses from Strother to resell to
Thomas, including two in Jane Doe’s name. After the first woman backed out of
Thomas’s plan, Griffin-Bey and Strother agreed to charge Thomas half price for the
second license. Although there was no evidence that Strother knew the details of the
loan fraud scheme or all of the coconspirators’ identities, he was well aware that the
counterfeit identifications he produced would be used to engage in illegal financial
transactions. Because the government proved each element of conspiracy, we affirm
Strother’s conviction.
B. The Sentence Enhancements Imposed by the District Court Were Appropriate.
We review the district court’s interpretation and application of the guidelines
de novo and its findings of fact for clear error. United States v. Icaza, 492 F.3d 967,
969 (8th Cir. 2007). The district court concluded that Strother’s total offense level
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was thirty-four and that his criminal history level was two, resulting in a Guidelines
sentencing range between 168 and 210 months’ imprisonment. After adding a
consecutive two-year term of imprisonment for aggravated identity theft, the district
court sentenced Strother to 234 months’ imprisonment. See 18 U.S.C. § 1028A(a)(1)
(mandating a consecutive two-year sentence for aggravated identity theft). Strother
argues that the district court erred in imposing the following sentencing
enhancements: four levels for role in the offense; fourteen levels for loss in excess of
$400,000; four levels for fifty or more victims; two levels for production or trafficking
an authentication device; and two levels for use of sophisticated means.
Strother contends that there should have been no adjustment for his role in the
offense, arguing that the district court erred in denying him a four-level reduction for
his minimal role in the loan fraud scheme that would have negated the four-level
enhancement for leadership in the instant credit fraud scheme. We review a district
court’s denial of a mitigating role reduction for clear error. United States v. Godinez,
474 F.3d 1039, 1042 (8th Cir. 2007). Under U.S.S.G. § 3B1.2(a), a defendant may
be eligible for a role reduction if his culpability for the relevant conduct is minimal
in comparison to that of other participants, but the mere fact that a defendant is less
culpable does not entitle him to the reduction. See id. at 1043 (affirming district
court’s denial of a two-level minor role reduction); United States v. Johnson, 408 F.3d
535, 538-39 (8th Cir. 2005) (same). The minimal participant reduction “is intended
to cover defendants who are plainly among the least culpable of those involved in the
conduct of a group.” U.S.S.G. § 3B1.2 cmt. n.4.
We find no clear error in the district court’s denial of Strother’s request of a
mitigating role reduction. Without the counterfeit identification, the loan fraud
scheme could not have been executed. Strother created two counterfeit licenses for
women to pose as Jane Doe, and there was no evidence that Thomas had access to
counterfeit identification cards beyond those that Strother manufactured. We cannot
say that it was clear error to find that Strother was not “plainly among the least
culpable” of those involved in the loan fraud scheme. See id.
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Strother also contends that the loss attributable to the mortgage fraud scheme
was not reasonably foreseeable and thus the district court erred in including that
amount in its determination of Strother’s amount of loss enhancement. See U.S.S.G.
§ 2B1.1(b)(1) (amount of loss enhancement). The sentencing court calculates the
amount of the loss based on a preponderance of the evidence, and we review the
amount of loss determination for clear error. United States v. Boesen, 541 F.3d 838,
850 (8th Cir. 2008). The enhancement for the amount of loss may be based on either
the actual or intended loss. U.S.S.G. § 2B1.1 cmt. n.3(A); United States v.
Onwumere, 530 F.3d 651, 654 (8th Cir. 2008). Actual loss is defined as the
“reasonably foreseeable pecuniary harm that resulted from the offense,” U.S.S.G. §
2B1.1 cmt. n.3(A)(i), and in jointly undertaken criminal activity, a defendant’s
relevant conduct includes “all reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B).
We are hard pressed to believe that Strother—who was leading a profitable instant
credit fraud scheme—could not reasonably foresee that the counterfeit driver’s
licenses he was manufacturing would be used to obtain fraudulent mortgages. We
find no clear error in the application of the fourteen-level amount of loss
enhancement.
We also find no clear error in the district court’s finding that Strother’s illegal
conduct involved fifty or more victims. See U.S.S.G. § 2B1.1(b)(2) (number of
victims enhancement). Strother argues that the evidence before the district court
showed that there were only forty-eight victims. The presentence investigation report
(PSR), however, identified four additional victims, who were not counted in Strother’s
brief and who had their identities stolen by two coconspirators. Moreover, the
government’s arguments at sentencing included information regarding victims not
counted in the PSR, but who had been identified at trial. Because the government
presented evidence sufficient to allow the district court to find that Strother’s conduct
involved fifty or more victims, we conclude that Strother’s offense level was properly
enhanced by four levels under Guideline § 2B1.1(b)(2)(B).
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Strother contends that the district court committed procedural error in applying
the Guideline § 2B1.1(b)(10) enhancement. As stated above, Strother was convicted
of thirteen counts of aggravated identity theft in violation of 18 U.S.C. § 1028A,
which mandates a consecutive two-year term of imprisonment. He argues that §
2B1.6, the guideline concerning aggravated identity theft, disallows the application
of the § 2B1.1(b)(10) enhancement in cases in which the defendant has been convicted
of under § 1028A.
Guideline § 2B1.1(b)(10) instructs the district court to increase the offense
level by two levels if the offense involved:
(A) the possession or use of any (i) device-making equipment, or (ii)
authentication feature; (B) the production or trafficking of any (i)
unauthorized access device or counterfeit access device, or (ii)
authentication feature; or (C)(i) the unauthorized transfer or use of any
means of identification unlawfully to produce or obtain any other means
of identification, or (ii) the possession of 5 or more means of
identification that unlawfully were produced from, or obtained by the use
of, another means of identification.
To avoid double counting of relevant conduct, however, § 2B1.6 limits the application
of § 2B1.1(b)(10). Specifically, the commentary instructs that specific offense
characteristics for the “transfer, possession, or use of a means of identification” do not
apply when the court imposes a sentence for aggravated identity theft. § 2B1.6 cmt.
n.2. Under § 1028A(a)(1), a sentence for aggravated identity theft is appropriate for
the knowing transfer, possession, or use, without lawful authority, of a means of
identification of another person during and in relation to certain felonies. The
Guideline’s exclusion language tracks the language that triggers the statute’s
consecutive term of imprisonment, but § 2B1.6 does not exclude all conduct described
in § 2B1.1(b)(10).
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A two-level enhancement under § 2B1.1(b)(10) may still apply to a defendant
convicted under § 1028A. United States v. Jones, 551 F.3d 19, 25 (1st Cir. 2008); see
also United States v. Lyons, 556 F.3d 703, 708-09 (8th Cir. 2009) (leaving open
whether the § 2B1.1(b)(10) enhancement applies to a defendant who produced an
unauthorized access device and who also was convicted of aggravated identity theft).
For example, the production of a counterfeit access device or authentication feature
is not conduct encompassed by the prohibition on double counting in the commentary
to § 2B1.6. See U.S.S.G. § 2B1.1(b)(10)(B); Jones, 551 F.3d at 25; see also Lyons,
556 F.3d at 708-09. The commentary defines production to include “manufacture,
design, alteration, authentication, duplication, or assembly.” U.S.S.G. § 2B1.1 cmt.
n.9.
Strother qualifies for the § 2B1.1(b)(10) enhancement because he produced
counterfeit Kansas driver’s licenses with realistic authentication features, conduct that
§ 2B1.6 does not exclude. We find no procedural error in the district court’s
application of the Guidelines, and the evidence presented was sufficient to support the
§ 2B1.1(b)(10) enhancement.
Finally, the district court’s finding that Strother employed sophisticated means
is not clearly erroneous. See U.S.S.G. § 2B1.1(b)(9)(C) (sophisticated means
enhancement). The sophisticated means enhancement applies when the offense
involves “especially complex or especially intricate offense conduct pertaining to the
execution or concealment of an offense.” U.S.S.G. § 2B1.1 cmt. n.8(B). “Even if any
single step is not complicated, repetitive and coordinated conduct can amount to a
sophisticated scheme.” United States v. Bistrup, 449 F.3d 873, 882 (8th Cir. 2006).
Strother agues that he committed garden variety identity theft, but the evidence
presented showed that Strother engineered an intricate overall instant credit scheme,
complete with a vast network of coconspirators to carry out the scheme’s numerous
steps. Strother obtained credit reports from at least two coconspirators, reviewing the
reports for good credit scores. A victim with a good credit score would be matched
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with a coconspirator, and Strother would manufacture high-quality counterfeit Kansas
driver’s licenses containing the victim’s information and the coconspirator’s picture.
In some instances, Strother had recruited the coconspirator to serve as a shopper in the
scheme. At Strother’s direction, the coconspirator would open a line of credit at a
retail establishment, purchase big-ticket items, and deliver the goods to Strother for
resale. Strother and his associates carried out this conduct repeatedly, with minor
variations. And to avoid detection, the coconspirators used several different identities
and established fraudulent instant credit accounts at several different retailers and
retail locations throughout the lower Midwest. We find no clear error in the district
court’s finding that Strother employed sophisticated means.
III. Tarik Liwaru
Liwaru was convicted of one count of conspiracy to defraud the United States,
in violation of 18 U.S.C. §§ 371, 1028A, and 1029, and was sentenced to five years’
imprisonment, the maximum sentence allowed under § 371. He argues that the
evidence was insufficient to support his conviction, that the district court improperly
submitted Exhibit 29A to the jury and improperly answered the jury’s questions, and
that the district court erred in enhancing his sentence for amount of loss, number of
victims, unauthorized transfer of identification, and sophisticated means.
A. Evidence Was Sufficient To Convict Liwaru.
Having reviewed the record de novo, we conclude that it contains substantial
evidence supporting the jury’s verdict convicting Liwaru of conspiracy. See Alama,
486 F.3d at 1064; Lopez, 443 F.3d at 1030. Williams testified that Liwaru delivered
boxes of credit reports to Strother, and the reports allowed Strother and Williams to
identify victims with good credit scores. During trial, the government asked
Williams:
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Q: Did the Kansas driver’s licenses that we have discussed, [naming
victims], did at least some of those come out of the boxes of stuff
that Tarik brought over?
A: I’m sure almost all of them did.
That Williams identified the source of the credit reports as “Heartland Mortgage”
rather than Hearthside Lending is inconsequential, particularly in light of the fact that
the named victims in the government’s question had submitted credit applications to
Hearthside Lending.
We disagree with Liwaru’s contention that Williams’s testimony is incredible
or insubstantial on its face. Credibility challenges are for the jury, and “[t]he test for
rejecting evidence as incredible is extraordinarily stringent and is often said to bar
reliance only on testimony asserting facts that are physically impossible.” United
States v. McAtee, 481 F.3d 1099, 1105 (8th Cir. 2007) (quoting United States v.
Crenshaw, 359 F.3d 977, 988 (8th Cir. 2004)). Williams gave a thorough account of
the instant credit scheme and was subjected to vigorous cross examination. She had
personal knowledge of the conspiracy because she was deeply involved with it herself.
Nothing in her testimony is incredible or insubstantial on its face.
The government also presented corroborating evidence of Liwaru’s
involvement in the conspiracy. The evidence suggested that Liwaru drove at least one
coconspirator to a retail location to open a fraudulent instant credit account. A law
enforcement officer testified that he stopped Liwaru after a coconspirator, who had
been the passenger in the car Liwaru was driving, was arrested for attempting to open
an instant credit account with a counterfeit Kansas driver’s license. The government
also presented taped telephone calls between Strother and Liwaru, including one in
which Liwaru warns Strother that a coconspirator had been arrested. Viewing the
evidence in the light most favorable to the verdict, we conclude that the evidence was
sufficient to support Liwaru’s conviction.
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B. Submission of Exhibit 29A to the Jury During Deliberations Did Not Affect
Liwaru’s Substantial Rights.
Liwaru contends that Exhibit 29A, a chart showing the interconnection of the
instant credit fraud scheme coconspirators, should not have been allowed in the jury
room during deliberations because it was a demonstrative exhibit. Liwaru did not
object to the chart’s submission to the jury during the deliberations, and thus we
review the district court’s decision for plain error. Fed. R. Crim. P. 52(b). Under
plain error review, we reverse only if there has been an error, that is plain, and that
affects substantial rights. United States v. Cvijanovich, 556 F.3d 857, 864 (8th Cir.
2009); see also United States v. Olano, 507 U.S. 725, 732-36 (1993). The plain error
must have been prejudicial, a requirement that can normally be met only by showing
that the error affected the outcome of the case. Cvijanovich, 556 F.3d at 864-65.
Exhibit 29A was not formally offered and admitted into evidence, but the
district court incorrectly remembered that it had been and submitted it to the jury
without a limiting instruction. See United States v. Possick, 849 F.2d 332, 339 (8th
Cir. 1988) (“The submission of purely demonstrative charts to the jury is disfavored,
and therefore limiting instructions are more strongly suggested.”) (internal citations
omitted)). Assuming that such submission was plain error, Liwaru has failed to show
that it affected his substantial rights. The jury had seen the chart several times during
the government’s presentation of its case. Moreover, as stated above, the evidence
established that Liwaru brought credit reports from Hearthside Lending to Strother for
use in the instant credit fraud scheme. Accordingly, we cannot say that the alleged
error affected the outcome of the case.
C. The District Court’s Supplemental Instructions Were Not Erroneous.
Liwaru also alleges prejudicial error in the district court’s supplemental
instructions in response to the jury’s questions during deliberations. Specifically, he
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contends that the district court’s instructions might have prompted the jury to believe
that there was extrinsic evidence regarding Liwaru’s employment at Hearthside
Lending. Liwaru did not object to the district court’s responses, and we review them
for plain error. See Fed. R. Crim. P. 52(b); United States v. Garcia, 562 F.3d 947, 956
(8th Cir. 2009) (standard of review).
We find no error in the district court’s supplemental instructions in response to
the jury’s questions. “When a jury explicitly requests a supplemental instruction, a
trial court must take great care to ensure that any supplemental instructions are
accurate, clear, neutral, and non-prejudicial.” Garcia, 562 F.3d at 957 (quoting United
States v. Morrison, 332 F.3d 530, 532 (8th Cir. 2003)) (internal alterations omitted).
The jury requested verification of Liwaru’s employment at Hearthside Lending, and
the district court replied by saying, “There is no evidence admitted which responds to
your question.” The jury then asked whether it could assume that he was an employee
there, to which the district court instructed the jury to rely on collective memory, use
common sense, but “you should not guess or speculate.” These supplemental
instructions were specific and neutral, accurately responding to the jury’s questions.
Assuming, as we do, that the jury followed these supplemental instructions, it knew
that there was no admitted evidence regarding Liwaru’s employment at Hearthside
and that it could not speculate as to his employment there.
D. The Sentence Enhancements Imposed by the District Court Were Appropriate.
The district court determined that Liwaru’s total offense level was twenty-two
and his criminal history category was five, resulting in a Guidelines sentencing range
of seventy-seven to ninety-six months’ imprisonment. The district court held Liwaru
responsible for $160,272.90 in losses and more than ten victims, which accounted for
the loss and victims related to the Hearthside Lending credit reports. Liwaru argues
that the district court erred in enhancing his sentence for amount of loss, number of
victims, use of sophisticated means, and unauthorized use of identification.
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We find no clear error in the district court’s ten-level enhancement of Liwaru’s
sentence for losses greater than $120,000 and its two-level enhancement for ten or
more victims. See U.S.S.G. § 2B1.1(b)(1)-(2) (amount of loss and number of victims
enhancements). Liwaru contends that the evidence was insufficient to hold him
responsible for the losses attributed to the Hearthside Lending victims, rehashing his
argument that there was insufficient evidence to convict him. As set forth above,
however, evidence at trial established that Liwaru supplied Strother with the credit
reports from Hearthside Lending and was otherwise involved in the instant credit
scheme. Those credit reports allowed Strother to create counterfeit identities of
victims with good credit scores and perpetuate instant credit fraud. Liwaru also asks
us to exclude the loss amounts and victims attributed to unknown coconspirators, but
given the time frame, the fact that the victims had submitted their private financial
information to Hearthside Lending, and that the fraudulent transactions involved
instant credit, the district court could have reasonably concluded that those amounts
and victims were attributable to the instant credit scheme and the credit reports that
Liwaru provided.6 The district court properly increased Liwaru’s offense level by ten
for amount of loss and by two for ten or more victims.
The district court’s assessment of a two-level increase for unauthorized use of
identifications under Guideline § 2B1.1(b)(10) was similarly appropriate. As stated
above, the Guideline provides for a two-level enhancement for the “unauthorized
transfer or use of any means of identification unlawfully to produce or maintain any
other means of identification.” U.S.S.G. § 2B1.1(b)(10)(C)(i). Liwaru’s offense
conduct, which involved providing credit reports to Strother, fits squarely into this
Guideline enhancement, and we find no clear error in the district court’s application
of it.
6
Even if we were to exclude the amounts that Williams received from cashing
stolen checks, a transaction Liwaru argues is separate from the instant credit scheme,
the loss amount would remain more than $120,000, and thus the ten-level
enhancement would continue to apply.
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Finally, Liwaru challenges the district court’s imposition of the sophisticated
means enhancement. Under the advisory guidelines, Liwaru “is responsible under
principles of ‘relevant conduct’ for acts of others that were taken in furtherance of a
jointly undertaken criminal activity, if they were reasonably foreseeable by [Liwaru]
in connection with the criminal activity.” Lyons, 556 F.3d at 707. The evidence
tended to show that Liwaru was aware of how the conspiracy worked—from the
identification of victims to the creation of the counterfeit driver’s licenses to the
applications for and use of instant credit. At the very least, the conspiracy’s criminal
conduct was reasonably foreseeable. Accordingly, the sophisticated means
enhancement applies to Liwaru for the same reasons it applied to Strother, and the
district court’s finding that the conspiracy employed sophisticated means is not clearly
erroneous.
IV. Chandra Jenkins-Watts
Jenkins was convicted of one count of conspiracy to commit identity theft, in
violation of 18 U.S.C. §§ 371 and 1028 (a)(7), and four counts of aggravated identity
theft, in violation of 18 U.S.C. §§ 1028A(a)(1), and was sentenced to twenty-five
months’ imprisonment. Jenkins contends that her speedy trial rights were violated,
that the indictment was defective, that there was insufficient evidence to convict her,
and that the district court erred in denying her motion to sever and her motion to
suppress.
A. Jenkins’s Speedy Trial Rights Were Not Violated.
Jenkins argues that her statutory and constitutional speedy trial rights were
violated because she was originally indicted on April 19, 2006, and she was not tried
until October 22, 2007. We review the district court’s factual findings for clear error
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and its legal conclusions de novo. United States v. Titlbach, 339 F.3d 692, 699 (8th
Cir. 2003).
The trial of a criminal defendant shall commence within seventy days from the
filing date of the indictment or from the date of the defendant’s appearance, whichever
is later. 18 U.S.C. § 3161(c)(1). “[W]hen a newly indicted or arraigned defendant is
joined with a defendant whose speedy trial clock has already started running, the latter
defendant’s speedy trial clock will be reset so that it reflects the speedy trial clock of
the newly added codefendant.” United States v. Lightfoot, 483 F.3d 876, 885-86 (8th
Cir. 2007). Delay caused by pretrial motions is excluded from the calculation of this
time frame, as are continuances granted by the court in order to best serve the ends of
justice. 18 U.S.C. §§ 3161(h)(1)(F), (h)(8)(A); see also United States v. Shepard, 462
F.3d 847, 863 (8th Cir. 2006).
Jenkins was originally indicted in April 2006. In August, the government filed
a superseding indictment that charged sixteen defendants, some of whom had not
previously been charged in relation to the instant credit or loan fraud schemes. The
defendants made their initial appearances in August and September 2006. Jenkins
speedy trial clock was thus reset in early September, when the last of the newly
indicted codefendants appeared.
A number of defendants requested continuances throughout the pretrial period,
the first of which was filed in September 2006. The district court granted their
motions, and trial was set for June 2007. In May 2007, the government moved for a
continuance due to the unavailability of a witness, which was granted. In its written
orders, the district court explained the reasons that the continuance served the ends of
justice. Given the joinder of defendants and pretrial motions in this case, Jenkins’s
Speedy Trial Act rights were not violated because her speedy trial clock was reset in
early September 2006 and the time from the first motion for a continuance to trial is
excluded from the speedy trial calculation.
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“It would be unusual to find the Sixth Amendment has been violated when the
Speedy Trial Act has not.” Titlbach, 339 F.3d at 699. “The Sixth Amendment right
attaches at the time of arrest or indictment, whichever comes first, and continues until
the trial commences.” Shepard, 462 F.3d at 864 (quoting United States v. Perez-
Perez, 337 F.3d 692, 600 (8th Cir. 2003)) (internal quotations omitted). We consider
the following four factors when evaluating a Sixth Amendment claim for pretrial
delay: (1) length of delay, (2) reason for the delay, (3) defendant’s assertion of her
speedy trial right, and (4) prejudice to the defendant. Id. A delay approaching one
year may meet the presumption of prejudicial delay and require the application of the
other factors. Id.
The eighteen-month delay was the result of justifiable circumstances. As stated
above, the trial date was continued because a number of defendants were joined,
several defendants asked for continuances, and one of the government’s witnesses
became temporarily unavailable. Jenkins’s assertion that the government caused the
delay “for the purpose of getting them to turn on each other” is baseless, and she
provides no citation to the record or to any supporting case law. See Jenkins Br. at 31.
Although the delay may have caused Jenkins anxiety, she was released on bail during
the pendency of her case and allowed to appear via telephone for most pretrial
conferences. Most importantly, there is no indication that the passage of time
impaired her defense. Thus, although the delay was lengthy and Jenkins repeatedly
asserted her right to a speedy trial, Jenkins’s constitutional right was not violated.
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B. The District Court Did Not Err in Denying Jenkins’s Motion To Sever.
Jenkins argues that she is entitled to a new trial because the indictment
improperly joined the defendants and the district court erred in denying her motion to
sever. We review the claim of misjoinder de novo and the denial of the motion to
sever for abuse of discretion. United States v. Liveoak, 377 F.3d 859, 864 (8th Cir.
2004); see also United States v. Crumley, 528 F.3d 1053, 1062 (8th Cir. 2008)
(determining that a defendant need not always move for severance at the end of trial
to preserve the issue for appeal). Reversal is required only if the appellant
demonstrates that misjoinder resulted in actual prejudice, i.e., the misjoinder has “a
substantial and injurious effect or influence in determining the verdict.” Liveoak, 377
F.3d at 865.
Federal Rule of Criminal Procedure 8(b) provides that an indictment “may
charge 2 or more defendants if they are alleged to have participated in the same act or
transaction, or in the same series of acts or transactions, constituting an offense or
offenses.” All defendants need not be charged in each count, and the prerequisites are
liberally construed in favor of joinder. Liveoak, 377 F.3d at 864. “Once defendants
are properly joined under Rule 8, there is a strong presumption for their joint trial.”
Crumley, 528 F.3d at 1063 (quoting United States v. Flores, 362 F.3d 1030, 1039 (8th
Cir. 2004)).
A district court may sever the jointly indicted defendants’ trials if joinder
appears to prejudice a defendant or the government. Fed. R. Crim. P. 14(a). “To grant
a motion for severance, the necessary prejudice must be severe or compelling.”
Liveoak, 377 F.3d at 864 (quoting United States v. Pherigo, 327 F.3d 690, 693) (8th
Cir. 2003)) (internal quotations omitted). Severance becomes necessary where the
proof is such that a jury could not be expected to compartmentalize the evidence as
it relates to the separate defendants. United States v. Bauer, 551 F.3d 786, 791 (8th
Cir. 2008).
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We conclude that joinder was proper in this case. Count two of the indictment
charged Strother, Thomas, Zuber, Edenfield, and Jenkins, along with three other co-
defendants, with conspiracy. The indictment described the overarching loan fraud
scheme, including the mortgage fraud transactions that took place in Missouri and the
attempted fraudulent business loan transactions in Texas. Although Jenkins did not
seem to be involved in the Missouri transactions, the plan was to continue the scheme
in Texas, where Jenkins worked at a bank and was able to process credit applications.
Edenfield’s arrest delayed the plan, and the coconspirators reformulated the scheme,
recruiting Zuber to pose as Jane Doe and apply for business credit cards, lines of
credit, and business loans. Strother fueled both the instant credit scheme and the loan
fraud scheme with the counterfeit Kansas driver’s licenses.
Even if joinder was improper, Jenkins has shown no actual prejudice. The
evidence against Jenkins was substantial and compelling, and the district court
carefully instructed the jury:
Keep in mind that Counts One and Two charge two separate conspiracies
and that you must give separate consideration to the evidence about each
individual defendant. Each defendant is entitled to be treated separately,
and you must return a separate verdict for each defendant. Also keep in
mind that you must consider, separately, each crime charged against each
individual defendant, and must return a separate verdict for each of those
crimes charged.
Jenkins’s general assertions of prejudice have failed to demonstrate that joinder had
a substantial and injurious effect on the jury’s determination of her guilt, and we find
no abuse of discretion in the district court’s denial of Jenkins’s motion to sever.
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C. The District Court Did Not Err in Denying Jenkins’s Motion to Suppress.
Jenkins argues that the district court erred in denying her motion to suppress the
statements she made to bank personnel, whom she contends were acting as
government agents, during the bank’s internal investigation. Jenkins contends that the
statements were elicited in violation of Miranda v. Arizona, 384 U.S. 436 (1966). We
find no clear error in the district court’s factual finding that the bank investigators
were private citizens, not law enforcement officers, and affirm its legal conclusion that
Miranda warnings were thus not required. See United States v.Garlock, 19 F.3d 441,
442-44 (8th Cir. 1994) (holding that the defendant failed to show that the private
persons acted as an instrument or agent of the government and thus there could be no
Miranda violation).
D. The Indictment Was Sufficient To Charge Jenkins with
Aggravated Identity Theft.
Jenkins moved for dismissal after she was sentenced, contending that the
indictment was insufficient because it failed to define the elements of access device
fraud, the predicate offense to the aggravated identity theft count. On appeal from the
denial of the motion, Jenkins renews her argument and contends that we should
review the sufficiency of the indictment de novo.
Motions alleging that the indictment fails to invoke the court’s jurisdiction or
state an offense may be raised at any time while the case is pending. Fed. R. Crim. P.
12(b)(3)(B). When an indictment is challenged for the first time after the verdict is
returned, we apply a deferential standard of review, upholding the indictment “unless
it is so defective that by no reasonable construction can it be said to charge the offense
for which the defendants were convicted.” United States v. Redzic, 569 F3d 841, 845
(8th Cir. 2009) (quoting United States v. Pennington, 168 F.3d 1060, 1064-65 (8th
Cir. 1996)). An indictment is insufficient if it fails to allege an essential element of
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the crime charged. Id. “[I]n determining whether an essential element has been
omitted, ‘a court may not insist that a particular word or phrase appear in the
indictment when the element is alleged “in a form” which substantially states the
element.’” Id. (quoting United States v. Mallen, 843 F.3d 1096, 1102 (8th Cir. 1988)).
Section 1028A(a)(1) provides that “[w]hoever, during and in relation to any
felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses
without lawful authority, a means of identification of another person shall, in addition
to the punishment provided for such felony, be sentenced to a term of imprisonment
of 2 years.” The enumerated felonies include access device fraud, in violation of 18
U.S.C. § 1029(a)(5), which punishes a defendant who “knowingly and with the intent
to defraud effects transactions, with 1 or more access devices issued to another person
or persons, to receive payment or any other thing of value during any 1-year period
the aggregate value of which is equal or greater to $1,000.”
Counts thirty-four through thirty-seven of the superseding indictment charged
Jenkins with aggravated identity theft and closely tracked the language of §
1028A(a)(1), stating that Jenkins “did knowingly and without lawful authority
transfer, use, and possess one or more means of identification of another person,
namely XXXX, during and in relation to a predicate felony offense, that being access
device fraud as defined by Chapter 47, Title 18, United States Code, Section
1029(a)(5).” The indictment incorporated by reference the offense conduct described
in the loan fraud conspiracy count and went on to list the counts, the credit application
number, and the bank’s credit product. Jenkins complains that the indictment did not
refer to § 1029 (a)(5)’s scienter requirement (knowingly and with the intent to
defraud) or value amount ($1000 or more).
We conclude that the allegations contained in the indictment were sufficient to
charge Jenkins with aggravated identity theft. While it may have been preferable to
include the elements of access device fraud, their omission is not fatal. In reviewing
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whether the evidence was sufficient to convict a defendant of aggravated identity
theft, we have said that the government must prove that the defendant “knowingly
used the means of identification of another person without lawful authority during and
in relation to an enumerated felony.” United States v. Kowal, 527 F.3d 741, 746 (8th
Cir. 2008); see also United States v. Hines, 472 F.3d 1038, 1039 (8th Cir. 2007) (per
curiam).7 The government charged the above-listed elements, identified the
enumerated felony it would prove at trial (access device fraud), and cited the statute
criminalizing access device fraud (18 U.S.C. § 1029(a)(5)). Accordingly, the
government charged the final element in a form that substantially stated the element.
Jenkins has acknowledged as much in her reply brief, “[t]he government attempts,
albeit inadequately, [to] define and allege the elements of Section 1029(a) because it
knew it had to.” Jenkins Reply Br. at 10.
Jenkins’s argument that the jury instructions constructively amended the
indictment is misplaced. “A constructive amendment occurs when the essential
elements of the offense as charged in the indictment are altered in such a
manner—often through the evidence presented at trial or the jury instructions—that
the jury is allowed to convict the defendant of an offense different from or in addition
to the offenses charged in the indictment.” United States v. Starr, 533 F.3d 985, 997
(8th Cir. 2008) (quoting United States v. Whirlwind Soldier, 499 F.3d 862, 870 (8th
Cir. 2007)); see also United States v. Buchanan, No. 08-3515, 2009 WL 2213475 at
*7 (8th Cir. July 27, 2009) (rejecting appellant’s constructive amendment claim). The
jury was instructed that the elements of aggravated identity theft were, “One, the
defendant knowingly used a means of identification of another person; Two, the
defendant did so without lawful authority; and Three, the defendant did so during and
7
Section 1028A(a)(1) requires the government to show that the defendant knew
that the means of identification belonged to another person. Flores-Figueroa v. United
States, 129 S. Ct. 1886, 1894 (2009). Jenkins does not contend that the indictment
was insufficient to charge this requirement, nor does she argue that she did not know
that the means of identification belonged to another person.
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in relation to a criminal offense, namely Access Device Fraud, as described in
Instruction Number 45.” The jury thus knew that it was required to find that Jenkins
committed access device fraud, as defined in the instructions, before it could find that
Jenkins committed aggravated identity theft. The jury instructions did not alter or
expand the offense charged in the indictment, and the jury convicted Jenkins of the
exact offense charged in the indictment.
In her reply brief and at oral argument, Jenkins argued that her conviction of
aggravated identity theft cannot stand because the government did not charge her with
access device fraud. Without separate counts and convictions of the predicate offense
under § 1029(a)(5), Jenkins contends that she cannot be charged or convicted under
§ 1028A. This issue of first impression should have been raised earlier, and we
ordinarily do not address issues raised for the first time in an appellant’s reply brief.
See United States v. Coplen, 533 F.3d 929, 930 (8th Cir. 2008) (declining to address
issues first raised in reply brief). Suffice it to say that the government’s decision to
charge Jenkins with four counts of aggravated identity theft, and not an additional four
counts of access device fraud, did not render the indictment fatally insufficient so as
to fail to charge the offense of conviction or deprive the court of jurisdiction. See
United States v. Vidal-Reyes, 562 F.3d 43, 55 n.9 (1st Cir. 2009) (assuming without
deciding that the government may charge the defendant with violating § 1028A
without charging the predicate offense); cf. United States v. Green, 521 F.3d 929, 934
(8th Cir. 2008) (concluding that the government’s dismissal of the predicate offense
was irrelevant “since a [18 U.S.C.] § 924(c) defendant need not be convicted of the
underlying crime of violence”); Myers v. United States, 993 F.2d 171, 172 (8th Cir.
1993) (per curiam) (holding that a defendant charged with violating § 924(c) must be
proven to have committed the underlying crime, but he need not be separately charged
with and convicted of the underlying offense).
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E. The Evidence Was Sufficient To Support Jenkins’s Convictions.
Jenkins contends that the government failed to prove the elements of access
device fraud to support her conviction of aggravated identity theft. We disagree.
The government proved that Jenkins knowingly and with intent to defraud
effected transactions using one or more access device to receive payment of more than
$1000. See 18 U.S.C. § 1029(a)(5). Jenkins’s intent can be inferred from the
evidence adduced at trial. Thomas and Edenfield testified that Jenkins would serve
as the inside connection at the bank in Dallas. Her supervisor testified at length about
the four applications for credit that Jenkins processed for Brooke Investments and
Brooke Agency. Over the course of the four applications, the following information
changed: the name of the business, its location, its income, its date of establishment,
and the amount of credit requested. The bank investigator testified that Jenkins had
said that she made up the name Brooke Agency and that she altered the dates of
establishment of the businesses to try to get the loan approved. Based on this
evidence, the jury could reasonably find that Jenkins knowingly and with the intent
to defraud engaged in access device fraud.
Jenkins argument that she used only counterfeit paper documents, and not an
access device, to initiate the transactions is without merit. Access device is defined
as
any card, plate, code, account number . . . or other means of account
access that can be used, alone or in conjunction with another access
device, to obtain money, goods, services, or any other thing of value, or
that can be used to initiate a transfer of funds (other than a transfer
originated solely by paper instrument).
18 U.S.C. § 1029(e)(1). Jenkins’s supervisor testified that Jenkins opened two
checking accounts using Jane Doe’s personal information and then submitted four
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fraudulent applications for business loans and other forms of credit, directing
electronic fund transfers to be deposited in the newly opened accounts. The statutory
language itself includes account numbers within the definition of access devices, and
account numbers are a means of account access, which can be used alone or in
conjunction with other access devices to initiate a transfer of funds. See id. The
government thus presented sufficient evidence to allow the jury to find that Jenkins
effected transactions with one or more access devices.
Finally, Jenkins contends that the government failed to prove that she obtained
or received money or things of value over $1000. The statute, however, criminalizes
the use of access devices to effect transactions to receive $1000 or more. See 18
U.S.C. § 1029(a)(5). Jenkins submitted four applications for fraudulent loans and
lines of credits in excess of $1000, and Jenkins’s supervisor discussed each
application at length. In light of the evidence presented at trial, the jury could
reasonably find that Jenkins committed aggravated identity theft during and in relation
to the crime of access device fraud.
Conclusion
We affirm the convictions and sentences.
______________________________
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