United States v. Bridgette Jackson ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 5 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50111
Plaintiff-Appellee, D.C. No. 2:15-cr-00326-R-1
v.
BRIDGETTE LENET JACKSON, AKA
Bridgette Levet Jackson,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
For the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted December 8, 2017
Pasadena, California
Before: KELLY,** CALLAHAN, and BEA, Circuit Judges.
Defendant-Appellant Bridgette Jackson (“Jackson”) was convicted,
after a jury trial, of conspiracy to possess and aiding and abetting in the
possession of fifteen or more unauthorized access devices and aggravated
identity theft. Jackson was sentenced to 60 months’ imprisonment. The
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
scheme involved the theft of nursing home patient records; this information
was then used to file fraudulent tax returns and obtain refunds. Jackson now
appeals from the district court’s: (1) denial of her request to change counsel
without affording her a hearing; (2) precluding her from questioning
witnesses about the thoroughness of the underlying investigation; (3) loss
calculation; and (4) denial of a two-level reduction for acceptance of
responsibility. Exercising jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a), we affirm.
A. Request for New Counsel
We review the district court’s denial of such a request for an abuse of
discretion, and we find none. In United States v. Smith, 282 F.3d 758, 764
(9th Cir. 2002), we stated that “the failure to conduct a hearing is not by
itself an abuse of discretion.” Jackson’s request was not accompanied by
any facts to suggest a conflict with her counsel. See United States v. Cassel,
408 F.3d 622, 637 (9th Cir. 2005) (noting this as a factor for evaluating
improper denial of counsel). In fact, two days prior to making the request,
Jackson filed a stipulation to continue the trial date, in which she stated that
she had carefully discussed the stipulation with counsel and also that she
wanted to ensure continuity of counsel. Moreover, no facts suggest that the
attorney-client relationship resulted in a “constructive denial of counsel.”
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See United States v. Rivera-Corona, 618 F.3d 976, 979 (9th Cir. 2010).
Jackson even continued to use the same counsel in a separate conspiracy
case, without ever indicating her dissatisfaction with counsel. We therefore
find no abuse of discretion in the district court’s denial of Jackson’s request
for new counsel.
B. Police Investigation Defense
The district court did not violate Jackson’s due process rights when it
precluded certain testimony concerning the police investigation. Whether
the district court violated a defendant’s due process rights is reviewed de
novo. United States v. Waters, 627 F.3d 345, 352 (9th Cir. 2010). In
considering whether the exclusion of evidence violates a defendant’s due
process rights, “this court considers the ‘probative value of the evidence on
the central issue.’” United States v. Cruz-Escoto, 476 F.3d 1081, 1088 (9th
Cir. 2007) (quoting Miller v. Stagner, 757 F.2d 988, 994 (9th Cir. 1985)).
“[T]rial judges retain wide latitude to limit reasonably a criminal defendant’s
right to cross-examine a witness based on concerns about, among other
things . . . interrogation that is . . . only marginally relevant.” Holley v.
Yarborough, 568 F.3d 1091, 1098 (9th Cir. 2009).
Defense counsel’s line of questioning was not an attempt to reveal
inconsistencies or biases by the agents. Instead, it was an attempt to raise
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questions as to the charging decisions. The defense counsel’s opening
statement identified several co-conspirators, noting that the Government had
not charged any of them. The Government had charged only Jackson. We
find that counsel never explained to the trial judge why he wanted to call
certain governmental agents other than to “present a complete defense.”
Accordingly, probing further into the police investigation was not relevant
under Federal Rule of Evidence 403. See Cruz-Escoto, 476 F.3d at 1088.
C. The Loss Amount
The district court correctly adopted the probation office’s loss
calculation as to the unauthorized access devices, which we review for clear
error. See United States v. Del Toro-Barboza, 673 F.3d 1136, 1154 (9th Cir.
2012). The $500 per unauthorized device standard applies to debit cards or
account numbers whose usability has not been proven. “An ‘unauthorized
access device’ must be an ‘access device,’ which itself must be capable of
obtaining ‘money, goods, services, or any other thing of value.’” United
States v. Onyesoh, 674 F.3d 1157, 1159 (9th Cir. 2012) (quoting 18 U.S.C.
§ 1029(e)(1), (e)(3)). Onyesoh makes clear that the device must be capable
of obtaining value; it need not have obtained value or even have been used
previously.
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Moreover, the guidelines are not ambiguous and the rule of lenity
does not apply. The plain language of the guidelines indicates there is a
floor on each device: the greater of the loss resulting from the unauthorized
charges or $500. U.S.S.G. § 2B1.1 cmt. n.3(F)(i). Although it sets a floor,
it does not limit losses to devices actually used.
Finally, a Social Security card is an access device. The plain language
of the statute is clear. To be an access device, a device must be a “means of
account access that can be used, alone or in conjunction with another access
device” to obtain a thing of value. 18 U.S.C. § 1029(e)(1). Jackson used a
means of account access (the social security numbers and cards) to obtain
things of value (the fraudulent tax dollars). We therefore affirm the district
court on the loss-calculation issue.
D. Two-Level Downward Adjustment
The district court was not required to grant Jackson a two-level
reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. We
review for clear error. United States v. Fleming, 215 F.3d 930, 939 (9th Cir.
2000). “[A] defendant who puts the government to its proof may still be
eligible for a downward adjustment if, and only if, he has ‘otherwise
demonstrated sincere contrition.’” United States v. Ramos-Medina, 706 F.3d
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932, 940 (9th Cir. 2013) (quoting United States v. Cortes, 299 F.3d 1030,
1038 (9th Cir. 2002)).
First, Jackson decided to go to trial, which weighs against accepting
responsibility. See id. Second, although Jackson cooperated with
authorities, she initially withheld certain information and minimized her own
role in the scheme. Third, a few months following her final interview with
authorities in April 2013, Jackson engaged in a completely separate
fraudulent scheme. Finally, even during sentencing, Jackson equivocated in
her acceptance of responsibility. See United States v. Osinger, 753 F.3d
939, 949 (9th Cir. 2014). Accordingly, the district court’s decision to deny a
two-level reduction for acceptance of responsibility was not clearly
erroneous.
AFFIRMED.
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