United States v. Tarkara Cooper ( 2020 )


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  •  United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Argued October 28, 2019           Decided February 11, 2020
    No. 17-3057
    UNITED STATES OF AMERICA,
    APPELLEE
    v.
    TARKARA COOPER AND BRIAN BRYANT,
    APPELLANTS
    Consolidated with 18-3021
    Appeal from the United States District Court
    for the District of Columbia
    (No. 1:15-cr-00152-3)
    (No. 1:15-cr-00152-5)
    Dennis M. Hart, appointed by the Court, argued the cause
    and filed the briefs for appellant Tarkara Cooper.
    Brian J. Young, appointed by the Court, argued the cause
    and filed the briefs for appellant Brian Bryant.
    Katherine M. Kelly, Assistant U.S. Attorney, argued the
    cause for appellee. With her on the brief were Jessie K. Liu,
    U.S. Attorney, and Elizabeth Trosman and John P. Mannarino,
    Assistant U.S. Attorneys.
    2
    Before: SRINIVASAN and RAO, Circuit Judges, and
    RANDOLPH, Senior Circuit Judge.
    Opinion for the Court filed by Senior Circuit Judge
    RANDOLPH.
    RANDOLPH, Senior Circuit Judge: Several individuals in
    the District of Columbia acted together to steal millions of
    dollars from the Federal Treasury. Their method of operation
    was this. First beg, steal, purchase or borrow other people’s
    identities including, most importantly, their Social Security
    numbers. Then file false income tax returns seeking refunds in
    their names. Keep the refund requests relatively small. List on
    the tax returns the addresses, not of the purported filers, but of
    one or another co-conspirator. Then, when the refund checks
    from the Treasury arrive, compromise bank tellers, negotiate the
    checks, and deposit the proceeds in the conspirators’ personal
    accounts. This multi-year conspiracy netted a total of nearly $5
    million in tax refunds from the Treasury.
    Antonio Cooper, a bus driver and the hub in the wheel in
    this conspiracy, entered a plea of guilty and testified for the
    prosecution against others, including his niece, Tarkara Cooper.
    The jury convicted her and Brian Bryant of theft of public
    money and conspiracy to defraud the United States. See 18
    U.S.C. §§ 641, 371. The jury also convicted Bryant of
    aggravated identity theft. See 18 U.S.C. § 1028A. The court
    sentenced Ms. Cooper to 63 month’s imprisonment, 36 month’s
    supervised release, and ordered her to pay nearly $2 million in
    restitution. The court sentenced Bryant to 100 month’s
    imprisonment, 36 month’s supervised release, and ordered him
    to pay some $650,000 in restitution. Both defendants appeal
    their convictions and their sentences.
    3
    The evidence showed that Antonio Cooper gathered names,
    birth dates and Social Security numbers from friends, family
    members, strangers, and “wherever [he] could.” Using this
    information, he filed more than a thousand fraudulent federal
    income tax returns seeking refunds. The typical refund check
    was between $1,000 and $3,000. To receive the refunds from
    the Treasury, the fraudulent tax returns listed Mr. Cooper’s
    address or the addresses of other participants in his scheme, one
    of whom was his niece Tarkara Cooper. More than 450
    fraudulent tax returns seeking refunds of more than $1,200,000
    listed Ms. Cooper’s address. When the refund checks arrived
    she handed them to her uncle, who paid her $50 to $100 per
    check. He then deposited the checks in his bank account or the
    accounts of other co-conspirators. Antonio Cooper also sold
    some of the checks to others, including Bryant.
    For his part, Bryant helped Mr. Cooper cash the refund
    checks and received half of the face value of those checks in
    exchange. Brianna Turner, a former Bank of America
    employee, testified that she helped Bryant deposit some of these
    checks. She said that Bryant expressed a willingness to
    compensate her in exchange for violating the Bank’s rules on
    third-party deposits. Bryant paid Turner between $300-$600 per
    check deposited. He controlled dozens of bank accounts into
    which refund checks were deposited.
    At some point in 2010, Postal Inspector Maria Couvillion
    opened an investigation after detecting what appeared to be
    fraudulent tax returns being sent through the mail. Not until six
    years later did a grand jury return indictments against Antonio
    Cooper, Tarkara Cooper, Bryant and others. In the interim, the
    conspirators carried on, filing more fake returns and cashing
    more refund checks.
    4
    I.
    We take up first the district court’s rejection of Tarkara
    Cooper’s pretrial motion to suppress statements she made to
    federal agents. The evidence at the suppression hearing showed
    that before dawn on December 1, 2010, twelve law enforcement
    officers – eleven federal agents and one from the local police –
    arrived at the door of Cooper’s home in a “multi unit residential
    complex” in the District of Columbia.1 The officers were there
    to execute a search warrant. An agent knocked and announced
    their presence. Cooper opened the door and some of the agents
    entered. Inside were Cooper’s six-to-seven year old daughter
    and an adult female friend of Cooper’s. After being
    interviewed, the friend left.
    About an hour into the search, two agents began
    interviewing Cooper in her living room. At some point in the
    questioning, she admitted receiving in the mail at her address
    one to five refund checks each week, and that her uncle paid her
    when she turned over the checks to him. She argues here, as she
    did in the district court, that the government could not introduce
    these statements at trial because the agents did not first give her
    Miranda warnings. See Miranda v. Arizona, 
    384 U.S. 436
    (1966).
    The district court denied Cooper’s motion. The court found
    that Cooper “was not coerced into answering questions” and that
    1
    Rule 41 of the Federal Rules of Criminal Procedure establishes
    two types of search warrants – a daytime warrant and a nighttime
    warrant. It is difficult to obtain a nighttime warrant (see Rule
    41(e)(2)(ii)), so investigators usually opt for a daytime warrant. But
    Rule 41(a)(2)(B) defines “daytime” as “the hours between 6:00 a.m.
    and 10:00 p.m. according to local time.” So-called “daytime”
    warrants therefore may be executed while it is still dark outside.
    5
    she was not in custody within the meaning of Miranda. At trial,
    an agent who interrogated Cooper testified about her statements.
    Before a suspect in custody is interrogated, she must be
    advised of her Miranda rights. See Stansbury v. California, 
    511 U.S. 318
    , 322 (1994). If the interrogating officers do not
    provide Miranda warnings, any statements the suspect makes
    are generally inadmissible at trial. 
    Id. The obligation
    to apprise
    the suspect of her rights attaches “only where there has been
    such a restriction on a person’s freedom as to render [her] ‘in
    custody.’” 
    Id. (quoting Oregon
    v. Mathiason, 
    429 U.S. 492
    , 495
    (1977)).
    A suspect is “in custody” if the circumstances of the
    questioning “present a serious danger of coercion.” Howes v.
    Fields, 
    565 U.S. 499
    , 508-09 (2012). To determine whether
    such a danger existed, courts first consider whether a reasonable
    person in the suspect’s position would have felt that “she was
    not at liberty to terminate the interrogation and leave.” 
    Id. at 509
    (internal quotation marks omitted). Relevant factors in this
    assessment include the location of the questioning, statements
    made during the interview, the presence of any physical
    restraints, and whether the interviewee was released once the
    interrogation ended. 
    Id. Because “[n]ot
    all restraints on freedom of movement
    amount to custody for purposes of Miranda,” a finding that a
    person in the suspect’s shoes would not have felt free to leave
    does not end the inquiry. 
    Id. Rather, courts
    must then ask “the
    additional question whether the relevant environment presents
    the same inherently coercive pressures as the type of station
    house questioning at issue in Miranda.” 
    Id. We review
    de novo
    the district court’s custody determination, and we review the
    underlying factual findings for clear error. United States v.
    Brinson-Scott, 
    714 F.3d 616
    , 621 (D.C. Cir. 2013).
    6
    Examination of the evidence before the district court at the
    suppression hearing and at trial reveals no clearly erroneous
    factual findings.2 Instead, the evidence amply supports the
    conclusion that Cooper was not in custody when she admitted
    that she was aware of, and participated in, her uncle’s fraud.
    The agents questioned Cooper in her living room. When an
    interview takes place in a suspect’s home, that circumstance
    usually weighs against finding the kind of custodial situation
    that merits a Miranda warning. See, e.g., Beckwith v. United
    States, 
    425 U.S. 341
    , 342, 347-48 (1976); United States v. Luck,
    
    852 F.3d 615
    , 621 (6th Cir. 2017); 2 Wayne R. LaFave et al.,
    Criminal Procedure § 6.6(e) (4th ed. 2014).
    Before the interview began, the agents told Cooper that she
    was a subject of an investigation and described “the voluntary
    nature of the interview.” They asked her “if she would agree to”
    answer their questions. She agreed.3 The evidence shows, in
    other words, that Cooper’s statements were given freely and
    voluntarily. Such statements “remain a proper element in law
    enforcement.” 
    Miranda, 384 U.S. at 478
    .
    In addition, no weapons were brandished and no handcuffs
    were used. Cooper was “cooperative,” and the agents employed
    2
    Cooper did not renew her suppression motion at trial. While
    we may therefore consider trial evidence to affirm, but not to reverse,
    the district court’s pretrial ruling on the motion, see United States v.
    Hicks, 
    978 F.2d 722
    , 724-25 (D.C. Cir. 1992), the evidence at trial
    basically duplicated the evidence at the suppression hearing.
    3
    The parties did not discuss whether this exchange was a
    functional equivalent of some of the standard Miranda warnings (“you
    have the right to remain silent” and you have the right “to stop
    answering at any time”). See Duckworth v. Egan, 
    492 U.S. 195
    , 202-
    03 & n.4 (1989).
    7
    a “professional and cordial tone.” At no point did Cooper ask to
    end the questioning. And once the interview was over, the
    agents left without arresting her. Put simply, these facts do not
    portray an environment presenting a meaningful danger of
    coercion.
    Cooper’s argument to the contrary focuses on a fifteen-
    minute break during the questioning. She needed to take her
    daughter to school, and so the agents drove them to the school,
    dropped her daughter off, and returned to the house with Cooper
    to resume the interview. Cooper alleges that the agents refused
    to let her leave the house unaccompanied, and that this refusal
    illustrates the custodial nature of the questioning.
    Not so. Cooper offers no evidence that she asked to take
    her daughter to school alone but was prevented from leaving.
    For safety reasons, if a person leaves her residence during the
    execution of a search warrant, she is not typically allowed to
    return until the search is completed. It is thus as likely as not
    that the agents gave Cooper a ride so that she could return to her
    house while the search was ongoing. And while she was in the
    agents’ car, Cooper was not asked any questions.
    These circumstances do not amount to custody within the
    meaning of Miranda. Indeed, to hold otherwise would be akin
    to suggesting that voluntary statements uttered during the
    execution of a valid search warrant are inadmissible at trial
    absent the issuance of a Miranda warning. The Supreme Court
    has rejected such an expansive view. See Andresen v. Maryland,
    
    427 U.S. 463
    , 475 (1976). The district court thus correctly
    concluded that Cooper’s statements could be used at trial.
    8
    II.
    Cooper and Bryant also challenge the use of Special Agent
    LaRose as a summary witness. Before trial, the government
    asked the court to impose what it called the “Rule on
    Witnesses.” Although the government did not mention it, Rule
    615 of the Federal Rules of Evidence governs these sorts of
    requests. The Rule provides: “At a party’s request, the court
    must order witnesses excluded so that they cannot hear other
    witnesses’ testimony.” The “must” command is softened with
    four exceptions. The government asked the court to make an
    exception for IRS Special Agent Milne, who was the “lead case
    agent,” and for IRS Special Agent LaRose, because “his
    testimony will be to summarize the evidence that is admitted and
    put it in context.”4 The defendants did not object to the request.
    Both IRS agents attended the entire trial. Milne sat at
    counsel table. LaRose sat in the audience. The prosecution
    apparently decided not to use Milne as a witness. The
    prosecution called LaRose toward the end of its case-in-chief
    4
    Rule 615 “does not authorize excluding an officer or employee
    of a party that is not a natural person, after being designated as the
    party’s representative by its attorney.” Fed. R. Evid. 615(b). This
    exception appears to cover Special Agent Milne. Another exception
    to Rule 615 allows a witness to attend the trial if the party shows that
    he is “essential to presenting the party’s claim or defense.” Fed. R.
    Evid. 615(c). It may be that the government intended Special Agent
    LaRose to be covered by this exception. See United States v. Pulley,
    
    922 F.2d 1283
    , 1286 (6th Cir. 1991) (“Where the government wants
    to have two agent-witnesses in attendance throughout the trial, it is
    always free to designate one agent as its representative under subpart
    [b] and try to show under subpart [c] that the presence of the second
    agent is ‘essential’ to the presentation of its case.”); United States v.
    Farnham, 
    791 F.2d 331
    , 335 (4th Cir. 1986).
    9
    without attempting to qualify him as an expert witness under
    Federal Rule of Evidence 702.5
    LaRose’s lengthy testimony on direct examination dealt
    with extensive and detailed charts listing bank records, tax
    returns, refund checks, and more connecting the defendants with
    the tax fraud. He testified, for example, that after December 1,
    2010, when the agents searched Cooper’s residence, 65 refund
    checks totaling $151,853.24 were mailed to her home. Of those,
    59 checks were negotiated, totaling $141,333.49.
    Rule 1006 of the Federal Rules of Evidence permits the use
    of summary charts “to prove the content of voluminous
    writings.” The records here were indeed voluminous – many
    millions of dollars in fraudulent refunds, thousands of phony tax
    returns, hundreds of refund checks sent to many addresses,
    checks cashed by others, deposits made in multiple accounts by
    multiple co-conspirators, and more. Little wonder that the
    charts were admitted without objection.
    Cooper and Bryant complain that the district court erred in
    allowing LaRose to testify about matters other than those
    contained in the charts. Their complaint greatly exaggerates the
    record.
    5
    Federal Rule of Criminal Procedure 16(a)(1)(G) requires, at the
    defendant’s request, that “the government must give to the defendant
    a written summary of any testimony that the government intends to
    use under Rules 702, 703, or 705 of the Federal Rules of Evidence
    during its case-in-chief at trial.” See also LCvR 16.5(b) (requiring
    pretrial statements that include “a schedule of witnesses to be called
    by the party” and that expert witnesses “be designated by an
    asterisk”). It may be that, because its pretrial materials failed to
    identify LaRose as an expert, the government believed it would be
    unable to qualify him as an expert at trial.
    10
    A prosecutor’s “non-expert summary witness can help the
    jury organize and evaluate evidence which is factually
    complex.” United States v. Lemire, 
    720 F.2d 1327
    , 1348 (D.C.
    Cir. 1983). Putting it in terms of “helping the jury” may suggest
    that prosecutors call summary witnesses for some neutral,
    educational trial purpose. That of course is not true.
    Prosecutors call witnesses, including summary witnesses, to
    prove their case – to help convince the jury that the defendant is
    guilty as charged.
    It follows that there must be limitations on the sort of “help”
    a government summary witness may provide. One of the most
    important is this: the witness may not usurp the jury’s fact-
    finding function by summarizing or describing not only what is
    in evidence but also what inferences should be drawn from that
    evidence. United States v. Hampton, 
    718 F.3d 978
    , 983 (D.C.
    Cir. 2013). Another danger to be guarded against is that the jury
    will treat summary testimony “as additional evidence or as
    corroborative of the truth.” 
    Lemire, 720 F.3d at 1348
    . See also
    Lauren Weiser, Requirements for Admitting Summary Testimony
    of Government Agents in Federal White Collar Cases, 36 AM.
    J. CRIM. L. 179, 181-82 (2009).
    LaRose, the defendants claim, crossed these lines. They
    argue that the government functionally introduced the agent as
    though he were an expert witness by reviewing at length his
    training and professional background. LaRose then appeared to
    present an expert opinion, suggesting that based on his fifteen
    years of experience as an investigator, it is not uncommon for
    fraudsters to open and use multiple bank accounts to avoid
    detection by bank employees. The defendants suggest it is
    possible that the jury simply relied on LaRose’s expertise and
    experience, rather than its own review of the record, to conclude
    that the signatures were indeed forged and that the scheme
    participants used several bank accounts to escape detection.
    11
    The defendants also argue that LaRose discussed evidence
    that was, at the time of his testimony, not yet admitted. He
    testified before two of the government’s witnesses, Chyna
    Watkins and Vincent Short, took the stand. Watkins was
    Bryant’s girlfriend, and she told the jury that she “gave him
    access to” her bank account and allowed him to deposit
    thousands of dollars into it. She later withdrew the money for
    him in exchange for a series of small payments. Short was one
    of the scheme’s victims. He testified that he lost his
    identification card, that he did not recognize a tax return filed in
    his name listing Cooper’s address, and that he did not sign a
    check made payable to Bryant that appeared to contain his
    signature.
    Before Watkins and Short offered this testimony, LaRose
    stated that Watkins’s account was under Bryant’s control. He
    also referred to Short’s “purported” signature on the check to
    Bryant. According to the defendants, by doing so he improperly
    bolstered the credibility of Watkins’s and Short’s subsequent
    testimony.
    Cooper and Bryant also take issue with LaRose’s count-by-
    count synthesis of the government’s evidence against them.
    They argue that the government used the agent to present
    conclusory testimony that effectively served as a second closing
    argument.
    But even if the district court erred in allowing LaRose to
    stray beyond a narrow summary of the evidence reflected in the
    charts, Cooper and Bryant have not shown that they were
    substantially prejudiced by this error. See United States v.
    Miller, 
    738 F.3d 361
    , 372 (D.C. Cir. 2013); Kotteakos v. United
    States, 
    328 U.S. 750
    , 776 (1946). LaRose’s testimony was
    extensive, consuming 150 pages of transcript. The defendants
    point to a minuscule portion of what he said. The alleged errors
    12
    were, in other words, quite minor. Without LaRose’s testimony,
    the record still contains overwhelming evidence of the
    defendants’ guilt. Any error was thus harmless.
    Consider the evidence against Cooper. She confessed that
    she had an agreement with her uncle to receive payment in
    exchange for giving him the checks that were mailed to her
    home. The hundreds of checks mailed to her address amply
    support the finding that she was a knowing participant in the
    scheme. Her uncle also testified that he told Cooper the tax
    checks she was receiving were not “legit.” She “knew about
    everything.” In addition, Cooper was identified in video
    surveillance footage interacting with a bank teller who helped
    the participants perpetrate the fraud. The strength of this
    evidence makes it very unlikely that the portion of LaRose’s
    testimony Cooper complains about materially influenced the
    jury’s verdict.
    The evidence against Bryant was also compelling. Antonio
    Cooper testified that Bryant helped him cash the refund checks
    and received half of the face value of those checks in exchange.
    Brianna Turner, the former bank teller, admitted that she helped
    Bryant deposit some of these checks in exchange for
    compensation.
    The government presented evidence of multiple bank
    accounts controlled by Bryant into which dozens of refund
    checks were deposited. For example, Bryant deposited 26
    refund checks totaling more than $115,000 into a Capital One
    account in his name between May 2011 and July 2012.
    Further minimizing the effect of any possible error was the
    district court’s limiting instruction, which informed the jury that
    LaRose’s summaries “are not in and of themselves proof of the
    facts,” and that his testimony was to be used “only as a matter
    13
    of convenience.” This instruction, virtually identical to the one
    issued by the trial court in Lemire, helped lower the risk that the
    jury would take the summary testimony for more than it was
    worth. See 
    Lemire, 720 F.2d at 1348
    n.32. Juries “are presumed
    to follow their instructions,” and the record offers no reason to
    doubt the validity of that presumption here. Zafiro v. United
    States, 
    506 U.S. 534
    , 540 (1993) (internal quotation marks
    omitted).
    More still, the defendants had an opportunity to cross-
    examine LaRose. They did so, eliciting testimony that LaRose
    is not a hand-writing expert and that he lacked personal
    knowledge about whether Bryant controlled Watkins’s bank
    account. In sum, Watkins’s and Short’s testimony, as well as
    the record evidence, fully corroborated LaRose’s summary of
    the investigation. We therefore find that his testimony did not
    meaningfully prejudice the defense.
    III.
    We have reviewed and reject the defendants’ remaining
    arguments.       Cooper moved for a mistrial during the
    government’s rebuttal. She alleged that the prosecutor
    improperly lumped her together with co-defendants whose
    participation in the scheme was much more substantial. The
    district court denied this motion. It did not err by doing so. The
    prosecutor did not misstate the evidence applicable to Cooper,
    and the occasional inadvertent references to “these defendants”
    when discussing acts not attributable to Cooper were quickly
    remedied. See United States v. Gartmon, 
    146 F.3d 1015
    , 1026
    (D.C. Cir. 1998).
    The defendants also challenge the sentences the district
    court imposed, suggesting that the loss amounts attributed to
    Cooper and Bryant were too high. The court attributed a loss to
    14
    the Treasury of about $650,000 to Bryant’s participation in the
    scheme, and a loss of around $4.6 million to Cooper’s
    participation. These findings of fact must be upheld unless they
    are clearly erroneous. United States v. Day, 
    524 F.3d 1361
    ,
    1367 (D.C. Cir. 2008). They are not.
    The value of the bank accounts reasonably connected to
    Bryant’s participation in the scheme was at least $528,252.94.
    And the government presented evidence of checks attributable
    to co-conspirators’ home addresses that were not attributed to
    particular bank accounts. The value of such checks was well
    over a million dollars, and at least some are reasonably
    connected to Bryant’s role in the fraud.
    Similarly, the amount attributed to Cooper—the entire
    intended loss attributable to her uncle’s scheme—was not
    clearly erroneous. See United States v. Seiler, 
    348 F.3d 265
    , 268
    (D.C. Cir. 2003) (noting that, in determining a sentence in a
    conspiracy case, the district court takes into account “all
    reasonably foreseeable acts and omissions” committed by others
    in furtherance of the conspiracy) (internal quotation marks
    omitted). Because, as the district court noted, Cooper’s
    participation in the scheme was “neither minor nor minimal,” it
    was not clear error to conclude that her co-conspirators’ actions
    were reasonably foreseeable to her.
    Cooper also challenges the restitution the district court
    ordered her to pay. But the Mandatory Victim Restitution Act
    requires defendants to reimburse victims for the actual, provable
    loss suffered. See United States v. Fair, 
    699 F.3d 508
    , 512-13
    (D.C. Cir. 2012). The government showed that Cooper’s
    participation in the scheme cost the Treasury at least $1.9
    million. Requiring this amount in restitution was therefore
    appropriate.
    15
    For these reasons, the defendants’ convictions and the
    sentences they received are affirmed.
    So ordered.