United States v. Lawrence

FILED
United States Court of Appeals
Tenth Circuit
November 29, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 10-6257
v. (D.C. No. 5:10-CR-00011-D-1)
(W.D. Okla.)
WALLACE LAVERNE LAWRENCE,
III,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TYMKOVICH, Circuit Judge, BRORBY, Senior Circuit Judge, and
EBEL, Circuit Judge.
Following trial, a jury convicted Defendant Wallace Laverne Lawrence III
on (1) seven counts of wire fraud/aiding and abetting, 18 U.S.C. § 1343 and § 2,
involving the use of internet ads in a scheme to defraud persons seeking help in
paying bills; (2) two counts of fraud in connection with access devices/aiding and
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
abetting, id. § 1028(a)(7), § 1029(a)(2), and § 2, involving the use of stolen
credit-card, debit-card, and bank numbers to obtain goods and services; and
(3) one count of aggravated identity theft/aiding and abetting, id. § 1028A(a)(1)
and § 2, involving the unauthorized use of other persons’ means of identification
(again, credit-card, debit-card, and bank numbers) in furtherance of the wire fraud
scheme underlying counts one to seven.
Lawrence now appeals, challenging the sufficiency of the evidence to
support his conviction on the wire fraud and identity theft counts (counts one to
seven and ten), 1 and objecting to the use of sentence enhancements for obstruction
of justice and being a leader or organizer. We find no merit to his arguments and
affirm for the reasons explained below.
I. SUFFICIENCY OF THE EVIDENCE OF CONVICTION
We review the legal sufficiency of the evidence de novo, but we do not
encroach upon the jury’s exclusive role in weighing evidence, resolving conflicts,
and assessing witness credibility. See, e.g., United States v. Keck, 643 F.3d 789,
793 (10th Cir. 2011); United States v. King, 632 F.3d 646, 650 (10th Cir. 2011).
“[W]e ask only whether taking the evidence—both direct and circumstantial,
together with the reasonable inferences to be drawn therefrom—in the light most
1
The heading of the relevant section of his opening brief also refers to one
of the access-device fraud counts (count nine), but the count is never mentioned
again in the body of his argument or in his reply brief. See Aplt. Opening Br. at
9-12; Aplt. Reply Br. at 1-4.
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favorable to the government, a reasonable jury could find the defendant guilty
beyond a reasonable doubt.” Keck, 643 F.3d at 793 (internal quotation marks
omitted). A brief summary of the fraudulent scheme, established at trial by ample
testimonial and documentary evidence, will assist in understanding the specific
counts of conviction Lawrence has challenged.
Victims of the scheme were solicited initially by fliers and later by ads on
the “Craigslist” web site. These solicitations were directed at financially-strapped
persons, promising relief from immediate threats like the disconnection of basic
services. They gave a name and number to call, which varied from ad to ad but
evidence traced the names and numbers to Lawrence. When victims called,
Lawrence told them that their bills would be paid in return for a cash payment of
one-half the amount owed, required only after they received confirmation from
their creditors that the bills had in fact been paid. The cover story was typically
that some beneficent source had provided funding for a debt-assistance program.
Creditors were actually paid with stolen debit-card, credit-card, or bank numbers
obtained at Lawrence’s request by his girlfriend, co-defendant Susan Acuna, from
medical offices where she worked. Victims were given information to confirm
the payments and then put in contact with a courier (Acuna, Carrie DeLaPorte, or
co-defendant Carri Adams) who collected the cash for Lawrence. When creditors
later reversed the fraudulent payments and victims tried to reach Lawrence for an
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explanation, they found that the contact numbers they were given at the outset–for
prepaid cell phone accounts–had been disconnected.
A. Wire Fraud/Aiding and Abetting (Counts One through Seven)
The wire fraud counts relate to the Craigslist ads, which were “transmitted
by means of wire . . . communication in interstate . . . commerce,” as required by
§ 1343, when the posted information was conveyed to out-of-state servers.
Lawrence contends the government did not present sufficient evidence to show he
placed the ads and thereby engaged in interstate communications. We disagree.
In assessing the evidence it must be kept in mind that, given the alternative aiding
and abetting theory on the wire fraud counts, it was not necessary for the
government to prove Lawrence posted the ads himself if ads he did not personally
handle were posted by co-defendant Carri Adams with his help or at his request in
furtherance of the fraudulent scheme. 2 See 18 U.S.C. § 2. It should also be kept
in mind that Lawrence does not (and realistically could not) challenge the
sufficiency of the evidence establishing his criminal responsibility in the scheme
2
Lawrence contends his conviction cannot be upheld on this basis because
“the government fails to present . . . any mention in the Indictment of a charge of
aiding and abetting.” Reply Br. at 3. This contention is meritless. The
indictment charged Lawrence under both the wire fraud and aiding and abetting
statutes in counts one to seven, R. Vol. 1 at 41, and, consistent with that joint
charge, referred broadly to “Lawrence and Adams us[ing] [computers traced to
Craigslist ads] . . . to transmit the [predicate] interstate wire communications,”
without exclusively tying either defendant to specific ads, id. at 40, since each
could be liable for aiding and abetting the other. This theory was also clearly
implemented in the jury instructions. Id. at 343-45.
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of which the ads were an integral component. His challenge is limited
specifically to the proof tying him to the interstate communications.
The ads cited in counts three, four, and six were traced to the IP address for
Lawrence’s home computer, which had an internet history indicating its use to
manage Craigslist ads. Thus, the evidence showed that ads with information tied
to Lawrence and central to his fraudulent scheme were posted from his computer.
That is a sufficient basis upon which to infer he posted the ads. He speculates
that Carri Adams or Sandra Acuna could have used his computer to post the ads,
and insists such a possibility renders the case against him on this point too weakly
circumstantial. 3 But there is no evidence Acuna posted any ads; her testimony
indicated, rather, that the Craigslist activity was a matter between Lawrence and
Adams. And while Adams admitted posting ads for Lawrence, she denied using
Lawrence’s computer to do so. The jury was entitled to believe this testimony, as
it was not “inherently incredible.” United States v. Cardinas Garcia, 596 F.3d
788, 794 (10th Cir.) (internal quotation marks omitted), cert. denied, 130 S. Ct.
3299 (2010). Of course, even if Adams had posted the ads, the evidence would
clearly support the reasonable inference that she did so at Lawrence’s request in
3
At certain points Lawrence appears to be saying the government’s case was
legally deficient simply because it was circumstantial. To the extent this is the
thrust of his argument, we reject it as contrary to longstanding circuit precedent.
See, e.g., United States v. Ortiz-Ortiz, 57 F.3d 892, 895 (10th Cir. 1995) (citing
cases); Myers v. United States, 415 F.2d 318, 319 (10th Cir. 1969) (same).
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furtherance of his scheme to solicit the victims he then defrauded—a clearly
sufficient basis to find him guilty on the aiding and abetting theory.
The ads cited in counts two, five, and seven were traced to the IP address
of a computer used at work by Adams, who admitted posting the ads on Craigslist
at the request of and with information provided by “Marcus Chandler”—an alias
Lawrence used repeatedly for the scheme. 4 Acuna, who knew of Lawrence’s use
of that alias (and several others that appeared in the ads), corroborated that he had
Adams help with posting ads on Craigslist. This evidence is sufficient to place
aiding and abetting responsibility onto Lawrence for the ads in question.
Finally, the ad cited in count one was not traced to either Lawrence’s or
Adams’s computers but to an IP address for a computer in the Pioneer Library in
Norman, Oklahoma. But the name in the ad was the familiar Lawrence alias
Marcus Chandler and the contact number was for Lawrence’s phone. While
perhaps a little less compelling than the evidence relating to the other wire fraud
counts, given the evidence already discussed tying the other Craigslist ads for the
scheme solely to Lawrence and Adams, the jury could reasonably infer that one of
these defendants posted the ad in association with the other defendant so as to
4
Adams, who also admitted collecting cash payments for Marcus Chandler,
insisted she was unaware of the fraudulent nature of the scheme. She claimed she
spoke by phone with Chandler only once, never met him, and communicated with
him about the ads solely through text messages. The jury rejected this strained
version of events and found her guilty of the wire fraud as well.
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permit direct liability for the former and aiding and abetting liability for the
latter.
B. Aggravated Identity Theft/Aiding and Abetting (Count Ten)
The identity theft count relates to the use of the stolen credit card, debit
card, and bank numbers “during and in relation to the commission of the wire
fraud scheme.” R. Vol. 1 at 43. This count, directed at Lawrence and Acuna, was
also charged alternatively under the aiding and abetting statute. Id.The nature of Lawrence’s evidentiary-sufficiency objection to this count is
not entirely clear. He includes some nominal references to it in both his opening
and reply briefs, where he develops his challenge to the government’s case on
wire fraud discussed above, but nowhere does he explain what was deficient about
the government’s case on this count. Given this silence, and the fact that
aggravated identity theft requires a predicate felony violation, 18 U.S.C.
§ 1028A(a), here the wire fraud, presumably Lawrence intends only to argue that
the asserted invalidity of his wire fraud conviction entails the invalidity of his
aggravated identity theft conviction as well. With that understanding, our
affirmance of the former is the end of the matter. See, e.g., United States v. Luke,
628 F.3d 114, 122-23 (4th Cir. 2010).
In any event, to the extent Lawrence has put at issue the sufficiency of the
evidence specifically concerning his guilt on the identity theft allegation, the
issue is easily resolved. While there is no evidence Lawrence himself stole
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identifying information used to make the unauthorized payments to creditors, that
was not required for the aggravated identity theft charge. He need only have
“knowingly transfer[red], possess[ed], or use[d]” such information to make the
payments, 18 U.S.C. § 1028A(a), and there is ample evidence he did that.
Further, given the alternative aiding and abetting theory, Sandra Acuna’s transfer,
possession, and use of the information at Lawrence’s direction or request also
provided a basis for his guilt on this count.
II. SENTENCING ISSUES
Lawrence also objects to the enhancement of his sentence for being a leader
or organizer, which increased his offense level by two, United States Sentencing
Guidelines § 3B1.1(c) (2010), and for obstructing justice, which also increased
his offense level by two, id. § 3C1.1. When considering challenges to the district
court’s imposition of sentencing enhancements, we review its interpretation of the
guidelines de novo and its factual findings for clear error, giving due deference to
its application of the guidelines to the facts. United States v. Mollner, 643 F.3d
713, 714 (10th Cir. 2011); United States v. Cook, 550 F.3d 1292, 1295 (10th Cir.
2008).
A. Leader or Organizer Enhancement
The government argued for the leader or organizer enhancement on the
ground that trial evidence had shown a scheme implemented through Lawrence’s
direction of a number of role-playing participants. R. Vol. 4 at 1167-69; see also
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R. Vol. 3 at 45-46, 73. The defense argued that the scheme was just “a mutuality
of everybody coming up with something that they could contribute.” R. Vol. 4 at
1169-70; see also R. Vol. 3 at 72. The district court took the government’s view
of the facts, concluding that “the evidence at trial clearly established [Lawrence]
as a leader, organizer, manager of criminal conduct involved in this case.”
R. Vol. 4 at 1170-71.
As a legal matter, this determination follows the established interpretation
of the leader or organizer enhancement: “the gravamen of this enhancement is
control, organization, and responsibility for the actions of other individuals
because § 3B1.1 is an enhancement for organizers and leaders, not for important
or essential figures.” United States v. Uscanga-Mora, 562 F.3d 1289, 1296
(10th Cir. 2009) (internal quotation marks and brackets omitted). As for its
evidentiary basis, “[t]o constitute clear error, we must be convinced that the
sentencing court’s finding is simply not plausible or permissible in light of the
entire record on appeal.” United States v. Garcia, 635 F.3d 472, 478 (10th Cir.
2011) (internal quotation marks omitted). It was certainly plausible to conclude
on the trial record that Lawrence implemented the fraudulent scheme outlined
earlier by recruiting participants and directing their activities, including: (1)
having Sandra Acuna obtain third-party identification information for use in
temporarily satisfying creditors of the victims; (2) having Carri Adams create and
post Craigslist ads with false information he supplied in order to draw victims
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into the scheme; and (3) having Acuna, Adams, and Carrie DeLaPorte act as
couriers to meet with victims and collect cash payments for him on terms he
specified. We have no hesitation in affirming the district court’s imposition of
the leader or organizer enhancement.
B. Enhancement for Obstruction of Justice
The government argued for the obstruction-of justice-enhancement on the
basis of a recorded phone conversation between Lawrence and Acuna following
Lawrence’s arrest. In the conversation, he told Acuna not to talk to investigators
about his role in the scheme (repeatedly telling her not to “cash [him] in”) but to
attribute blame to his “contact” Marcus Chandler instead. R. Vol. 4 at 1162-64;
see also R. Vol. 3 at 44, 46, 67, 73-74; Addendum to Br. of Plaintiff-Appellee,
tab 23 (recording). Of course, as she testified at trial, Acuna knew that name
simply to be an alias Lawrence used in the scheme. Thus, in the government’s
view, Lawrence had instructed Acuna to hide his criminal acts from investigators
by misdirecting them to a fictitious person—a patent effort to obstruct justice by
influencing a co-defendant/witness in a case. The defense tried to paint the call
as an innocent effort by Lawrence to calm Acuna, advise her in the exercise of
her legal rights, and persuade her not to falsely incriminate him but let him deal
with the official inquiries himself. See R. Vol. 4 at 1164-65; see also R. Vol. 3 at
67, 73. The district court concluded that the government’s view “accurately
reflects the nature of the conversation at issue.” R. Vol. 4 at 1165.
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Review of the recorded conversation fully supports the district court’s
assessment. It is certainly a plausible, if not compelling, interpretation of the
conversation to find that Lawrence was warning Acuna to keep quiet about his
criminal activity and divert the investigation away from him. Lawrence argues
that even accepting this view, his conduct could not in any event constitute
obstruction of justice, because (1) the district court did not make a finding that
any of his statements to Acuna were material, a requirement recognized in United
States v. Jimenez-Ortega, 472 F.3d 1102, 1103-04 (9th Cir. 2007); and (2) Acuna
ultimately gave evidence against him, so his efforts did not materially hinder the
prosecution, a requirement recognized in United States v. Morales-Sanchez,
609 F.3d 637, 640-41 (5th Cir. 2010). Neither objection is persuasive.
As a matter of common sense and as the guideline application notes
dictate—and Jiminez-Ortega itself reflects—the materiality of a defendant’s own
statements is relevant only when the obstruction enhancement is based on his
false statements, see, e.g., USSG § 3C1.1, cmt. nn. 4(f) - (h), not when it is based
on his efforts to influence a witness’s statements, see id. § 3C1.1 cmt. n. 4(a).
United States v. Phillips, 367 F.3d 846, 859 (9th Cir. 2004) (discussing USSG
§ 3C1.1, cmt. nn. 4(a) & 4(g)); see Jimenez-Ortega, 472 F.3d at 1103. Thus, the
materiality of Lawrence’s statements to Acuna, in terms of their direct relevance
to his guilt, is simply not a consideration here. And while it may be that the
witness-influence inquiry could properly look to the materiality of the matters on
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which the witness was to testify, we need not pursue that point further here, given
the obvious materiality of Acuna’s testimony against Lawrence.
As for the failure of Lawrence’s efforts to influence Acuna’s testimony and
thereby materially hinder his prosecution, this court and others have recognized
that the obstruction enhancement—which refers specifically in this regard to
“unlawfully influencing a . . . witness . . . or attempting to do so,” USSG § 3C1.1
cmt. n. 4(a) (emphasis added)—applies regardless of whether the defendant
succeeds in influencing the witness. See, e.g., United States v. Fetherolf, 21 F.3d
998, 1000 (10th Cir. 1994); Phillips, 367 F.3d at 859. The Morales-Sanchez case
relied on by Lawrence is not to the contrary, nor is it even remotely relevant. It
relates to the destruction or concealment of evidence governed by USSG § 3C1.1,
cmt. n. 4(d), which imposes an extra material-hindrance requirement when that
conduct, such as swallowing or otherwise disposing of a controlled substance,
occurs simultaneously with the defendant’s arrest. See Morales-Sanchez, 609
F.3d at 640. Lawrence’s conduct was both substantively and temporally outside
the scope of Application Note 4(d).
III. Conclusion
The judgment of the district court is AFFIRMED.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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