United States v. Hamer

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4321
BRENDA JOYCE HAMER,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-99-423)
Argued: May 10, 2001
Decided: June 1, 2001
Before WILLIAMS and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed in part, reversed in part, and remanded by unpublished per
curiam opinion.
COUNSEL
ARGUED: Parks Nolan Small, Federal Public Defender, Columbia,
South Carolina, for Appellant. Meghan Suzanne Skelton, Tax Divi-
sion, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee. ON BRIEF: Paula M. Junghans, Acting Assistant
Attorney General, Robert E. Lindsay, Alan Hechtkopf, Tax Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee.
2 UNITED STATES v. HAMER
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Brenda Joyce Hamer was convicted after a jury trial on six counts
of bank fraud, in violation of 18 U.S.C.A. § 1014 (West 2000); one
count of using an unauthorized access device to obtain money, goods,
and services, in violation of 18 U.S.C.A. § 1029(a)(2) (West 2000);
three counts of mail fraud, in violation of 18 U.S.C.A. § 1341 (West
2000); two counts of money laundering, in violation of 18 U.S.C.A.
§ 1956(a)(1)(A)(i) and (a)(1)(B)(i) (West 2000), and three counts of
willfully subscribing to false tax returns, in violation of 26 U.S.C.A.
§ 7206 (West 1999 & Supp. 2000). On appeal, Hamer challenges her
convictions for bank fraud; using an unauthorized access device to
obtain money, goods, and services; and money laundering.1 For the
reasons that follow, we reverse Hamer’s conviction on one of the
money laundering counts and remand for the district court to strike
the assessment applicable to that count but affirm Hamer’s other con-
victions and sentence.
I.
In 1995, Hamer, an attorney, represented Rosslee Douglas in a civil
lawsuit. Between December 1995 and March 1996, Hamer, using
Douglas’s name, social security number, and birth date, but Hamer’s
own address, applied for and received eight credit cards. Hamer also
established a second telephone line at her residence in Dillon, South
Carolina under Douglas’s name.
Hamer purchased merchandise with the credit cards and also used
the credit cards to conduct several wire transfers through Western
Union. Hamer completed the wire transfers by telephoning Western
1
Hamer’s counsel explicitly waived all challenges related to Hamer’s
convictions for mail fraud and wilfully subscribing to false tax returns.
UNITED STATES v. HAMER 3
Union from her home, using the telephone line that Hamer established
in Douglas’s name and identifying herself as Douglas.2 Hamer struc-
tured the Western Union transfers so that the money would be wired
to various locations in other states. On one instance, Hamer drove to
another state to receive the wire transfer. In other instances, Hamer
directed her friends and relatives to retrieve the money for her.
Hamer also fraudulently obtained two mortgages on her home
using Douglas’s information. In addition, to obtain extra cash, Hamer
refinanced her mortgage with Orlando Brockington, Hamer’s co-
defendant and the owner of a mortgage broker business. Brockington
agreed to create a fictitious debt in the amount of $10,677, which he
claimed Hamer owed to his company. Brockington then submitted the
debt to another mortgage company on behalf of Hamer as a request
for an additional loan, which the mortgage company granted and paid
to Brockington’s company. Brockington turned these proceeds over
to Hamer and kept a fee of $1,100.
Douglas discovered Hamer’s fraudulent use of her name on April
6, 1996, when Hamer was attempting another wire transfer. Douglas
received a telephone call from a Western Union transaction validator,
who asked whether she was attempting to telegraph money and if she
was aware of the existence of a telephone account in her name in Dil-
lon, South Carolina. Douglas told the validator that she was not
attempting to wire money and had not authorized any telephone ser-
vice in Dillon. The validator asked her to stay on the line for a three-
way call to Dillon to see whether Douglas could identify the voice.
When the validator telephoned the number in Dillon and asked for
Rosslee Douglas, Hamer answered, "This is she." (J.A. at 228.) The
validator asked for Hamer’s birth date and social security number.
Hamer replied with Douglas’s information. Douglas identified the
voice as Hamer’s.
Hamer later told a Secret Service Agent that she had applied for
and used the credit cards in Douglas’s name pursuant to a "gentlela-
2
When an individual orders a wire transfer over the telephone, Western
Union requires that the call be placed only from the individual’s resi-
dence or workplace, as a means of verifying that the person sending the
money is the person who is authorized to use the credit card.
4 UNITED STATES v. HAMER
dy’s agreement" between herself and Douglas and that Douglas had
terminated the agreement after the failed Western Union transfer.
(J.A. at 153, 167.) Hamer explained that she was unable to obtain
credit on her own; therefore, Douglas had authorized Hamer to use
Douglas’s identity to obtain and use credit for Hamer’s sole benefit.
According to Hamer, the agreement arose out of her legal representa-
tion of Douglas in a civil lawsuit in which Hamer had not been
awarded attorney’s fees. Douglas, on the other hand, testified that she
never authorized Hamer to apply for credit cards in Douglas’s name
and that she was unaware of any legal fees or costs that were out-
standing from Hamer’s prior legal representation.
II.
On July 27, 1999, a grand jury in the District of South Carolina
indicted Hamer on fifteen counts related to Hamer’s fraudulent use of
Douglas’s name. Hamer was charged with six counts of bank fraud,
in violation of 18 U.S.C.A. § 1014 (West 2000) (Counts 1-6); one
count of using an unauthorized access device to obtain money, goods,
and services, in violation of 18 U.S.C.A. § 1029(a)(2) (West 2000)
(Count 7); three counts of mail fraud, in violation of 18 U.S.C.A.
§ 1341 (West 2000) (Counts 8, 10, 11); and three counts of willfully
subscribing to false tax returns, in violation of 26 U.S.C.A. § 7206(West 1999 & Supp. 2000) (Counts 13, 14, 15). Count 9 of the indict-
ment alleged money laundering, in violation of 18 U.S.C.A.
§ 1956(a)(1)(A)(i) and (a)(1)(B)(i) (West 2000). The Government
intended to charge a second count of money laundering in Count 12,
but instead, Count 12 in the indictment returned by the grand jury
repeated the mail fraud allegations found in Count 11.3
Hamer represented herself during the jury trial, which began on
September 7, 1999. On September 24, 1999, the jury found Hamer
guilty on all counts. The district court sentenced Hamer to serve 108
months of imprisonment, consisting of 108 months as to each of
3
During Hamer’s jury trial, the court and the jury used a "conformed
copy" of the indictment that contained the correct version of Count 12.
This copy, however, was not signed by the grand jury foreperson and is
not the same as the original indictment that was signed by the grand jury
foreperson.
UNITED STATES v. HAMER 5
Counts 1, 2, 3, 4, 5, 6, 7, 9, and 12; 60 months as to each of Counts
8, 10, and 11; and 36 months as to each of Counts 13, 14, and 15, all
to be served concurrently. Hamer also was ordered to pay restitution
in the amount of $42,334.25. Additionally, a three year term of super-
vised release was imposed, consisting of three years as to Counts 1
through 12 and one year as to Counts 13 through 15, to run concur-
rently.
Hamer appeals her convictions with respect to Counts 1 through 6,
9, and 12. Hamer alleges that the indictment was fatally defective as
to Count 9 because it failed to allege properly the essential elements
of the offense of money laundering; that there was insufficient evi-
dence to charge the jury as to Count 9; that the district court erred by
submitting Count 12 to the jury because Count 12 was omitted from
the indictment that was returned by the grand jury; and that the dis-
trict court erred by giving an erroneous supplemental jury instruction
in connection with Counts 1 through 6. We address each argument in
turn.
III.
Hamer first raises three challenges with respect to her conviction
under Count 9. Because she failed to raise these challenges before the
district court, we review each for plain error. To establish plain error,
Hamer must demonstrate: (1) the existence of an error; (2) that the
error was "plain"; (3) that the error affected Hamer’s substantial
rights; and (4) that the error seriously affected the fairness, integrity,
or public reputation of judicial proceedings. United States v. Olano,
507 U.S. 725, 732 (1993).
A.
Hamer first argues that her conviction under Count 9 should be
reversed under plain error because Count 9 failed to allege a nexus
with interstate commerce. Count 9 charges Hamer with money laun-
dering, in violation of 18 U.S.C.A. § 1956(a)(1)(A)(i) and (a)(1)(B)(i)
(West 2000).4 Hamer is correct to contend that a "de minimis" effect
4
To support a conviction for money laundering, the indictment must
allege, and the government must prove, that the defendant conducted a
6 UNITED STATES v. HAMER
on interstate commerce is an essential element of money laundering.
See United States v. Wilkinson, 137 F.3d 214, 221 (4th Cir. 1998).
The Government argues that the indictment sufficiently alleged a "de
minimis" effect on interstate commerce because it alleged that Hamer
participated in a "financial transaction" involving the proceeds of
unlawful activity. (J.A. at 64.) The Government argues that the use of
the term "financial transaction," along with the citation to the money
laundering statute, adequately charged the appropriate nexus with
interstate commerce because "financial transaction" is statutorily
defined as involving a nexus with interstate commerce. The statute
defines "financial transaction" as: "(A) a transaction which in any way
or degree affects interstate or foreign commerce . . . or (B) a transac-
tion involving the use of a financial institution which is engaged in,
or the activities of which affect, interstate or foreign commerce in any
way or degree." 18 U.S.C.A. § 1956(c)(4).
We previously have rejected the Government’s precise argument
when the challenge to the indictment was raised properly before the
district court. United States v. Hooker, 841 F.2d 1225, 1232 (4th Cir.)
(en banc), cert. denied, 488 U.S. 842 (1988); United States v. Pupo,
841 F.2d 1235, 1239 (4th Cir. 1988) (en banc). Nevertheless, the stan-
financial transaction with proceeds from a specified unlawful activity. 18
U.S.C.A. § 1956(a)(1). The text of the statute provides:
Whoever, knowing that the property involved in a financial
transaction represents the proceeds of some form of unlawful
activity, conducts or attempts to conduct such a financial transac-
tion which in fact involves the proceeds of specified unlawful
activity —
(A)(i) with the intent to promote the carrying on of specified
unlawful activity; or . . .
(B) knowing that the transaction is designed in whole or in part
—
(i) to conceal or disguise the nature, the location, the source, the
ownership, or the control of the proceeds of specified unlawful
activity; . . .
shall be sentenced to a fine . . . or imprisonment . . . or both.
18 U.S.C.A. § 1956(a)(1) (West 2000).
UNITED STATES v. HAMER 7
dards to which we hold indictments when they are timely challenged
yield to other considerations when the challenge is raised for the first
time on appeal. When a challenge to an indictment is raised for the
first time on appeal, the government has lost its usual remedy for a
defect, "obtain[ing] a superseding indictment with little or no delay
in the scheduled trial," Hooker, 841 F.2d at 1232, and an entire trial
must be repeated if a conviction is to be again sought. This counter-
vailing consideration led to our rule that, when reviewing an indict-
ment for plain error, "[i]ndictments and informations are construed
more liberally [than when they were objected to before the district
court] . . . and every intendment is then indulged in support of the suf-
ficiency." United States v. Sutton, 961 F.2d 476, 479 (4th Cir. 1992)
(internal quotation marks omitted); see also Hooker, 841 F.2d at 1229
& n.2 (making clear in dicta that a different rule applies to post-
verdict challenges to an indictment); Pupo, 841 F.2d at 1239 (same).
To effectuate this liberal standard of construing the indictment,
when a defendant has failed to object to the indictment before the dis-
trict court, we will not reverse a conviction for a defect in the indict-
ment unless: (1) the defect prejudiced the defendant; or (2) the defect
is so serious that the indictment cannot reasonably be construed to
charge a crime. See Hagner v. United States, 285 U.S. 427, 430-33
(1932); United States v. Short, 181 F.3d 620, 627 (5th Cir. 1999);
United States v. Wydermyer, 51 F.3d 319, 324 (2d Cir. 1995); United
States v. Vanover, 888 F.2d 1117, 1120 (6th Cir. 1989); Finn v.
United States, 256 F.2d 304, 307 (4th Cir. 1958).
Applying this test, we first conclude that Hamer suffered no preju-
dice from the indictment’s failure expressly to recite the interstate
commerce nexus requirement. Hamer knew in advance of trial the full
nature of the allegations against her because the parties engaged in
open discovery. Additionally, the proof introduced at trial demon-
strated multiple transactions involving federally insured financial
institutions and wire transfers involving multiple states. In the offense
conduct involving Count 9, the evidence demonstrated that Hamer
placed a telephone call from South Carolina to Fayetteville, North
Carolina to transfer money, and she then drove across state lines to
pick up the money. Accordingly, there is no question that the inter-
state commerce nexus requirement was proven sufficiently at trial and
8 UNITED STATES v. HAMER
that Hamer was not prejudiced by the failure to charge with precision
the element in the indictment.5
Thus, we must next address whether the indictment reasonably can
be construed to charge a crime. To charge a crime, an indictment must
"contain the elements of the offense charged, fairly inform a defen-
dant of the charge against which he must defend, and, . . . enable him
to plead an acquittal or conviction in bar of future prosecutions for the
same offense." United States v. Wicks, 187 F.3d 426, 427 (4th Cir.
1999) (internal quotation marks omitted); see Russell v. United States,
369 U.S. 749, 763-64 (1962). The use of the phrase "financial transac-
tion" and the citation to the statute were sufficient to establish these
requisites under the liberal standard by which we must review this
indictment. Thus, construing the indictment with "every intendment
. . . indulged in support of the sufficiency," Sutton, 961 F.2d at 479(internal quotation marks omitted), we hold that the indictment prop-
erly charged the element of effect on interstate commerce for pur-
poses of plain error review.6 Cf. United States v. Vogt, 910 F.2d
5During oral argument, Hamer also challenged the sufficiency of the
jury instruction as to the interstate commerce nexus in Count 9. Hamer
did not preserve this issue for our review by including it in her opening
brief; thus the challenge to this jury instruction has been waived. See
Cavallo v. Star Enter., 100 F.3d 1150, 1152 n.2 (4th Cir. 1996) (holding
that an issue first argued in a reply brief is not properly before a court
of appeals). Moreover, because the evidence clearly demonstrated the
requisite nexus with interstate commerce, Hamer cannot establish plain
error with respect to the jury instruction.
6
Hamer also argues that Count 9 failed to allege an essential element
of the offense because it failed to use the precise statutory language con-
tained in 18 U.S.C.A. § 1956(a)(1). Count 9 alleges that Hamer con-
ducted financial transactions involving the proceeds of unlawful activity,
whereas 18 U.S.C. § 1956(a)(1) prohibits specified unlawful activity.
Specifically, Count 9 states, "Hamer . . . did conduct . . . a financial
transaction which in fact involved the proceeds of unlawful activity, that
is, false statements to insured financial institutions and credit card fraud.
. . ." (J.A. at 75 (emphasis added).) Hamer argues that the failure to
include the word "specified" in Count 9 is reversible error. Even assum-
ing that the failure to use the exact statutory language was error, it cer-
tainly was not plain error because it did not prejudice Hamer or affect her
substantial rights, in that the indictment set forth the specified unlawful
UNITED STATES v. HAMER 9
1184, 1201 (4th Cir. 1990) (noting that when a post-verdict challenge
to the sufficiency of an indictment is made, the issue is "whether the
necessary facts appear in any form, or by a fair construction can be
found within [its] terms.") (internal quotation marks omitted).
B.
Hamer next challenges her conviction under Count 9 on the basis
that the indictment fails to allege sufficient facts because it does not
identify or specify the property involved in the financial transaction
and does not identify the specified unlawful activity. Federal Rule of
Criminal Procedure 7(c)(1) requires an indictment to include the "es-
sential facts constituting the offense charged." Fed. R. Crim. P.
7(c)(1). Under plain error review, however, any error in the factual
allegations contained in the indictment did not prejudice Hamer
because the parties had the benefit of open discovery. Moreover,
Hamer informed the district court in a pre-trial status conference that
she fully understood the charges in the indictment. Thus, assuming
without deciding that the indictment fails to allege sufficient facts,
Hamer cannot establish that she is entitled to have this error corrected
on appeal.
C.
Finally, Hamer contends that her conviction under Count 9 should
be reversed because the evidence introduced at trial was insufficient
as a matter of law to establish the essential elements of the offense.
Specifically, Hamer alleges that the Government failed to introduce
evidence establishing the concealment prong of the money laundering
activity at issue — false statements to financial institutions and credit
card fraud. See United States v. Williams, 152 F.3d 294, 299 (4th Cir.
1998) ("The mere failure to track the precise language of a statute does
not without more, constitute error."); United States v. Sutton, 961 F.2d
476, 479 (4th Cir. 1992) (finding that failure to allege "scienter" in
indictment is not fatal where defendant was not prejudiced in any man-
ner); United States v. Vogt, 910 F.2d 1184, 1201 (4th Cir. 1990) (uphold-
ing sufficiency of indictment despite lack of specific mention of the
"defraud" element in the underlying charge).
10 UNITED STATES v. HAMER
statute. "When reviewing the evidence that resulted in a conviction,
we take the evidence in the light most favorable to the government
to determine whether the jury’s verdict was supported by substantial
evidence." United States v. Strickland, 245 F.3d 368, 385 (4th Cir.
2001).
To be sustained, a money laundering conviction based upon con-
cealment requires proof that the defendant knew that the transaction
was designed, in whole or in part, to conceal or disguise the nature,
location, source, ownership, or control of the proceeds of the unlawful
activity. Wilkinson, 137 F.3d at 221. To establish this element, the
Government must prove a specific intent to conceal. See United States
v. Gilliam, 975 F.2d 1050, 1056 (4th Cir. 1992).
In United States v. Villarini, 238 F.3d 530 (4th Cir. 2001), we held
that transactions that are designed to avoid suspicion or to give the
appearance of a "legitimate cash income stream" adequately support
a finding that the defendant possessed the requisite specific intent to
conceal and thereby sustain a money laundering conviction. See id. at
532. Here, the evidence involving Count 9 demonstrated that Hamer
fraudulently obtained credit and then used it to obtain a money trans-
fer through Western Union. Instead of appearing at the bank that
issued the card or visiting Western Union in person to receive a cash
advance on the fraudulently obtained credit card, Hamer used the
phone line that she had established in Douglas’s name in South Caro-
lina to call Western Union and request a money transfer to Hamer
based upon the credit card in Douglas’s name, to be delivered in
North Carolina. Structuring the transaction in this way helped Hamer
avoid suspicion because it allowed her to act as if she were both
Douglas and Hamer, which she could not have done if she had visited
the bank or Western Union in person. Additionally, the Western
Union scheme was part of a larger scheme of using Western Union
to convert fraudulently obtained credit into the appearance of "a legit-
imate cash income stream." Villarini, 238 F.3d at 532. Thus, under
Villarini, the evidence was sufficient to support the concealment
prong of money laundering because the evidence demonstrates that
Hamer structured the Western Union transaction to avoid suspicion
and to create an impression of a legitimate cash income stream.
Accordingly, we hold that the evidence is sufficient to support a find-
ing that Hamer conducted the financial transaction through Western
UNITED STATES v. HAMER 11
Union with the specific intent to conceal the source of the proceeds
of her unlawful activity — fraudulently obtaining a credit card in
Douglas’s name.
Hamer relies upon United States v. Olaniyi-Oke, 199 F.3d 767 (5th
Cir. 1999), to support her argument that the evidence was insufficient
as a matter of law to establish concealment. In Olaniyi-Oke, the
defendant used a fraudulently obtained credit card to make a direct
purchase of computers. See id. at 771. The Fifth Circuit held that such
a transaction did not constitute money laundering because the transac-
tion was not distinct from the underlying unlawful activity and did not
create an impression of legitimate wealth. As the Fifth Circuit noted,
the money laundering statute is intended to punish "conduct that is
really distinct from the underlying specified unlawful activity."7 Id. at
771 (internal quotation marks omitted).
As outlined above, however, Hamer’s structuring of the financial
transaction involving Western Union was distinct from the specified
unlawful activity of fraudulently obtaining a credit card in another
person’s name. Her use of the telephone line that she established in
Dillon for the purpose of transferring money through Western Union
was intended to avoid suspicion that would have arisen had Hamer
attempted to obtain a cash advance in person on the credit card at the
issuing bank or at Western Union. Additionally, contrary to Olaniyi-
Oke, Hamer did not use the credit card to make a direct purchase;
instead, Hamer converted the fraudulently obtained credit into cash,
7
Hamer also argues that United States v. Olaniyi-Oke, 199 F.3d 767(5th Cir. 1999), stands for the proposition that purely personal use of ille-
gally obtained funds cannot support a money laundering conviction. We
note that this is an incorrect statement of the law set forth in Olaniyi-Oke.
Rather, the Fifth Circuit held that, "[i]f transactions are engaged in for
present personal benefit, and not to create the appearance of legitimate
wealth, they do not violate the [concealment prong of the] money laun-
dering statute." Id. at 771 (emphasis added). Here, the Western Union
wire transfer was not solely for present personal benefit; rather, it created
a stream of cash that could be used subsequently for any purpose. See,
e.g., United States v. Villarini, 238 F.3d 530, 532 (4th Cir. 2001)
(upholding money laundering conviction under the concealment prong
when embezzled funds were placed in bank accounts and later were
spent on purely personal uses of living and moving expenses).
12 UNITED STATES v. HAMER
creating a stream of cash that appeared to be legitimate wealth. There-
fore, we conclude that Hamer’s use of Western Union as part of a
larger scheme to transfer cash to herself was distinct from the speci-
fied unlawful activity of fraudulently obtaining the credit card.
Accordingly, we decline to reverse Hamer’s conviction on Count 9.
IV.
Hamer next contends that her conviction and sentence for money
laundering under Count 12 should be set aside because, in the indict-
ment that was returned by the grand jury, Count 12 did not charge
Hamer with money laundering. Instead, Count 12, as it appeared in
the indictment that was returned by the grand jury, repeated the mail
fraud allegations found in Count 11. While the Government intended
to include two money laundering counts in the indictment — Counts
9 and 12, the Government concedes that it accidentally omitted this
second money laundering count and instead erroneously duplicated
Count 11. During Hamer’s jury trial, the district court and the jury
used what purported to be a "conformed copy" of the indictment. In
this "conformed copy," Count 12 was listed as a money laundering
count. Because Hamer did not object to the use of the "conformed
copy," the district court was unaware that the "conformed copy" dif-
fered from the indictment that was returned by the grand jury. Thus,
the district court tried Hamer on Count 12 as a money laundering
charge, submitted Count 12 to the jury as a money laundering charge,
and the jury convicted Hamer of money laundering under Count 12.
As Hamer did not object to the submission to the jury of Count 12,
as it appeared in the "conformed copy" of the indictment, we review
for plain error. See United States v. Olano, 507 U.S. 725, 732 (1993).
Count 12 was completely omitted from the indictment that was
returned and signed by the grand jury. "The Fifth Amendment to the
United States Constitution, which in relevant part provides: ‘No per-
son shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury’ . . . guarantees
that a criminal defendant will be tried only on charges in a grand jury
indictment." United States v. Randall, 171 F.3d 195, 203 (4th Cir.
1999), cert. denied, Randall v. United States, 121 S. Ct. 248 (2000)
(internal quotation marks and citations omitted). "Therefore, only the
grand jury may broaden or alter the charges in the indictment." Id.UNITED STATES v. HAMER 13
(citing Stirone v. United States, 361 U.S. 212, 215-16 (1960)). "When
the government, through its presentation of evidence and/or its argu-
ment, or the district court, through its instructions to the jury, or both,
broadens the bases for conviction beyond those charged in the indict-
ment, a constructive amendment — sometimes referred to as a fatal
variance — occurs." Randall, 171 F.3d at 203. As the Government
concedes, charging the jury on a version of Count 12 that was omitted
from the indictment constitutes a constructive amendment of the
indictment because it allowed the jury to convict Hamer of an offense
that was not included in the indictment. See United States v. Floresca,
38 F.3d 706, 710-12 (4th Cir. 1994) (en banc) ("[C]onvicting a defen-
dant of an unindicted crime affects the fairness, integrity, and public
reputation of federal judicial proceedings in a manner most serious.").
As we held in Floresca, a constructive amendment of a federal indict-
ment is error per se and "must be corrected on appeal even when not
preserved by objection." Id. at 714; see also Stirone, 361 U.S. at 217("[A] court cannot permit a defendant to be tried on charges that are
not made in the indictment against him."). Thus, as the Government
readily acknowledges, Hamer’s conviction for Count 12 must be
reversed.
As the Government points out, however, reversal of Count 12 does
not affect Hamer’s sentence in any way. The district court sentenced
Hamer to 108 months of imprisonment, consisting of 108 months as
to each of Counts 1 through 7, 9, and 12, 60 months as to each of
Counts 8, 10, and 11, and 36 months as to each of Counts 13 through
15, with concurrent terms of imprisonment for each of her fifteen
counts. The base offense level for each of Hamer’s money laundering
counts was 23, pursuant to U.S.S.G. § 2S1.1(a)(1). See U.S. Sentenc-
ing Guidelines Manual § 2S1.1(a)(1) (1998). Although Counts 9 and
12 were grouped together because they involve substantially the same
harm, the grouping did not result in an increase in the base offense
level for money laundering. (J.A. at 470); U.S.S.G. § 3D1.2(d);
U.S.S.G. § 2S1.1(a)(1). Thus, Hamer’s base offense level for money
laundering is 23, irrespective of Count 12. Adding the base offense
levels for Hamer’s other convictions to the base offense level of 23
resulted in an ultimate base offense level of 29, which establishes a
guideline range of 87 to 108 months. See U.S.S.G. ch. 5, pt. A.
Because Hamer’s convictions, without regard to Count 12, are suffi-
cient to justify the base offense level of 29, reversal of Hamer’s con-
14 UNITED STATES v. HAMER
viction under Count 12 does not alter her sentence. Cf. United States
v. White, 238 F.3d 537, 542-43 (4th Cir. 2001) (holding that an error
in sentencing is not plain error when the sentences were imposed con-
currently and consecutive sentencing for each count would have pro-
vided the same sentence because the erroneous sentence is not longer
than that to which the defendant would otherwise have been subjected).8
Inasmuch as Hamer’s sentence is not affected by our vacating Count
12, we decline to remand for resentencing but remand for the district
court to strike any assessment attributable to that count.
V.
Finally, Hamer argues that the district court gave an erroneous sup-
plemental jury instruction in connection with Counts 1 through 6.
This Court reviews supplemental jury instructions for abuse of discre-
tion. United States v. Smith, 62 F.3d 641, 646 (4th Cir. 1995).
Counts 1 through 6 charge Hamer with violating 18 U.S.C.A.
§ 1014 (West 2000) by making false statements to an FDIC-insured
bank arising from Hamer’s fraudulent application for credit in Doug-
las’s name. The elements of the offense are (1) that the defendant
made a false statement to the bank; (2) that the statement was made
for the purpose of influencing the bank’s actions; (3) the statement
was false as to a material fact; and (4) that the defendant knowingly
made the false statement. See 18 U.S.C.A. § 1014; United States v.
Smith, 29 F.3d at 914, 916 (4th Cir. 1994).
During deliberations, the jury asked whether
one person can legally authorize another person to apply for
and use a credit card using the first person’s identity, in
other words, name, social security number and date of birth.
To be more specific, could Rosslee Douglas authorize
Brenda J. Hamer to apply for credit cards in Douglas’ name
using her social security number and date of birth and autho-
rize her to sign Rosslee Douglas’ name to credit card trans-
actions? Verbally?
8
Hamer’s supervised release term also is unaffected by reversal of
Count 12.
UNITED STATES v. HAMER 15
(J.A. at 360.) The district court responded by stating,
An individual cannot legally authorize another individual
to apply, to fill out a credit card application using the first
person’s name, social security number and date of birth, and
send that in to a financial institution without advising the
financial institution of the true identity of the applicant.
Therefore, if Rosslee Douglas authorized Ms. Hamer to
fill out the application — if she told her to fill out the appli-
cation, if you were to find this, if she told her to go ahead
and fill out the application, use her name, use her date of
birth and use her social security number and send it in, and
the bank was not made aware of that, then Rosslee Douglas
could be found guilty if she were charged with making a
false statement to a federally insured financial institution.
In other words, two people cannot get together and agree
to file what is a false statement, and therefore avoid this stat-
ute. So if that is what happened, if that is what you find hap-
pened, then if you find a false statement was made, you
would have to determine whether a false statement was
made by Ms. Hamer. But I’m telling you that Ms. Rosslee
Douglas cannot cure it by telling Ms. Hamer you fill out this
application and send it in to the financial institution. The
financial institution would have to be advised that the per-
son that it is being asked to issue credit to is not the real per-
son on the application.
(J.A. at 361-62.)
Hamer argues that this instruction was erroneous and nonrespon-
sive. She contends that the district court should have instructed the
jury that, under the principles of agency, Douglas’s alleged authoriza-
tion for Hamer to apply for credit in Douglas’s name negates Hamer’s
requisite intent both as to the falsity of the statements and her intent
to influence the bank.
Agency has been defined as "[a] relationship between two persons,
by agreement or otherwise, where one (the agent) may act on behalf
16 UNITED STATES v. HAMER
of the other (the principal) and bind the principal by words and
actions." Black’s Law Dictionary (6th ed. 1990) (emphasis added)).
Under this definition, had the evidence supported a finding that Doug-
las authorized Hamer to apply for credit in Douglas’s name for Doug-
las’s benefit and with the intent to bind Douglas, the authority would
have negated the intent required to support a conviction under § 1014
and would have entitled Hamer to a jury instruction on agency. See,
e.g., United States v. West, 666 F.2d 16, 19 (2d Cir. 1991). The dis-
trict court, however, did not abuse its discretion by refusing to give
an agency instruction because the instruction as given accurately sum-
marizes the law as it relates to the evidence introduced in this case.
The only evidence introduced regarding Hamer’s authority estab-
lished that Hamer was authorized to apply for credit for Hamer’s ben-
efit and not to bind Douglas. Cf. id. at 19 (holding that West’s
authority to sign his wife’s name to mortgage documents would
negate West’s intent to defraud if he was acting on his wife’s behalf
with the intent to bind her to the obligations under the mortgage). The
IRS agent that interviewed Hamer testified that Hamer informed him
that Douglas had authorized Hamer to use Douglas’s name and infor-
mation because Hamer had a poor credit history and could not obtain
her own credit. Hamer also informed the IRS agent that her credit had
become poor because "she had been cheated out of her attorney fees
that were due to her in a civil case in which she had represented"
Douglas. (J.A. at 154.) This evidence does not support an inference
that Hamer was acting for Douglas’s benefit with the intent to bind
Douglas to the obligations under the credit card applications. Instead,
the only inference to be drawn from this evidence is that Hamer was
acting for her own sole benefit, with no intent to bind Douglas, when
applying for credit cards in Douglas’s name. Accordingly, Hamer was
not entitled to a jury instruction on agency. Matthews v. United States,
485 U.S. 58, 63 (1988) (holding that a defendant is entitled to a jury
instruction only when there is a foundation in the law and in the evi-
dence for such an instruction); United States v. Horton, 921 F.2d 540,
543 (4th Cir. 1990) ("No instruction may be given unless there is a
foundation in the evidence to support it.") (internal quotation marks
omitted). Thus, we affirm Hamer’s convictions on Counts 1 through
6.
UNITED STATES v. HAMER 17
VI.
Due to the defect in the indictment with respect to Count 12, we
reverse Hamer’s conviction for money laundering under that count.
Because Hamer has failed to establish plain error with respect to her
remaining challenges, we affirm Hamer’s other convictions. Based
upon our affirmance of the other counts involved in this appeal, we
decline to remand for resentencing because Hamer’s sentence is unaf-
fected by our reversal of Count 12; however, we remand for the dis-
trict court to strike any assessment as to Count 12.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED