UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-7513
UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus
MARIETTA JOYCE CHAPPELL, CHARLES EDWARD GIBSON, ROBERT NATHANIEL MITCHEM, and RITA ANN SHEPHARD, Defendants-Appellants.
Appeals from the United States District Court For the Southern District of Mississippi
( November 1, 1993 )
Before POLITZ, Chief Judge, REYNALDO G. GARZA and JOLLY, Circuit Judges.
POLITZ, Chief Judge:
Marietta Chappell, Rita Shephard, Charles Gibson, and Robert
Mitchem appeal their convictions of conspiracy to make, utter, and
possess counterfeit securities in violation of 18 U.S.C. §§ 371,
513(a), and two substantive violations of § 513(a). Mitchem and
Shephard also appeal the sentences imposed. Finding no error, we
affirm. Background
On February 14, 1992 Shephard, accompanied by Chappell,
entered a Wal-Mart store in Ridgeland, Mississippi, seeking to cash
what purported to be a Mississippi Power and Light (MP&L) payroll
check drawn on Trustmark National Bank and payable to Serena Keach.
Shephard presented a counterfeit MP&L identification card in
support of the transaction. A cashier permitted Shephard to tender
the check for a small purchase, returning over $200 in change.
The following day Shephard presented the identification card
and a nearly identical faked MP&L check at a Jackson grocery store.
A clerk took both documents into a back office to ask co-workers
about the check's genuineness. When the clerk returned Shephard
was gone. Around the same time, Trustmark returned unpaid two
other MP&L checks payable to Keach and cashed at Jackson grocery
stores because they bore inaccurate routing and transit numbers.
Shephard presented another MP&L check and identification card,
both bearing Keach's name, on February 15, 1992 at the Sunflower
grocery store in Yazoo City. Manager Randy Jett refused to cash
the check when Shephard could not produce a driver's license. Jett
saw Shephard drive away in a gray car with another woman and two
men. He telephoned a warning to Kevin Helton, manager of the
nearby Super Valu grocery store, that the four were headed his way.
Minutes later Shephard entered the Super Valu with Gibson, again
presenting the MP&L check and identification card. Both fled when
Helton confronted them. Shephard and Gibson entered a gray car
with two other people and drove away; Helton followed in his
2 vehicle and used his cellular telephone to alert authorities. The
fleeing car, driven by Mitchem, crashed into a tree.
Yazoo City police officer Larry Davis saw Mitchem fleeing the
accident scene on foot, running into nearby woods. On the wrecked
car's back seat police found a typewriter. In the typewriter case
they found three counterfeit checks payable to Keach drawn on
Trustmark and a counterfeit check payable to Kendre Batliner drawn
on First American Bank. Examination of the typewriter ribbon
indicated that it had produced the counterfeit checks and identity
documents used by the four. A search of the car further yielded a
lamination kit, 15 blank documents,1 a South Carolina
identification card bearing Mitchem's name and photograph, and a
booklet handwritten by Mitchem entitled "Target 92," detailing
plans for a large scale check-passing scheme. Authorities
broadcast a description of Mitchem and arrested Gibson, Chappell,
and Shephard. A search for Mitchem in the immediate area proved
fruitless.
Approximately two hours later Yazoo City deputy sheriff Randy
Veazey, who had participated in the initial search for Mitchem, saw
a man attempting to flag a car a short distance from the crash
site. As the man's physical appearance and clothing met the
broadcast description of Mitchem and he appeared to have been
running through the woods and responded evasively to an offer of
1 Each of these consisted of a piece of yellow safety paper bearing the Trustmark logo, the facsimile signature of "Doris Paul," and what purported to be optical scanner routing and account codes.
3 assistance, Veazey requested identification. When the man produced
no identification, Veazey took him into custody. While in custody,
after police identified him and provided Miranda warnings, Mitchem
consented in writing to a search of his Jackson hotel room. The
search revealed Shephard's Kentucky identification and 36 blank
documents identical to those found in the getaway car, all bearing
Mitchem's fingerprints. They also found a billfold containing
Chappell's identification and a letter addressed to Kendre
Batliner, produced by the typewriter found in the vehicle.
The grand jury returned a four-count indictment against
Chappell, Mitchem, Gibson, and Shephard. Count One charged
conspiracy to make, utter, and possess counterfeit securities with
intent to deceive in violation of 18 U.S.C. §§ 371, 513(a). Counts
Two and Three charged violations of 18 U.S.C. §§ 2, 513(a) arising
from presentation of counterfeit checks at the Sunflower and Super
Valu markets, respectively.2 The district court denied pretrial
motions by all defendants to dismiss the indictment and by Mitchem
to suppress evidence recovered as a result of his arrest, including
that from his hotel room. After the government's case-in-chief and
again at the close of evidence all defendants unsuccessfully moved
for judgment of acquittal. The jury found the defendants guilty on
all three counts, and the trial court denied post-trial motions.
The district court imposed concurrent 21-month prison terms on
Chappell, Gibson, and Shephard, and concurrent 54-month prison
2 Count Four -- dismissed by the government prior to trial -- charged violation of 18 U.S.C. §§ 2, 513(a) in connection with the counterfeit First American Bank check found in the defendants' car.
4 terms on Mitchem. It further sentenced each to concurrent
three-year supervised release terms, restitution, and the statutory
assessments. All four defendants timely appealed.
Analysis
1. Sufficiency of the Evidence
The defendants each challenge the sufficiency of the evidence.
Mindful that weight and credibility assessments lie within the
exclusive province of the jury,3 in considering this claim we view
the evidence and draw all reasonable inferences most favorable to
the verdict.4 If the evidence so viewed would permit a rational
jury to find all elements of an offense proven beyond a reasonable
doubt, we must affirm the conviction.5 The evidence need not
exclude all hypotheses of innocence.6
In a prosecution under 18 U.S.C. § 513(a),7 the government
must prove that the defendants: (1) made, uttered, or possessed
3 United States v. Garner, 581 F.2d 481 (5th Cir. 1978). 4 Glasser v. United States, 315 U.S. 60 (1942). 5 Jackson v. Virginia, 443 U.S. 307 (1979). 6 E.g., United States v. Heath, 970 F.2d 1397 (5th Cir. 1992), cert. denied, 113 S.Ct. 1643 (1993). 7 That statute, as relevant hereto, provides:
Whoever makes, utters or possesses a counterfeited security . . . of an organization, or whoever makes, utters or possesses a forged security . . . of an organization, with intent to deceive another person, organization or government shall be fined not more than $250,000 or imprisoned for not more than 10 years, or both.
5 (2) a counterfeit security (3) of an organization (4) with intent
to deceive another person, organization, or government. To obtain
a conspiracy conviction under 18 U.S.C. § 371, the government had
to demonstrate an agreement by two or more persons to violate the
law, an overt act by any coconspirator in furtherance of the
scheme, and each defendant's knowing and voluntary participation.8
Concert of action may give rise to an inference that defendants
entered into the requisite agreement.9
Defendants claim that because the government failed to
demonstrate any connection of the Super Valu and Sunflower
supermarkets to interstate commerce, the district court should have
granted their motions for judgment of acquittal. We find this
argument unpersuasive. While section 513(c)(4) defines
"organization" as an entity which "operates in or the activities of
which affect interstate or foreign commerce," the statute provides
no such definition for the term "person." Section 513 does not
require the government to demonstrate an individual victim's
connection to interstate commerce. The uncontroverted evidence
shows that the defendants sought to induce store employees to part
with money in their possession through presentation of counterfeit
documents. Ordinarily, where a defendant utilizes counterfeit
securities in an effort to obtain property from or induce action by
an organization, section 513 requires the government to prove the
8 E.g., United States v. Chaney, 964 F.2d 437 (5th Cir. 1992). 9 E.g., United States v. Frydenlund, 990 F.2d 822 (5th Cir. 1993).
6 victim's connection to interstate commerce. The instant scheme was
structured to deceive the check-cashing employees; the charged
offenses involved intent to deceive those persons. The
government's failure to demonstrate a connection of the grocery
stores to interstate commerce, therefore, in the context of this
case, does not render the evidence insufficient to support
convictions under section 513.
Shephard further suggests that inasmuch as the government
failed to prove the connection of MP&L to interstate commerce it
did not prove that the offenses charged involved counterfeit
securities of an "organization" as defined in section 513. The
mere fact that the documents proffered to merchants in this scheme
purported to be checks drawn on the account of MP&L in no way
diminishes the fact that they also purported to be drawn on that
company's account at Trustmark. As the government points out,
section 513 does not expressly or impliedly state that a document
may be the security of only one organization. Shephard's attempt
to raise a sufficiency challenge by characterizing the counterfeit
checks as "of MP&L" rather than as "of Trustmark" is frivolous.10
Finally, Chappell, Gibson, and Mitchem claim that the
government failed to carry its burden of proof with regard to their
involvement in the offenses charged, presenting proof only of their
presence at the crime scene. We disagree. Review of the record
indicates that the government presented evidence from which a
10 Likewise, Gibson's contention that the government failed to prove Trustmark's status as an "organization" for the purposes of section 513 is frivolous.
7 reasonable jury could conclude that each actively participated in
both the conspiracy and substantive offenses. This contention
fails.
2. The Indictment
Shephard and Mitchem fault the district court's denial of
their motion to dismiss the indictment for failure to identify the
victims of the check-passing scheme and their connection to
interstate commerce. We review de novo district court rulings
regarding the sufficiency of indictments.11 An indictment need only
charge the essential elements of the offense, permitting the
accused to prepare a defense and protecting against double
jeopardy.12 Practical rather than technical considerations govern
resolution of such challenges and we will not reverse for minor
deficiencies which do not prejudice the accused.13 The indictment
in this case more than adequately alerted the defendants to the
conduct prosecuted. It referred to section 513.14 While a more
careful drafting of the indictment might have occurred, we perceive
no prejudice to the defendants.15
11 E.g., United States v. Shelton, 937 F.2d 140 (5th Cir.), cert. denied, 112 S.Ct. 607 (1991). 12 E.g., United States v. Barksdale-Contreras, 972 F.2d 111 (5th Cir. 1992), cert. denied, 113 S.Ct. 1060, 1614 (1993). 13 E.g., United States v. Green, 964 F.2d 365 (5th Cir. 1992), cert. denied, 113 S.Ct. 984 (1993). 14 See United States v. Varkonyi, 645 F.2d 453 (5th Cir. 1981) (indictment sufficient notwithstanding failure to allege all elements of offense charged where indictment referred to statute). 15 Shephard and Gibson further raise multiplicity and duplicity challenges to the indictment. Failure to raise the duplicity point
8 3. Expert Testimony
Shephard next argues that the trial court improperly permitted
Wayne Humphrey, Trustmark's assistant security officer, to testify
as an expert witness in the field of detecting counterfeit checks.
Humphrey testified that irregularities in the checks, such as
inaccurate routing and account numbers, incorrect electronic
coding, and absence of perforation, identified them as forgeries.
Shephard contends that "detecting counterfeit checks" does not
constitute a proper field of expertise and that, in any event,
Humphrey's training as a bank security officer did not qualify him
as an expert. Under Fed.R.Evid. 702, "[i]f . . . specialized
knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education may testify
thereto in the form of an opinion or otherwise." We will reject
district court rulings on the admissibility of expert testimony
only if manifestly erroneous.16 Humphrey's years of experience
afforded specialized knowledge permitting him to assist the jury in
evaluating the genuineness of the documents. The district court
at trial waived that claim. United States v. Baytank (Houston), Inc., 934 F.2d 599 (5th Cir. 1991). As to multiplicity, the defendants argue that by charging possession and uttering of a single check at two separate grocery stores the indictment improperly splintered a single offense. We do not agree. Congress intended separate presentations of a single counterfeit instrument to constitute separate offenses. These contentions are frivolous. We likewise find no merit in Shephard's contention that the government constructively amended the indictment by arguing in closing that Trustmark would have been the ultimate victim of the defendants' fraud if it had succeeded. 16 E.g., United States v. Moore, 997 F.2d 55 (5th Cir. 1993).
9 did not err in permitting his testimony.
4. Fourth Amendment
Mitchem assigns as error the district court's ruling on his
motion to suppress evidence recovered from his person and hotel
room, claiming that they were fruits of an arrest without probable
cause in violation of the fourth amendment.17 Police may make a
warrantless arrest where there is probable cause to believe that an
offense has occurred. We previously have held that police officers
may develop probable cause for a warrantless arrest on the basis of
information communicated to them by other officers.18 We must
accept trial court fact-findings made in the course of ruling on
suppression motions unless clearly erroneous or influenced by an
incorrect view of the law.19 However, we review de novo its
17 Mitchem also suggests that the district court should have granted his suppression motion because authorities arrested him in violation of Mississippi law and failed to bring him promptly before a magistrate judge after arrest. Assuming arguendo that police in fact violated state law in arresting him, this contention nonetheless lacks merit. United States v. Walker, 960 F.2d 409 (5th Cir.) (in federal prosecution, federal rather than state law governs admissibility of evidence obtained by state authorities), cert. denied, 113 S.Ct. 443 (1992). With regard to the latter point, although Mitchem claims improper delay in his presentation to a magistrate judge, he does not suggest that authorities obtained the evidence of which he sought suppression as a result of any improper delay. This contention fails. See United States v. Perez-Bustamante, 963 F.2d 48 (5th Cir.), cert. denied, 113 S.Ct. 663 (1992); United States v. Bustamante-Saenez, 894 F.2d 114 (5th Cir. 1990). 18 E.g., Walker; United States v. Rocha, 916 F.2d 219 (5th Cir. 1990), cert. denied, 111 S.Ct. 2057 (1991). 19 E.g., United States v. Butler, 988 F.2d 537 (5th Cir. 1993) (quoting United States v. Simmons, 918 F.2d 476 (5th Cir. 1990)), pet. for cert. filed, _____ U.S.L.W. _____ (Sept. 23, 1993) (No. 93-6127).
10 ultimate conclusion regarding probable cause.20
Here, the district court found that Davis observed Mitchem at
the crash scene and transmitted a fairly detailed description of
his physical appearance and clothing. Veasey participated in a
search for Mitchem at the crash site. Two hours later and a short
distance away, Veazey observed a muddy, sweaty man matching the
transmitted description wearing torn clothes attempting to flag
down a car, who responded evasively when offered assistance. The
record supports the district court's conclusion that Veazey
arrested Mitchem with probable cause.21
5. Sentencing
a. Amount of Loss
Both Shephard and Mitchem challenge the district court's
finding as to intended loss under U.S.S.G. § 2F1.1.22 The district
court made this determination by adding together the values of the
three checks charged in the indictment, a check cashed by the
defendants in Frankfort, Kentucky, the five checks found by police
in the getaway car, and 16 checks reflected on the typewriter
ribbon, for a total of $4,296.29. It then assessed the value of
the 51 blank checks found in the car and hotel room at $13,617 by
20 See United States v. Cooper, 949 F.2d 737 (5th Cir. 1991), cert. denied, 112 S.Ct. 2945 (1992). 21 See United States v. Hernandez, 825 F.2d 846 (5th Cir. 1987) (officers had probable cause to arrest defendants matching physical description provided by witness near scene of crime shortly after commission), cert. denied, 484 U.S. 1068 (1988). 22 The Sentencing Guidelines treat violations of section 513(a) under U.S.S.G. § 2B5.2. That provision, in turn, calls for application of U.S.S.G. § 2F1.1.
11 assigning to each the average value of the checks actually
recovered. The district court thus concluded that the defendants
intended to inflict a total loss of $20,838.75, resulting in a
four-point offense level increase under U.S.S.G. § 2F1.1(b)(1)(E).
Mitchem and Shephard argue that the district court should not have
considered the 51 blank checks and, in any event, that it valued
those documents in an arbitrary manner. These contentions
misperceive the law.
We review district court determinations regarding amount of
loss under U.S.S.G. § 2F1.1 under the clearly erroneous standard.23
Commentary to section 2F1.1 states that "[f]or the purposes of
subsection (b)(1), the loss need not be determined with precision.
The court need only make a reasonable estimate of the loss, given
the available information."24 Further, the commentary indicates
that "if an intended loss that the defendant was attempting to
inflict can be determined, this figure will be used if it is
greater than the actual loss."25 The record in the instant case
reflects that the defendants produced or attempted to negotiate at
least 25 counterfeit checks having a total value of $4,296.29. In
addition, the defendants had in their possession the "Target 92"
booklet, detailing a plan to pass as many as 155 checks in an
effort to procure as much as $300,000. On the facts of this case,
23 United States v. Wimbish, 980 F.2d 312 (5th Cir. 1992), cert. denied, 113 S.Ct. 2365 (1993), abrogated in part on other grounds, Stinson v. United States, _____ U.S. _____, 113 S.Ct. 1913 (1993). 24 U.S.S.G. § 2F1.1, cmt. 8. 25 U.S.S.G. § 2F1.1, cmt. 7.
12 we cannot say that the district court acted improperly by including
the 51 blank checks found in the car and hotel room, or by
assigning to them the average value of the other checks actually
produced and negotiated.26 We conclude that the district court's
assessment of intended loss was conservative; it manifestly was not
clearly erroneous.
b. Upward Departure
Mitchem finally challenges the justification for and extent of
the upward departure imposed by the district court.27 Trial courts
may impose sentences outside the range established by the
guidelines in cases presenting "aggravating or mitigating
circumstance[s] of a kind, or to a degree, not adequately taken
into account by the Sentencing Commission in formulating the
guidelines that should result in a sentence different from that
described."28 When imposing such a sentence, however, the district
court must articulate on the record acceptable reasons for
26 See United States v. Sowels, 998 F.2d 249 (5th Cir. 1993) (no clear error where district court in theft case calculated amount of intended loss as total credit limits of stolen credit cards). 27 Under U.S.S.G. §§ 2B5.2, 2F1.1 the district court set Mitchem's base offense level at 6, assessing increases totaling eight points under §§ 2F1.1(b)(1)(E), 2F1.1(b)(2)(A), and 3C1.1, and permitting a two-point reduction under U.S.S.G. § 3E1.1 for acceptance of responsibility. The resulting offense level of 12, combined with Mitchem's criminal history score of 25, resulted in a Guideline Sentencing range of 30-37 months imprisonment in Criminal History Category VI. The district court departed upward 17 months from the top of that range. 28 18 U.S.C. § 3553(b); see also U.S.S.G. § 4A1.3 (district court may depart from guideline sentencing range where criminal history score inadequately reflects past criminal conduct or likelihood or recidivism).
13 departure,29 and the departure must be reasonable.30 We review
district court decisions to depart only for abuse of discretion.31
The Sentencing Guidelines expressly authorize departure where
"reliable information indicates that the criminal history category
does not adequately reflect the seriousness of the defendant's past
criminal conduct or the likelihood that the defendant will commit
other crimes."32 Mitchem's criminal history score of 25 far
exceeded the minimum score for Criminal History Category VI and did
not take into account several stale counterfeiting and forgery
offenses.33 These facts fully support the district court's
conclusion that Criminal History Category VI inadequately reflected
the seriousness of Mitchem's criminal background and likelihood of
recidivism. They further support the reasonableness of the
departure imposed.34
The convictions and sentences are AFFIRMED.
29 18 U.S.C. § 3553(c); United States v. Carpenter, 963 F.2d 736 (5th Cir.), cert. denied, 113 S.Ct. 355 (1992). 30 United States v. Lambert, 984 F.2d 658 (5th Cir. 1993) (en banc) (citing United States v. Velasquez-Mercado, 872 F.2d 632 (5th Cir.), cert. denied, 493 U.S. 866 (1989)). 31 E.g., United States v. McKenzie, 991 F.2d 203 (5th Cir. 1993). 32 U.S.S.G. § 4A1.3. 33 U.S.S.G. § 4A1.2 cmt. 8 (prior sentences for conduct resembling that of which defendant convicted, although not factored into criminal history score due to staleness, may support upward departure under U.S.S.G. § 4A1.3); see also Carpenter (stale convictions support upward departure under U.S.S.G. § 4A1.3). 34 The further challenges to the sentencing are raised for the first time on appeal or are patently frivolous.