United States v. Darrel Pendergrass

306 F. App'x 546
CourtCourt of Appeals for the Eleventh Circuit
DecidedJanuary 9, 2009
Docket08-11734
StatusUnpublished

This text of 306 F. App'x 546 (United States v. Darrel Pendergrass) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Darrel Pendergrass, 306 F. App'x 546 (11th Cir. 2009).

Opinion

PER CURIAM:

Darrel Pendergrass and Audra McLean appeal their convictions for conspiracy to commit access device fraud, in violation of 18 U.S.C. § 371, and access device fraud, in violation of 18 U.S.C. § 1029(a)(2). Both defendants contend that there was insufficient evidence to support their convictions. Pendergrass makes two additional arguments. The first one is that the district court violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), by not considering whether the prosecution had a race-neutral justification for its peremptory challenges to two black potential jurors. The second one is that the district court erred by admitting irrelevant evidence. We affirm the convictions.

I.

This is a credit card fraud case. The fraud began with Alrick Rickards, who stole credit card information and then fraudulently encoded that information onto the magnetic strips of other credit cards. He gave those credit cards to Kerrick Young and Courtney Singh and paid them to use the cards to buy electronics.

McLean and Pendergrass worked as cashiers in the electronics department at Wal-Mart. Young and Singh shopped at that Wal-Mart. A lot. In fact, they made at least 151 purchases from the electronics department over the course of approximately two and half months. Those purchases totaled more than $70,000. Young and Singh brought several credit cards with them and always checked out with either McLean or Pendergrass. The credit cards were declined frequently. When a card was declined McLean or Pendergrass would sometimes attempt to run the card through another card reader. If that did not work, they would simply accept another card from Young or Singh. Sometimes nine cards would be swiped before the transaction was finally approved. At some point, Pendergrass and McLean asked Young and Singh to purchase electronics for them. In a “hushed tone,” Pendergrass asked for a video game console; McLean wanted a television. Young and Singh complied so that Pendergrass and McLean would continue to go along with the scheme.

The high rate of declined credit cards eventually raised suspicion. An investigation uncovered the scheme, and Rickards, Young, Singh, McLean, and Pendergrass were indicted for access device fraud and conspiracy to commit access device fraud.

II.

We begin with the issue of the sufficiency of the evidence, which both McLean and Pendergrass raise. We review de novo the sufficiency of the evidence to support a conviction, but “view[ ] the evidence in the light most favorable to the government and draw[] all reasonable inferences and credibility choices in favor of the jury’s verdict.” United States v. Rodriguez, 218 F.3d 1243, 1244 (11th Cir.2000) (citation omitted).

For a defendant to be convicted of con *548 spiracy to commit access device 1 fraud under 18 U.S.C. § 371, the government must prove (1) an agreement among two or more persons to achieve an unlawful objective; (2) knowing and voluntary participation in the agreement; and (3) an overt act by a conspirator in furtherance of the agreement. See United States v. Ellington, 348 F.3d 984, 989-90 (11th Cir. 2003). To establish for access device fraud, the government must prove that the defendant (1) knowingly, with the intent to defraud; (2) used one or more unauthorized access devices during any one-year period; (3) to obtain anything of value aggregating $1000 or more in that period. See 18 U.S.C. § 1029(a)(2).

Pendergrass and McLean contend that there is insufficient evidence to establish that they knowingly and voluntarily participated in the conspiracy because they were never told that the purchases were fraudulent. That argument fails because participation in a conspiracy may be established by circumstantial evidence and “a common scheme or plan may be inferred from the conduct of the participants or from other circumstances.” United States v. Diaz, 190 F.3d 1247, 1254 (11th Cir. 1999). The government need only prove that the defendant knew the general nature and scope of the conspiracy. United States v. Anderson, 326 F.3d 1319, 1329 (11th Cir.2003).

Here, Singh testified for the government that Pendergrass and McLean allowed he and Young to purchase through their check out lines more than $70,000 worth of electronics in 151 separate transactions and that many of those purchases were of the same high-ticket video game consoles and computers. Singh also recounted how Pendergrass and McLean allowed he and Young to use multiple credit cards, and when some of the credit cards were declined (as they frequently were), they would simply accept a different card. Singh told how both Pendergrass and McLean had asked he and Young to buy them things in return for their continued cooperation — McLean got a television; Pendergrass got a video game console. Viewed in a light most favorable to the government, Singh’s testimony would allow a reasonable factfinder to conclude that Pendergrass and McLean knowingly and voluntarily participated in the conspiracy.

Pendergrass’s contention that the evidence is insufficient to sustain his conviction for access device fraud also fails. He argues that the government did not present any evidence of stolen property connected to Singh or Young, much less to him. Singh’s testimony that he had purchased thousands of dollars worth of electronics from Wal-Mart using fraudulent credit cards knocks out that argument. We therefore conclude that there was sufficient evidence to support the convictions.

III.

Pendergrass also contends that the district court violated Batson v. Kentucky by determining whether the prosecution had a race-neutral reason for its peremptory challenges of two black potential jurors. See Batson, 476 U.S. at 86, 106 S.Ct. at 1717. In Batson the Supreme Court held that “[pjurposeful racial discrimination in selection of the venire violates a defen *549 dant’s right to equal protection.... ” Id. We give deference “to a district court’s finding as to the existence of a prima facie case.” United States v. Allen-Brown, 243 F.3d 1293, 1296-97 (11th Cir.2001) (internal quotation marks and citations omitted).

To prevail on a claim of race discrimination, the defendant first must make a prima facie

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Related

United States v. Diaz
190 F.3d 1247 (Eleventh Circuit, 1999)
United States v. Rodriguez
218 F.3d 1243 (Eleventh Circuit, 2000)
United States v. Elmore Roy Anderson
326 F.3d 1319 (Eleventh Circuit, 2003)
United States v. Ellington
348 F.3d 984 (Eleventh Circuit, 2003)
United States v. Deverso
518 F.3d 1250 (Eleventh Circuit, 2008)
Batson v. Kentucky
476 U.S. 79 (Supreme Court, 1986)
United States v. Keith Anderson, Byron Carlisle
872 F.2d 1508 (Eleventh Circuit, 1989)
United States v. Loleta Allen-Brown
243 F.3d 1293 (Eleventh Circuit, 2001)

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306 F. App'x 546, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-darrel-pendergrass-ca11-2009.