103 F.3d 121 (4th Cir. 1996), 95-5783, U.S. v. Evans

Citation103 F.3d 121
Party NameUNITED STATES of America, Plaintiff-Appellee, v. Vance EVANS, a/k/a Nancy Evans, a/k/a Georgia Johnson, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Wayne BULLARD, a/k/a Michael Harrod, a/k/a Jeffrey L. Cosby, a/k/a Ivan Jasper, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Kevin Michael WELLS, a/k/a
Case DateNovember 27, 1996
CourtUnited States Courts of Appeals, U.S. Court of Appeals — Fourth Circuit

Page 121

103 F.3d 121 (4th Cir. 1996)

UNITED STATES of America, Plaintiff-Appellee,

v.

Vance EVANS, a/k/a Nancy Evans, a/k/a Georgia Johnson, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Wayne BULLARD, a/k/a Michael Harrod, a/k/a Jeffrey L. Cosby, a/k/a Ivan Jasper, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Kevin Michael WELLS, a/k/a Charles Rainey, a/k/a Bernard Taylor, a/k/a Bernard Tyler, a/k/a Christopher Westbrooks, a/k/a Zermee Pryor, a/k/a McCullen Pitts, Defendant-Appellant.

Nos. 95-5783, 95-5784, 95-5820.

United States Court of Appeals, Fourth Circuit

November 27, 1996

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA4 Rule 36 regarding use of unpublished opinions)

Argued Sept. 24, 1996.

Appeals from the United States District Court for the District of Maryland, at Baltimore. Alexander Williams, Jr., District Judge. (CR-95-46-AW)

D.Md.

AFFIRMED IN PART, VACATED IN PART.

ARGUED: Clarke Francis Ahlers, Columbia, Maryland, for Appellant Evans; James Dennis Murphy, Jr., Annapolis, Maryland, for Appellant Bullard; Timothy Joseph Sullivan, SULLIVAN & SULLIVAN, College Park, Maryland, for Appellant Wells. Maury S. Epner, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. ON BRIEF: Lynne A. Battaglia, United States Attorney, Sandra Wilkinson, Assistant United States Attorney, Greenbelt, Maryland, for Appellee.

Before WILKINSON, Chief Judge, and WILKINS and WILLIAMS, Circuit Judges.

OPINION

PER CURIAM:

Vance Evans, Wayne Bullard, and Kevin Michael Wells were convicted by a jury of conspiring to commit bank fraud, see 18 U.S.C.A. § 371 (West 1966 & Supp.1996); Bullard and Wells were also convicted of bank fraud, see 18 U.S.C.A. § 1344 (West Supp.1996); 18 U.S.C.A. § 2 (West 1969). Evans and Bullard appeal their convictions. Evans claims that the Government's conduct at trial denied him effective assistance of counsel because prosecutors improperly referred to "other crimes" evidence during closing argument, and "personally attacked" defense counsel during rebuttal. After careful review of the record, we conclude that this contention is without merit and does not warrant discussion. See United States v. Adam, 70 F.3d 776, 780-81 (4th Cir.1995) (holding that prosecutor's remarks were not sufficient to deprive Appellant of a fair trial) (citing United States v. Harrison, 716 F.2d 1050, 1052 (4th Cir.1983), cert. denied, Wissler v. United States, 466 U.S. 972 (1984)); Lindgren v. Lane, 925 F.2d 198, 204-05 (7th Cir.) (same), cert. denied, 502 U.S. 831 (1991); United States v. Livingston, 816 F.2d 184, 195-96 (5th Cir.1987) (same). Bullard claims that the district court erred in failing to suppress physical evidence and oral and written statements made by him. Because Bullard's suppression arguments were rejected in United States v. Bullard, No. 95-5785, Slip Op. (4th Cir. Nov. 27, 1996), we will not consider them here.

In addition, Evans, Bullard, and Wells appeal their sentences, arguing that the district court erroneously computed the fraud losses attributable to them, thereby improperly increasing their offense levels under the Sentencing Guidelines. See United States Sentencing Commission, Guidelines Manual, §§ 1B1.3 (Relevant Conduct), 2F1.1 (Fraud and Deceit) (Nov.1995). Wells also argues that the district court erroneously increased his base offense level two points for obstruction of justice. See U.S.S.G. § 3C1.1. We affirm Evans' and Bullard's convictions and remand to the district court for resentencing of each Appellant.

I.

Evans, Bullard, and Wells, along with several others, conspired to defraud banks and merchants in the Washington, D.C. area. They acquired identification documents in alias names, 1 opened fraudulent checking accounts in the alias names, "reordered" checks under the alias names for legitimate bank accounts held by innocent persons, and wrote fraudulent checks to local merchants and banks. To get cash, Appellants artificially inflated the balance of alias and legitimate accounts by stealing checks written from one uninvolved party to another and depositing these "booster" checks into the accounts. Then Appellants cashed checks from the accounts or used automated teller machine (ATM) cards to withdraw the fraudulently "boosted" sums in cash before the fraud could be discovered.

Agents of the United States Secret Service executed searches of Wells' and Bullard's apartments pursuant to warrants authorizing searches for evidence relating to federal bank fraud offenses. Law enforcement officers investigating the case also stopped and, after obtaining consent, searched an automobile in which Evans was a passenger. During these searches, agents found and seized fraudulent photograph-bearing identification documents, stolen checks, checks in alias names, and retail merchant receipts demonstrating purchases in alias names with fraudulent checks. During the search of Wells' apartment, agents found and seized three computers; agents had observed Wells take one of these computers a week earlier from the residence of Raheim Knox, a coconspirator. The computers seized from Wells' apartment contained information relating to certain of his own known aliases, and also to aliases employed by several of his coconspirators.

The evidence at trial, viewed in the light most favorable to the Government, see Glasser v. United States, 315 U.S. 60, 80 (1942), revealed that Evans, Bullard, and Wells either knew each other directly (as in the case of Evans and Wells), or knew other persons in common. For example, after their arrests, Evans, Bullard, and Wells each gave inculpatory statements in which they identified Knox as the source of certain of their fraudulent documents. The jury returned guilty verdicts on all counts, convicting all three Appellants of conspiring to commit bank fraud and convicting Bullard and Wells of bank fraud.

Following the return of guilty verdicts, a presentence report (PSR) was prepared for each Appellant. The PSR assigned each Appellant a base offense level of six for their fraud convictions. See U.S.S.G. § 2F1.1(a). Appellants' offense levels then were increased according to the amount of loss suffered as a result of their fraud. See U.S.S.G. § 2F1.1(b)(1). Evans' PSR attributed to him fraud loss of $182,749, increasing his offense level seven points, see U.S.S.G. § 2F1.1(b)(1)(H) (fraud involving loss of $120,000 to $200,000); Bullard's PSR attributed to him fraud loss of $302,549, increasing his offense level eight points, see U.S.S.G. § 2F1.1(b)(1)(I) (fraud involving loss of $200,000 to $350,000); and Wells' PSR attributed to him fraud loss of $1,877,615, increasing his offense level 12 points, see U.S.S.G. § 2F1.1(b)(1)(M) (fraud involving loss of $1,500,000 to $2,500,000).

Evans, Bullard, and Wells objected to the amount of fraud loss attributed to them in their PSRs, each contending that he was responsible for substantially less fraud loss. The Government also objected, challenging the amount of loss attributed to Bullard and Wells. The Government claimed that additional fraud loss should be attributed to Bullard and indicated that it would seek at sentencing to increase his offense level nine points under U.S.S.G. § 2F1.1(b)(1)(J) (fraud involving loss of $350,000 to $500,000), instead of the PSR's recommended increase of eight points under U.S.S.G. § 2F1.1(b)(1)(I). The Government also admitted that the probation officer's attribution to Wells of $1,877,615 of loss was excessive and indicated that it would seek to increase his offense level only nine points under U.S.S.G. § 2F1.1(b)(1)(J) (fraud involving loss of $350,000 to $500,000), instead of the recommended 12-point increase under U.S.S.G. § 2F1.1(b)(1)(M).

At sentencing, the district court adopted the loss calculations offered by the Government. The court determined that fraud loss of $189,950 should be attributed to Evans, resulting in a total offense level of 13. 2 See U.S.S.G. § 2F1.1(b)(1)(H). An offense level of 13, combined with a criminal history category of IV, gave Evans a guideline range of 24-30 months. The district court sentenced him to 30 months imprisonment.

Next, the district court determined that fraud loss of $403,577 should be attributed to Bullard, increasing his offense level to 15. See U.S.S.G. § 2F1.1(b)(1)(J). The court added an additional two points for "more than minimal planning" under U.S.S.G. § 2F1.1(b)(2)(A), resulting in a total offense level of 17 for the fraud conviction. The court then considered Bullard's conviction for possession of a firearm by a felon, 3 which carried a base offense level of 20. See U.S.S.G. § 2K2.1(a)(4)(A) (prior felony conviction for crime of violence). Combining the fraud and the firearm offense levels under U.S.S.G. § 3D1.4 (Combined Offense Level), the district court computed a total offense level of 22. A total offense level of 22, with a criminal history category of IV, gave Bullard a guideline range of 63-78 months. The district court sentenced him to 63 months imprisonment.

Finally, the district court determined that fraud loss of $403,577 should be attributed to Wells, increasing his offense level to 15. See U.S.S.G. § 2F1.1(b)(1)(J). The court added an additional two points for "more than minimal planning" under U.S.S.G. § 2F1.1(b)(2)(A), and an additional two points for obstructing justice under U.S.S.G. § 3C1.1, resulting in a total offense level of 19. The court then considered Wells' conviction for possession of a firearm by a felon, 4 which carried a base offense level of 14. See U.S.S.G. § 2K2.1(a)(6) (prohibited person). Combining the fraud and the firearm offense levels under U.S.S.G. § 3D1.4, the district court computed a total offense level of 20. An offense level of 20, with a criminal...

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