U.S. v. Jackson, 98-1365

• Decision Date: 13 August 1998
• Docket Number: No. 98-1365,98-1365
• Parties: UNITED STATES of America, Appellee, v. Lee Vernell JACKSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 942

155 F.3d 942

UNITED STATES of America, Appellee, v. Lee Vernell JACKSON, Appellant.

No. 98-1365.

United States Court of Appeals Eighth Circuit.

Submitted June 10, 1998.

Decided Aug. 13, 1998.

Virginia G. Villa, Minneapolis, MN, argued, for appellant.

R.J. Zayed, Minneapolis, MN, argued, for appellee.

Before BOWMAN, Chief Judge, BEAM, Circuit Judge, and GAITAN, ¹ District Judge.

GAITAN, District Judge.

Lee Jackson appeals his four-count conviction for orchestrating a fraudulent check writing scheme. He claims the Government failed to prove that the object of the conspiracy charged in Count I was to constitute the commission of a crime cognizable under federal law; the Government failed to prove that five or more of the documents charged in Count III were in or affecting interstate commerce; Count II charges the same crime as Count III; the amount of loss was based, in part, on speculation; the enhancement for obstruction of justice was not supported by reliable evidence, and the restitution order was imposed in violation of law. This court affirms in part and reverses in part the decision of the district court. ²

I. BACKGROUND

On May 21, 1997, Jackson was indicted for conspiracy to possess or utter counterfeit securities (18 U.S.C. §§ 371 and 513), two counts of possessing five or more identification documents (18 U.S.C. § 1028(a)(3)) and one count of possessing fifteen or more unauthorized access devices (18 U.S.C. § 1029(a)(3)). Trial commenced on August 28, 1997. Jackson twice moved for a judgment of acquittal, which was both times denied.

At trial, evidence was presented regarding a check writing fraud scheme that Jackson was alleged to have organized and run with the help of female accomplices. The evidence suggested that Jackson's scheme to defraud had five basic components. First, he purchased the contents of stolen purses (checkbooks, credit cards, driver's licenses, social security cards). Tr. at 183-85. Second, he altered the stolen driver's licenses by replacing the photographs on the licenses with those of his accomplices. Tr. 192. Third, he provided his accomplices with the altered driver's licenses along with the matching credit cards and social security cards for identification purposes. Fourth, he provided his accomplices with counterfeit payroll checks and stolen personal checkbooks that matched the names on the driver's licenses. Fifth, he helped his accomplices cash the counterfeit payroll checks and negotiate the first three personal checks out of each stolen checkbook for his benefit. The remaining personal checks were for his accomplices' own uses. Counterfeit checks were drawn from payroll accounts at various local business and organizations, including the City of Shoreview, Minnesota and the University of Minnesota. Tr. at 191-95, 242-44, 395-98, 422-45. The checks were negotiated by co-conspirators at local business, such as Target Stores. Id.

Various accomplices testified at trial. Tiffany Olson testified for the Government that Jackson took her photograph and made her five or six fake identification cards from other people's drivers licenses. She testified that she passed stolen checks for Jackson and split the cash with him. Tr. at 395-97. Kristine Hawkins testified that Jackson provided her with counterfeit payroll checks from Hennepin County, Brown & Bigelow, the University of Minnesota, and the City of Shoreview. Tr. at 192. When she received the checks she took them to Target stores and usually cashed them for just under $500, because Jackson told her that Target had a policy of cashing any check under that amount. Tr. at 193-94. Nancy Osborn and Karen Fox also testified that they negotiated counterfeit payroll checks at Target for Jackson. Tr. at 242-43, 424-35. Osborn said the checks usually ranged from $200 to $600. Osborn received approximately $100--$150 from each of the checks she cashed. Tr. at 244. Fox stated that the counterfeit checks she passed were for amounts close to $500 and that she received $100 and $150 for each check. Tr. at 426.

The investigation revealed certain real evidence, including check stock paper similar to that used for the University of Minnesota counterfeit checks, Tr. at 287, 99-100, a laminating machine, plastic laminates the size of typical identification document, Tr. at 290, a glue stick and press board, Tr. 292, Polaroid photographs of different woman standing in front of a blue drop cloth, Tr. 302, 06, 08, and a typewriter. Tr. at 307.

After the close of the evidence, the jury returned guilty verdicts as to all four counts on September 5, 1997. The Probation Office issued a Presentence Investigation Report ("PSR"), concluding that the Guidelines prescribed a range of 77 to 96 months imprisonment. This conclusion was reached using a calculated total offense level of 21 and a criminal history category of VI. After the presentence report was completed, Jackson filed his objections and the Government filed its responses. Thereafter, on January 28, 1998, the court held an evidentiary hearing and sentenced Jackson. The court imposed a 77 month sentence on Count IV, 36 month sentences on Counts II and III, as well as a 60 month sentence on Count I, all to run concurrently, a supervised release term of three years, a $400 special assessment, and a restitution order of $26,449.26.

II. DISCUSSION

Jackson challenges his sentence, claiming that the Government failed to prove that the object of the conspiracy charged in Count I was to constitute the commission of a crime cognizable under federal law; the Government failed to prove that five or more of the documents charged in Count III were in or affecting interstate commerce; Count II charged the same crime as Count III; the amount of loss was based, in part, on speculation; the enhancement for obstruction of justice was not supported by reliable evidence; and the district court judge erred in entering the restitution order.

A. Did the Government fail to prove that the object of the conspiracy charged in Count I was to constitute the commission of a crime cognizable under federal law?

Jackson was convicted of Count I of the indictment, which alleged conspiracy to possess or utter counterfeit securities, 18 U.S.C. §§ 371 and 513. Title 18 U.S.C. § 371 prohibits a person from conspiring to commit "any offense against the United States." Section 513 prohibits the making, uttering, or possessing a counterfeit security of "a State," "a political subdivision thereof," or "an organization." It defines "security" broadly to include a "check" and "organization" to mean "a legal entity, other than a government established or organized for any purpose ... which operates in or the activities of which affect interstate ... commerce." Jackson argues federal jurisdiction does not exist over a conspiracy to counterfeit securities of a state or political subdivision thereof and that the offense lacks a connection to interstate commerce.

The standard of review on a claim of insufficient evidence is stringent. We review the evidence in the light most favorable to the jury's verdict. United States v. Jenkins, 78 F.3d 1283, 1287 (8th Cir.1996). We give the verdict the benefit of all reasonable inferences that might be drawn from the evidence. United States v. Gaines, 969 F.2d 692, 696 (8th Cir.1992); United States v. Logan, 49 F.3d 352, 359 (8th Cir.1995).

The issue is whether the defined term "organization" refers, in this case, to the banks where the accounts were held or to the account holders, which are state bodies. The Government argued, and the district court concluded, that for purposes of the § 513 definition, the organizations were the banks on which the accounts were drawn. Clearly the City of Shoreview and the University of Minnesota cannot be defined as "organizations" because the term specifically excludes government entities.

Jackson argues that neither can the banks be organizations. First, he argues that the bank on which the University of Minnesota checks were drawn, "Northwest," was a non-existent entity. However, this is only true due to appellant's own misspelling of the name "Norwest." Jackson was charged with counterfeiting the securities of "Norwest Bank," a real entity, not with counterfeiting the securities of the non-entity "Northwest Bank." Therefore, this argument is has no merit. Second, appellant argues that the banks cannot be the organizations referred to by § 513 because a check is the security of the person whose holds the account and not of the bank itself, Black's Law Dictionary 237 (6th ed.1990). We agree with the reasoning of United States v. Chappell on this point. 6 F.3d 1095 (5th Cir.1993). "[S]ection 513 does not expressly or impliedly state that a document may be the security of only one organization." Id. at 1099. While it is clear that the definition prevents the bank account holder, the City of Shoreview and University of Minnesota, from being "organizations," we cannot conclude that the district court erred in determining that the banks were "organizations" under the definition. Appellant's third argument, that there is no statutory requirement that a State or political subdivision operate in interstate commerce, is irrelevant because we have indicated that the City of Shoreview and University of Minnesota were not the entities defined as "organizations" for purposes of the statute.

B. Did Government fail to prove that five or more of the documents charged in Count III affected interstate commerce?

Jackson appeals his conviction under Count III, which charged possession of five or more identification documents in violation of 18 U.S.C. § 1028(a)(3), alleging that the Government failed to prove that five or more of the documents listed in Count III were "in or affecting interstate commerce." The documents charged in Count III are a series of drivers licenses, all but one of which were issued by the State of Minnesota. Jackson claims that...