U.S. v. Stephens

• Decision Date: 10 June 2009
• Docket Number: No. 07-20899.,07-20899.
• Citation: 571 F.3d 401
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bartholomew STEPHENS; Steven Anyanwu Stephens, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

571 F.3d 401

UNITED STATES of America, Plaintiff-Appellee, v. Bartholomew STEPHENS; Steven Anyanwu Stephens, Defendants-Appellants.

No. 07-20899.

United States Court of Appeals, Fifth Circuit.

June 10, 2009.

As Corrected July 8, 2009.

Carmen Castillo Mitchell (argued), James Lee Turner, Asst. U.S. Atty., Houston, TX, for U.S.

Daucie Shefman Schindler, Shefman Law Group, John Moreno Parras (argued), Houston, TX, for Bartholomew Stephens.

Kimberly S. Keller (argued), Keller Law Firm, San Antonio, TX, for Steve Stephens.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, STEWART and SOUTHWICK, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Brothers Bartholomew Stephens and Steven Stephens¹ were convicted of aggravated identity theft, aiding and abetting wire fraud, and conspiracy to commit identity theft and wire fraud. Each defendant challenges his convictions on several grounds. We AFFIRM.

BACKGROUND

The evidence presented by the Government at trial established that, in the wake of Hurricane Katrina, Steven registered a website: www.salvationarmyonline.org The website was patterned after the official Salvation Army website and claimed to be the website of the organization's international headquarters. A donation link was created on the website, through which people could contribute money into PayPal accounts created in the names and identification numbers of individuals other than Steven or Bartholomew but linked to the brothers' bank accounts. Donations were made, and the brothers profited. Eventually, the FBI learned of the suspect Salvation Army site and obtained a search warrant for an apartment the brothers shared with another individual. The FBI executed the warrant and recovered a trove of incriminating evidence regarding each defendant.

Steven and Bartholomew were indicted in July 2006 for conspiracy to commit wire fraud and aggravated identity theft (count one), aiding and abetting wire fraud (counts two through seven), and aggravated identity theft (counts eight and nine). After a joint trial, the jury convicted both men on all counts. The district court sentenced Steven to 111 months imprisonment, Bartholomew to 105 months imprisonment, and both defendants to pay a $900 assessment and three years supervised release.

DISCUSSION

Sufficiency of the Evidence

1.

Bartholomew challenges the sufficiency of the evidence supporting the jury verdict convicting him on all counts of conspiracy, wire fraud, and aggravated identity theft.² "It is by now well-settled that a defendant seeking reversal on the basis of insufficient evidence swims upstream." United States v. Mulderig, 120 F.3d 534, 546 (5th Cir. 1997). The standard of review is whether, after viewing all of the evidence and inferences that may be drawn therefrom in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. United States v. Holmes, 406 F.3d 337, 351 (5th Cir.2005). However, if the evidence, viewed in the light most favorable to the verdict, points equally to a theory of innocence and guilt, we will reverse a conviction based on circumstantial evidence. Id.

2.

To convict Bartholomew of the conspiracy charge under 18 U.S.C. § 371, the Government was required to prove three elements beyond a reasonable doubt: (1) an agreement between Bartholomew and one or more persons (2) to commit the crimes of wire fraud and aggravated identity theft, and (3) an overt act by one of the conspirators in furtherance of that agreement. United States v. Ingles, 445 F.3d 830, 838 (5th Cir.2006). The Government must also demonstrate that Bartholomew acted with the intent to defraud. Id. (citing United States v. Garza, 429 F.3d 165, 168-69 (5th Cir.2005)). The Government is not required to provide direct evidence of the conspiracy. Holmes, 406 F.3d at 351. Associating with criminal conspirators is insufficient, but circumstantial evidence is enough to prove an agreement, and minor participation may support conviction. United States v. Bieganowski, 313 F.3d 264, 276 (5th Cir.2002). "An agreement may be inferred from concert of action, voluntary participation may be inferred from a collection of circumstances, and knowledge may be inferred from surrounding circumstances." Id. (internal quotation marks and citations omitted).

Bartholomew's conviction for aiding and abetting wire fraud in violation of 18 U.S.C. §§ 2 and 1343 required the Government to "prove (1) a scheme or artifice to defraud and (2) the use of wire communications in furtherance of the fraudulent scheme." United States v. Rajwani, 476 F.3d 243, 247 (5th Cir.2007), modified on other grounds, 479 F.3d 904 (5th Cir.2007). To prove a scheme to defraud, the Government must show fraudulent activity and that the defendant had a conscious, knowing intent to defraud. Id.

Finally, to convict Bartholomew of aggravated identity theft, the Government was required to prove that Bartholomew (1) knowingly used (2) the "means of identification" of another person (3) without lawful authority (4) during and in relation to a violation of wire fraud. § 1028A(a)(1). The phrase "means of identification" includes another person's name or social security number. Id.; § 1028(d)(7)(A). Recently in Flores-Figueroa v. United States, the Supreme Court concluded that § 1028A(a)(1) requires the Government to prove that the defendant "knew that the `means of identification' he or she unlawfully transferred, possessed, or used, in fact, belonged to `another person.'" ___ U.S. ___, 129 S.Ct. 1886, 1888, 173 L.Ed.2d 853 (2009) (emphasis in the original).

3.

The evidence established that the domain www.salvationarmyonline.org was registered using Steven's name, e-mail address, mailing address, and credit card information. The registration form filled out and submitted to register the domain name indicated that Steven was associated with the Salvation Army when, in fact, he was not. PayPal accounts, registered to various email addresses, were linked to the bogus Salvation Army website, received donations through the website, and deposited into bank accounts owned by both Steven and Bartholomew, although created using the names and identification numbers of individuals other than Steven or Bartholomew. Two of the PayPal accounts were linked to a bank account held solely by Bartholomew, while one of the PayPal accounts was linked to a bank account held jointly by Bartholomew and Steven.³ Steven and Bartholomew's joint bank account also received deposits from the fraudulent PayPal accounts. The brothers made multiple withdrawals from their joint bank account and transferred $10,912.00 to another bank account held jointly by the brothers.

Approximately one month after the bogus Salvation Army website was registered, the domain www.redcross-usa.org, purporting to be part of the Red Cross, was registered using the name Beis Stephens, as well as Bartholomew's e-mail address, mailing address, and credit card information. A laptop recovered from the brothers' apartment contained a picture of Bartholomew wearing a shirt that read "BEIS LETHAL INC." This laptop also contained the www.salvationarmyonline. org web page and search results for the Salvation Army that listed www.salvationarmyonline. org as the first "hit." One of these searches appeared in a subfolder entitled "BJ Stephens."

Another computer recovered from the apartment contained a spreadsheet entitled "Mock Money Makin.doc" that tracked the e-mail addresses linked to the PayPal accounts and indicated the name and bank account associated with each e-mail address, as well as the amount of money deposited in each bank account.⁴ A desktop computer also recovered from the apartment contained a document in a folder labeled "Tex," shown to be Steven's nickname,⁵ entitled "Socials.doc." This "Socials.doc," which appeared to be a letter to PayPal about one of the accounts, also listed other individuals' names, social security numbers, and dates of birth. The desktop contained other documents related to the scheme, including a list of purported directors of the Salvation Army, temporary files containing the graphic logos of both the Salvation Army and the Red Cross, and a Google AdWords review of an account with the keywords "salvation army donation" and "hurricane relief."

In addition to the above evidence, the police also recovered an email from Steven to Bartholomew that listed several names, addresses, and social security numbers that had been given to PayPal. The email stated that Steven had "Created a Bank Account for these people already." Some, but not all, of the social security numbers included the notation "fake social." The jury could reasonably infer that social security numbers not so denoted were real— and thus other individuals'—social security numbers.

The jury was also presented with numerous hard copy documents containing incriminating evidence that were found in the apartment. Some examples include correspondence with PayPal, handwritten notes about being listed on search engines, documents aimed at gaining tax-exempt status, photocopies of an altered driver's license, Bartholomew's resume (showing that he was proficient with computers and interested in computer technology), and a bank statement for the brothers' joint account reflecting $21,747.00 in transfers from the PayPal accounts. The brothers' bank statement had the name of one of the identity theft victims superimposed over the true holders' names.

The evidence presented to the jury is more than sufficient to support the existence of a conspiracy between Bartholomew and Steven, as well as Bartholomew's conviction for wire fraud and identity theft. Certainly the circumstantial evidence presented was sufficient for a reasonable jury to have found that Bartholomew entered into a conspiracy with Steven, performed overt acts in furtherance of the conspiracy,...