96 F.3d 1 (1st Cir. 1996), 95-2211, United States v. Carrington

Docket Nº:95-2211.
Citation:96 F.3d 1
Party Name:UNITED STATES, Appellee, v. Kerr CARRINGTON, Defendant--Appellant.
Case Date:September 18, 1996
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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96 F.3d 1 (1st Cir. 1996)



Kerr CARRINGTON, Defendant--Appellant.

No. 95-2211.

United States Court of Appeals, First Circuit

September 18, 1996

        Heard June 5, 1996.

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[Copyrighted Material Omitted]

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        LisaAyn Padilla by appointment of the Court, Cambridge, MA, for defendant-appellant.

        Donald L. Cabell, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, and Dina Michael Chaitowitz, Assistant United States Attorney, Boston, MA, were on brief, for appellee.

        Before TORRUELLA, Chief Judge, CYR and LYNCH, Circuit Judges.

        TORRUELLA, Chief Judge.

        On March 28, 1995, Defendant Kerr Carrington ("Carrington") pleaded guilty to four counts of interstate transportation of property taken by fraud (Counts I through IV), see 18 U.S.C. § 2314, and two counts of wire fraud (counts V and VI), see 18 U.S.C. § 1343. On August 21, 1995, Carrington was sentenced to a term of 50 months incarceration, followed by a 36 month period of supervised release, and a mandatory special assessment of $50. He contests the validity of his plea based on Federal Rule of Criminal Procedure 11(f) and also appeals his sentence on several grounds. We affirm both his conviction and his sentence.


        The case arises from two separate sets of schemes to defraud. In the first set, charged in Counts I through IV and spanning from December 1993 to April 1994, Carrington negotiated the purchase of four expensive cars from out-of-state dealers. He then tricked the dealers into believing that they had received wire transfers in payment for the cars. All four cars were then shipped to Carrington in Massachusetts. Carrington was arrested on May 3, 1994, and released on conditions pending further proceedings in the district court. On or about July 8, 1994, Carrington and the government entered into a plea agreement pursuant to which he agreed to plead guilty to all four counts of the information, which was filed on July 19, 1994. Carrington did not immediately waive indictment and plead to the information. Instead, upon Carrington's motion, the Probation Office began working on the Presentence Report ("PSR") with the intention of

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having Carrington plead and be sentenced upon its completion.

        In the second set, charged in Counts V and VI, which he executed while on release in connection with Counts I through IV, Carrington sought to obtain and deposit bank drafts drawn against the corporate bank accounts of various companies. The conduct charged as Count V took place in November 1994. On or about November 14, 1994, while the parties were awaiting the preparation of the PSR, Carrington, identifying himself as Chad Littles ("Littles"), the Accounts Receivable/Payroll Manager of Quorum International, Ltd. ("Quorum"), opened an account with International Banking Technology, Inc. ("IBT"), of Springfield, Virginia. IBT provides a bank drafting system that allows creditors to collect payment over the phone by having the debtor pre-authorize a one-time debit to his or her account. When IBT is provided with the debtor information by its client, it prepares bank drafts (or permits the client to produce the bank drafts by means of its software) that are deposited by IBT's client into its bank account. When these drafts are processed, the debtor's account is debited and the creditor receives payment. On or about November 16, 1994, Carrington faxed thirty completed Bank Draft Sales Forms ("draft forms") to IBT. These draft forms are used to provide IBT with the information necessary for it to produce the bank drafts for the one-time pre-authorized debits. The draft forms that Carrington faxed to IBT provided all of the necessary information including the name of the company to charge, its checking account number, and the amount of the draft requested to cover the purported pre-authorized one-time debit. Carrington requested that IBT prepare 30 bank drafts of $5,000 each for a total of $150,000, which purportedly was to constitute payment for attendance at a seminar allegedly held by Quorum. Carrington's attempt failed, however, when as part of IBT's fraud control system, it attempted to verify the authorization for some of the bank drafts, and it found that some of the phone numbers were incorrect. Because IBT suspected fraud, it never completed processing Carrington's request, and Carrington failed to obtain the funds he sought.

        The conduct charged in Count VI took place in December 1994. On or about December 5, 1994, Carrington, identifying himself as Paul Epstein ("Epstein"), Chief Financial Officer of Citibank, phoned IBT, faxed them an application for bank draft forms, and requested IBT software that would permit him to transmit his requests for bank drafts to IBT by modem. This software also allowed Carrington to receive from IBT, by modem, the instructions necessary to print the bank drafts at his home. On December 29, 1994, Carrington sent to IBT by modem 80 forms for printing bank drafts at his residence, which were to be used to debit 80 different companies' accounts in varied amounts totalling $583,443.50. He failed to obtain the total amount sought, receiving and depositing $268,000 into a personal account before the U.S. Secret Service discovered his actions.

        Based on the events of November and December 1994, the government filed a superseding information adding two counts of wire fraud, Counts V and VI, to the previous Counts I through IV. Pursuant to a second plea agreement, Carrington waived indictment and pled guilty to all six counts of the superseding information on March 28, 1995. He was sentenced on August 21, 1995.


  1. Carrington's Rule 11 argument

            In his brief, without having so argued below, Carrington contends that the district court erred under Federal Rule of Criminal Procedure 11(f) by calculating his sentence in part on a plea for which there was no factual basis. 1 Specifically, he argues that even viewed in the light most favorable to the government, there was no proof that the vehicles involved in the information Counts I through IV were stolen prior to their placement

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    into the stream of interstate commerce, which he alleges is an essential element under the Act.

            Because Carrington seeks to withdraw his plea following the imposition of his sentence, he must show that the plea proceedings were marred by "a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure." 2 United States v. Ferguson, 60 F.3d 1, 2 (1st Cir.1995) (internal quotations omitted); see Fed.R.Crim.P. 32(e); see also former Fed.R.Crim.P. 32(d), comment. (advisory committee's note to 1983 amendments to predecessor of Rule 32(e)); United States v. Japa, 994 F.2d 899, 902 (1st Cir.1993) (stating that, to set aside a plea post-sentencing, the reviewing court must find "a fundamental defect or a miscarriage of justice").

            Carrington's appeal does not meet this high standard. Carrington's sole argument under Rule 11(f) is that there was no evidence that the vehicles involved in Counts I through IV were stolen before they were placed into the stream of commerce. We reject Carrington's challenge for two reasons, either of which would suffice independently to justify our conclusion. First, we have previously rejected a similar argument under 18 U.S.C. § 2314, Carrington's statute of conviction. See United States v. Puerta, 38 F.3d 34, 41 (1st Cir.1994). Much as Carrington does here, the defendant in Puerta argued that " 'no [property] had been stolen or taken by fraud at the time of transfer.' " Id. (quoting brief of defendant). Paraphrasing that argument as a claim "that when transferred the [property] had not yet been stolen," id. (emphasis in original), we concluded that we could "see no reason why the fraudulent taking required any more than" acceptance of the property, misrepresentations, access to the property, and "the requisite scienter." Id. Similarly, given that Carrington does not argue that there was no factual basis to find that he accepted the vehicles, made misrepresentations, had access to the vehicles, and had the requisite intent--"knowing the [vehicles] to have been stolen, converted or taken by fraud," 18 U.S.C. § 2314 (emphasis added)--his argument that there was no factual basis to find the vehicles stolen before transport must fail, because it is simply irrelevant.

            Second, Carrington pled guilty to four counts of transporting or causing to be transported vehicles which he knew to be "stolen, converted and taken by fraud." However, the statute itself is phrased in the disjunctive, punishing the transport of goods known to be "stolen, converted or taken by fraud," see 18 U.S.C. § 2314, as Carrington himself quotes in...

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