U.S. v. Carr

• Decision Date: 28 September 1993
• Docket Number: 92-3768,Nos. 92-3767,s. 92-3767
• Citation: 5 F.3d 986
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James C. CARR (92-3767) and Carmen C. Clair (92-3768), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 986

5 F.3d 986

UNITED STATES of America, Plaintiff-Appellee, v. James C. CARR (92-3767) and Carmen C. Clair (92-3768) Defendants-Appellants.

Nos. 92-3767, 92-3768.

United States Court of Appeals Sixth Circuit.

Argued June 28, 1992.

Decided Sept. 28, 1993.

James A. Wilson, Asst. U.S. Atty., Dale Ann Goldberg (briefed and argued), Office of the U.S. Atty., Dayton, OH, for plaintiff-appellee.

Dennis L. Bailey (briefed and argued), Dayton, OH, for James C. Carr.

Ronald E. Reichard (briefed), Dayton, OH, for Carmen C. Clair.

Before: RYAN and BOGGS, Circuit Judges, and ROSEN, District Judge. ^*

RYAN, Circuit Judge.

The defendants, James C. Carr and Carmen C. Clair, appeal following the judgments and sentences entered against them after they were found guilty by a jury on multiple bank fraud-related charges. On appeal, both defendants present numerous challenges to their convictions, and Carr also raises challenges to his sentence. We conclude that the arguments of both defendants with respect to their convictions are without merit, and therefore affirm the judgments. However, a number of Carr's challenges to the sentencing procedure are meritorious. We therefore vacate Carr's sentence and remand for resentencing.

I.

Carr and Clair were named in a 24-count indictment in which Carr was charged with thirteen counts of bank fraud, in violation of 18 U.S.C. Secs. 2 & 1344, and one count of conspiracy to commit bank fraud and to possess stolen mail, in violation of 18 U.S.C. Sec. 371, and in which Clair was charged with thirteen counts of bank fraud, in violation of 18 U.S.C. Secs. 2 & 1344, seven counts of possession of stolen mail, in violation of 18 U.S.C. Sec. 1708, and one count of conspiracy to commit bank fraud and to possess stolen mail, in violation of 18 U.S.C. Sec. 371. Both defendants pled not guilty to all counts. Codefendants Shirley Scott and Deborah Tarrance were also charged, but pled guilty and testified against Carr and Clair.

From May 1987 through August 1988, the defendants were involved in a scheme in which they approached a number of people in Dayton, Ohio, and convinced them to let Carr and Clair have use of their automatic teller machine (ATM) cards. Sometimes the defendants would approach a person together, while on other occasions they operated separately. Often they would use multiple three-way telephone calls to persuade the person to cooperate. When an individual relinquished the ATM card to the defendants, they would then use the card to deposit money into the card owner's checking account. The money came from checks that had been stolen from authorized mail depositories in various Columbus, Ohio, office buildings. Carr and Clair would withdraw the money before it was discovered that the balance was fraudulent, sometimes using the ATM card to do so, and other times accompanying the accountholder to the bank and instructing him or her to withdraw a certain amount. In the latter event, the defendants would give a small amount of the money to the accountholder, and keep the rest.

A variety of individuals were involved in the scheme along with the defendants. Most were simply targets for the defendants' fraudulent scheme, active only insofar as they permitted the defendants access to their accounts; others assisted in recruiting new accountholders. The accountholders provided a great deal of the evidence against the defendants by testifying at trial. The evidence against the defendants included Clair's fingerprints and handwriting on the stolen checks. Furthermore, although Carr was incarcerated between June and November 1987, and so incapable of making direct personal contact with some of the individuals involved in the scheme, records produced at trial indicated that a number of those cooperating in the scheme visited Carr in jail, and further, that Clair visited Carr almost daily. Telephone records showed daily collect telephone calls from the jail to Clair's residence, as well as three-way calls between Clair's residence, the jail, and the houses of some of those cooperating in the scheme. Finally, Clair made frequent deposits to Carr's commissary account during July 1987, totalling more than $2,000.

The check-kiting activity came to a halt in July 1988, when Dayton police officer Donald Vanzant stopped a driver who identified herself as Clair. He asked to see some identification, and she instructed him to get her purse out of an open briefcase that was in the car with her, and which she indicated belonged to her. As Vanzant removed the purse from the briefcase, he observed eleven checks made payable to different people, issued from a variety of banks. Clair then told Vanzant that another woman had taken Clair's briefcase from her, and Clair denied any knowledge of the checks. Her fingerprints were nonetheless found on one of the checks, as well as on a bank deposit envelope that was located with the checks. Vanzant seized the checks and placed Clair under arrest.

The jury found both defendants guilty on all counts except for three that had been dismissed by the court at the close of the government's case when an essential witness failed to appear. Carr was sentenced to 60 months' imprisonment on each of four pre-guidelines counts, to be served concurrently with each other and with the guidelines counts. He was sentenced to 60 months' imprisonment and three years' supervised release on all but one of the guidelines counts, also to be served concurrently with each other and with the pre-guidelines counts. On the remaining guideline count, he was sentenced to 30 months' imprisonment, to be served consecutively to the other terms, and to three years' supervised release. Thus, his aggregate sentence was 90 months' imprisonment and three years' supervised release. Clair's aggregate sentence on nine pre-guidelines and eight guidelines counts was 30 months' imprisonment and three years' supervised release.

Both defendants filed timely appeals.

II.

Challenges to the Convictions

A.

Both Carr and Clair argue that the government's theory of a single large conspiracy to defraud various banks was not borne out by the evidence, and that the theory allowed the government to impute to both defendants the activity of people with whom they had no contact. They argue that the evidence failed to show any connection among the various targets of the defendants' scheme. They suggest that it is significant that few of the accountholders had any relationship with each other, and that none of the accountholders benefitted from the other accountholders' activities.

If an indictment alleges one conspiracy, but the evidence can be construed as only supporting a finding of multiple conspiracies, a variance results. United States v. Warner, 690 F.2d 545, 548 (6th Cir.1982). However, even if a variance exists, it does not constitute reversible error " 'unless it prejudice[s] [the defendant's] substantial rights.' " United States v. Guerra-Marez, 928 F.2d 665, 671 (5th Cir.) (citation omitted) (quoted inUnited States v. Lee, 991 F.2d 343, 349 (6th Cir.1993)), cert. denied, --- U.S. ----, 112 S.Ct. 322, 116 L.Ed.2d 263 and cert. denied, --- U.S. ----, 112 S.Ct. 443, 116 L.Ed.2d 461 (1991).

The essential elements of the crime of conspiracy are:

(1) that the conspiracy described in the indictment was willfully formed, and was existing at or about the time alleged; (2) that the accused willfully became a member of the conspiracy; (3) that one of the conspirators thereafter knowingly committed at least one of the overt acts charged in the indictment, at or about the time and place alleged; and (4) that such overt act was knowingly done in furtherance of some object or purpose of the conspiracy as charged.

Lee, 991 F.2d at 347-48 (citations omitted). It is not necessary to show that a defendant knew every member of the conspiracy or the full extent of the enterprise. United States v. Shermetaro, 625 F.2d 104, 108-09 (6th Cir.1980). It is not even necessary for a coconspirator to know about the acts of another coconspirator in order to be held responsible for those acts. United States v. Davis, 809 F.2d 1194, 1203 (6th Cir.), cert. denied, 483 U.S. 1007, 107 S.Ct. 3234, 97 L.Ed.2d 740, and cert. denied, 483 U.S. 1008, 107 S.Ct. 3234, 97 L.Ed.2d 740 (1987). Such evidence can be inferred from the interdependence of the enterprise. United States v. Bourjaily, 781 F.2d 539, 544 (6th Cir.1986), aff'd, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987).

There was ample evidence to demonstrate that Carr and Clair conspired together. As Carr's attorney conceded at oral argument, the government demonstrated (1) a connection between the two defendants themselves; (2) a connection between one or both of the defendants and each of the various targets; and (3) the defendants' mutual interest in and benefit from the activity in all of the various accounts. On multiple occasions, they jointly initiated contacts with the accountholders. During the period of Carr's incarceration, in which he was incapable of making these contacts, there was evidence of continuous and ongoing contact with Clair and with others involved in the scheme. It is, in short, simply unimportant that both conspirators were not shown to have committed every overt act. The essence of conspiracy is that the conspirators form an agreement, and then, independently as well as jointly, act in furtherance of that agreement. This argument on the part of the defendants is simply without merit. ¹

B.

Clair contends that there was insufficient evidence to convict her with respect to two separate incidents. First, she argues that there was no evidence that would allow a conviction for aiding and abetting bank fraud with respect to transactions in the account of Carr's son, Eric Harris. She next argues that there was insufficient evidence to support her conviction for possession of the stolen mail that was found in her briefcase.

A party may raise an...