U.S. v. Chappell, 92-7513
| Decision Date | 01 November 1993 |
| Docket Number | No. 92-7513,92-7513 |
| Citation | 6 F.3d 1095 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Marietta Joyce CHAPPELL, Charles Edward Gibson, Robert Nathaniel Mitchem, and Rita Ann Shephard, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
George L. Lucas, Jackson, MS (court-appointed), for Marietta Joyce Chappell.
William B. Kirksey, Jackson, MS (court-appointed), for Charles Edward Gibson.
W.E. Gore, Jr., Jackson, MS (court-appointed), for Robert Nathaniel Mitchem.
S. Dennis Joiner (court-appointed), Herring, Long & Joiner, Jackson, MS, for Rita Ann Shephard.
Richard T. Starrett, Allen Billups, Asst. U.S. Attys., George Phillips, U.S. Atty., Jackson, MS, for plaintiff-appellee.
Appeal from the United States District Court For the Southern District of Mississippi.
Before POLITZ, Chief Judge, REYNALDO G. GARZA and JOLLY, Circuit Judges.
Marietta Chappell, Rita Shephard, Charles Gibson, and Robert Mitchem appeal their convictions of conspiracy to make, utter, and possess counterfeit securities in violation of 18 U.S.C. Secs. 371, 513(a), and two substantive violations of Sec. 513(a). Mitchem and Shephard also appeal the sentences imposed. Finding no error, we affirm.
On February 14, 1992 Shephard, accompanied by Chappell, entered a Wal-Mart store in Ridgeland, Mississippi, seeking to cash what purported to be a Mississippi Power and Light (MP & L) payroll check drawn on Trustmark National Bank and payable to Serena Keach. Shephard presented a counterfeit MP & L identification card in support of the transaction. A cashier permitted Shephard to tender the check for a small purchase, returning over $200 in change.
The following day Shephard presented the identification card and a nearly identical faked MP & L check at a Jackson grocery store. A clerk took both documents into a back office to ask co-workers about the check's genuineness. When the clerk returned Shephard was gone. Around the same time, Trustmark returned unpaid two other MP & L checks payable to Keach and cashed at Jackson grocery stores because they bore inaccurate routing and transit numbers.
Shephard presented another MP & L check and identification card, both bearing Keach's name, on February 15, 1992 at the Sunflower grocery store in Yazoo City. Manager Randy Jett refused to cash the check when Shephard could not produce a driver's license. Jett saw Shephard drive away in a gray car with another woman and two men. He telephoned a warning to Kevin Helton, manager of the nearby Super Valu grocery store, that the four were headed his way. Minutes later Shephard entered the Super Valu with Gibson, again presenting the MP & L check and identification card. Both fled when Helton confronted them. Shephard and Gibson entered a gray car with two other people and drove away; Helton followed in his vehicle and used his cellular telephone to alert authorities. The fleeing car, driven by Mitchem, crashed into a tree.
Yazoo City police officer Larry Davis saw Mitchem fleeing the accident scene on foot, running into nearby woods. On the wrecked car's back seat police found a typewriter. In the typewriter case they found three counterfeit checks payable to Keach drawn on Trustmark and a counterfeit check payable to Kendre Batliner drawn on First American Bank. Examination of the typewriter ribbon indicated that it had produced the counterfeit checks and identity documents used by the four. A search of the car further yielded a lamination kit, 15 blank documents, 1 a South Carolina identification card bearing Mitchem's name and photograph, and a booklet handwritten by Mitchem entitled "Target 92," detailing plans for a large scale check-passing scheme. Authorities broadcast a description of Mitchem and arrested Gibson, Chappell, and Shephard. A search for Mitchem in the immediate area proved fruitless.
Approximately two hours later Yazoo City deputy sheriff Randy Veazey, who had participated in the initial search for Mitchem, saw a man attempting to flag a car a short distance from the crash site. As the man's physical appearance and clothing met the broadcast description of Mitchem and he appeared to have been running through the woods and responded evasively to an offer of assistance, Veazey requested identification. When the man produced no identification, Veazey took him into custody. While in custody, after police identified him and provided Miranda warnings, Mitchem consented in writing to a search of his Jackson hotel room. The search revealed Shephard's Kentucky identification and 36 blank documents identical to those found in the getaway car, all bearing Mitchem's fingerprints. They also found a billfold containing Chappell's identification and a letter addressed to Kendre Batliner, produced by the typewriter found in the vehicle.
The grand jury returned a four-count indictment against Chappell, Mitchem, Gibson, and Shephard. Count One charged conspiracy to make, utter, and possess counterfeit securities with intent to deceive in violation of 18 U.S.C. Secs. 371, 513(a). Counts Two and Three charged violations of 18 U.S.C. Secs. 2, 513(a) arising from presentation of counterfeit checks at the Sunflower and Super Valu markets, respectively. 2 The district court denied pretrial motions by all defendants to dismiss the indictment and by Mitchem to suppress evidence recovered as a result of his arrest, including that from his hotel room. After the government's case-in-chief and again at the close of evidence all defendants unsuccessfully moved for judgment of acquittal. The jury found the defendants guilty on all three counts, and the trial court denied post-trial motions. The district court imposed concurrent 21-month prison terms on Chappell, Gibson, and Shephard, and concurrent 54-month prison terms on Mitchem. It further sentenced each to concurrent three-year supervised release terms, restitution, and the statutory assessments. All four defendants timely appealed.
The defendants each challenge the sufficiency of the evidence. Mindful that weight and credibility assessments lie within the exclusive province of the jury, 3 in considering this claim we view the evidence and draw all reasonable inferences most favorable to the verdict. 4 If the evidence so viewed would permit a rational jury to find all elements of an offense proven beyond a reasonable doubt, we must affirm the conviction. 5 The evidence need not exclude all hypotheses of innocence. 6
In a prosecution under 18 U.S.C. Sec. 513(a), 7 the government must prove that the defendants: (1) made, uttered, or possessed (2) a counterfeit security (3) of an organization (4) with intent to deceive another person, organization, or government. To obtain a conspiracy conviction under 18 U.S.C. Sec. 371, the government had to demonstrate an agreement by two or more persons to violate the law, an overt act by any coconspirator in furtherance of the scheme, and each defendant's knowing and voluntary participation. 8 Concert of action may give rise to an inference that defendants entered into the requisite agreement. 9
Defendants claim that because the government failed to demonstrate any connection of the Super Valu and Sunflower supermarkets to interstate commerce, the district court should have granted their motions for judgment of acquittal. We find this argument unpersuasive. While section 513(c)(4) defines "organization" as an entity which "operates in or the activities of which affect interstate or foreign commerce," the statute provides no such definition for the term "person." Section 513 does not require the government to demonstrate an individual victim's connection to interstate commerce. The uncontroverted evidence shows that the defendants sought to induce store employees to part with money in their possession through presentation of counterfeit documents. Ordinarily, where a defendant utilizes counterfeit securities in an effort to obtain property from or induce action by an organization, section 513 requires the government to prove the victim's connection to interstate commerce. The instant scheme was structured to deceive the check-cashing employees; the charged offenses involved intent to deceive those persons. The government's failure to demonstrate a connection of the grocery stores to interstate commerce, therefore, in the context of this case, does not render the evidence insufficient to support convictions under section 513.
Shephard further suggests that inasmuch as the government failed to prove the connection of MP & L to interstate commerce it did not prove that the offenses charged involved counterfeit securities of an "organization" as defined in section 513. The mere fact that the documents proffered to merchants in this scheme purported to be checks drawn on the account of MP & L in no way diminishes the fact that they also purported to be drawn on that company's account at Trustmark. As the government points out, section 513 does not expressly or impliedly state that a document may be the security of only one organization. Shephard's attempt to raise a sufficiency challenge by characterizing the counterfeit checks as "of MP & L" rather than as "of Trustmark" is frivolous. 10
Finally, Chappell, Gibson, and Mitchem claim that the government failed to carry its burden of proof with regard to their involvement in the offenses charged, presenting proof only of their presence at the crime scene. We disagree. Review of the record indicates that the government presented evidence from which a reasonable jury could conclude that each actively participated in both the conspiracy and substantive offenses. This contention fails.
Shephard and Mitchem fault the district court's denial of their motion to dismiss the indictment for failure to identify the victims of the check-passing scheme and their connection to interstate commerce. We review de...
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