U.S. v. Conner
| Decision Date | 28 July 2008 |
| Docket Number | No. 06-50218.,06-50218. |
| Citation | 537 F.3d 480 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Eric CONNER, also know as Edollaz, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Kenneth Joseph Kukec (argued), Miami, FL, for Conner.
Appeal from the United States District Court for the Western District of Texas.
Before REAVLEY, JOLLY and GARZA, Circuit Judges.
Eric Conner was convicted of conspiracy to commit access-device fraud and mail fraud. He received a 100-month sentence. Conner now appeals the conviction and his sentence. He argues, among other things, that his conviction should be vacated because there was insufficient evidence of the conspiracy and because the district court erroneously charged the jury under a theory of "deliberate ignorance." We disagree and affirm his conviction. Connor also argues that we must vacate his sentence because the district court incorrectly counted the number of "victims" under section 2B1.1(b)(2) of the Sentencing Guidelines. We agree and remand for re-sentencing.
William Whatley began purchasing goods at Texas Home Depot stores using commercial credit accounts without authorization in 2000. Whatley charged Home Depot merchandise or gift cards to the credit accounts of multiple companies. He redeemed the gift cards for cash or sold the merchandise.
Later that year, Whatley showed his friend Daniel Hester how to employ the scam. Hester then taught the scam to Shannon Pollock. Hester, Whatley, and Pollack would all share account information with one another. After Hester expanded the scheme to Sam's Club stores, Pollock and Whatley began doing the scheme there.
During this same period, Hester also explained the fraud to Daniel Beery. Hester and Beery began to share account information and to do the scam together. They also took trips to multiple states to perpetrate the fraud. Beery soon took the fraud "to the next level," employing the scam all over the country.
In Spring 2003, Beery ran into Eric Conner (the defendant in this case) in Bozeman, Montana, near where they attended high school. Conner had begun classes at Montana State University. During his freshman year, in January 2001, he opened an account on eBay—then a relatively new internet platform for conducting private auctions—under the name "edollaz."
Beery explained to Conner that he was in the "wholesale gift card business," and he was selling gift cards for approximately 70% of their face value. Conner purchased multiple Home Depot gift cards from Beery, and he resold several of them on eBay. He also used some of the gift cards to purchase Home Depot items, which he resold on eBay. Conner began purchasing gift cards from Beery in volume. He found it especially profitable to buy high-quality power tools using the gift cards, and to resell the tools on eBay.
Shortly thereafter, Beery introduced Hester to Conner, and Conner began selling goods for Hester as well. Hester testified that he told Conner about "the scam" and that Conner was present when he and Beery had conversations about what transpired in the stores. But Conner claimed at trial that he had no actual knowledge of how Hester and Beery acquired the tools. Hester also testified that when they practiced the scam, Conner or Beery usually waited in the car, ready to make a getaway, and that all three had conversations about what would occur if the police came.
In April 2004, Beery was arrested in Minnesota. At the time of his arrest, Beery had a large amount of tools. He was charged in Minnesota state court with credit card fraud. Conner, aware of the arrest, paid for Beery's attorney.
While Beery was in jail, Conner and Hester made plans to go on several trips "to pick up tools" at Lowe's and other stores. Conner told Hester that he had listed and pre-sold tools on eBay before they had been acquired. So, during their trips, Conner rented the cars, navigated their way to Lowe's stores, told Hester which tools he needed, and helped load the tools into the cars. The tools were then shipped either to Las Vegas, where Conner lived, or directly to eBay customers. Conner paid for the shipments.
Hester and Conner took a trip to Florida in January 2005. On the trip, Conner plotted on a map the Lowe's stores they would visit, and they also had a map indicating shipping locations. Conner kept a spiral notebook detailing the needs of customers. On two occasions, Conner accompanied Hester while Hester obtained fake IDs for use during the scam. During the Florida trip, Hester and Conner shipped an expensive drill kit to undercover Secret Service Agent Andrew Dooher in Texas.
In April 2005, after Beery was released from jail, he, Hester, and Conner made additional trips together where items were obtained using the fraud. Conner was arrested in Las Vegas in July 2005.
In June 2005, a grand jury indicted Berry, Conner, Hester, Whatley, and Pollock. The indictment charged the defendants with conspiracy to commit access-device fraud, in violation of 18 U.S.C. § 1029, from approximately November 2001 until approximately June 2005. Conner was also charged with mail fraud, in violation of 18 U.S.C. § 1341. Conner alone proceeded to trial, his co-defendants having pleaded guilty pursuant to cooperation agreements (except for Beery, who was then a fugitive). After a jury convicted Conner, the district court imposed a sentence of 90 months for the conspiracy count and a concurrent sentence of 100 months on the mail fraud count.
Conner now appeals. He challenges both his conviction and sentence.
Conner argues that there was insufficient evidence to support his conviction. We review de novo "whether a rational trier of fact, after considering all the evidence and reasonable inferences drawn therefrom in a light most favorable to the verdict, could have found the defendant guilty beyond a reasonable doubt." United States v. Harris.1
The superseding indictment charged all five defendants with conspiring to use unauthorized access devices with the intent to defraud. To prove a conspiracy, the Government must show "(1) an agreement between two or more persons to pursue an unlawful objective; (2) the defendant's knowledge of the unlawful objective and voluntary agreement to join the conspiracy; and (3) an overt act by one or more of the members of the conspiracy in furtherance of the objective of the conspiracy." United States v. Williams.2
Conner argues that there was insufficient evidence of a conspiracy because the alleged co-conspirators shared only a technique; they were not members of a conspiracy. He points to United States v. Gutierrez-Farias, where we held that the Government must prove that "each conspirator knew of, intended to join, and participated in the conspiracy."3 But the evidence does not support Conner's theory. It is true that the conspiracy involved the sharing of a technique for how to use business accounts without authorization, but the participants also assisted each other in practicing the scheme. The evidence shows that Hester, Whatley, and Pollock shared account information with each other. In fact, there is evidence that Beery and Pollock both used the same fraudulent Sam's Club card. Because Pollock was "jittery and nervous" about committing the scheme, Hester actually set up an account for Pollock to use. The above shows that Pollock and Whatley were involved in something more than the simple sharing of a technique, and there is overwhelming evidence that Hester, Beery, and Conner were involved in a prototypical conspiracy. They obtained the information together that enabled the conspiracy (e.g., purchasing fake IDs); they committed the fraud together; they shared information about how to successfully perpetrate the fraud; and they coordinated selling the fraudulently obtained goods.
Conner presents other challenges to the sufficiency of the evidence for the access-device fraud conspiracy. These arguments fail because the Government demonstrated by sufficient evidence that during multiple one-year time periods Conner conspired to use unauthorized access devices and/or to sell the proceeds derived therefrom. See 18 U.S.C. § 1029.
Conner alleges that there was insufficient evidence for his mail fraud conviction. His first argument is that the Government did not show a "scheme to defraud," an element of the mail fraud offense, see 18 U.S.C. § 1341, because the Government failed to show that he engaged in the access-device conspiracy. We disagree with Conner's argument because there was sufficient evidence of the access-device conspiracy, as discussed above.
Conner also argues that the Government's evidence was insufficient because during summation it abandoned its claim that the scheme to defraud employed "false material representations," another element of the mail fraud offense. See id. This argument is without merit because during summation the Government said the scheme involved fraudulently obtaining items using unauthorized access devices and that Conner offered the stolen tools as his to sell and averred that he was a "legitimate" seller, all false representations.
Finally, Conner argues that the Government failed to establish the provenance of the drill kit that was mailed to Agent Dooher; specifically, that it was one of the tool kits Hester obtained by fraud during his trip with Conner to Florida. In fact, there was overwhelming evidence that tied the drill kit sold to Agent Dooher as an item obtained by Conner and Hester during the Florida trip. The evidence came from Hester's testimony, as well as corroboration from the owner of the place from where the drill kit was shipped.
Conner argues that ...
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