U. S. v. Ismoila
| Decision Date | 13 November 1996 |
| Docket Number | N,No. 93-2486,93-2486 |
| Citation | 100 F.3d 380 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Moyosore ISMOILA; Segun Debowale; Nuratu Lawanson, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Moyosore ISMOILA, Defendant-Appellant. o. 95-20171, 93-2471, 93-2487, 93-2494 |
| Court | U.S. Court of Appeals — Fifth Circuit |
Albert A Balboni, Paula Camille Offenhauser, Katherine L Haden, US Attorney's Office, Houston, TX, plaintiff-appellee.
Moyosore Isomila, Texarkana, TX, Pro se
Jerome McConnell Godinich, Jr, Houston, TX, for Segun Debowale, Defendant - Appellant.
Chidi Amaefule, Dallas, TX, pro se.
Roland E Dahlin, II, Federal Public Defender, H Michael Sokolow, David B Gerber, Federal Public Defender, Houston, TX, for Nuratu Lawanson, defendant-appellant.
Appeals from the United States District Court for the Southern District of Texas.
Before Duhe and Dennis, Circuit Judges, and Duval, District Judge.1
Segun Debowale and Nuratu Lawanson were convicted by a jury of conspiracy to commit wire fraud, money laundering, and use of unauthorized access devices, in violation of 18 U.S.C. 371 (count 1); aiding and abetting wire fraud, in violation of 18 U.S.C. 2 and 18 U.S.C. 1343 (counts 2-9); aiding and abetting money laundering, in violation of 18 U.S.C. 2 and 1956(a)(1)(A)(i), (a)(1)(B)(i) (counts 10-15); and aiding and abetting the use of unauthorized access devices, in violation of 18 U.S.C. 2 and 18 U.S.C. 1029(a)(2) (count 16). Moyosore Ismoila was convicted by a jury of conspiracy to commit wire fraud, money laundering, and use of unauthorized access devices, in violation of 18 U.S.C. 371 (count 1); aiding and abetting wire fraud, in violation of 18 U.S.C. 2 and 18 U.S.C. 1343 (counts 2-9); and aiding and abetting the use of unauthorized access devices, in violation of 18 U.S.C. 2 and 18 U.S.C. 1029(a)(2) (count 16). Lawanson was sentenced to a total of thirty-two months imprisonment followed by three years of supervised release. Debowale was sentenced to a total of eighty-seven months imprisonment followed by five years of supervised release, and was ordered to pay $360,689 in restitution. Ismoila was sentenced to a total of sixty months imprisonment followed by three years of supervised release, and was ordered to pay $111,008 in restitution. On appeal, the Appellants raise multiple points of error. We affirm the convictions and sentences of Debowale and Ismoila. We reverse the conviction of Lawanson on Count 11, affirm on all other counts, vacate her sentence on Count 11, affirm her sentence on all other counts and render.
The Appellants defrauded various banks and credit card companies by processing hundreds of fraudulent charges on stolen credit cards to obtain cash. They posed as legitimate business owners, which allowed them to obtain the electronic machinery by which they processed false charges to the stolen credit cards.
Before describing the details of the Appellants' scheme, a review of the mechanics of a typical credit card transaction is helpful. The primary victims of the conspiracy are known as issuing banks. Issuing banks are members of VISA and MasterCard, not-for-profit associations of member banks that operate a worldwide communication system for financial transfers using credit cards. Issuing banks issue credit cards to consumers, enabling those consumers to make credit-card purchases at participating businesses. To accept credit cards, businesses must open an account with a merchant bank. Merchant banks, like issuing banks, are members of VISA and MasterCard, but merchant banks have accounts with businesses, not consumers. Once a business is electronically connected with a merchant bank, it can accept a consumer's credit card by processing the credit card through a point-of-sale terminal provided to it by the merchant bank. If the merchant bank approves the sale, it immediately credits the business for the amount of the consumer's purchase. The merchant bank then transmits the information regarding the sale to VISA or MasterCard, who in turn forward the information to the bank that issued the card to the consumer who made the purchase. If the issuing bank approves the sale, it notifies VISA or MasterCard and then pays the merchant bank at the end of the business day. The issuing bank carries the debt until the cardholder pays the bill.
The Appellants opened approximately ten sham businesses and applied for merchant accounts for those businesses with Comdata Corporation, Western Union, Discover Card, and First Interstate Bank of South Dakota. The Appellants used these businesses to defraud the banks and credit card companies in two different ways.
In one method, the Appellants applied for merchant credit card accounts for their sham businesses. At these businesses, the Appellants processed stolen credit cards in sham transactions in exchange for nonexistent merchandise. After these charges were relayed to the merchant banks, those banks then deposited the amount of each charge directly into the Appellants' bank accounts, and the Appellants withdrew the funds.2
The Appellants also set up sham check-cashing businesses for which they obtained accounts with Comdata and Western Union. At these businesses, the Appellants used the stolen credit cards to purchase "Comcheks" issued by Comdata Corporation or "Flash Cash" checks issued by Western Union. The Appellants then deposited the Comcheks into their business bank accounts or had Western Union deposit the amount of the Flash Cash checks into these accounts, and later withdrew the funds.
The issuing companies became aware of the fraudulent transactions when the holders of the stolen cards complained that they had not made the charges listed on their respective bills. The scheme involved approximately 270 cardholders and 44 different issuing banks. Charges of $539,135 were made on these credit cards at the Appellants' businesses, all but $16,350 of which were confirmed to be fraudulent.
The Government presented the testimony of five credit cardholders, and representatives from Comdata, Western Union, First Interstate, Discover, MasterCard, and four issuing banks. In addition, the prosecution introduced records of 44 issuing banks that reflected account information of 270 cardholders. There was also testimony from the employees of the banks into which the Appellants deposited the proceeds from their conspiracy and the owners of property on which the fraudulent businesses were located. In addition, Special Agent Judy Sly testified as to the details of her investigation, and the Government introduced evidence seized during the execution of a search warrant at one of the businesses. Finally, the Government produced the testimony of Taiwo Oyewuwo, a.k.a. Adetoye Falusi, a member of the conspiracy who pled guilty and agreed to testify for the Government.
Lawanson first asserts that the evidence was insufficient to sustain her convictions. She was convicted on all counts encompassing four different offenses: conspiracy (count 1); aiding and abetting wire fraud (counts 2-9); aiding and abetting money laundering (counts 10-15); and aiding and abetting the use of unauthorized access devices (count 16). The Government concedes that the evidence was insufficient to support Lawanson's conviction on count 11, and thus we reverse her conviction and vacate her sentence on that count. On all other counts the evidence was sufficient.
We review the sufficiency of the evidence in "the light most favorable to the verdict, accepting all credibility choices and reasonable inferences made by the jury." United States v. McCord, 33 F.3d 1434, 1439 (5th Cir. 1994) (internal quotations omitted), cert. denied, 115 S. Ct. 2558 (1995). A conviction must therefore be upheld if a rational jury could have found that the prosecution proved the essential elements of the crime charged beyond a reasonable doubt. Id. It "'is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every Conclusion except that of guilt.'" Id. (quoting United States v. Bell, 678 F.2d 547, 549 (5th Cir. 1982), aff'd, 462 U.S. 356, 76 L. Ed. 2d 638, 103 S. Ct. 2398 (1983)). This standard of review is the same regardless whether the evidence is direct or circumstantial. United States v. Cardenas, 9 F.3d 1139, 1156 (5th Cir. 1993), cert. denied, 128 L. Ed. 2d 876, 114 S. Ct. 2150 (1994).
Lawanson concedes that there was sufficient evidence for a reasonable jury to find a conspiracy and that wire fraud, money laundering, and use of unauthorized access devices occurred. She asserts, however, that the Government failed to prove that she knowingly participated in the fraudulent scheme.
To satisfy the intent requirement of conspiracy, the Government must show that Lawanson knew of the conspiracy and voluntarily joined it, United States v. Chaney, 964 F.2d 437, 449 (5th Cir. 1992), and that Lawanson had the requisite intent to commit the underlying substantive offenses. United States v. Buford, 889 F.2d 1406, 1409 n.5 (5th Cir 1989). Because the Government proceeded under the theory that Lawanson aided and abetted the substantive violations, it is not necessary to prove that Lawanson herself completed each specific act charged in the indictment. The Government must prove, however, that she associated with the criminal venture such that she had the same criminal intent as the principal. See United States v. Murray, 988 F.2d 518, 522 (5th Cir. 1993). "To aid and abet simply means to assist the perpetrator of a crime while sharing the requisite criminal intent." United States v. Jaramillo, 42 F.3d 920, 923 (5th Cir.), cert. denied, 131 L. Ed. 2d 1013, 115 S. Ct. 2014 (1995).
The intent necessary for wire fraud is the specific...
To continue reading
Request your trial
-
Flores v. Johnson
...954, 111 S.Ct. 2262, 114 L.Ed.2d 714 (1991); United States v. Molinar-Apodaca, 889 F.2d 1417 (5th Cir.1989). 131. United States v. Ismoila, 100 F.3d 380, 386 (5th Cir.1996); United States v. Leahy, 82 F.3d at 633; United States v. Salazar, 66 F.3d at 728; United States v. Crawford, 52 F.3d ......
-
Cordova v. Johnson
...could reasonably have concluded that when examined in the aggregate, the evidence sufficed to establish guilt); United States v. Ismoila, 100 F.3d 380, 386 (5th Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 1712, 137 L.Ed.2d 836 (1997); United States v. Leahy, 82 F.3d at 633; United Stat......
-
State v. Biden
...even if it did, we would not find any of them clearly erroneous in the light of the record as a whole. See, e.g. , United States v. Ismoila , 100 F.3d 380, 396 (5th Cir. 1996) ("[A]s long as the determination is plausible in light of the record as a whole, clear error does not exist.").b. T......
-
U.S. v. John
...that is used to calculate his offense level"). 59. United States v. Brown, 7 F.3d 1155, 1159 (5th Cir. 1993). 60. United States v. Ismoila, 100 F.3d 380, 396 (5th Cir. 1996). 61. § 2B1.1 cmt. n. 3(C). 62. United States v. Sowels, 998 F.2d 249, 251 (5th Cir. 1993). 63. United States v. Krenn......
-
Rule 804(b) (6) - the illegitimate child of the failed liaison between the hearsay rule and confrontation clause.
...States v. Laster, 258 F.3d 525, 530 (6th Cir. 2001); United States v. Earles, 113 F.3d 796, 800 (8th Cir. 1997); United States v. Ismoila, 100 F.3d 380, 393 (5th Cir. 1996); United States v. Deeb, 13 F.3d 1532, 1536-37 (11th Cir. 1994); United States v. Clark, 2 F.3d 81, 84 (4th Cir. 1993);......
-
§ 33.10 BUSINESS RECORDS: FRE 803(6)
...from a bystander: the officer qualifies as acting in the regular course but the informant does not.").[120] See United States v. Ismoila, 100 F.3d 380, 392 (5th Cir. 1996) ("The [credit] cardholders statements do not qualify as business records of the cardholders because the business record......
-
§ 35.03 "EQUIVALENT GUARANTEE OF TRUSTWORTHINESS" REQUIREMENT
...of the [FRE 803] exceptions, such prior subsection should be relied upon instead of [the residual exception]"); United States v. Ismoila, 100 F.3d 380, 393 (5th Cir. 1996) (holding that where hearsay statements do not qualify under the business records exception, they may properly be admitt......
-
§ 33.10 Business Records: FRE 803(6)
...from a bystander: the officer qualifies as acting in the regular course but the informant does not.").[118] See United States v. Ismoila, 100 F.3d 380, 392 (5th Cir. 1996) ("The [credit] cardholders statements do not qualify as business records of the cardholders because the business record......