U.S. v. Jones

• Decision Date: 08 July 2008
• Docket Number: No. 07-1135.,No. 07-1123.,07-1123.,07-1135.
• Citation: 530 F.3d 1292
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Shyla Jesse Star JONES a/k/a Michelle, and Anthony Wright, a/k/a T, a/k/a Rose, a/k/a Playboy, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

530 F.3d 1292

UNITED STATES of America, Plaintiff-Appellee, v. Shyla Jesse Star JONES a/k/a Michelle, and Anthony Wright, a/k/a T, a/k/a Rose, a/k/a Playboy, Defendants-Appellants.

No. 07-1123.

No. 07-1135.

United States Court of Appeals, Tenth Circuit.

July 8, 2008.

Vicki Mandell-King, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with her on the briefs), Denver, Colorado, for Defendant-Appellant Shyla Jesse Star Jones.

Clifford J. Barnard, Boulder, Colorado, for Defendant-Appellant Anthony Wright.

Michael C. Johnson, Assistant United States Attorney (Troy A. Eid, United States Attorney, with him on the briefs), Denver, Colorado, for Plaintiff-Appellee.

Before HENRY, Chief Judge, O'CONNOR, Associate Justice, Supreme Court of the United States (Retired), and TACHA, Circuit Judge.

HENRY, Chief Judge.

A jury convicted Shyla Jesse Star Jones and Anthony Wright of bank fraud and conspiracy after the couple orchestrated a scheme to defraud Wells Fargo Bank, where Ms. Jones worked, by cashing fraudulent checks. The jury also convicted Ms. Jones of drug trafficking and using a firearm in a drug trafficking offense after Secret Service agents arrested her for bank fraud and found marijuana and a loaded .380 caliber handgun in her vehicle.

In this direct appeal, Ms. Jones and Mr. Wright raise several claims. Ms. Jones argues, first, that the joinder of the bank fraud and conspiracy counts and the drug and firearm counts against her was not permissible under Rule 8(a) of the Federal Rules of Criminal Procedure. Second, Ms. Jones argues that the district court erred in denying her motion to sever the drug and firearm counts from the bank fraud and conspiracy counts. Mr. Wright argues that the district court erred in denying his motion to sever his trial from Ms. Jones's. Finally, Ms. Jones and Mr. Wright each argue that the district court committed three errors at sentencing: (1) incorrectly determining that they had employed "sophisticated means" in effectuating their scheme and therefore incorrectly applying a two-level enhancement to their offense levels; (2) incorrectly calculating the amount of loss; and (3) incorrectly calculating the amount of restitution by attributing certain fraudulent checks to the conspiracy.

Taking jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm.

I. BACKGROUND

A. Facts

From approximately June 2004 until December 2004, Ms. Jones worked at a Denver branch of Wells Fargo Bank as a phone bank operator. During that time, she lived with Mr. Wright, with whom she had a long-term intimate relationship. Ms. Jones's responsibilities at Wells Fargo included providing assistance to customers via telephone, and, as part of her job, she had access to confidential information associated with virtually every checking account in Wells Fargo's system. Ms. Wright's access to this information enabled her to assist customers seeking to transfer funds from one Wells Fargo account to another.

Soon after she started working for Wells Fargo, Ms. Jones began to improperly access confidential customer account information, which she shared with Mr. Wright. Around that time, Mr. Wright befriended Katherine Frank, a bank teller who worked at the same Wells Fargo branch as Ms. Jones and who also had access to confidential information associated with Wells Fargo checking accounts. Like Ms. Jones, Ms. Frank began to pass confidential account information along to Mr. Wright.

Using a home computer and generic check stock, Ms. Jones and Mr. Wright produced false checks bearing the account information retrieved by Ms. Frank and Ms. Jones. Either Ms. Jones or Mr. Wright would sign the checks in the account holder's name. They chose to create checks only for accounts with high balances and frequent account activity, believing that false transactions might not be detected by the holders of such accounts. As a further measure to avoid scrutiny, Ms. Jones and Mr. Wright recruited several individuals to cash the checks for them in exchange for a fee. Some of those individuals, in turn, recruited others, so that the ring of check cashers grew to more than fifteen individuals.

In February 2005, Lisa Tennyson, a Wells Fargo financial investigator, initiated a formal inquiry into reports of fraud relating to twenty-seven accounts at Ms. Jones and Ms. Frank's branch. Early in her investigation, Ms. Tennyson observed that several of the payees of the fraudulent checks had the same, or similar names. She also noticed that Ms. Jones or Ms. Frank had accessed each of the accounts in question. Subsequent investigation by Wells Fargo and federal law enforcement agents, who were contacted by Ms. Tennyson, led to cooperation from several members of the check cashing ring, including Roosevelt Freeman and Jamaal Burton, both of whom later testified against Ms. Jones and Mr. Wright at trial.

Having completed their investigation, Secret Service agents decided to arrest Ms. Jones on June 5, 2005. On that day, agents observed her driving alone in her white Chevrolet Suburban. Rather than initiating a traffic stop, the agents waited for Ms. Jones to park her vehicle. When she exited, agents detained her. Ms. Jones left all of the vehicle's windows down, and the agents noticed a strong smell of marijuana emanating from inside. In conducting a search of the vehicle, the agents found a brown plastic bag on the floorboard of the backseat area. The bag contained marijuana, some of which was packaged in smaller bags, suggesting to the agents that it was intended for sale. They also found a small black purse containing a loaded .380 semi-automatic handgun, $1,000 cash, and Ms. Jones's driver's license.

B. Trial and Sentencing

The superceding indictment charged Ms. Jones and Mr. Wright with six counts relating to the check cashing scheme. Ms. Jones was also charged with two counts relating to drug trafficking and firearm possession. The two were tried jointly before a jury.

Ms. Tennyson testified that Ms. Jones and Ms. Frank compromised at least thirty accounts, and the jury heard evidence that the scheme produced approximately one hundred fraudulent checks. In addition to Wells Fargo employees and federal law enforcement officers, witnesses against Ms. Jones and Mr. Wright included Mr. Freeman, Mr. Burton, and others who had cashed checks on behalf of the couple. The government also presented testimony and other evidence concerning Ms. Jones's drug and firearm charges.

After the four day trial, a jury convicted Ms. Jones of two counts of bank fraud, in violation of 18 U.S.C. § 1344; conspiracy, in violation of 18 U.S.C. § 371; possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D); and use of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). The jury convicted Mr. Wright of four counts of bank fraud in violation of 18 U.S.C. § 1344 and conspiracy in violation of 18 U.S.C. § 371.

Secret Service Agent Nicholas Horn testified at sentencing that the fraudulent checks, including those not successfully cashed, totaled $202,452.66 in intended loss to Wells Fargo. The court found that, per U.S.S.G. § 2B1.1(b)(1)(G), a 12-level enhancement was appropriate for each defendant because the amount of intended loss was between $200,000 and $400,000. Pursuant to 18 U.S.C. § 3663A, which mandates restitution to victims of certain crimes, the court ordered joint and several restitution among Mr. Wright, Ms. Jones, and others in the amount of $115,282.40, which reflected the amount of actual pecuniary loss to Wells Fargo as a result of the scheme.

II. DISCUSSION

Ms. Jones and Mr. Wright raise several arguments on appeal. Ms. Jones contends that the bank fraud counts were not sufficiently related to the drug and firearm counts to be joined under Rule 8(a) of the Federal Rules of Criminal Procedure. Both Ms. Jones and Mr. Wright appeal the district court's denial of their respective motions to sever their joint trial. See FED.R.CRIM.P. 14. Additionally, Ms. Jones and Mr. Wright argue that the district court erred when, pursuant to U.S.S.G. § 2B1.1(b)(9)(C), it imposed a two-level increase in the offense level after determining that the pair had employed "sophisticated means" to effectuate their scheme. They also contest both the court's calculation of the amount of loss to Wells Fargo, which resulted in a 12-level increase in the offense level under § 2B1.1(b)(1)(G), and the district court's calculation of restitution. They challenge both determinations on the grounds that the government failed to establish a sufficient nexus between their conspiracy and several checks attributed to it.

We consider each claim in turn.

A. Misjoinder

Ms. Jones asserts that the district court erred in permitting the joinder of counts 1 through 6 of the indictment (charging conspiracy and bank fraud), with counts 7 through 8 (charging possession with intent to distribute marijuana and use of a firearm during a drug trafficking crime). Her argument arises under Rule 8(a) of the Federal Rules of Criminal Procedure, which provides that separate offenses alleged against the same individual may be joined in an indictment if the offenses "are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan." FED. R.CRIM. P. 8(a). She contends that the acts giving rise to the bank fraud and conspiracy charges were not of the same character as the firearm and drug charges, were not based on the same transaction(s), and did not otherwise constitute part of a common scheme or plan.

On appeal, Ms. Jones concedes that under Rule 12(e) of the Federal Rules of Criminal Procedure she "waived" her misjoinder claim by not "alleging a defect in the indictment or information" prior to trial. FED.R.CRIM.P. 12(b)(3)(B). See FED. R.CRIM.P. 12(e) ("A party...