U.S.A. v. Samaria

• Decision Date: 01 August 2000
• Docket Number: Docket No. 00-1244
• Citation: 239 F.3d 228
• Parties: (2nd Cir. 2001) UNITED STATES OF AMERICA, Appellee, v. LANCE SAMARIA, aka Lance Samarie, ERIC RONDELL GLOVER, Defendants, FRANK ELAIHO, Defendant-Appellant
• Court: U.S. Court of Appeals — Second Circuit

Page 228

239 F.3d 228 (2nd Cir. 2001)

UNITED STATES OF AMERICA, Appellee, v. LANCE SAMARIA, aka Lance Samarie, ERIC RONDELL GLOVER, Defendants, FRANK ELAIHO, Defendant-Appellant.

Docket No. 00-1244

August Term, 2000

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: November 8, 2000

Decided: January 23, 2001

Appeal from a judgment entered after a jury trial in the United States District Court for the Southern District of New York (Richard M. Berman, Judge), convicting defendant-appellant Frank Elaiho of conspiracy and fraud in violation of 18 U.S.C. §§ 2, 371, 1029(a)(2).

We reverse on all counts finding the evidence insufficient to support a conviction. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] TIFFANY M. ERWIN, Assistant United States Attorney, New York, New York (Mary Jo White, United States Attorney for the Southern District of New York, Baruch Weiss, Assistant United States Attorney, of counsel), for Appellee.

COLLEEN P. CASSIDY, The Legal Aid Society, Federal Defender Division Appeals Bureau, New York, New York, for Appellant.

Before: STRAUB, SOTOMAYOR, Circuit Judges, and SPATT, District Judge.^*

SOTOMAYOR, Circuit Judge:

Defendant Frank Elaiho appeals from a judgment following a jury trial convicting him of conspiring to receive or possess stolen goods and conspiring to commit credit card fraud in violation of 18 U.S.C. § 371 (1994), and of committing credit card fraud and aiding and abetting credit card fraud in violation of 18 U.S.C. §§ 2, 1029(a)(2) (1994). We find the evidence insufficient to prove that Elaiho knowingly and intentionally participated in the crimes charged. Accordingly, we reverse Elaiho's conviction on all counts.

BACKGROUND

This appeal presents the issue of whether the government has offered sufficient evidence to prove that Frank Elaiho was a member of an extensive criminal conspiracy to use stolen credit cards numbers to obtain tens of thousands of dollars worth of mail-order goods. Elaiho claims he was not involved in such a conspiracy and was simply a gypsy cab driver taking passengers to their requested destinations.¹

Lance Samaria and Eric Rondell Glover, the other individuals charged in the indictment, pled guilty to participation in the complex criminal credit card scheme. Over a three month period, Samaria and Glover stole credit card numbers, rented public mailboxes from the company Mailboxes, Etc. at locations around Manhattan, and contracted for voice mail accounts. They changed the addresses and phone numbers corresponding to the credit card numbers they had stolen, and, for some of the cards, requested credit-line increases. They then phoned in orders for expensive computer equipment and directed that the merchandise be sent to their rented mailboxes. To convince the mail-order businesses to send their orders to the rented mailboxes, they provided additional identifying information over the phone and faxed copies of false drivers' licenses they had obtained under the cardholders' names. After one mail-order computer company detected evidence of fraud in computer orders sent to Manhattan, it contacted the United States Secret Service, which commenced an investigation.

According to testimony at trial, Secret Service agents first became aware of Elaiho when monitoring the last stage of this scheme, at the moment that Samaria and Glover went to retrieve deliveries made to one of their rented mailboxes. At one Mailboxes, Etc. store on November 13, 1998, Samaria was observed loading a large box into Elaiho's car. An agent testified that she saw Elaiho "kind of looking around where other people [were] walking." After Samaria finished loading the box into the car, the agent said that she saw Elaiho sit in the passenger's seat, with Samaria behind the wheel, and a third person, assumed to be Glover, in the backseat. Before the car drove away, the agent recorded the license plate number which was later traced to Elaiho's rental car.

On November 18, 1998, agents saw the same car pull up to the same Mailboxes, Etc. store with Elaiho driving, Samaria in the passenger's seat, and Glover in the backseat. Samaria went inside the Mailboxes, Etc. store and returned with one large and one small box. Samaria hailed a New York City yellow cab, put the boxes in, and left. Elaiho testified that Glover told him to follow the yellow cab which stopped a few blocks away. There, Samaria unloaded the two boxes from the yellow cab at the curb and crossed the street toward some pay phones. Glover got out and stood by the boxes, and Elaiho remained in his car watching the scene. There, all three were arrested. Inside the two boxes was found computer equipment purchased with a stolen credit card number.

An agent testified at trial that Elaiho, after being arrested and read his Miranda rights, stated that he was a cab driver. When asked, Elaiho said that he did not know Samaria or Glover, that he had never been to the Mailboxes, Etc. location prior to that day-and thus could not have been the person whom the agent had observed on November 13th--and that he had not lent his car to anyone else who could have driven to the Mailboxes, Etc. location on a prior occasion.

According to Elaiho's version of events, on November 18, 1998, Glover found him at Elaiho's established pick-up point in the Bronx and hired him to transport Glover and Samaria without Elaiho knowing the purpose of the trip. Elaiho also testified at trial that, contrary to his alleged statements upon arrest, someone else had in fact borrowed his car on November 13, 1998.

At trial, the government presented no evidence of any other contact or connection between Elaiho and Samaria or Glover outside of Elaiho's presence at the two pickups, and no evidence that Elaiho was in any way involved in the theft of credit card numbers, ordering of goods, or any other aspect of the fraud scheme.

Samaria, Glover, and Elaiho were charged with conspiracy to receive or possess stolen property and to commit credit card fraud in violation of 18 U.S.C. §§ 371, 1029(b)(2), and credit card fraud and aiding and abetting credit card fraud in violation of 18 U.S.C. §§ 2, 1029(a)(2). After Samaria and Glover pled guilty, Elaiho maintained his innocence, refused the opportunity to plead to a lesser misdemeanor offense, and eventually went to trial. Elaiho was convicted on all counts and sentenced to three and one-half years' probation, with the first two months served in a community confinement center, followed by four months of home detention. The court also imposed a fine of $2,000 and a mandatory $400 assessment.

DISCUSSION

A. Standard of Review

A defendant bears a heavy burden in seeking to overturn a conviction on grounds that the evidence was insufficient. See United States v. Marji, 158 F.3d 60, 63 (2d Cir.), cert. denied, 525 U.S. 1048 (1998). When challenged on sufficiency grounds, a conviction will be affirmed if, viewing all the evidence in the light most favorable to the prosecution, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). In considering such challenges, when there are conflicts in the testimony, we defer "to the jury's determination of the weight of the evidence and the credibility of the witnesses, and to the jury's choice of the competing inferences that can be drawn from the evidence." United States v. Morrison, 153 F.3d 34, 49 (2d Cir. 1998).

Although a defendant's burden is heavy, Elaiho has met it here by demonstrating that the government failed to offer sufficient evidence at trial from which a jury could reasonably infer that Elaiho had the requisite knowledge and specific intent for the crimes charged. The evidence that is otherwise lacking from the government's proof is not supplied by appeal to evidentiary presumptions that permit, at most, an inference of knowledge but not of specific intent to commit the charged offenses.

B. The Requirement of Knowledge and Specific Intent

Each of the criminal statutes under which Elaiho was charged requires proof that Elaiho knowingly and intentionally participated in the offenses charged. To support a conviction, the relevant conspiracy, fraud, and aiding and abetting statutes require more than evidence of a general cognizance of criminal activity, suspicious circumstances, or mere association with others engaged in criminal activity.

1. Conspiracy

Elaiho was charged with conspiring to receive or possess stolen goods,² and conspiring to commit credit card fraud.³ See 18 U.S.C. §§ 371, 1029(b)(2). "To prove conspiracy, the government must show that the defendant agreed with another to commit the offense; that he knowingly engaged in the conspiracy with the specific intent to commit the offenses that were the objects of the conspiracy; and that an overt act in furtherance of the conspiracy was committed." United States v. Monaco, 194 F.3d 381, 386 (2d Cir. 1999) (internal quotation marks omitted), cert. denied, 120 S.Ct. 1441, 1696 (2000). "A conspiracy need not be shown by proof of an explicit agreement but can be established by showing that the parties have a tacit understanding to carry out the prohibited conduct." Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999) (internal quotation marks omitted). A defendant's participation in a criminal conspiracy "may be established entirely by circumstantial evidence," United States v. Desimone, 119 F.3d 217, 223 (2d Cir. 1997), and, "once a conspiracy is shown to exist, the evidence sufficient to link another defendant to it need not be overwhelming." United States v. Jackson, 180 F.3d 55, 74 (2d Cir. 1999) (internal quotation marks omitted), cert. denied,120 S.Ct. 2731 (2000).

Nevertheless, conspiracy to receive or possess stolen goods is a specific intent crime, requiring that the government establish beyond a reasonable doubt that the defendant had the specific intent to violate the...