U.S.A. v. Smith

• Decision Date: 14 July 2000
• Docket Number: No. 99-3169,99-3169
• Citation: 218 F.3d 777
• Parties: (7th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SHAWNA LEANNE SMITH, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 777

218 F.3d 777 (7th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SHAWNA LEANNE SMITH, Defendant-Appellant.

No. 99-3169

In the United States Court of Appeals For the Seventh Circuit

Argued January 21, 2000

Decided July 14, 2000

Appeal from the United States District Court for the Western District of Wisconsin. No. 99-CR-16-S-01--John C. Shabaz, Chief Judge. [Copyrighted Material Omitted]

Before Bauer, Ripple and Kanne, Circuit Judges.

Bauer, Circuit Judge.

On January 28, 1999, Defendant Shawna L. Smith ("Smith") was arrested for bank fraud. She confessed within an hour after her arrest. Later, she moved to suppress her confession, but the motion was denied and her confession was used against her at trial. A jury found her guilty of six counts of bank fraud in violation of 18 U.S.C. sec. 1344 and one count of using a false social security number in violation of 42 U.S.C. sec. 408(7)(B). The United States District Court for the Western District of Wisconsin sentenced Smith to 30 months imprisonment and ordered restitution in the amount of $202,474.05. She appeals, claiming that the District Court erred in denying her motion to suppress because she did not knowingly and voluntarily waive her Miranda rights and because her statements to the authorities were not voluntary. She also challenges the District Court's inclusion of the dollar amounts she charged on stolen credit cards and the dollar amounts she attempted to obtain from advances on the cards in computing the loss amount for sentencing and restitution purposes.¹ We affirm.

I. BACKGROUND

In the summer of 1998, Shawna L. Smith left California and came to Wisconsin to participate in a bank fraud scheme. The mastermind behind the scheme, "Nepa," paired Smith with a Nigerian named Rasheed Ukaonu ("Ukaonu"). The plan was simple. Using stolen credit cards and corresponding counterfeit drivers' licenses provided by Nepa, Smith obtained mailing addresses at two different "Mailboxes, Etc." locations in Madison. Then, using five business checks that had been stolen from the mail, Smith went to five different area banks and opened one business checking account at each bank. Each account was opened in the business name of a payee of one of the stolen checks and listed as its address one of the two "Mailbox, Etc." addresses. For identification, Smith provided the banks with a false driver's license, and on one occasion, the corresponding stolen credit card. She then made a small initial cash deposit into each account.

A few days later, Smith deposited one of the stolen business checks into each corresponding account. She waited a few days for the checks to clear and then withdrew most of the available funds in the form of cash and cashier's checks, each check made payable to one of her aliases. She then quickly (usually the same day) cashed the cashier's checks at a branch location of the victim bank. To cash each of the cashier's checks, Smith posed as the payee. She showed a counterfeit driver's license, and, sometimes, the underlying credit card, for identification.

The credit cards were used for more than identification at the banks. Smith also used them to obtain almost $30,000 in unauthorized cash advances at the same banks. She charged a rental car to one of the cards, and charged $5,000 worth of gas, food, and liquor to others. The indictment against Smith originally charged her with intent to defraud using unauthorized credit cards and obtaining over $1,000 in cash advances and goods, in violation of 18 U.S.C. sec.1029(a)(2), but that count was dismissed by the Government without prejudice prior to trial.

A criminal complaint charging bank fraud was issued by the United States District Court for the Western District of Wisconsin on January 28, 1999 and Smith was arrested later that night at her last known address, a YMCA in Hollywood, California. The arrest was made by four plain clothes FBI agents and one postal inspector at 9:45 pm. Smith did not resist.

Smith was taken to the U.S. Postal Service Office in Los Angeles for questioning. The agents began by reading Smith her rights off of a standardized form. She was then given the form to read, which she appeared to do. The agents asked Smith if she understood her rights and Smith indicated that she did, either verbally or with an affirmative nod of her head. One of the agents then asked Smith to sign the waiver of rights form. Smith refused. But, when the agents asked whether she wanted to talk to them and whether they could ask her questions, Smith said "yes." Thereafter, the agents questioned Smith for about one hour, during which time she admitted her involvement in the fraud scheme. Smith never asked that the questioning be halted or that she be provided with an attorney. Smith was subsequently indicted on six counts of bank fraud, one count of credit card fraud and one count of using a false social security number.

Prior to trial, Smith moved to suppress her confession, claiming that she did not waive her Miranda rights and that because of the coercive and intimidating atmosphere during her interrogation, her statements to the agents were not voluntary. An evidentiary hearing was held before the Magistrate Judge and he recommended that the motion be denied. The District Judge adopted the Magistrate's recommendation and denied Smith's motion to suppress.

After a two day trial, a federal jury found Smith guilty on the remaining counts of bank fraud and using a false social security number. The Presentence Report recommended that the purchases on the stolen credit cards be included for purposes of offense level computation and for purposes of computing restitution. It calculated the amount at $40,320.76. Smith objected to the inclusion of that amount since the charge of credit card fraud against her had been dropped.

At the sentencing hearing, under U.S.S.G. sec.2F1.1(b)(1), the court calculated the undisputed losses from the bank fraud at $167,418.25. It also added attempted credit card transactions producing no loss in the amount of $9,800 and actual credit card losses of $35,055.80, for a total loss of $212,274.05. By including the credit card losses in the computation, Smith's base offense level was 14, instead of 13. The court also added a two level enhancement under U.S.S.G. sec.3C1.1 for obstruction of justice for Smith's false testimony at the suppression hearing and denied any downward departure under U.S.S.G. sec.3B1.2 for Smith's claim that she was only a minor participant in the scheme. Sentence was imposed at 30 months, and restitution was ordered at $202,474.05. Judgment was entered accordingly.

II. DISCUSSION

A. Motion to Suppress

The two issues before us regarding Smith's motion to suppress are whether Smith knowingly and voluntarily waived her right against self- incrimination and whether Smith's post-arrest statements to the agents were voluntary. This Court reviews the question of whether Smith's waiver of her Fifth Amendment Miranda rights was voluntary de novo. United States v. Mills, 122 F.3d 346, 350 (7th Cir. 1997), cert. denied, 522 U.S. 1033 (1997). We also review de novo Smith's claim that her inculpatory statements to the authorities were involuntary. United States v. Dillon, 150 F.3d 754, 757 (7th Cir. 1998). Both questions are considered under the totality of the circumstances. United States v. Brooks, 125 F.3d 484, 490-92 (7th Cir. 1997).

As the Government properly states in its brief, Smith's motion to suppress presents "a factual dispute," a veritable "she said" versus "they said." The District Court ruled against Smith after hearing evidence, saying Smith's testimony was "totally unbelievable." We must give deference to the District Court's findings of fact, Mills, 122 F.3d at 350-51, and credibility determinations, United States v. Jensen, 169 F.3d 1044, 1046 (7th Cir. 1999).

Smith's arguments here are the same as those raised below. She claims that her waiver was not valid and her statements not voluntary because she was handcuffed to her chair, under the influence of cocaine and sleeping pills, tired, menstruating, ill, intimidated and not allowed to use the bathroom until after she confessed. Weighed against contrasting evidence presented by the government agents, Smith's attempts to shed her confession fail.

The government agents testified, and the District Court found, that Smith's rights were read to her in a slow, deliberate and understandable manner and that Smith was given the printed form to read, which she appeared to do. When asked whether she understood her rights, Smith indicated that she did. She then refused to sign a waiver form, but went on to confess anyway.

Smith argues that she did not waive her Fifth Amendment right against self-incrimination and that her avowal should be suppressed because she refused to sign the waiver of rights form when it was presented to her. However, a Miranda waiver need not be express. It may be inferred from a defendant's understanding of her rights coupled with a course of conduct reflecting her desire to give up her right to remain silent. North Carolina v. Butler, 441 U.S. 369, 373-76 (1979). Indeed, waiver may be inferred from the defendant's conduct, even when she has refused to sign a waiver form. United States v. Banks, 78 F.3d 1190, 1196-98 (7th Cir. 1996), vacated on other grounds, 519 U.S. 990 (1996), on remand, United States v. Mills, 122 F.3d 346 (1997), cert. denied 522 U.S. 1033 (1997).

Here, there can be no doubt that Smith's conduct demonstrated a waiver of her right to remain silent. She immediately began talking to the agents after refusing to sign the waiver form and continued to do so for an hour. During that entire time, she never requested an attorney and never asked that the questioning be stopped. There can be no credible argument under these facts that Smith's conduct was not a waiver of her Miranda rights.

Smith claims alternatively that her...