U.S. v. Wilson, 91-8423
| Decision Date | 12 February 1993 |
| Docket Number | No. 91-8423,91-8423 |
| Citation | 983 F.2d 221 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Thomas Scott WILSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Donald F. Samuel, Garland & Samuel, Atlanta, GA, for defendant-appellant.
Michael J. O'Leary, Asst. U.S. Atty., Atlanta, GA, for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before TJOFLAT, Chief Judge, FAY and COX, Circuit Judges.
Thomas Scott Wilson sold credit card numbers accumulated by his telemarketing business to an undercover Secret Service agent. After a jury trial in district court, Wilson was convicted of bank fraud in violation of 18 U.S.C. § 1344 (Supp.1991) and of possessing and selling unauthorized credit card numbers in violation of 18 U.S.C. § 1029(a), (b) (1988). Wilson raises several arguments on this direct appeal to challenge his convictions and his sentences. Among other things, Wilson objects to the cross-examination of his character witnesses and to the special assessment imposed on each of the twenty-five counts of bank fraud that arose from his transaction with the undercover agent. Finding no error, we affirm the convictions and sentences.
Wilson was the manager and forty percent owner of a telemarketing firm, Pathway Products ("Pathway"). Pathway sold substances that promised to help buyers shed weight or grow hair, depending on the product. Many of Pathway's customers provided their credit card numbers when ordering the goods. The numbers were entered into the company's computer along with customers' names and purchases. On two occasions in late 1989, Wilson talked to his general sales manager, Alexis Conner, about locating a buyer for Pathway's list of customers and credit card numbers. Conner testified that she refused his first request for help because she believed such a sale would be illegal. At Wilson's "persistent" second request, Conner invented a name of a possible buyer and told Wilson she could not help him further.
After Pathway went out of business in February 1990, Wilson kept its computer equipment and the reels of computer tape with the customer information. He again spoke with Conner about selling the computer tape. This time Conner notified a bank security officer and the Secret Service. At the direction of Secret Service agents, Conner had several other discussions with Wilson about selling Pathway's lists. Two of their telephone conversations were recorded by the Secret Service. Conner arranged for Wilson to meet an undercover agent posing as a buyer of credit card numbers. The two meetings between Wilson and the agent also were secretly recorded.
In his first meeting with the undercover agent, Wilson estimated that the five reels of computer tape contained a total of 1.6 million numbers. Wilson and the agent negotiated the sale of 25,000 numbers for $100,000. The following day Wilson was arrested after selling the agent a printout of names and credit card numbers in exchange for $100,000 in cash.
The indictment against Wilson contained twenty-eight counts: one count of trafficking in unauthorized access devices (credit card numbers) in violation of 18 U.S.C. § 1029(a)(2) (1988); one count of possession of unauthorized access devices in violation of 18 U.S.C. § 1029(a)(3), (b) (1988); twenty-five counts of engaging in a scheme or artifice to defraud a financial institution in violation of 18 U.S.C. § 1344 (Supp.1991); and one count of conspiracy to sell the credit card numbers in violation of 18 U.S.C. § 371 (1988).
Wilson has admitted selling the list of names and credit card numbers to the undercover agent. His defense at trial was that in selling the lists, he did not intend to defraud the banks or the individual cardholders. According to Wilson, "he was simply selling the list of his defunct company's customers." He points out that the list included the names of many C.O.D. customers, who had not given their credit card numbers. The sale of customers' names and purchasing information, also known as "leads," is common in the telemarketing field, Wilson says.
A. Whether the district court committed reversible error by allowing the prosecutor to ask two of Wilson's character witnesses whether their favorable opinions of Wilson would have changed had they known that he sold credit card numbers to an undercover Secret Service agent.
B. Whether the twenty-five counts of bank fraud, all arising from the same sale of one list of names and numbers, are multiplicious. 1
A district court has "wide discretion" to control the cross-examination of character witnesses. Michelson v. United States, 335 U.S. 469, 480, 69 S.Ct. 213, 221, 93 L.Ed. 168 (1948). This discretion "is accompanied by heavy responsibility ... to protect the practice from any misuse." Id. Nevertheless, we will disturb the district court's ruling "only on clear showing of prejudicial abuse of discretion." Id. We hold that Wilson has shown no abuse of discretion by the district court in the cross-examination of his character witnesses.
Wilson called three character witnesses to help establish that he lacked fraudulent intent when he sold the credit card numbers. The witnesses testified that Wilson had a good reputation in the community for honesty and integrity, and they expressed similarly favorable personal opinions about his character. On cross-examination, the prosecutor asked one of the witnesses: "If you knew that Mr. Wilson had sold credit card numbers to an undercover agent, would your opinion change?" (R. 7 at 324.) The prosecutor posed the following question to another witness: "Let me just ask you if you knew that Mr. Wilson had sold individuals' credit card numbers to an undercover secret service agent ... would your opinions relative to his integrity and honesty change at all?" (R. 7 at 328.) 2 Wilson's counsel objected to both questions; the district court overruled the objections. In their responses, neither witness indicated that his opinion of Wilson would have changed.
Wilson contends that the witnesses could not answer the questions without assuming his guilt. Therefore, Wilson believes that the questions improperly detracted from the presumption of innocence to which he was entitled. Our predecessor circuit cited such a concern when it condemned guilt-assuming hypothetical questions asked of witnesses who have testified about a defendant's good reputation. United States v. Candelaria-Gonzalez, 547 F.2d 291 (5th Cir.1977). 3 Such hypothetical questions are The Government defends the questions by calling them "highly relevant" to the credibility of the personal opinions offered by Wilson's character witnesses. (Appellee's Br. at 19.) The Government argues that, unlike the situation in Candelaria-Gonzalez, the questions went to the witnesses' own opinions rather than their testimony about Wilson's reputation. Also, even if the district court erred by allowing the questions, the Government views the error as harmless in light of the considerable evidence against Wilson and the court's later jury instruction about the presumption of innocence.
irrelevant to a defendant's reputation, and they strike "at the very heart of the presumption of innocence." Id. at 294. Therefore, the questions "have no place in a criminal trial." Id. Although the Fifth Circuit later explained that "one asking" of a guilt-assuming question does not constitute plain error, United States v. Palmere, 578 F.2d 105, 107 (5th Cir.1978), cert. denied, 439 U.S. 1118, 99 S.Ct. 1026, 59 L.Ed.2d 77 (1979), it is clear that the questions may necessitate reversal in some instances
The Government's opinion-reputation distinction finds support in United States v. White, 887 F.2d 267 (D.C.Cir.1989). In White the court saw nothing wrong with guilt-assuming questions posed to witnesses who had given their personal opinions of the defendant's character, although the court acknowledged that such questioning of reputation witnesses "may be improper." Id. at 274-75. Other circuits, however, have treated opinion and reputation witnesses alike in disapproving of guilt-assuming questions, notwithstanding the questions' relevancy to opinion testimony. See United States v. Oshatz, 912 F.2d 534, 539 (2d Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1695, 114 L.Ed.2d 89 (1991); United States v. Williams, 738 F.2d 172, 177 (7th Cir.1984). Moreover, the Government's focus on relevancy ignores the fact that even relevant questions may be prohibited to avoid a risk of unfair prejudice. See Fed.R.Evid. 403.
We need not enter the reputation-opinion debate to resolve the issue now before us, nor do we find it necessary to undertake a harmless-error analysis. Concerns about guilt-assuming questions arise only if the questions do indeed assume the defendant's guilt. The questions put to Wilson's witnesses stopped short of that troubled ground, if barely. The witnesses were asked about nothing more than Wilson already had admitted during his time on the stand: he sold credit card numbers to an undercover Secret Service agent. Wilson had denied any fraudulent intent. The questions attributed no intent to him. Therefore, the questions did not assume Wilson's guilt.
The Ninth Circuit recently reached the same conclusion about similar questions in United States v. Velasquez, 980 F.2d 1275 (9th Cir.1992). The defendant in Velasquez admitted walking into a...
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