United States v. Hilton

• Decision Date: 13 December 2012
• Docket Number: 11–4743.,Nos. 11–4273,11–4298,s. 11–4273
• Citation: 701 F.3d 959
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jimmy Earl HILTON, Jr., Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Tamatha Michele Money Hilton, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Jacqueline H. Hilton, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

701 F.3d 959

UNITED STATES of America, Plaintiff–Appellee,

v.Jimmy Earl HILTON, Jr., Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Tamatha Michele Money Hilton, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Jacqueline H. Hilton, Defendant–Appellant.

Nos. 11–4273, 11–4298, 11–4743.

United States Court of Appeals,Fourth Circuit.

Argued: Oct. 24, 2012.

Decided: Dec. 13, 2012.

ARGUED:Rudolph Alexander Ashton, III, McCotter, Ashton & Smith, PA, New Bern, North Carolina; Daniel Baker McIntyre, III, Charlotte, North Carolina; Lawrence W. Hewitt, Guthrie Davis Henderson & Staton, Charlotte, North Carolina, for Appellants. Michael E. Savage, Office of the United States Attorney, Charlotte, North Carolina, for Appellee. ON BRIEF:Anne M. Tompkins, United States Attorney, Benjamin Bain–Creed, Assistant United States Attorney, Office of the United States Attorney, Charlotte, North Carolina, for Appellee.

Before TRAXLER, Chief Judge, KEENAN, Circuit Judge, and R. BRYAN HARWELL, United States District Judge for the District of South Carolina, sitting by designation.

Affirmed in part, vacated in part, and remanded by published opinion. Judge KEENAN wrote the opinion, in which Chief Judge TRAXLER and Judge HARWELL joined.

OPINION

BARBARA MILANO KEENAN, Circuit Judge:

In this appeal, Jacqueline, Tamatha, and Jimmy Hilton (collectively, the defendants) challenge their convictions on charges involving a scheme to defraud The Woodsmiths Company (Woodsmiths, or the company), a small North Carolina furniture manufacturer that was Tamatha Hilton's employer. The primary issue before us is whether the statutes prohibiting identity theft and aggravated identity theft, 18 U.S.C. §§ 1028(a)(7) and 1028A, under which Jimmy Hilton and Jacqueline Hilton were convicted, encompass the theft of the identity of a corporation. We hold that these statutes are fatally ambiguous in this respect, and we vacate the convictions of Jimmy Hilton and Jacqueline Hilton on these counts. We conclude that the defendants' other arguments are without merit. Accordingly, we affirm Tamatha Hilton's convictions. We also affirm the remaining convictions of Jimmy Hilton and Jacqueline Hilton, but vacate the sentences imposed and remand those convictions to the district court for resentencing.

I.

The charges in this case arose from a two-year scheme in which the defendants defrauded Woodsmiths of about $655,000, by stealing and cashing numerous checks written to Woodsmiths by its customers. Tamatha Hilton (Tamatha) was Woodsmiths' office manager and bookkeeper. As part of her duties, Tamatha possessed the only keys to Woodsmiths' post office box and was responsible for retrieving the company mail.¹ Tamatha participated in the fraud by sending company invoices to customers, requesting that they mail either initial or final payment for their furniture orders to the company address. When the checks arrived at the company's post office box, Tamatha removed the checks and, instead of depositing them into the company's bank account, gave them to her husband and co-defendant, Jimmy Hilton (Jimmy). During the course of the scheme, Tamatha stole approximately 168 checks in the aggregate amount of about $655,000.

In January 2007, before the charged thefts began, defendant Jacqueline Hilton (Jacqueline), Jimmy's former wife, opened a bank account at SunTrust Bank in her name (the bank account, or the SunTrust account), falsely purporting to be the owner of a business called Woodsmiths Furniture Company. The managers of the true entity, Woodsmiths, had no knowledge of Jacqueline's actions. Jacqueline also purchased a custom, pre-printed stamp at an office supply store bearing the words:

Pay to the order of Suntrust Bank 053100465. For deposit only Woodsmiths 1000036388063.

Jacqueline testified that she opened the bank account at Jimmy's request, and was paid one thousand dollars per month for maintaining the account.

To effectuate the fraud, Jimmy endorsed the stolen checks with the pre-printed stamp and completed corresponding deposit slips, while Jacqueline deposited the checks into the bank account. Other than the initial deposit of $150 required to open the account, the only deposits made to the SunTrust account were the 168 checks taken from Woodsmiths' post office box.

During the course of the fraud, Jacqueline and Jimmy wrote, and Jacqueline signed, more than 200 checks drawn on the account. Law enforcement officers traced the withdrawn funds to the defendants, including nearly $250,000 in cash withdrawals obtained by Jimmy and Jacqueline, as well as payments made to various businesses owned and operated by Jimmy. The withdrawn funds also were used to make mortgage payments on the home that Jimmy and Tamatha owned.

To conceal the fraud, Tamatha sent customers falsified invoices indicating that their checks had been credited to their furniture orders, when in fact the checks had been stolen and deposited in the SunTrust account. Tamatha also altered the company's accounting records, and provided misleading information to her supervisors when questioned about accounting discrepancies.

As Woodsmiths continued to lose money from the thefts, the company attempted to collect what appeared to be outstanding balances for furniture that already had been shipped. The owner of Woodsmiths discovered the fraud when a customer produced a copy of a cancelled check, which had been sent as payment for a furniture order but was intercepted and deposited into the SunTrust account. In early 2008, as a result of the financial loss stemming from the fraud, Woodsmiths “laid off” all its employees. At the time of trial, Woodsmiths' owner was the company's only full-time employee, and he was able to hire workers only on a week-to-week basis for limited hours of work.

The defendants ultimately were charged in a forty-three count indictment on charges including identity theft, mail fraud, mail theft, money laundering, conspiracy, passing forged securities, and making a false statement to a financial institution. After a six-day trial, a jury acquitted Jacqueline of making a false statement to a financial institution but convicted the defendants on all remaining counts. The district court sentenced Tamatha to a total term of 65 months' imprisonment; Jimmy to a total term of 120 months' imprisonment; and Jacqueline to a total term of 81 months' imprisonment. Each defendant also was sentenced to a period of supervised release and ordered to pay restitution in the amount of $655,876.04. All three defendants filed a timely notice of appeal.

II.

We first address the district court's denial of two pre-trial motions: (1) Tamatha's motion to suppress certain statements she made to law enforcement officers; and (2) Jimmy's motion for leave to represent himself during jury selection. We review the district court's legal conclusions de novo and its factual findings for clear error. United States v. Branch, 537 F.3d 328, 337 (4th Cir.2008) (motion to suppress); United States v. Bush, 404 F.3d 263, 270 (4th Cir.2005) (motion for self-representation).

A.

Tamatha challenges the district court's denial of her motion to suppress her post-arrest statements, asserting that she was denied access to an attorney during questioning despite her repeated requests. When a district court has denied a motion to suppress, we view the evidence in the light most favorable to the government. Branch, 537 F.3d at 337. At the suppression hearing, the district court heard testimony from Tamatha and two law enforcement agents who questioned her following her arrest, Postal Inspector Mark Heath and Secret Service Special Agent Jonathan Shelton (collectively, the officers).

The evidence showed that at the beginning of her interview with the officers, Tamatha signed the Postal Inspection Service's Warning and Waiver of Rights form. Tamatha testified that the officers did not recite the warnings required under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), that she did not read or understand the warning and waiver form, and that she requested an attorney at least nine times while being transported from her home to the Postal Inspection office. She also stated that she asked to consult with an attorney several additional times while being interviewed at the Postal Inspection office.

Inspector Heath disputed Tamatha's version of the events, testifying that he orally advised Tamatha of her Miranda rights at the beginning of the interview. In addition, both officers denied that Tamatha made any of the claimed requests for an attorney. The officers testified that Tamatha made only one request for an attorney, when she was asked to give a written statement at the end of the interview, and that the officers honored her request.

After evaluating the credibility of the witnesses, the district court denied Tamatha's motion to suppress, finding that the only time she clearly and unequivocally invoked her right to counsel was at the end of the interview when asked to give a written statement. The court further found that the officers honored Tamatha's request for counsel, and that her statement was voluntary.

In reviewing the denial of a motion to suppress, we accord particular deference to a district court's credibility determinations. United States v. Abu Ali, 528 F.3d 210, 232 (4th Cir.2008). This deference is based on the district court's role of observing the witnesses and of weighing their credibility. Id. (citation omitted). In the present case, Tamatha merely disputes the district court's credibility findings, and argues that she requested an attorney at various times during her interrogation. Because the district court was faced with directly contradictory evidence regarding this issue, the court was required to determine which testimony accurately reflected the events that transpired. We hold that, in discharging this duty, the district court did not clearly...