United States v. Maxwell

• Decision Date: 20 February 2015
• Docket Number: Nos. 13–2670,13–2926,13–2671,13–2874,13–2730,13–2731,13–3432.,s. 13–2670
• Citation: 778 F.3d 719
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Steven Lavell MAXWELL, Defendant–Appellant. United States of America, Plaintiff–Appellee v. Joel Delano Powell, Jr., Defendant–Appellant. United States of America, Plaintiff–Appellee v. Norman Scott Allen, Defendant–Appellant. United States of America, Plaintiff–Appellee v. Frederick Adrianne Hamilton, Defendant–Appellant. United States of America, Plaintiff–Appellee v. Desmon Demond Burks, Defendant–Appellant. United States of America, Plaintiff–Appellee v. Russell Raymond Royals, Defendant–Appellant. United States of America, Plaintiff–Appellee v. Gordon Lamarr Moore, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

778 F.3d 719

UNITED STATES of America, Plaintiff–Appellee

v.Steven Lavell MAXWELL, Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.Joel Delano Powell, Jr., Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.Norman Scott Allen, Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.Frederick Adrianne Hamilton, Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.Desmon Demond Burks, Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.Russell Raymond Royals, Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.Gordon Lamarr Moore, Defendant–Appellant.

Nos. 13–2670

13–2671

13–2730

13–2731

13–2874

13–2926

13–3432.

United States Court of Appeals, Eighth Circuit.

Submitted: Oct. 6, 2014.

Filed: Feb. 20, 2015.

Rehearing and Rehearing En Banc Denied in Nos. 13–2874 & 13–2670 April 3, 2015.

Rehearing and Rehearing En Banc Denied April 10, 2015.

Robert M. Christensen, argued, Minneapolis, MN, for appellant Maxwell in 13–2670.

David Izek, argued, Minneapolis, MN, for appellant Powell in 13–2671.

Rabea Jamal Zayed, argued, Minneapolis, MN, (Kristin K. Zinsmaster, Elizabeth A. Sellers, Minneapolis, MN, on the brief), for appellant Allen in 13–2730.

Dean Stuart Grau, argued, St. Paul, MN, for appellant Hamilton in 13–2731.

Michael H. McGlennen, argued, Minneapolis, MN, for appellant Burks in 13–2874.

Craig E. Cascarano, argued, Minneapolis, MN, for appellant Royals in 13–2926.

James Raymond Behrenbrinker, argued, Minneapolis, MN, for appellant Moore in 13–3432.

Karen B. Schommer, AUSA, argued, Minneapolis, MN, (Lisa D. Kirkpatrick, AUSA, Saint Paul, MN, on the brief), for Plaintiff–Appellee.

Before LOKEN, BEAM, and COLLOTON, Circuit Judges.

Opinion

LOKEN, Circuit Judge.

A January 2012 superseding indictment charged twelve defendants with conspiracy to commit bank fraud in violation of 18 U.S.C. §§ 1344 & 1349. Various defendants were charged in thirty-seven other counts with specific bank fraud and aggravated identity theft offenses. See 18 U.S.C. § 1028A. Steven Maxwell was charged in Count 39 with conspiracy to commit concealment money laundering. Eight defendants pleaded guilty, including Maxwell and Russell Royals, who then testified for the government at the trial of Desmon Burks, Joel Powell, Jr., Norman Allen, and Frederick Hamilton. A jury convicted the four of the conspiracy charge and most of the substantive counts. Burks, Powell, Allen, and Hamilton appeal their convictions and sentences. Maxwell and Royals appeal their sentences. After a separate trial in 2013, a different jury convicted Gordon Lamarr Moore of conspiracy to commit bank fraud and aggravated identity theft. Moore appeals the denial of his pretrial motion to suppress. We consolidated the seven appeals and now affirm the district court's¹ seven judgments.

I. Sufficiency of the Evidence

Count 1 of the Superseding Indictment charged all defendants with executing, by various means, “a scheme and artifice to defraud businesses and [named] Financial Institutions, and to obtain by means of materially false and fraudulent pretenses and representations, monies and funds ... of the Financial Institutions,” in violation of 18 U.S.C. § 1344. This alleged violations of both § 1344(1) and § 1344(2). Counts 2–21 charged one or more defendants with committing specific fraudulent transactions at named Financial Institutions “to execute the scheme and artifice” to defraud. Counts 22–34 charged one or more defendants with committing aggravated identity theft by unlawfully using another person's identification in specific transactions to obtain the assets of named Financial Institutions “during and in relation to” the bank fraud felony. Each count alleged that defendants in committing the offenses were “aided and abetted by each other and by other persons known and unknown” in violation of 18 U.S.C. § 2.

Burks, Powell, Allen, and Hamilton argue the evidence at trial was insufficient to convict them of these offenses. “We review de novo the sufficiency of the evidence and view that evidence in the light most favorable to the verdict, giving it the benefit of all reasonable inferences” and reversing only if no reasonable jury could find the defendants guilty beyond a reasonable doubt. United States v. Honarvar, 477 F.3d 999, 1000 (8th Cir.2007).

A. Count 1: The Conspiracy

At trial, the government introduced testimony by participants in the conspiracy, law enforcement investigators, and bank employees as well as extensive documentary exhibits. The evidence established that the conspiracy as alleged involved various participants-leaders, recruiters, information providers, and fraudulent check cashers. Participants changed over time as some went to prison and others were recruited. Leader Steven Maxwell testified that he and Russell Royals began using printing equipment to create counterfeit identification documents as early as 2006. After the printing operation was raided by the police, Maxwell began altering checks so they would be accepted at retailers, such as Wal–Mart, which used a check verification system called TeleCheck. The altered checks, supported by stolen or forged identifications, were used at retailers to purchase merchandise, which was then returned for cash. The conspirators shared information on how to avoid retailers' check verification systems, such as driver license numbers that would not trigger a TeleCheck rejection. By using documents issued as temporary licenses, conspirators could use a single license number to support multiple fraudulent transactions. Maxwell also printed checks using a laptop and a portable printer, using a computer program called VersaCheck.

Moore, nicknamed “Lucky,” supplied conspirators counterfeit identifications along with checks. After Lucky's operation was raided, Maxwell purchased his own card printer to make fraudulent identifications by printing the picture and signature of a conspirator, and the name, date of birth, and license number of a victim, on blank card stock. Kevin Martin testified that he created and supplied some of the identifications used.

The conspirators obtained personal information contained in the fraudulent identifications and checks from many sources. Insiders at multiple banks supplied account numbers, addresses, dates of birth, and Social Security numbers. A credit department employee at Target provided personal information, including dates of birth and Social Security numbers. The conspirators purchased stolen checks acquired in auto thefts or supplied by Maxwell's contact at a paper shredding company. They purchased personal information acquired by theft, including stolen employment applications, and information wrongfully supplied by an employee at the Board of Psychology. Maxwell used a website called PublicData.com to verify personal information and obtain driver license numbers. Conspirators conducted over six thousand searches using PublicData.com. Some conspirators used real identifications of persons they resembled.

The conspirators used the stolen and counterfeit documents to unlawfully obtain cash in a variety of ways. A conspirator carrying stolen or counterfeit checks and identification documents would make a bank deposit to learn the account balance, then make a withdrawal for less than the account's full balance, a fraud tactic described at trial as “split deposits.” Conspirators shared information regarding banks where it was easier or more difficult to pass counterfeit or fraudulent checks. At some banks, conspirators used real checks they had acquired, rather than fabricated checks.

The conspiracy focused on retail stores during the holiday season, when it was easier to pass checks. Banks typically required more information than retailers, such as a date of birth and Social Security number. Conspirators would alter receipts to circumvent a retailer's waiting period between paying with a check and returning the fraudulently purchased merchandise for cash. A conspirator who had trouble passing a check would sometimes use his own identification and a check bearing his name, but with a false account number. Kevin Martin testified that he obtained fraudulent checks from Maxwell and Lucky and used the checks to buy expensive items at Wal–Mart and return them for cash. The specific locations where conspirators passed checks—either banks or retailers—depended on the information at hand. After Wal–Mart changed its check and return system, the conspirators targeted Sam's Club, which did not require using a check with an actual account number.

There was evidence that Kevin Martin and Maxwell's brother, Desmon Burks, traveled throughout Minnesota and into North Dakota to cash counterfeit checks that Burks supplied. Records were introduced showing that Burks sent Maxwell victim identification information that was used to conduct fraudulent retail transactions. In at least one instance, a counterfeit check passed at a retailer went through the victim's account, giving rise to one count of bank fraud against Burks. Burks recruited check cashers and supplied identification information, fraudulent checks, and instructions on how to conduct the transactions.

Maxwell testified that he made identifications for Powell using stolen personal information. Powell instructed conspiracy participants how to make split deposits. He provided checks to cashers and retained some of the proceeds. At Maxwell's request, Powell recruited a woman whose photograph was placed on a counterfeit identification along with personal information wrongfully acquired from the Board of Psychology. Powell, Maxwell, and two others then went to a bank where the woman cashed a fraudulent check.

Allen was a director of a company named Even Cash Flow (“ECF”). Powell, accompanied by Allen, attempted to open an ECF bank account. When the bank did not permit Powell to be a signer because his identity could not be verified, Allen opened the account. Allen opened ECF accounts with...