United States v. Norman
| Decision Date | 07 March 2012 |
| Docket Number | No. 08-3849,No. 08-4556,No. 08-1658,No. 08-4816,No. 08-3876,No. 08-3969,08-1658,08-3876,08-3849,08-3969,08-4556,08-4816 |
| Court | U.S. Court of Appeals — Third Circuit |
| Parties | UNITED STATES OF AMERICA v. ANTOINE NORMAN, Appellant in 08-1658 & 08-3876 CHARLES WHITE, Appellant in 08-3849 ALLEN SMITH, Appellant in 08-3969 AKINTUNDE CRAWFORD, Appellant in 08-4556 MICHAEL MERIN, Appellant in 08-4816 |
NOT PRECEDENTIAL
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
March 6, 2012
Before: SCIRICA, AMBRO, and VAN ANTWERPEN, Circuit Judges.
In this consolidated appeal, we are asked to review alleged errors in the convictions and sentences of appellants Akintunde Crawford, Michael Merin, Antoine Norman, Allen Smith, and Charles White. Each of the five appellants was convicted of conspiracy to commit bank fraud and aggravated identity theft, in violation of 18 U.S.C. § 371; bank fraud, in violation of 18 U.S.C. § 1344; and aggravated identity theft, in violation of 18 U.S.C. § 1028A. For the reasons that follow, we will affirm all judgments of conviction but will vacate all sentences and remand for resentencing.
Because we write solely for the parties, we recount the facts and proceedings only to the extent required for resolution of this appeal. From approximately February 2004 to November 2005, the appellants actively participated in a bank fraud scheme that targeted four FDIC-insured banks in the Philadelphia area: Commerce Bank, Wachovia Bank, M&T Bank, and PNC Bank. Through repeated fraudulent transactions, appellants defrauded the four banks of hundreds of thousands of dollars. The fraudulent transactions were carried out by a group of "check-runners," five of whom were indicted along with the appellants. The five check-runners—Terry Hughes, Rachel Lukovsky, Kevin Norris, Lisa Smith, and Kelly Taylor—pleaded guilty to their applicable charges and cooperated with the government in its prosecution of this case.
To accomplish their criminal objective, appellants unlawfully obtained the personal identification information, including names, dates of birth, addresses, and social security numbers, for customers at the four banks. With this information, appellants recruited the check-runners to pose as the customers and cash counterfeit or closed-account checks1 or withdraw money from the customers' accounts. Each of the four banks allowed customers to cash checks prior to the checks clearing, but only so long as the amount of the check was equal to or less than the customer's account balance. Shortly before a check-runner would attempt to cash a check, therefore, appellants would try to ascertain the customers' account balance: for check-runs at Commerce Bank, appellants would do this by calling the bank's automated 1-800 telephone system and entering the customers' account and personal identification numbers (PIN).2
Due to different security policies at the four banks, appellants employed two different check-running schemes: a "drive-through" scheme and a "walk-in" scheme. The drive-through scheme was used at Commerce Bank to take advantage of the bank's drive-through service which did not require customers to provide picture identification prior to cashing checks. By contrast, the other three banks did not have a drive-throughservice and required picture identification. At these three banks, the check-runners would walk inside the bank and use a fake ID provided by the appellants.
Although each of the appellants played a significant role in the conspiracy, their respective roles differed. White was the leader of the check-running operation, with Norman acting as his principal associate. In this capacity, White and Norman performed numerous acts, including obtaining the personal identification information of bank customers; purchasing closed-account checks and fraudulently endorsing them; calling Commerce Bank's automated telephone system shortly before check-runs; and providing "cheat-sheets" to the check-runners containing information about the customer (e.g., social security number, date of birth) that the check-runner might be asked to provide. In addition to White and Norman, Smith assisted the check-running operation by providing fraudulent checks to the check-runners and other tasks. Crawford primarily assisted by preparing fake photo IDs, including fake driver's licenses, for the walk-in transactions, while Merin primarily assisted by providing roughly twenty social security numbers and other personal identification information.
At trial, the government's evidence included, inter alia, testimony from several of the check-runners; testimony from an undercover Postal Inspector, Yvette Thomas, who infiltrated the conspiracy; phone records showing a high volume of phone calls between appellants during the time frame of the conspiracy; and incriminating documents found in police searches of a rental car driven by White and the basement of a store, Rah's Fashion Boutique, where Crawford worked during the conspiracy. Based on this andother evidence, each appellant was convicted of one count of conspiracy to commit bank fraud and aggravated identity theft, 18 U.S.C. § 371, and a combination of bank fraud, 18 U.S.C. § 1344, and aggravated identity theft counts, 18 U.S.C. § 1028A.3
During sentencing, the District Court applied several enhancements to the appellants' offense level. These included a fourteen-level enhancement, per U.S.S.G. § 2B1.1(b)(1), as an offense involving a loss exceeding $400,000; a four-level enhancement, per U.S.S.G. § 2B1.1(b)(2), as an offense involving at least fifty victims; and a two-level enhancement, per U.S.S.G. § 2B1.1(b)(10), as an offense involving sophisticated means.
We begin our analysis by addressing White's argument that the District Court erred in denying his motion to suppress incriminating documents obtained from an overdue rental car that his wife had rented and which had been reported stolen at the time of the search. For the reasons that follow, we hold that White does not have standing to bring this claim.
The undisputed facts underlying this dispute are as follows. On September 19, 2005, White was driving a rental car that had been reported to be stolen.5 Although thecar was rented by White's wife, the rental agreement had expired. While White was driving, two Philadelphia Police Officers, Thomas Farrell and Joseph Rapone, pulled up behind his vehicle. Soon thereafter, Officer Rapone noticed that the license plate number of the rental car was listed on the police "hot sheet"—a digest of vehicles reported as being stolen within the previous five days.6 After a check of the Department of Motor Vehicle's (DMV) database confirmed the car's stolen status, the officers signaled for White to stop the vehicle, which he did.
Upon informing White that the car had been reported stolen, White produced a copy of his wife's rental agreement and told the officers he was going to return the car later that day. At that point, Officer Rapone called the rental company's theft department and spoke with a representative who stated that the company considered the car "stolen" and wanted to prosecute the case. White was then arrested and placed in the back of the officers' vehicle. After calling a tow truck to return the car to the rental company, Officer Rapone performed an inventory search during which he found a black leather portfolio under the car's passenger-side seat. Inside the portfolio, Rapone found photocopies of checks and what seemed to be fake driver's licenses and fraudulent identifications.
Prior to trial, White filed a motion to suppress on the ground that the officers did not have probable cause to make the arrest. White asserts that the officers lost whateverprobable cause they may have had once he produced his wife's rental agreement and told the officers he would be returning the car later that day. According to White, the officers merely had "probable cause to believe that the vehicle was overdue back at the rental agency." The District Court, however, rejected this argument. It ruled that the officers' reliance on three separate sources of reliable information, each indicating that the car was stolen, was more than sufficient to provide probable cause to make the arrest. Accordingly, because the portfolio was found in the car's passenger compartment, the District Court denied White's motion on the grounds that the search was incident to a lawful arrest under this Court's then-prevailing interpretation7 of New York v. Belton, 453 U.S. 454 (1981).
When reviewing a district court's ruling on a suppression motion, we review "for clear error as to the underlying facts, but exercise plenary review as to [the search's] legality in light of the court's properly found facts." United States v. Kennedy, 638 F.3d 159, 163 (3d Cir. 2011) (internal quotation mark omitted)). "[T]he proponent of a motion to suppress 'bears the burden of proving not only that the search . . . was illegal, but also that he had a legitimate expectation of privacy in [the place searched].'" United States v. Stearn, 597 F.3d 540, 551 (3d Cir. 2010) (quoting Rawlings v. Kentucky, 448 U.S. 98,104 (1980)). Without a legitimate expectation of privacy, the proponent of a suppression motion has no standing to bring the claim. United States v. Baker, 221 F.3d 438, 441 (3d Cir. 2000) (citing Rakas v. Illinois, 439 U.S. 128, 143 (1978)).
We begin our review by determining whether White has standing to bring the claim.8 Although the standing inquiry is a "fact-bound" one, we recently joined the majority of circuits in adopting the "general rule" that, under the precise factual scenario presented here, the driver does not have a legitimate expectation of privacy. Kennedy, 638 F.3d at 165. As we...
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