United States v. Porter

• Decision Date: 06 March 2014
• Docket Number: No. 12–2048.,12–2048.
• Citation: 745 F.3d 1035
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Gloria PORTER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

745 F.3d 1035

UNITED STATES of America, Plaintiff–Appellee,

v.Gloria PORTER, Defendant–Appellant.

No. 12–2048.

United States Court of Appeals,Tenth Circuit.

March 6, 2014.

Brock Benjamin, Benjamin Law Firm, El Paso, Texas, for Defendant–Appellant.

Jennifer M. Rozzoni (Kenneth J. Gonzales, former United States Attorney, with her on the brief), Office of the United States Attorney, District of New Mexico, Albuquerque, NM, for Plaintiff–Appellee.

Before HOLMES, HOLLOWAY, and MURPHY, Circuit Judges.

HOLMES, Circuit Judge.

Following a jury trial, Defendant–Appellant Gloria Porter was convicted of 105 counts of wire fraud, one count of mail fraud, and one count of identity theft. Ms. Porter appeals her convictions, claiming that the district court incorrectly instructed the jury with respect to aggravated identity theft and that the evidence was insufficient to support her convictions for wire fraud and mail fraud. We affirm Ms. Porter's convictions.

I

The National Federation of Federal Employees (“NFFE”) is an independent federal union that at material times represented approximately 115,000 federal workers across the country. In 1999, the NFFE affiliated with the International Association of Machinists (“IAM”). The NFFE is comprised of five councils, which in turn are made up of approximately two hundred “locals.” Members of a local pay their dues by permitting money to be withdrawn electronically from their paychecks. The money is then transmitted to the NFFE national office. A portion of the dues are then rebated back to the councils. Councils provide rebates to locals to encourage them to enroll new members; they also provide limited reimbursements to locals for office-equipment purchases and for training expenditures. Money does not flow from locals to councils.

Ms. Porter joined the NFFE in 1992. She began working at White Sands Missile Range in New Mexico in 1999. Ms. Porter was a member of Local 2049 at White Sands and served as its president. She also served as secretary/treasurer of the Armed Material Command (“AMC”) Council (one of the NFFE's five councils) and as national vice president of the NFFE. Ms. Porter was secretary/treasurer of the AMC Council from 2002 to 2008, and was the only active signatory on the AMC Council's bank account. An ATM/debit card for the account was issued in her name as early as 2004.

The AMC Council used an audit committee to ensure that financial records were “kept in accordance with good financial procedures.” Aplt.App. at 358 (Trial Tr., dated June 27–30, 2011). Locals and councils only made expenditures by check; those checks required two signatures. Expenditures had to be authorized by the executive board or, in the case of large expenses, by all of the locals comprising a council. Further, as of January 2, 2005, the IAM instituted a policy forbidding members from using debit and credit cards. The policy applied to the entire union, including locals.

On December 20, 2010, a federal grand jury sitting in New Mexico returned a 107–count indictment against Ms. Porter. Id. at 16–23 (Indictment, filed Dec. 20, 2010). The indictment charged Ms. Porter with 105 counts of wire fraud in violation of 18 U.S.C. § 1343 (Counts 1 through 105), one count of mail fraud in violation of 18 U.S.C. § 1341 (Count 106), and one count of aggravated identity theft in violation of 18 U.S.C. § 1028A (Count 107). Id.

Ms. Porter was tried in the U.S. District Court for the District of New Mexico. At trial, the evidence revealed that starting in August 2004 and throughout her time as an NFFE officer, Ms. Porter created fraudulent bank statements on her computer and sent them to NFFE officers, while having the authentic bank statements sent to her home address. Ms. Porter continued to send fraudulent bank statements to NFFE officers through 2008. In May 2008, Ms. Porter provided only the AMC Council's check register to an audit committee, despite being asked to provide bank statements, cancelled checks, and corresponding receipts or invoices. After several more delays, in August 2008, Ms. Porter mailed a packet of what was later determined to be fraudulent bank statements to the AMC Council's audit committee. Thereafter, the NFFE took away Ms. Porter's authority over the union's bank account, and, after both the NFFE and IAM conducted their own audits of their accounts, the matter was turned over to the United States Department of Labor (“DOL”) for further investigation.

The Labor–Management Reporting and Disclosure Act of 1959 (the “Act”), Pub.L. No. 86–257, 73 Stat. 519 (codified as amended in scattered sections of 29 U.S.C.), covers all unions with private sector employees, federal employees, and postal service employees. The DOL's Office of Labor Management Standards (“OLMS”) has enforcement authority regarding the Act. The Act requires unions to submit so-called “LM” reports to ensure fiscal and financial reporting. The DOL has a legal duty to collect and publish those reports. Of particular relevance to this case, LM–3 reports cover labor unions with receipts of between $10,000 and $250,000 per fiscal year. At trial, Exhibits 74 through 79 were admitted; these were LM reports filed with the DOL on behalf of the NFFE's AMC Council. In the ordinary course of business, the reports would be received and stamped by the DOL's OLMS in Denver, Colorado, and then mailed to the DOL's national OLMS in Washington, D.C., where the reports would receive a second stamp.

Exhibit 79 is a report that was filed on behalf of the AMC Council for 2006. Ms. Porter's name and address appear on the front page of the document. In addition to Ms. Porter's signature, the report contains what appears to be the signature of Sandra Moilanen—then president of the AMC Council. Ms. Moilanen denied receiving or signing this report. Ms. Porter testified that she signed all of the LM reports presented at trial, and sent them off to someone else for additional signatures.

Christiane Abendroth, a DOL investigator, analyzed the financial statements from Wells Fargo Bank for the AMC Council and Local 2049 and summarized the financial losses to both entities. Ms. Abendroth's investigation revealed that the AMC Council received income of $151,276 between 2001 and 2008. A total of $7,925 was intended for Local 2049, but was diverted to the AMC Council's account. Additionally, $8,600 was transferred from the Local 2049 account to the AMC Council's account, even though funds were not supposed to flow from the locals to the councils. Ms. Porter allegedly raided the AMC Council's account in perpetrating her fraud.

Ms. Abendroth testified that she examined each purchase reflected on the AMC Council's bank statements and determined whether it was authorized or unauthorized. She confirmed that all of the purchases had been effected through wire communications that crossed state lines, for purposes of the wire fraud charges. At trial, multiple witnesses who were associated with businesses that appeared as payees on the AMC Council's bank statements—including a beauty salon, a day spa, and a home-improvement store—testified that Ms. Porter made payments with the AMC Council's visa debit card. Indeed, according to the testimony, one item purchased with the debit card—a refrigerator from Lowe's, a home-improvement store—was delivered to Ms. Porter's home address.

At the close of trial, Ms. Porter moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 with respect to certain wire fraud counts—specifically, Counts 3–17, 20, 21, 26, 27, 28, 54, 55—and also with regard to the mail fraud count (Count 106) and the aggravated identity theft count (Count 107). The district court denied Ms. Porter's motion, and the jury returned guilty verdicts on all 107 counts of the indictment.

Ms. Porter raises two issues on appeal: first, whether the district court erred by instructing the jury that a signature is a “means of identification” for purposes of the aggravated identity theft offense; and second, whether the evidence was sufficient to support her convictions for mail fraud and wire fraud. We take up these issues in turn.

II

The aggravated identity theft statute provides: “Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.” ¹18 U.S.C. § 1028A(a)(1) (emphasis added). The statutory phrase “means of identification” is defined in another provision, 18 U.S.C. § 1028(d)(7).

Ms. Porter claims that the district court erred in instructing the jury on the aggravated identity theft charge. The jury instruction for aggravated identity theft read, in pertinent part: “A person's signature is a ‘means of identification.’ ” Aplt.App. at 47 (Jury Instruction No. 14, filed June 30, 2011). Specifically, Ms. Porter argues that the word “signature” is not expressly mentioned in the statutory definition of “means of identification” found in § 1028(d)(7) and a signature should not be viewed as a form of a “name”—a term that does appear in that definition. She suggests that equating a signature to a “name” is “quite a jump.” Aplt. Opening Br. at 11. Ms. Porter further submits that the district court's interpretation of the statutory definition—which seemingly was based upon the Ninth Circuit's decision in United States v. Blixt, 548 F.3d 882 (9th Cir.2008)²—sweeps too broadly.

“We review questions of statutory interpretation de novo.” United States v. Nacchio, 573 F.3d 1062, 1087 (10th Cir.2009). To the extent that Ms. Porter presents a challenge to the district court's instruction because the court allegedly failed to accurately give the jury the correct law, we likewise review this challenge de novo. See United States v. Sturm, 672 F.3d 891, 897 (10th Cir.2012) (en banc).

We...