United States v. Stringer

• Decision Date: 17 September 2013
• Docket Number: Docket Nos. 12–608–cr (L), 12–779–cr (CON).
• Citation: 730 F.3d 120
• Parties: UNITED STATES of America, Appellee, v. Thomas B. STRINGER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

730 F.3d 120

UNITED STATES of America, Appellee,

v.Thomas B. STRINGER, Defendant–Appellant.

Docket Nos. 12–608–cr (L), 12–779–cr (CON).

United States Court of Appeals, Second Circuit.

Argued: May 9, 2013.

Decided: Sept. 17, 2013.

Tina Schneider, Law Office of Tina Schneider, Portland, ME, for Appellant.

Andrea L. Surratt, Assistant United States Attorney (Brent S. Wible, Assistant United State Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, for Appellee.

Before: LEVAL, CABRANES, and PARKER, Circuit Judges.

LEVAL, Circuit Judge:

Defendant Thomas B. Stringer appeals from his conviction on both counts of a superseding indictment after a jury trial in the United States District Court for the Southern District of New York (Lynch, J.). The jury found him guilty of bank fraud in violation of 18 U.S.C. § 1344 (Count One) and unlawful use of another person's means of identification in relation to the bank fraud in violation of 18 U.S.C. §§ 1028A(a)(1) and (c)(5) (Count Two). Stringer contends that Count Two was constitutionally deficient for failure to name or sufficiently identify the person or persons whose means of identification he used in the bank fraud scheme. He also contends that the superseding indictment, filed 25 days prior to the day scheduled for the start of trial, substantially altered the nature of the allegations, and that the district court therefore abused its discretion by refusing to postpone the trial to allow him adequate time to prepare to defend against the new charges. We rejectStringer's contentions and affirm the conviction.

BACKGROUND

On June 29, 2010, Stringer was arrested on a federal criminal complaint charging him with bank fraud and aggravated identity theft. The complaint set forth a detailed factual narrative describing the nature and operation of Stringer's scheme to use names and identification documents of other persons to open bank accounts funded with forged checks and withdraw the proceeds. On July 20, 2010, the government filed a two-count indictment (the “original indictment”) charging Stringer with bank fraud and aggravated identity theft. One week later, on July 27, 2010, the government made evidentiary disclosures to Stringer, which included the names of two persons which he used to open fraudulent bank accounts. On May 12, 2011, the court set down the case for a trial to begin on July 25, 2011. On June 30, 2011, the government filed a two-count superseding indictment (the “superseding indictment”) charging the same offenses with some alteration of the language describing them.

The superseding indictment charged as follows:

COUNT ONE

1. The Grand Jury charges:

From in or about February 2007 up to and including in or about August 2007, in the Southern District of New York and elsewhere, [Stringer] willfully and knowingly did execute and attempt to execute a scheme and artifice to defraud a financial institution ..., and to obtain moneys, funds, credits, assets, securities, and other property owned by, and under the custody and control of, such financial institution, by means of false and fraudulent pretenses, representations, and promises, to wit, [Stringer] created counterfeit checks drawn on an account at JP Morgan Chase in Manhattan, which he deposited into fraudulently created accounts at SunTrust Bank in Florida. (Title 18, United States Code, Sections 1344 & 2.)

COUNT TWO

2. The Grand Jury further charges:

From in or about February 2007 up to and including in or about August 2007, in the Southern District of New York and elsewhere, [Stringer] knowingly did transfer, possess, and use, without lawful authority, a means of identification of another person, to wit, one and more names, during and in relation to a felony enumerated in Title 18, United States Code, Section 1028A(c), to wit, the bank fraud charged in Count One of this Indictment. (Title 18, United States Code, Sections 1028A(a)(1), (c)(5).)

United States v. Stringer, No. 12–0608 Appendix (“App.”) 21–22.

Among the changes of language as between the original and the superseding indictments was that while Count Two of the original indictment asserted that Stringer used the name of one other person (identified as “Victim–1”) in a scheme involving bank accounts and checks in that person's name, the superseding indictment alleged without specification that Stringer used “one and more names” in carrying out the fraud scheme.

The court convened a conference to arraign Stringer on the superseding indictment on July 6, 2011. After the superseding indictment was read, Stringer asked the court about the significance of the change from the allegation of “Victim–1” to “one and more names.” The government advised that Stringer had perpetrated the fraud using at most two names. The court directed the government to advise Stringer's counsel of the two names (which in fact had been revealed in the documents disclosed by the government a year earlier). The court deferred the arraignment as to Count Two in order to allow Stringer more time to confer with his lawyer about the superseding indictment.

That evening, Stringer told his counsel he wanted a new lawyer. At a conference the following day, July 7, the court told Stringer he would not be allowed to change lawyers because there was no reason to doubt his attorney's competence to try the case and because a change would necessitate delaying the trial. The district court also stated that any motion Stringer might make to adjourn the trial due to the recent filing of the superseding indictment would be denied, because the superseding indictment neither added any new charges, nor presented a new theory, nor made changes for which the defense had no ability to prepare. The court characterized the superseding indictment as charging “the same checks, the same banks, the same scheme, the same names that have been provided by the government in discovery all along,” so that the changes were essentially “ministerial.” United States v. Stringer, No. 12–0608 Government Addendum (“Add.”) 20.

Stringer asserted at this conference that Count Two of the superseding indictment was defective because of the failure to specify a victim's name. The court rejected the contention but added that the government would be limited to proving the two victims (whose names had been disclosed a year earlier) so there could be “no ambiguity remaining about what the charge is.” Id. at 19.

Trial began on July 25, 2011. On the first day of trial, Stringer submitted a motion seeking, inter alia, (1) to represent himself at trial; (2) to dismiss Count Two as deficient, and (3) to postpone the trial to afford him time to prepare his own defense. The district court granted Stringer's request to proceed pro se, but declined to dismiss Count Two or postpone the trial.

Stringer represented himself at trial, with his former defense attorney acting as stand-by counsel. On July 29, 2011, a jury found Stringer guilty on both counts of the superseding indictment.¹ Stringer moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 or, in the alternative, for a new trial pursuant to Rule 33; the district court denied both motions. His judgment of conviction was entered on February 8, 2012, and the district court sentenced him to 60 months' imprisonment, to be followed by five years' supervised release. Stringer was ordered to pay $104,731 in restitution and a $200 mandatory special assessment. This timely appeal followed.

DISCUSSION

I. Sufficiency of the Superseding Indictment

Stringer contends that Count Two of the superseding indictment is constitutionally defective for failure to identify any person whose means of identification he used in the commission of the bank fraud. The sufficiency of an indictment is a question of law, which we review de novo. See, e.g., United States v. Geibel, 369 F.3d 682, 689 (2d Cir.2004). Pursuant to Federal Rule of Criminal Procedure 7(c)(1), an indictment “must be a plain, concise, and definite written statement of the essential facts constituting the offense charged.” An indictment is sufficient if it “first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); see also United States v. De La Pava, 268 F.3d 157, 162 (2d Cir.2001) (“An indictment must sufficiently inform the defendant of the charges against him and provide enough detail so that he may plead double jeopardy in a future prosecution based on the same set of events.”); United States v. Pirro, 212 F.3d 86, 91 (2d Cir.2000) (“A criminal defendant is entitled to an indictment that states the essential elements of the charge against him.”).

We reject Stringer's contention. We have held that to satisfy the pleading requirements of Rule 7(c)(1), an indictment need “do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime.” Pirro, 212 F.3d at 92 (internal quotation marks omitted). An indictment “need not be perfect, and common sense and reason are more important than technicalities.” De La Pava, 268 F.3d at 162.

When a crime, unlike the murder of a specified individual, is capable of repetition on the same day, or within a specified time frame, the indictment will rarely provide sufficient detail so that, on its face, it guarantees protection against double jeopardy. Examples commonly seen in federal courts are indictments charging a defendant with having, on or about a specified date, distributed an approximate quantity of a mixture or substance containing cocaine. A defendant may have committed the acts described in such an indictment a hundred times on or about the day specified, each one...