United States v. Vance

• Decision Date: 17 April 2020
• Docket Number: No. 19-5160,19-5160
• Citation: 956 F.3d 846
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Adam C. VANCE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

956 F.3d 846

UNITED STATES of America, Plaintiff-Appellee,

v.Adam C. VANCE, Defendant-Appellant.

No. 19-5160

United States Court of Appeals, Sixth Circuit.

Decided and Filed: April 17, 2020

ON BRIEF: Michael M. Losavio, Louisville, Kentucky, for Appellant. Javier A. Sinha, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Charles P. Wisdom, Jr., UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, Elaine K. Leonhard, UNITED STATES ATTORNEY’S OFFICE, Ft. Mitchell, Kentucky, for Appellee.

Before: MOORE, KETHLEDGE, and BUSH, Circuit Judges.

JOHN K. BUSH, Circuit Judge.

This is a case of an elderly couple sadly taken advantage of by their great-grandson, who defrauded them and stole his great-grandfather’s identity through abuse of modern banking technology.

Adam C. Vance was convicted of one count of access-device fraud, in violation of 18 U.S.C. § 1029(a)(5), and two counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). He was sentenced to 65 months’ imprisonment and three years’ supervised release. On appeal, Vance argues that the district court (1) failed to make adequate findings of fact after his bench trial under Fed. R. Crim P. 23(c) ; (2) improperly denied his motion for judgment of acquittal; and (3) failed to correctly calculate the loss amount connected to his charges, under Sentencing Guidelines § 2B1.1. We AFFIRM .

I.

A. Facts Underlying the Conviction

In 1990, Selena Spriggs opened a checking account at what is now U.S. Bank in Elsmere, Kentucky, to receive her social security checks. A few years later, Mrs. Spriggs added her husband, Charles Spriggs, to the account. However, Mr. Spriggs neither used the account nor opened any of the related monthly bank statements sent to his home.

On September 6, 2017, Vance filled out an application in Mr. Spriggs’s name for a debit card that could draw on the U.S. Bank checking account. It is unclear why the application was made, given that Mr. Spriggs had never used a debit card, nor did he know how to use one. According to Mr. Spriggs, although he had previously given his great-grandson the limited authority to cash checks that Mr. Spriggs might write for him, at no point had he authorized Vance to use the bank account in any other way. In addition, during an interview with investigators, Mrs. Spriggs denied giving her great-grandson permission to make out a debit card application in her husband’s name.¹

Yet, despite lacking authorization from his great-grandparents, Vance used the card in his great-grandfather’s name thereafter for his own expenses. In fact, at various times, bank cameras photographed him using the debit card to withdraw cash. See Trial, R. 77 (#578-83); Gov’t Ex. 3; Gov’t Ex. 4; Trial, R. 72 (#432-45) (explaining that the photos of Vance using the ATMs corresponded to the documented debit-card transactions). Vance also reportedly used the card to rent hotel rooms in his name, fund maintenance on his car, and pay for rides through the ride-sharing app, Lyft. In order to fund these purchases and ATM withdrawals, a total of $15,000 in cash advances were made to the Spriggses’ U.S. Bank account from a credit line associated with the account.²

On October 3, 2017, an online loan application requesting $15,000 was submitted to U.S. Bank in Mr. Spriggs’s name. As testified to by a U.S. Bank employee, the loan was approved. However, when the employee called the listed phone number on the application to inform Mr. Spriggs of the loan’s approval, a young man—not a 90-year old, as Mr. Spriggs was—answered the phone. When the employee asked to speak to "Charles [Mr. Spriggs]," the young man requested that she wait a moment; however, according to the employee’s testimony, when the alleged elderly "Charles" finally came to the phone, she recognized the voice as belonging to the same young man with whom she had just spoken. Trial, R. 72 (#455-57). Yet, when questioned about this on the phone by the employee, the young man continued insisting he was "Charles." The employee, feeling uncomfortable with the situation, then explained to "Charles" that the closing of the loan would be contingent on him physically coming to the branch with identification. Immediately upon hanging up, the employee told her coworker that "Charles" "[did] not sound like a 90-year-old man on the phone." Id . (#457). And incidentally, the "Charles" on the phone never came in person to the bank to close the loan.

Instead, on October 12, 2017, Vance entered a different bank—Huntington Bank, in Fort Mitchell, Kentucky—where he opened a checking account. Although this time Vance used his own name, address, phone number, and email address in the application, he listed Mr. Spriggs’s social security number on the application as his own. Upon approval of the application, Vance deposited $1,000 into the account, but he withdrew the entire amount within one week.

On October 16, 2017—prior to Vance withdrawing all of the money from the account at Huntington Bank—an online application was submitted to that financial institution for a $10,200 loan. This application was filed from an I.P. address belonging to Vance’s mother. The online loan application was filled out with Vance’s name, address, phone number, and email address; however, similar to the checking-account application he had earlier submitted to Huntington, this online application used Mr. Spriggs’s social security number. Ultimately, however, because the social security number did not correspond with Vance’s identity, Huntington denied the loan.³

Upon being notified by U.S. Bank and Huntington Bank about suspicious activities involving his identity, Mr. Spriggs filed a police report, claiming he was the victim of fraud and identity theft. On October 17, 2017, the police arrested Vance. Approximately one week later, when searching Vance’s car, the police located a large stash of personal and financial documents belonging to the Spriggses, which included bank statements for the U.S. Bank account, tax-return forms, property-tax bills, and the title to Mr. Spriggs’s car.

B. Proceedings Below

At the pretrial conference, Vance requested a bench trial, waived his right to a jury, and asserted his right to request specific findings of fact pursuant to Federal Rule of Criminal Procedure 23(c). Granting all three requests, the district court proceeded to conduct a two-day bench trial.

During trial, the government presented evidence of the facts set forth above related to Vance’s access-device fraud charge and aggravated identity theft charge. The proof included the testimony of several witnesses, including Mr. Spriggs, a Secret Service agent who interviewed Mrs. Spriggs, and several employees from Huntington Bank and U.S. Bank.⁴

The defense called two witnesses—Vance’s mother, Tammy Buck, and Vance’s grandmother, Jennifer Spriggs. Buck stated that she was currently seeking guardianship over Mr. Spriggs. On the subject of Vance’s relationship with his great-grandparents, Buck testified to the following: (1) Mr. and Mrs. Spriggs frequently gave Vance money; (2) Vance was authorized by Mr. Spriggs to handle the latter’s money, including the U.S. Bank account; and (3) the Spriggses had allowed Vance to use their credit card on various occasions in the past. Jennifer Spriggs, who was Mrs. Spriggs’s guardian, admitted that Mr. Spriggs had recently decided to write her out of his will. On the subject of Vance’s relationship to his great-grandparents, Jennifer Spriggs testified to the fact that (1) Mr. and Mrs. Spriggs would allow Vance to write checks and use their credit card to pay his bills; and (2) Mr. Spriggs had asked Vance to assist him with his finances.

Upon the closing of proof, the court found Vance guilty of one count of access-device fraud, in violation of § 1029(a)(5), and two counts of aggravated identity theft, in violation of § 1028A(a)(1). Verdict, R. 73. The court orally stated its findings, concluding that the elements of all charges had been proven by the government beyond a reasonable doubt. The court rejected Vance’s pre-trial claims that his great-grandfather suffered from dementia, and therefore, lacked credibility as a witness. Instead, the court determined that Mr. Spriggs was credible and competent based on an assessment of his medical records. According to the court, it "didn’t find anything in the records at all that would even hint that [Mr. Spriggs] had some memory loss or inability to testify credibly at trial." Verdict, R. 73 (#518).

As for Tammy Buck and Jennifer Spriggs, the district court found neither to be credible. Specifically, according to the court, Buck had "a motive to lie," given that she was "trying to obtain a guardianship over" Mr. Spriggs, and Jennifer Spriggs had "a motive to lie" considering the fact that Mr. Spriggs had recently "written [her] out of his will." Id. (#519).

Following the entry of judgment on the conviction, Vance filed a timely appeal.

II.

Vance advances two challenges to his access-device fraud and aggravated identity theft convictions. First, he argues that the district court failed to make adequate factual findings as required after a bench trial pursuant to Federal Rule of Criminal Procedure 23(c). Second, he argues that the government failed to present sufficient evidence to support all of the elements of the charges beyond a reasonable doubt.

We address these arguments below.

A. Standard of Review for Adequacy of Factual Findings

This court reviews the adequacy of the district court’s findings in a criminal bench trial under the same standards it uses to judge the adequacy of factual findings in jury-waived civil trials under Federal Rule of Civil Procedure 52. See United States v. Fruehauf Corp ., 577 F.2d 1038, 1072 (6th Cir. 1978) (holding that the findings of fact made by the district judge fully complied with the requirements of Fed. R. Crim. P. 23(c) (citing B. F. Goodrich Co. v. Rubber Latex Products, Inc ., 400 F.2d 401, 402 (6th Cir. 1968) ; Deal v....