USA. v. Wilson

• Citation: 240 F.3d 39
• Decision Date: 23 February 2001
• Docket Number: No. 99-3077,99-3077
• Parties: (D.C. Cir. 2001) United States of America, Appellee v. Sonni Wilson, Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 39

240 F.3d 39 (D.C. Cir. 2001)

United States of America, Appellee v. Sonni Wilson, Appellant

No. 99-3077

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 9, 2000

Decided February 23, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Appeal from the United States District Court for the District of Columbia (No. 96cr00362-01)

Stephen C. Leckar, appointed by the court, argued the cause and filed the briefs for appellant.

Sonni I. Wilson, appearing pro se, was on the briefs for appellant.

Mary B. McCord, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Wilma A. Lewis, U.S. Attorney, John R. Fisher, Mary-Patrice Brown and Ann M. Carroll, Assistant U.S. Attorneys.

Before: Williams and Garland, Circuit Judges, and Silberman, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Williams.

Opinion by Circuit Judge Garland concurring in part and dissenting in part.

Williams, Circuit Judge:

A jury in district court convicted Sonni Wilson of bank fraud and other related offenses. The evidence at trial revealed two separate schemes--one in 1996 targeting several banking institutions including the First Bank Card Center and one in 1997/98 targeting First National Bank of Maryland. In both, Wilson fraudulently procured and used credit cards, ATM cards, check cards and checks issued in other people's names. In some cases he accomplished his fraud by opening entirely new accounts, while in others he supplied confidential personal information about actual account holders to fraudulently gain control of their accounts. For any one account, the fraud was necessarily short-lived: Use of an actual account would quickly trigger reaction either by the true holder or by bank personnel on the alert for suspicious activity such as unusually large cash withdrawals; use of fictional accounts would be exposed by suspicious account activity or by non-payment of the bill.

Wilson was first arrested in 1996 after bank investigators alerted the police. After indictment, he jumped bail. Following a new arrest in 1998, he was charged with six counts of bank fraud (18 U.S.C. § 1344), one count of possession of 15 or more unauthorized access devices¹ with intent to defraud (18 U.S.C. § 1029(a)(3)), one count of conspiracy to commit bank fraud and to possess 15 or more unauthorized access devices with intent to defraud (18 U.S.C. § 371), and one count of possession of five or more false identification documents with intent to use illegally (18 U.S.C. § 1028(a)(3)). The jury convicted Wilson on all counts, and the district court sentenced him to 51 months' imprisonment followed by three years of supervised release.

On appeal Wilson challenges several aspects of his conviction and sentencing. Because of an error in sentencing, we reverse.

* * *

Effect on commerce of Wilson's possession of access devices. 18 U.S.C. § 1029(a), which prohibits various forms of access device fraud, applies only "if the offense affects interstate or foreign commerce." Wilson first argues that under United States v. Lopez, 514 U.S. 549 (1995), he can be held criminally accountable under federal law only if the government proves that his actions had a "substantial" effect on interstate commerce. But we have already held, since Lopez, that to support a statutory jurisdictional link for a specific criminal act it is enough that the evidence show that the act had "an 'explicit' and 'concrete' effect on interstate commerce, rather than a 'substantial' one." United States v. Harrington, 108 F.3d 1460, 1465 (D.C. Cir. 1997). In Harrington, we upheld a conviction on the basis of evidence that defendant's robbery of a Roy Rogers restaurant deprived the restaurant of money that would have traveled to an out-of-state bank and then been used by the Roy Rogers parent company in part to make out-of-state purchases. See id. at 1468.

Wilson also offers a second, independent argument that the evidence failed to show that the access card offenses had any effect at all on interstate commerce. The government concedes that Wilson properly preserved this argument by making a motion for judgment of acquittal after the government rested. Because Wilson presented no defense at all, his motion at the end of the government's case fully preserved his claim. See United States v. Foster, 783 F.2d 1082, 1085 (D.C. Cir. 1986); see also United States v. Sherod, 960 F.2d 1075, 1077 (D.C. Cir. 1992). We review de novo the denial of the motion to determine whether the evidence, considered in the light most favorable to the government, was "sufficient to permit a rational trier of fact to find all of the essential elements of the crime beyond a reasonable doubt." Harrington, 108 F.3d at 1464.

Wilson's claim is meritless. His only argument for insufficiency is that an expert witness's general testimony regarding the losses suffered by banks as a result of similar fraudulent schemes was not specific enough to establish that Wilson's deeds affected interstate commerce. But the government points to a great deal of other evidence that speaks to the interstate commercial effect of Wilson's fraud. There is, in fact, evidence of interstate impact for all 16 of the devices charged in the indictment.

Of these devices, three are armed services MasterCards that Wilson applied for in 1996 through Andrews Air Force Base in Maryland, causing them to be issued by the First Card Bank Center in Louisiana, and sent to Washington, D.C. Regarding the 1997/98 scheme, 12 access devices serviced accounts that Wilson fraudulently opened via phone calls to a bank center in North Carolina but were handled by a Washington, D.C. branch office. (For several of these Wilson used a Maryland address, and for several of those with a Maryland address he used identities of persons located in states other than the District or Maryland). Finally, the remaining device is a Sears Card issued in the name of a California resident and found in Wilson's wallet when he was arrested in Washington, D.C. Although Wilson evidently lived in Washington, he used this card in Maryland and provided a Maryland address for the account. The jury could reasonably find the modest interstate effect required under Harrington.

Failure to instruct jury on need to find interstate nexus for false ID conviction. Conviction under 18 U.S.C. § 1028 for possession of five or more false identification documents, with intent to use unlawfully, requires that the government satisfy the requirement of § 1028(c)(1) that the possession be "in" or "affect" interstate commerce. The government concedes that the trial judge failed to instruct the jury on the need for such a finding. And Wilson concedes that because of his failure to object at trial the error would be grounds for reversal only if it amounted to plain error under Rule 52(b) of the Federal Rules of Criminal Procedure.² As the Supreme Court explained in United States v. Olano, 507 U.S. 725 (1993), Rule 52(b) requires that there "be an error that is plain and that affect[s] substantial rights. Moreover, Rule 52(b) leaves the decision to correct the forfeited error within the sound discretion of the court of appeals, and the court should not exercise that discretion unless the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Id. at 732 (internal quotations omitted).

The Supreme Court's holding in United States v. Gaudin, 515 U.S. 506 (1995), strongly suggests there was an error and that it was "plain." The Court held that the Fifth and Sixth Amendments require that all elements of a crime be submitted to the jury, with the only conceivable exception being for issues involving a "uniform post ratification practice" to the contrary. Id. at 519. The government invokes no such practice. But we need not conclusively determine the issue, as Wilson has failed to show that the alleged error affected "substantial rights."

In his opening brief, Wilson argued summarily that the defective instruction affected substantial rights and was "prejudicial": "It invited the jury to convict without finding whether Appellant's conduct had been in or affected interstate commerce. There is no reason to believe that the jury disregarded that invitation." Appellant's Main Brief at 29. This simple treatment would have been adequate if omission of an essential element of the crime were a "structural" error, such as "complete deprivation of counsel or trial before a biased judge," which is automatically deemed to affect substantial rights. Neder v. United States, 527 U.S. 1, 8-9 (1999). But Neder holds that failure to instruct on an element of the crime is not structural. Where, as in Neder, objection has been made, omission of an element of the crime from the instructions is reviewed for harmless error, id. at 815, so that (the error being of constitutional magnitude) the verdict can be upheld if the government shows " 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' " Id. at 15 (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). Olano explains that for plain error review the burden on prejudice is reversed, requiring the defendant to show the error's likely effect on the verdict. 507 U.S. at 734. Wilson made no effort whatever to carry that burden. Thus the government was on solid ground in reading his brief as claiming only structural error. As the alleged error was not structural, Wilson has failed to offer support for a key ingredient of his claim, which thus necessarily fails.

We are not diverted from this conclusion by the fact that the government's brief, in a backup passage addressing the final element of plain error (whether the error affected "the fairness, integrity or public reputation of judicial proceedings," see Olano, 507 U.S. at 732), included a summary collection of evidence on interstate impact....