Beruflich Dokumente
Kultur Dokumente
No. 13-4924
Appeal from the United States District Court for the District of
Maryland, at Baltimore.
William D. Quarles, Jr., District
Judge. (1:11-cr-00302-WDQ-3)
Argued:
Decided:
April 1, 2015
ARGUED:
Sarah F. Lacey, LEVIN & CURLETT LLC, Baltimore,
Maryland, for Appellant.
Sujit Raman, OFFICE OF THE UNITED
STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
ON BRIEF:
Steven H. Levin, LEVIN & CURLETT LLC, Baltimore, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
jury
convicted
Daren
Kareem
Gadsden
of
one
count
of
imprisonment.
his
motion
for
judgment
of
acquittal,
his
sentence,
and
the
I.
Gadsden
was
landlord
in
the
Housing
Authority
of
HABC disbursed
Bank
account
held
by
Daren
Gadsden,
LLC. 1
When
HABC
in
scheme
to
steal
money
from
HABC
using
with
forged
drivers
photograph,
opened
Contracting,
LLC
license
a
PNC
Bank
(Daughtry
Daughtrys
account
LLC).
name
for
Gadsden
but
Dardens
Keith
Daughtry
then
transferred
funds through the ACH from HABCs Bank of America account to the
Daughtry LLC account.
open
Bank
Consulting,
funds
to
of
LLC
that
America
account
(Fisher
account
LLC).
through
under
the
Gadsden
the
ACH
name
began
after
James
Fisher
transferring
submitting
funds
through
the
following
three
methods:
(1)
they
transferred funds through the ACH from the Daughtry LLC account
at PNC Bank into 54 NetSpend debit card accounts in the names of
other individuals, some of whose identities Gadsden had stolen;
(2) they made in-person cash withdrawals from the Daughtry LLC
account; and (3) they opened accounts, such as the Fisher LLC
account,
at
banks
other
than
PNC--sometimes
3
by
using
stolen
All
transfers.
PNC
Bank
ultimately
covered
that
loss
by
grand
jury
indicted
Gadsden
in
May
2012
on
thirteen
29)
for
judgment
of
acquittal.
He
argued
that
the
the
convictions
under
the
heightened
4
burden
of
proof
it
accepted.
286
months
imprisonment
amount of $1,399,700.
and
It sentenced Gadsden
ordered
restitution
in
the
Gadsden appealed.
II.
A Rule 29 motion challenges the sufficiency of the evidence
to support the conviction.
We
III.
Gadsden argues on appeal that the district court erred by
denying
his
unreasonable
$1,399,700.
motion
for
sentence,
judgment
and
setting
of
his
acquittal,
restitution
imposing
amount
an
at
A.
Gadsden first argues that he was entitled to judgment of
acquittal because the evidence was insufficient to support any
of his convictions.
We disagree.
ground
that
the
government
failed
to
produce
sufficient
See
Consequently, he has
argument
section
of
the
opening
brief
are
abandoned.).
Because Gadsden tethers his only argument under Count One to his
sufficiency argument under Counts Two through Nine, if there was
sufficient evidence for the substantive bank fraud convictions,
his conspiracy argument fails.
were
supported
by
sufficient
evidence.
Therefore,
we
also
either subsection.
government
presented
theory
of
liability
under
The government
J.A. 1125.
necessary or appropriate.
Regardless of whether the government
was required to prove a violation as to both banks, the evidence
was sufficient to support the 1344 convictions.
3
to
support
the
finding
that
Bank
of
America
to
risk
at
trial
[approximately
transfers
of
from
$1.3
the
loss,
that
PNC
Daughtry
million]
HABC
from
investigator
LLC
was
Bank
account.
going
of
J.A.
Michael
to
America
79.
Hersh
receive
in
ACH
Although
PNC
returned the full amount to Bank of America, the jury could have
reasonably inferred from Hershs testimony that Bank of America
suffered a risk of loss in that it would have been liable to
HABC
for
the
fraudulently
transferred
funds
but
for
PNCs
of
testimony
America
that
suffered
PNC
Bank
an
actual
recover[ed]
loss
some
based
money
on
Hershs
from
the
branches or banks that the funds were sent to, bringing its
loss down to $1.1 million.
J.A. 188.
name any specific bank, the jury received evidence that accounts
at Bank of America were the second most-common recipients of
funds
transfers
from
the
Daughtry
LLC
account,
with
This
evidence
supports
the
over
See J.A.
conclusion
that
PNC
on
could have
the
evidence
concluded
described
beyond
above,
reasonable
doubt
rational
that
jury
Bank
of
sufficient
to
support
the
convictions.
Accordingly,
we
Ten
and
Eleven
charged
Gadsden
with
and
in
violation . . . ,
relation
knowingly
to
any
transfers,
aggravated
A person who,
[predicate]
possesses,
felony
or
uses,
commits
1028A(a)(1).
aggravated
identity
theft.
18
U.S.C.
Id.
1028A(c)(5).
Gadsden does not challenge that he used stolen identities,
but rather argues on appeal that his aggravated identity theft
conviction
requires
not
just
10
the
commission,
but
also
does
not
otherwise
challenge
his
identity
theft
of
two
accounts
directly
associated
with
the
corruptly . . .
alters,
destroys,
mutilates,
or
conceals
1512(c)(1).
Gadsden makes
to
provide
sufficient
evidence
to
prove
that
it
was
Second,
he contends that he did not act with the intent to impair the
objects
integrity
or
availability
for
use
in
an
official
does
because
he
not
had
obstruct
legitimate
or
impair
reasons
an
for
governments
evidence
was
investigation,
and
the
see
deletion,
entirely
circumstantial.
J.A. 1170. 4
As we noted above, the evidence at trial showed that the
email
accounts
were
deleted
within
days
of
the
FBI
agents
12
account.
could
have
deleted
concluded
the
investigation. 5
beyond
accounts
And
that
reasonable
with
the
the
doubt
intent
evidence
to
may
that
Gadsden
impair
have
the
been
[C]ircumstantial
exclude
every
reasonable
hypothesis
consistent
with
innocence.
Cir. 1989).
and Thirteen.
B.
We turn now to Gadsdens challenge to the reasonableness of
his sentence.
within-Guidelines
sentence
of
286
months
imprisonment:
13
calculating
the
Guidelines
range,
the
district
court
misrepresentation
that
the
defendant
was
acting
on
was
J.A. 130001.
procedurally
unreasonable
because
the
district
defendant
challenges
the
reasonableness
of
14
Id.
Id. at 319.
error
as
to
the
obstruction
enhancement,
see
supra
n.7.
documents,
multiple
stolen
identities,
and
the
Gadsden
challenges
Appellants
Br.
at
the
46
restitution
n.8.
Because
amount
PNC
of
Bank
The obstruction-of-justice enhancement, like the evidencetampering statute, applies to attempts as well as to completed
acts. U.S.S.G. 3C1.1.
15
We do so here.
IV.
For the foregoing reasons, we affirm the judgment of the
district court as to Gadsdens convictions and sentence, and
remand
with
instructions
to
alter
the
restitution
amount
to
$1,100,000.00.
AFFIRMED IN PART AND
REMANDED WITH INSTRUCTIONS IN PART
16