United States v. Dennis Gray Williams
2015 U.S. App. LEXIS 10485
11th Cir.2015Background
- Between Dec 2009 and Apr 2010 Williams fabricated and passed five checks (using blank check stock and software) that bore routing/account numbers of others (Gelmans; Florida Healthy Kids Corp.) and procured goods/services and certified-funds purchases.
- Four paper checks withdrawn funds from the Gelmans’ CNL Bank account; one purported to be a SunTrust cashier’s check but used Florida Healthy Kids’ account/routing numbers.
- Separately, from late 2009–Apr 2010 Williams entered the Gelmans’ account and routing numbers on websites to make electronic payments (no paper checks were used), obtaining >$6,700.
- Williams was on supervised release for prior fraud convictions; he was arrested for violating supervised-release terms, released pending a revocation hearing, and then failed to appear.
- Indicted on seven counts: Counts 1–5 (18 U.S.C. § 514 — passing false or fictitious instruments), Count 6 (18 U.S.C. § 1029 — unauthorized use of an access device for electronic transactions), Count 7 (18 U.S.C. § 3146 — failure to appear). He waived a jury; district court denied post-trial motions and sentenced him; Eleventh Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether fabricated checks are “false or fictitious instruments” under 18 U.S.C. § 514 | Williams: §514 ambiguous; "false or fictitious" should be read to cover only non‑existent types of instruments (e.g., wholly imaginary obligations); his conduct fits §513 counterfeiting, not §514 | Government/District Court: §514’s plain language, read with §513 definitions, criminalizes wholly fake checks that purport to be actual securities (checks); §514 and §513 can overlap | Affirmed: §514 unambiguously covers Williams’s fabricated checks; convictions on Counts 1–5 supported by sufficient evidence |
| Whether entering account/routing numbers online constitutes use of an “access device” under 18 U.S.C. § 1029 | Williams: account numbers on paper checks are part of a paper instrument; §1029 excludes transfers “originated solely by paper instrument,” so his conduct (use of numbers found on checks) is not use of an access device | Government/District Court: §1029(e)(1) expressly includes account numbers as access devices; the statutory exclusion applies only where transfers originate solely by paper instrument — here transactions were electronic via websites, not paper-originated | Affirmed: account/routing numbers used online are access devices when used to initiate electronic transfers; Count 6 upheld |
| Whether failure to appear conviction under 18 U.S.C. § 3146 is supported where defendant was released following a supervised‑release violation | Williams: a supervised‑release violation is not an “offense” under §3146(b), so the statute’s punishment table does not apply; conviction improper | Government/District Court: §3146 applies to persons released “in connection with” an offense; supervised release is part of the sentence for the underlying conviction, so the original offense governs | Affirmed: §3146 applies; the relevant ‘‘offense’’ is the original conviction that led to supervised release; Count 7 upheld |
Key Cases Cited
- United States v. Howick, 263 F.3d 1056 (9th Cir. 2001) (discusses §514 purpose and indicia showing when a bogus instrument purports to be an “actual” financial instrument)
- United States v. Morganfield, 501 F.3d 453 (5th Cir. 2007) (distinguishes facially genuine bank‑issued checks from wholly fabricated instruments under §514)
- United States v. Tatum, 518 F.3d 769 (10th Cir. 2008) (holds that counterfeit checks and account numbers used only as part of passing paper checks fall outside §1029’s access‑device definition when transfers originate solely by paper instrument)
- Pasquantino v. United States, 544 U.S. 349 (2005) (recognizes overlapping federal statutes may criminalize similar conduct; prosecutors may elect statutes)
- Batchelder v. United States, 442 U.S. 114 (1979) (prosecutorial election among overlapping statutes is permissible absent improper motive)
- United States v. Jensen, 705 F.3d 976 (9th Cir. 2013) (treats original conviction as the ‘‘offense’’ for §3146 sentencing context)
- United States v. McIntosh, 702 F.3d 381 (7th Cir. 2012) (rejects argument that supervised‑release violation cannot serve within §3146 framework)
- United States v. Phillips, 640 F.3d 154 (6th Cir. 2011) (discusses why supervised‑release violation is not itself an “offense” under §3146(b))