United States v. Monique Calhoun
721 F.3d 596
| 8th Cir. | 2013Background
- Edwon Simmons, Tyrone Ross, and others ran a black-market travel operation purchasing airline tickets with stolen credit-card data and reselling them at deep discounts; several co-conspirators pleaded guilty. Monique Calhoun purchased multiple tickets from Simmons. Ross was a principal booker in the conspiracy.
- Federal investigation (including a wiretap) tied Simmons to ticket sales; Simmons testified under a plea agreement that he used stolen card data, sold tickets to Calhoun, and instructed customers to avoid using their own cards at kiosks.
- Recorded calls: Simmons told Calhoun to say she bought tickets on Craigslist; Calhoun told a Postal Inspector she bought tickets on Craigslist and gave false identifying information. Investigators found numerous passenger names, flight confirmations, and stolen card profiles linked to Ross.
- Calhoun was convicted of conspiracy to commit access device fraud and aggravated identity theft and of making false statements to investigators; sentenced to two years’ probation. Ross pleaded guilty to related counts and received an 84-month sentence.
- Appeals: Calhoun challenged sufficiency of evidence, certain evidentiary rulings, and ineffective assistance; Ross challenged loss and victim calculations and a sophisticated-means enhancement at sentencing. The Eighth Circuit affirmed both judgments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for Calhoun's conspiracy conviction | Calhoun: evidence was insufficient to show she knew the conspiracy's object (access device fraud/identity theft) | Government: her purchases, calls, Simmons’s testimony, and context showed she knew the tickets were fraudulently obtained | Affirmed: under plain-error review, evidence supported at least participation in a scheme to obtain fraudulently purchased tickets; no miscarriage of justice |
| Sufficiency for false-statement conviction | Calhoun: she lacked knowledge of the underlying fraud, so could not have knowingly lied to conceal that conspiracy | Government: she knowingly lied to the Postal Inspector about how she acquired tickets; jury was properly instructed on materiality | Affirmed: evidence supports knowing false statements about ticket acquisition to federal agent |
| Admission of investigators’ testimony about third-party statements (hearsay / Confrontation) | Calhoun: trial court erred in not excluding Inspector Ryan’s recounting of cardholders’ denials and other buyers’ statements | Government/Respondent: statements were either admissible, waived, or defense counsel strategically declined to object | Affirmed: no plain error; some issues waived; trial tactics justified lack of objection |
| Ineffective assistance (failure to object to hearsay) | Calhoun: counsel's failure to object was ineffective assistance | Government: tactical choices are highly deferential and such claims are usually raised in collateral proceedings | Not resolved on direct appeal: court declines to adjudicate ineffective-assistance claim on direct appeal; follow the usual practice to address on collateral review |
| Sentencing — fraud loss amount attributable to Ross | Ross: government lacked evidence tying him to the PSR’s $1,000,000+ loss estimate; should be limited to ~200 bookings | Government: loss estimate may be based on reasonable inferences and foreseeable co-conspirator activity; guidelines permit estimates | Affirmed: clear-error review finds sufficient evidence to support $1,000,000+ loss estimate (at least ~2,000 flights during Ross’s active period) |
| Sentencing — number of victims for enhancement | Ross: victims should be limited to his lower booking estimate | Government: evidence showed >250 direct victims and many more foreseeably victimized by co-conspirators | Affirmed: enhancement for 250+ victims was supported |
| Sentencing — sophisticated-means enhancement | Ross: offense was garden-variety ticket purchase using stolen card info | Government: conspirators employed evasion techniques (timing, misspellings, separate bookings) and organized methods | Affirmed: two-level sophisticated-means enhancement not clearly erroneous |
Key Cases Cited
- United States v. Jenkins-Watts, 574 F.3d 950 (8th Cir. 2009) (standard for reviewing sufficiency and conspirator knowledge)
- Ingram v. United States, 360 U.S. 672 (1959) (conspiracy requires intent necessary for the substantive offense)
- United States v. Pirani, 406 F.3d 543 (8th Cir. en banc 2005) (plain-error standard elements for forfeited sufficiency claims)
- United States v. Villasenor, 236 F.3d 220 (5th Cir. 2000) (when submission to jury is plain error for lack of evidence)
- United States v. Rice, 449 F.3d 887 (8th Cir. 2006) (elements of false-statement offense and materiality)
- Strickland v. Washington, 466 U.S. 668 (1984) (standard for ineffective assistance of counsel)
- United States v. Gregoire, 638 F.3d 962 (8th Cir. 2011) (clear-error review of fraud-loss findings and permissible reliance on reasonable estimates)
- United States v. Brown, 627 F.3d 1068 (8th Cir. 2010) (application of sophisticated-means enhancement)