Before: RENDELL and AMBRO, Circuit Judges
BAYLSON, District Judge [*] (Opinion filed: December 14, 2006) OPINION
AMBRO, Circuit Judge
Andrew Clark appeals his conviction and sentence for bank fraud. For the reasons *3 that follow, we affirm.
I. Facts and Procedural History
Clark was charged with two counts of bank fraud in violation of 18 U.S.C. § 1344.
He pled not guilty to both counts. The jury convicted him of one and acquitted him of the other.
As to the count on which Clark was convicted, the Government alleged that he orchestrated a scheme to withdraw funds illegally from PNC Bank accounts. Specifically, Clark recruited Mercedes Gibbs, a PNC teller, to sell him the confidential information of PNC account holders, including names, account numbers, Social Security numbers, and copies of signature cards. Clark requested joint accounts containing more than $15,000. He paid Gibbs $500 per account. To withdraw the funds, Clark solicited the help of An-Nur Hamilton in recruiting two people (one male and one female) to impersonate account holders. Clark himself recruited Joyce Troche, the female impostor, and Hamilton, at Clark’s direction, recruited James Myers, the male impostor. Clark also directed Hamilton to make fake identification cards for Troche and Myers to use in withdrawing funds from PNC. Over the course of a month, Clark’s group made 17 attempts to withdraw funds, 15 of which were successful. In terms of amount, they attempted to withdraw a total of $131,770.49 and succeeded in withdrawing $106,059.21.
In the Pre-Sentence Report, the Government calculated the Guidelines offense level at 19. This level comprises:
• *4 A base level of six, U.S.S.G. § 2F1.1; [1] • A seven-level enhancement for an amount defrauded or attempted between $120,000 and $200,000, U.S.S.G. § 2F1.1(b)(1)(H) (2000); • A two-level enhancement for more than minimal planning, U.S.S.G. § 2F1.1(b)(2)(B); and
• A four-level enhancement for Clark’s role as leader/organizer of the group, U.S.S.G. § 3B1.1(a).
The PSR further calculated a criminal history category of V. Putting these together, the Guidelines yielded a range of 57 to 71 months’ imprisonment. At the sentencing hearing, Clark contested all three enhancements, but the Judge found each of them applicable by clear and convincing evidence. The Judge did not address all of the 18 U.S.C. § 3353(a) factors. He, however, heard defense counsel’s argument on a number of those factors [2]
and commented on them. After a full colloquy, the Judge imposed a sentence of 64 months’ imprisonment—the middle of the Guidelines range.
Clark appeals. [3]
II. Standards of Review
Whether an indictment is duplicitous is a question of law subject to
de novo
review.
United States v. Haddy
,
(4) the kinds of sentence and the sentencing range established for— (A) the applicable category of offense committed by the applicable category of defendant as set forth in the [Sentencing Commission] guidelines— . . . ;
(5) any pertinent [Sentencing Commission] policy statement— . . . ;
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
[3]
The District Court had jurisdiction under 18 U.S.C. § 3231 (offenses against the United
States). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2).
*6
we review sentences for reasonableness.
United States v. Cooper
,
III. Discussion
A. Was the Government’s combination of 17 instances of bank fraud into one count proper?
The Government charged Clark with one count of bank fraud against PNC. That count comprised 17 separate withdrawals and attempted withdrawals of funds, 10 by Joyce Troche and seven by James Myers. Clark argues that the indictment was duplicitous because it deprived the jury of the ability to pass judgment on his guilt with respect to each withdrawal. He particularly objects to charging Troche and Myers’s [4]
withdrawals in the same count because he claims that the evidence of his connection to Myers was substantially weaker; thus, he argues, the jury could have acquitted him on those transactions. He further argues that even if the indictment were proper, the Judge’s denial of his request for a special verdict was improper.
We cannot accept Clark’s arguments. To determine how an offense should be
*7
charged, we look to the statute to see what the substantive offense is.
Haddy
,
The question here, however, is whether each attempt must be charged separately.
The Government’s theory of the case was that each withdrawal was part of an overall
scheme, orchestrated by Clark, to defraud PNC. To prove commission of the offense, the
Government needed only to show that Clark executed or attempted to execute the scheme
once. Under these circumstances, our sister circuits have held that it is appropriate for the
Government to charge but one count of bank fraud, alleging that the defendant took part
in a fraudulent scheme that was executed at least once.
See King
,
There is no question double jeopardy does not apply here. In addition, Clark was
on notice that the Government was alleging multiple transactions within the overall
scheme, and the Judge made it clear that a guilty verdict meant that the jury agreed on at
least one execution or attempted execution of the scheme. Clark’s primary concern is
sentencing: he argues that it was unfair to sentence him on the basis of all of the
transactions when the jury may only have convicted him of one. The problem with this
argument is that the amount of the fraud for sentencing purposes is determinable by the
trial judge by a preponderance of the evidence, so no jury right is implicated.
Cooper
,
B. Did the prosecutor improperly vouch for the credibility of a critical witness?
As an initial matter, we review this issue for plain error, as defense counsel did not
object to the prosecutor’s allegedly improper statements at trial.
Brennan
,
Clark argues that in his closing statement the prosecutor improperly vouched for the credibility and consistency of An-Nur Hamilton’s testimony. Hamilton testified at trial that Clark never dealt directly with the male impostor James Myers; rather, Hamilton testified that he had hired Myers at Clark’s direction. According to FBI Agent Koby’s notes, Hamilton said in a previous interview that Myers and Clark were “associates.” Koby, however, testified that “associates” was his word, not Hamilton’s. Neither side asked Koby to clarify the point further. In his closing argument, defense counsel stated that Hamilton’s testimony was not credible because it was inconsistent: Hamilton had essentially told Koby that Clark and Myers knew one another in an interview and then at trial testified that they did not. In response, the prosecutor argued that the testimony was consistent because Koby, not Hamilton, had used the word “associates” and that word accurately described Myers and Clark’s relationship because, despite the fact that they did not know each other, the two were engaged in a joint criminal enterprise.
To make out a claim of improper vouching, Clark must show that “(1) the
prosecutor [assured] the jury that the testimony of a Government witness [was] credible;
and (2) this assurance [was] based on either the prosecutor’s personal knowledge, or other
information not contained in the record.”
United States v. Walker
,
C. Did the District Court abuse its discretion in admitting evidence of Clark’s possession of a fake identification card in 2002 for the purpose of proving opportunity?
In 2002 Clark was arrested for possessing a false identification card. This was some two years after the events covered by his indictment for bank fraud. The District Judge admitted the evidence under Federal Rule of Evidence 404(b) for the sole purpose of proving that Clark had the opportunity and ability to acquire fake identification cards, as he allegedly did in connection with the bank fraud charges.
To be admissible under Rule 404(b), evidence of other bad acts must meet four
criteria: (1) have a proper evidentiary purpose, (2) be relevant, (3) have probative value
outweighing prejudicial value, and (4) be accompanied by a jury instruction explaining
the limited purpose for which the evidence may be used.
United States v. Huddleston
,
The Judge agreed with the Government, and we do not find that he abused his *11 discretion in so doing. As the District Judge found, the evidence did suggest that Clark knew how to obtain a fake identification card, which (as the Judge noted) is not something that everyone knows how to do. Given that the Government was accusing Clark of obtaining fake identification cards for his impostors, the Judge was correct in finding that evidence of his ability to do so was relevant and offered for a proper purpose. In addition, the Judge’s findings as to prejudice are reasonable. Bank fraud is a far more serious and complex crime than possession of a fake identification card, and so it seems doubtful that allowing in evidence of the latter would prejudice the jury as to the former. After making his ruling, the Judge issued a curative instruction explaining that the jury could only consider the evidence as probative of opportunity and not of Clark’s character. In this context, the Judge did not abuse his discretion in admitting the evidence.
D. Did the District Court err in its handling of a juror’s complaint of pressure?
During deliberations, one of the jurors asked to speak with the Judge. When she was brought in, she asked to be replaced by one of the alternates. The Judge asked her why, and she stated that she felt harassed by two other members of the jury. He asked her how she was harassed, and she stated that she was being pressured to change her mind. In response, the Judge referred her back to his jury instructions, which stated that jurors should listen to one another but keep to their firmly held views. The juror then returned to deliberations, and just 40 minutes later the jury returned a verdict.
Because defense counsel did not object to the Judge’s handling of the matter (and
*12
in fact affirmatively stated that he had no problem with it), we review the Judge’s actions
for plain error.
Brennan
,
Clark argues that the Judge should have issued a strong curative instruction to the
entire jury, and that the failure to do so resulted in the aggrieved juror changing her vote.
Handling alleged juror misconduct rests within the sound discretion of the District Court.
Boone
,
E. Did the District Court err in determining the applicability of sentencing factors by clear and convincing evidence?
Clark claims that the Judge found the amount of his fraud by clear and convincing
evidence at his sentencing hearing when that issue should have been submitted to the jury
and found beyond a reasonable doubt. We have never held that sentencing factors that do
not push the sentence over the statutory maximum require proof beyond clear and
*13
convincing evidence, which is the standard that the District Judge used in finding all
factors relevant to calculating the proper Guidelines range.
Cf. United States v.
Kikumura
,
F. Was the sentence of 64 months’ imprisonment unreasonable?
Under our holding in
Cooper
, district courts must properly calculate the Guidelines
range,
The Court also applied an enhancement of two levels for more than minimal planning. U.S.S.G. § 2F1.1(b)(2)(B). The evidence supported finding that Clark’s scheme was quite complex, requiring him to line up a complicit teller, a middleman, and impostors.
The Court also applied a four-level enhancement for Clark’s role as an organizer or leader. U.S.S.G. § 3B1.1(a). Again, the evidence supported the notion that this was Clark’s scheme—that he was the one recruiting accomplices, arranging the details, and ultimately dividing up the money taken. Thus, the District Court properly calculated the Guidelines offense level as 19.
After calculating the Guidelines range, the District Court must give “meaningful
consideration” to the § 3553(a) factors.
Cooper
,
The record indicates that the Court gave each of these issues meaningful consideration. As to the pre-trial detention issue, the Court found that it needed do no more *15 than credit the time against Clark’s ultimate sentence. It found no unreasonable delay and stated that no evidence of inhumane conditions was before it. As for Clark’s drug use, the Court merely stated that it would consider the issue. It did not comment further, but we have no reason to doubt that the Court considered the issue as it stated it would. With respect to the shorter sentences of Clark’s accomplices, the Court noted that Clark had a much higher criminal history level than they had, and so they were not similarly situated; moreover, Clark was the leader and thus deserving of a harsher sentence. On the complexity/leadership issue, the Court simply stated that it considered the issues distinct and deserving of independent enhancements. Clark led a complex scheme, and the Judge determined that his sentence should reflect that. In this case, the Court meaningfully considered every meritorious § 3553(a) issue brought to its attention. No more is required.
The ultimate result of this process—a sentence of 64 months’ imprisonment—is reasonable. Clark’s sentence reflects his leadership, the complexity of the scheme, the amount of money defrauded, and his lifelong pattern of criminal, fraudulent behavior. It is still, however, within the Guidelines range and well below the statutory maximum of 30 years. Thus we find the sentence reasonable.
* * * * *
We hold that Clark’s conviction for bank fraud was proper, and his sentence of 64 months’ imprisonment was reasonable. We therefore affirm both his conviction and sentence.
Notes
[*] Honorable Michael M. Baylson, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
[1] All references to the U.S. Sentencing Guidelines are to the 2000 Manual, as that was the one used in sentencing Clark.
[2] Section 3553(a) states in relevant part: The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider— (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed— (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional
[4] Clark refers to the alleged problem with the indictment as “misjoinder.” This is a mislabel. “Misjoinder” typically refers to the improper charging of multiple counts or multiple defendants in one indictment; it does not typically refer to selecting the wrong unit of prosecution. The proper unit of prosecution is a distinct offense, as defined by the U.S. Code. In determining this, two errors are possible. First, if the Government improperly charges the same offense in multiple counts, the indictment is “multiplicitous,” which if true implicates double jeopardy concerns. If, as alleged here, the Government charges two or more distinct offenses in one count, the indictment is “duplicitous,” which improperly deprives the defendant of a jury verdict on each distinct offense. Both errors render the indictment defective. Charles Alan Wright et al., 1A Fed. Practice & Procedure: Criminal 3d § 142 (1999).
[5] We note that an alternative sustaining ground is that Clark waived this argument by not
raising it before trial, as is required for alleged defects in an indictment.
See Davis v.
United States
,