United States of America, Plaintiff - Appellee, v. Sienemah Terrance Gaye, Defendant - Appellant. United States of America, Plaintiff - Appellee, v. Finoh Sahr Fillie, Defendant - Appellant. United States of America, Plaintiff - Appellee, v. Prince Korboi Sumoso, Defendant - Appellant.
No. 17-1327, No. 17-1347, No. 17-1496
United States Court of Appeals For the Eighth Circuit
August 29, 2018
Before SMITH, Chief Judge, MURPHY and COLLOTON, Circuit Judges.
Appeals from United States District Court for the District of Minnesota - St. Paul. Submitted: February 15, 2018.
Sienemah Gaye, Finoh Fillie, and Prince Sumoso, along with twenty-two other co-defendants, were indicted for their involvement in a scheme to defraud banks. Gaye pleaded guilty to conspiracy to commit bank fraud, see
I.
The conspiracy in this case
Members of the conspiracy acquired payor account information through various means. Using social media, participants searched the hashtag “#myfirstpaycheck” and found photographs of legitimate paychecks that unwitting victims had posted online. Bank insiders sometimes provided account information. Some conspirators willingly turned over their own payroll or personal checks to be counterfeited by other members of the conspiracy.
Gaye was involved in this scheme from June 2005 to September 2013. Sumoso and Fillie joined later, with Sumoso participating from August 2007 to September 2013, and Fillie participating from November 2007 until September 2013. During the period between November 2007 and September 2013 alone, more than 500 runners negotiated over 1500 counterfeit or fraudulent
Gaye, Fillie, and Sumoso pleaded guilty to the charges against them, and the district court held a consolidated evidentiary hearing to resolve disputed sentencing issues. The court made findings under the sentencing guidelines that increased the offense levels for each defendant. On appeal, Gaye, Fillie, and Sumoso each challenge their sentences, arguing primarily that the district court committed procedural error in applying the guidelines. We review the district court‘s findings of fact for clear error and its application of the guidelines de novo.
II.
A.
1.
Gaye raises seven claims of error. He first complains that the district court improperly considered a report of Gaye‘s proffer interview with the government. The report included self-incriminating statements about Gaye‘s involvement in the bank fraud scheme. Gaye argues that the district court relied on the statements in upholding the government‘s refusal to move for a one-level reduction for acceptance of responsibility under
Before pleading guilty, Gaye agreed to meet with the government to provide information concerning the bank fraud conspiracy. As part of that arrangement, the parties signed an agreement that set forth the terms and conditions of the proffer interview. Among other things, the government agreed that it “w[ould] not offer in evidence . . . in connection with any sentencing proceeding for the purpose of determining an appropriate sentence, any statements made by [Gaye] at the meeting,” subject to certain enumerated exceptions. Under one exception, the parties agreed that “the government may use . . . statements made by [Gaye] at the meeting . . . to rebut any evidence, argument or representations offered by or on behalf of [Gaye] . . . at sentencing.” (emphasis added).
Whether the district court properly considered Gaye‘s proffer interview at sentencing turns on whether the quoted exception allowed for the use of the information. The district court concluded that “based on the facts and the language of the proffer agreement,” Gaye‘s statements during the interview could be used “for the limited purpose of rebutting Mr. Gaye‘s denial of many of the facts in the [presentence investigation report].” We agree.
During the proffer interview, Gaye explained that he printed and signed checks for other members of the conspiracy, and said that he “received $200-$300 per check for each person he recruited.” He admitted that he and his co-conspirators “had meetings”
But in his objections to the presentence investigation report (PSR) prepared by the probation office, Gaye denied many of these facts. He objected to and denied statements that he “created counterfeit checks,” “provided counterfeit checks,” and “shared in the fraudulent proceeds of the scheme.” Gaye objected to the statement that “members of the conspiracy met at various locations to distribute checks and proceeds of the fraud and also to discuss logistics of the scheme, disputes among the coconspirators and related topics.” He added a denial: “Defendant denies the meetings occurred and that he was an attendee of the meetings.” Gaye also denied that he “opened a fraudulent Bank of America account using the real name, date of birth, and social security number of victim R.D.W., a real person whose identity had been stolen, but with Gaye‘s address and phone number.” Gaye stood by his objections at the sentencing hearing, even though he had pleaded guilty to aggravated identity theft involving victim R.D.W., and even though the government presented additional testimony during the hearing to substantiate other factual allegations in the PSR.
Gaye contends that his objections to the PSR were not “evidence, argument or representations,” so the court was not permitted to consider his proffer interview under the exception stated in the agreement. But Gaye did more than object to the facts listed in the PSR and put the government to its burden of proof. By affirmatively denying certain facts, Gaye asserted that those facts were not true. This amounted to making “representations” about those facts.
Gaye also argues that his “statements were entirely consistent with the confidential information he shared with the Government,” but we disagree. Gaye‘s denials directly contradicted some of the information he provided to the government before sentencing, and therefore triggered the exception in the proffer agreement. The agreement thus permitted the district court to consider Gaye‘s statements “for the purpose of determining an appropriate sentence.” See United States v. Loesel, 728 F.3d 749, 753-54 (8th Cir. 2013); see also United States v. Araujo, 622 F.3d 854, 860-62 (7th Cir. 2010).
2.
Gaye contends that the court erred by increasing his offense level under
The district court found that Gaye had attempted to discourage a witness, Jeffrey Gbor, from testifying at his trial. The court cited a series of text messages that Gaye exchanged with Gbor‘s girlfriend, Kiana Harris, and other communications between
Before pleading guilty, Gaye learned through discovery that the government was planning to call Gbor as a witness against him. Gaye sent a text message to Harris on May 1, telling her that Gbor was going to testify against him. Harris responded with disbelief and said, “Does soda know?? . . . Maybe he can talk to him n tell him to chill.” (“Soda” is a nickname for Gbor‘s friend Marcel Chambers.) Gaye stated that he had not talked to Soda yet, and Harris replied, “U want me to tell soda?? I know they talk.” Gaye responded, “Yea.” A few minutes later, Harris sent a text message to Soda, referring to Gaye by his nickname “Nema.” The message stated: “Nema just hit me n told me he‘s in his lawyers office and just found out that Jeffery is going to testify against him. . . . Can u please talk to him n tell him to fall back on that.”
Soda responded about fifteen minutes later, expressing disbelief but telling Harris that he would “see wussup tho.” Harris forwarded Soda‘s message to Gaye, and in response, Gaye sent Harris pictures that he took of documents showing Gbor‘s cooperation with the government. Harris forwarded one of these photos to Soda, reiterating that Gbor was testifying against Gaye, and saying “U better try n talk to him ASAP.” In another message, Harris told Soda, “Hopefully he recants his statement.” Soda said, “Right . . . maybe he won‘t testify if I say something.”
Three days later, on May 4, Gbor told the government that he no longer wished to cooperate. Soda sent Harris a message telling her that Gbor was not going to testify against Gaye. Harris reported back to Gaye that “[S]oda said he talked to snitch bitch and he said he wasn‘t going to testify if they called him to the stand.” In a later message, she said, “Anyway, hopefully that helps.”
Gaye contends that under a “neutral reading,” his messages to Harris do not constitute obstruction, because they do not “suggest [Gaye] sought to intimidate Gbor to recant his cooperation.” But the guideline does not require a finding of intimidation. Obstructive conduct under
The district court found that Gaye attempted to “discourage a witness from testifying.” R. Doc. 1341, at 44. The federal witness tampering statute,
Gaye‘s messages with Harris make clear that Gaye knew that Gbor had provided evidence that incriminated Gaye. Gaye‘s agreement with Harris to have Soda tell Gbor to “chill,” followed by his transmission of documents to Harris confirming that Gaye was a cooperating witness, demonstrates that Gaye knew that he was attempting to influence, delay, or prevent the testimony of Gbor in an official proceeding against Gaye. The evidence supported a finding that Gaye did so with consciousness of wrongdoing. Even assuming that innocent attempts to encourage a person to exercise his right against self-incrimination do not violate the statute, see United States v. Farrell, 126 F.3d 484, 488 (3d Cir. 1997), the record supports a finding that Gaye did more. Gbor already had pleaded guilty, waived his right against self-incrimination, and disclosed incriminating information about Gaye to the government. Gaye then attempted to stop Gbor from testifying. It was thus not clearly erroneous to find that Gaye‘s messages constituted obstruction of justice that warranted a two-level increase under the guidelines. See United States v. Hemsher, 893 F.3d 525, 535 (8th Cir. 2018).
3.
Gaye next complains that the district court erred by not awarding him a third-level reduction under the guideline for acceptance of responsibility. See
Gaye asserts that the government lacked any basis to withhold the motion. Insofar as he means that the government acted irrationally, and thus unconstitutionally, the record does not support the contention. The government argued at sentencing that Gaye was not entitled to any reduction at all, because he had frivolously denied facts in the presentence report and obstructed justice. These were legitimate bases for opposing any reduction for acceptance of responsibility, see
4.
Gaye also challenges the district court‘s calculation of loss amount. The guidelines provide for a fourteen-level increase if loss from the defendant‘s offense is greater than $550,000 but less than or equal to $1,500,000.
Gaye contends that the facts do not support the court‘s calculation. He argues that he should have been held accountable for only the loss resulting from his own creation and negotiation of counterfeit checks. But a “sentencing court must include in its calculation any losses caused by ‘relevant conduct.‘” United States v. Quevedo, 654 F.3d 819, 823 (8th Cir. 2011). In the case of a jointly undertaken criminal activity, relevant conduct includes “all acts and omissions of others that were . . . (i) within the scope of the jointly undertaken criminal activity, (ii) in furtherance of that criminal activity, and (iii) reasonably foreseeable in connection with that criminal activity” and that “occurred during the commission of the offense of conviction.”
The district court did not clearly err in finding that the scope of Gaye‘s involvement in the conspiracy was substantial, and that the fraudulent transactions of his co-conspirators were foreseeable to him. The evidence tended to show that Gaye had extensive knowledge of how the scheme operated. Detective Joel Moore of the Edina Police Department testified that Gaye had been involved with the bank fraud scheme almost from its inception, and he described Gaye‘s involvement as both a runner and manufacturer for the scheme—depositing fraudulent checks into his own account and printing counterfeit checks for others. The detective also testified that Gaye coordinated and attended meetings with several of his co-conspirators where the group discussed dividing proceeds of the fraud and logistical issues presented by the scheme.
The government presented a chart that detailed dates of transactions, account holders, the check runner‘s name, and the amount of loss associated with each transaction that law enforcement believed was attributable to Gaye. According to Detective Moore, the chart “reflect[ed] all the transactions that law enforcement linked to this conspiracy.” Special Agent Shannon Korpela of the IRS concurred, testifying that she and Detective Moore determined that the checks on the loss schedules were connected to the conspiracy based on trash pulls, information from telephones seized during a search, a check-creating software program found on Gaye‘s computer, and information received from cooperating witnesses.
The court did not clearly err in finding that the transactions conducted by Gaye‘s co-conspirators were within the scope of the conspiracy and were reasonably foreseeable in light of Gaye‘s extensive involvement in the scheme. The court therefore properly treated the loss attributed to those co-conspirators as relevant conduct, and committed no clear error in concluding that the Gaye was responsible for the total loss listed on the government‘s chart.
5.
Gaye next complains that the district court clearly erred by applying a four-level increase under
The district court determined that Gaye was an organizer or leader based on its findings that “Gaye called meetings, monitored accounts, obtained victim information, was in many respects in the Court‘s view the initiator of the conspiracy and was involved from start to finish.” The court also cited “the text messages in which Mr. Gaye was directing others as the crime was being committed.” The record supports these findings, and we see no
6.
Gaye next argues that the court clearly erred by applying a two-level specific offense characteristic under
“Sophisticated means need not be highly sophisticated,” and the adjustment is “proper when the offense conduct, viewed as a whole, was notably more intricate than that of the garden-variety offense.” United States v. Norwood, 774 F.3d 476, 480 (8th Cir. 2014) (per curiam) (brackets and internal quotation marks omitted). “[T]he sophistication of the offense conduct is associated with the means of repetition, the coordination required to carry out the repeated conduct, and the number of repetitions or length of time over which the scheme took place.” United States v. Laws, 819 F.3d 388, 393 (8th Cir. 2016).
Gaye argues that his offense did not involve sophisticated means, because it amounted only to “stealing account numbers (often from social media),” “creating fake checks,” taking those checks to a bank, and depositing them into co-conspirators’ personal accounts. He argues that any other criminal could have committed this fraud, and that the offense was “crude and prosaic.”
Gaye understates the sophistication of his work. He was embroiled in a scheme involving over 1500 fraudulent transactions and more than 500 participants that persisted for eight years. For the conspiracy to succeed as long as it did, the scheme required “recruiting others so as to avoid detection,” Norwood, 774 F.3d at 480, “coordination and planning,” United States v. Bistrup, 449 F.3d 873, 883 (8th Cir. 2006), and a “vast network of coconspirators to carry out the scheme‘s numerous steps.” United States v. Jenkins-Watts, 574 F.3d 950, 962 (8th Cir. 2009). The court did not clearly err in applying the increase.
7.
In his final challenge, Gaye contends that his sentence of 144 months is substantively unreasonable. We review the reasonableness of a sentence under a deferential abuse-of-discretion standard, Gall v. United States, 552 U.S. 38, 51 (2007), and we presume that a sentence within the advisory guideline range is reasonable. See Hemsher, 893 F.3d at 535.
Gaye‘s sole contention is that the district court failed to accord proper weight under
B.
1.
Fillie raises seven claims of error. First, he challenges the district court‘s loss calculation. The district court concluded that Fillie was responsible for $770,551.08 in actual loss—a figure gleaned from another chart prepared by Detective Moore and Special Agent Korpela. Fillie disputes this figure.
Fillie contends that there was insufficient evidence to prove by a preponderance of the evidence that the loss caused by his co-conspirators was reasonably foreseeable to him. But the evidence tended to show that Fillie, like Gaye, had extensive knowledge of how the scheme operated and was deeply involved in its operations. Fillie participated in the scheme from 2007 to 2013, hosted the meetings where his co-conspirators discussed distributing profits, and served as both a runner and a manufacturer. On this record, it was not clearly erroneous to conclude that the transactions of Fillie‘s co-conspirators were reasonably foreseeable to him. The court properly held Fille responsible for the full amount of loss on the government‘s schedule.
2.
Fillie contends that the district court clearly erred in calculating the number of victims involved in his offense. The guidelines provide for a two-level increase if the offense “involved 10 or more victims.”
Fillie contends that he is responsible only for victims who suffered actual losses as a result of the transactions in which Fillie personally participated. On this view, he counts seven (not ten) victims whose losses he caused. But under relevant conduct principles, a sentencing court must also include those victims who suffered pecuniary loss as a result of acts taken by others in the jointly undertaken criminal activity.
3.
Fille next argues that the district court clearly erred by applying a three-level increase under
The district court determined that a three-level increase was appropriate because “there [was] some level of organization on the part of Mr. Fillie,” but the court did not “consider him to be at the level of Mr. Gaye in terms of being a leader.” The record supports this finding. The evidence tended to show that Fillie‘s residence was a major hub of the fraudulent
4.
Fillie also challenges the two-level increase for sophisticated means under
5.
Fillie next challenges the district court‘s calculation of his criminal history score. The district court determined that Fillie had nineteen criminal history points, which placed him in criminal history category VI. Fillie contends, however, that the court erred by assessing two criminal history points for each of the following convictions: (1) a 2011 conviction for check forgery, (2) a 2011 conviction for fifth-degree assault, (3) a 2013 conviction for second-degree refusal to submit to chemical testing, and (4) a 2014 conviction for driving under the influence. On this view, Fillie‘s total criminal history score would be 11, placing him in criminal history category V.
Fillie‘s conviction for check forgery involved an attempt to negotiate a counterfeit check on July 24, 2009, at TCF Bank. Fillie claims that the government included this counterfeit check on Fillie‘s loss schedule as part of his involvement in the instant offense. Because criminal history points are not assigned to sentences for “conduct that is part of the instant offense,”
Fillie argues in the alternative that he should have received only one criminal history point for the check forgery conviction, rather than two points, because he served only fifty days in jail. But “criminal history points are based on the sentence pronounced, not the length of time actually served.”
Because the district court did not err in adding two criminal history points for the check forgery conviction, we need not address Fillie‘s challenges to the criminal history points assessed on the other three convictions: regardless of the number of points assigned to the other convictions, Fillie‘s criminal history category remains category VI.
6.
Fillie next contends that his sentence is substantively unreasonable, but he
7.
Finally, Fillie appeals the district court‘s restitution order, arguing that the amount of restitution ordered ($770,551.08) should not have exceeded the amount agreed upon in Fillie‘s plea agreement ($481,929.17). “We review the district court‘s decision to order restitution for abuse of discretion and its underlying fact determinations for clear error.” United States v. Gregoire, 638 F.3d 962, 973 (8th Cir. 2011).
Fillie agrees that the Mandatory Victims Restitution Act,
Fillie contends that the court should not have exceeded the amount of restitution agreed upon in Fillie‘s plea agreement, but this argument is unavailing for two reasons. First, nothing in the text of the Mandatory Victims Restitution Act requires the court to limit its order of restitution to an amount agreed upon by the parties, and the parties’ plea agreement was not binding on the district court. Second, before sentencing, Fillie objected to the amount of restitution listed in his plea agreement, and the district court permitted Fillie to argue that he should be responsible for a lower amount. Fillie therefore repudiated the restitution stipulation before sentencing, and the court would have been free to disregard the figure in the plea agreement even if it were ordinarily binding. Having concluded that the actual loss suffered by the victims of the scheme was $770,551.08, the district court did not clearly err by ordering Fillie to pay restitution in the same amount.
C.
Sumoso‘s lone argument on appeal is that the district court erred in calculating the amount of loss attributed to him. Based on Sumoso‘s involvement in the conspiracy from 2007 to 2013, the court found that he was responsible for $770,651.08 in actual loss, and increased his offense level by fourteen levels. See
The evidence tended to show that Sumoso understood the full extent of the bank fraud scheme. As the district court explained, Sumoso “provid[ed] victim account information,” “recruit[ed] runners, obtain[ed] counterfeit checks from the manufacturers, provid[ed] checks to runners, and transport[ed] runners.” He also attended meetings to discuss logistics and profit-sharing with Gaye, Fillie, and other co-conspirators. There was sufficient evidence to support a finding that the activities of Sumoso‘s co-conspirators were reasonably foreseeable to him, given his understanding of the nature of the scheme. The losses associated with these activities are therefore attributable to Sumoso, unless he withdrew from the conspiracy during the periods when he was living outside the Twin Cities.
Under the common-law rule, a defendant withdraws from a conspiracy when he takes “affirmative action by making a clean breast to the authorities or by communicating his withdrawal in a manner reasonably calculated to reach his coconspirators.” United States v. Ortega, 750 F.3d 1020, 1024 (8th Cir. 2014) (internal quotation marks omitted). “A showing of nothing more than that the defendant has ceased activities is not sufficient to establish a withdrawal from the conspiracy.” Id. (internal quotation marks omitted). The defendant bears the burden of demonstrating withdrawal, id., yet Sumoso presented no evidence that he took steps to end his involvement in the conspiracy when he was living in North Dakota or southern Minnesota. Nor did he claim that he notified authorities of his involvement in the conspiracy when he left the Twin Cities area.
The district court acknowledged that “the record demonstrates that Mr. Sumoso was sometimes in and out of the conspiracy,” but ultimately concluded that “there is sufficient factual basis for the time that Mr. Sumoso was involved in this conspiracy,” and that “for the length of time that the government has demonstrated, he did play a substantial role.” This conclusion was not clearly erroneous. Another chart prepared by the investigators showed that Sumoso joined the conspiracy in August 2007 and that the conspiracy continued until September 2013. Without evidence of affirmative withdrawal, it remained foreseeable to Sumoso that his co-conspirators would continue the bank fraud scheme without his assistance. The court therefore properly increased Sumoso‘s offense level by fourteen levels.
* * *
For the foregoing reasons, the judgments of the district court are affirmed.