PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4621
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EHIZELE AYDO SEIGNIOUS, a/k/a Mike Smith,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, Senior District
Judge. (1:10-cr-00580-BEL-3)
Argued: May 15, 2014 Decided: July 1, 2014
Before WILKINSON and THACKER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by published opinion. Senior Judge Hamilton wrote the
opinion, in which Judge Wilkinson and Judge Thacker joined.
ARGUED: Arthur Samuel Cheslock, Baltimore, Maryland, for
Appellant. Tamera Lynn Fine, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J.
Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
HAMILTON, Senior Circuit Judge:
We ordered briefing on several issues pertaining to the
district court’s order that criminal defendant Ehizele Seignious
(Seignious) pay $1,213,347 in restitution, pursuant to the
Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A.
For reasons that follow, we affirm the district court’s order of
restitution.
We also affirm Seignious’ convictions and sentence in the
face of the brief filed by Seignious’ appellate counsel,
pursuant to Anders v. California, 386 U.S. 738 (1967), the pro
se supplemental brief filed by Seignious, and our court’s
obligation under Anders to “conduct ‘a full examination of all
the proceeding[s] to decide whether the case is wholly
frivolous,’” Penson v. Ohio, 488 U.S. 75, 80 (1988) (quoting
Anders, 386 U.S. at 744) (alteration in original).
I.
A.
On April 12, 2012, Seignious pled guilty, without benefit
of a plea agreement, to one count of conspiracy to commit bank
fraud, 18 U.S.C. § 1349, one count of access device fraud, id.
§ 1029(a)(4), one count of bank fraud, id. § 1344, and one count
of aggravated identity theft, id. § 1028A. The charges stem
from a massive and organized scheme to use stolen credit card
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information to create counterfeit credit cards and to use such
cards to make retail purchases of gift cards and high-end
merchandise to be sold or returned for cash. The scheme spanned
nearly four years——from December 2007 through at least August
2010.
Following Seignious’ guilty plea, but prior to his final
sentencing hearing, the district court conducted five
evidentiary hearings over the course of two months to address,
inter alia, the parties’ dispute regarding the applicable loss
figure under United States Sentencing Guidelines (the Guidelines
or USSG) § 2B1.1(b)(1). During these hearings, the government
offered the testimony of numerous cooperating witnesses who were
involved in the scheme, the testimony of an investigative agent
with the Secret Service who worked extensively on the case, and,
through such agent, a summary exhibit of physical and
documentary evidence regarding actual and intended losses caused
by the bank fraud conspiracy.
Sherice Jones (Jones), one of the initial four
coconspirators in the case, testified that Seignious introduced
her to the other two primary coconspirators——brothers Moadian
Bratton-Bey (Moadian) and Boaz Bratton-Bey (Boaz). 1
1
For ease of reference, we refer to Seignious, Jones,
Moadian, and Boaz collectively as “the Initial Coconspirators.”
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During its infancy, the conspiracy involved recruiting
employees at legitimate businesses such as restaurants and
hotels to use skimmer devices to record customers’ credit card
numbers and then deliver those numbers to the Initial
Coconspirators. Eventually, the conspiracy grew to include the
purchasing of large volumes of credit card numbers from foreign
countries, including China and Russia, over the Internet.
Credit card numbers in hand, the Initial Coconspirators
manufactured fraudulent credit cards using specialized printers
and other equipment purchased by Seignious, Moadian, and Boaz.
The Initial Coconspirators also counterfeited photo
identification cards to accompany the fraudulent credit cards.
The Initial Coconspirators would then use the newly minted
credit and identification cards to purchase high-value
merchandise in various retail stores. To convert their
purchases to cash, they would return the merchandise for refunds
or sell the merchandise to third parties.
Jones also explained that the conspiracy involved
purchasing individuals’ identifying information from a local
business which specialized in assisting customers with passport
applications. Jones and Seignious would use such information to
purchase or rent cars and property and to open new credit card
accounts. Jones noted that Seignious used another person’s
identifying information to rent an apartment where the
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conspiracy based its operations and where Seignious personally
produced counterfeit credit cards.
As the conspiracy grew, the Initial Coconspirators
recruited numerous other individuals known as “strikers” to
handle the necessary interaction with retailers. This division
of labor produced a tiered hierarchy of crews, comprised of five
to six individuals each, who were managed and supplied with
fraudulent credit cards by the Initial Coconspirators. In
total, Jones estimated that over fifty individuals were
recruited to assist in the conspiracy which eventually expanded
to other states up and down the eastern seaboard of the United
States.
Regarding the conspiracy’s profitability, Jones testified
that, once fully operational, the conspiracy involved three to
five crews each making $5,000 to $10,000 in fraudulent purchases
per day. Jones estimated that the scheme netted millions of
dollars in merchandise through the use of over 1000 counterfeit
credit cards. Jones explained that, on average, each card the
conspiracy produced that proved operational would be used to
make three to four purchases of $1,500 to $2,000 each.
Shelia Allen, a striker in the conspiracy, testified that
she alone purchased roughly $8,000 worth of televisions per week
from January to April 2009. Another striker in the conspiracy,
Mandy Myers (Myers), estimated that she alone used counterfeit
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credit cards to purchase around $400,000 to $500,000 worth of
merchandise during her fifteen-month involvement in the
conspiracy.
Jermaine Dansbury (Dansbury), a mid-level manager who the
government refers to as a wrangler, estimated that some weeks
his crew purchased between $5,000 and $20,000 worth of
merchandise.
Secret Service Special Agent Scott Windish (Agent Windish),
one of the lead investigative agents in the case, testified last
on behalf of the government. Of relevance on appeal, through
his testimony, Special Agent Windish laid the foundation for
admission of Government Exhibit 1A. Government Exhibit 1A
consists of a thirty-six page, color-coded document, in a
twelve-column spreadsheet format. Government Exhibit 1A lists
1827 credit card numbers with each credit card number and its
corresponding information coded in black (1,460), red (49) or
blue (318). 2
Per Special Agent Windish’s testimony, black coding
represents credit card numbers found on computers used by the
conspiracy or found on computer printouts belonging to the
conspiracy. The conspiracy purchased the credit card numbers
2
The government introduced an earlier version of this
exhibit as Government Exhibit 1. Because Government Exhibit 1A
is the final version, we do not consider the content of Exhibit
1.
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coded in black in bulk amounts from persons in foreign countries
via Internet transactions known as “credit card dump[s].” (J.A.
720). With respect to 211 of the 1,460 credit card numbers
coded in black, Exhibit 1A lists actual losses totaling
approximately $606,000. Although Exhibit 1A does not
specifically list the date upon which each loss occurred,
Special Agent Windish testified that he and the other agents who
prepared Exhibit 1A included losses with respect to a fraudulent
transaction only if the fraud occurred during the duration of
the conspiracy. In fact, he specifically testified that “[i]f
we found a transaction that occurred before or after this scheme
was going on, it was not included in the spreadsheet.” (J.A.
738). Under cross-examination, he conceded, however, that, with
respect to the credit card numbers coded in black, the
possibility existed that the corresponding loss listed could
have been caused by a non-member of the conspiracy who illegally
purchased and used the same number during the duration of the
conspiracy.
Per Special Agent Windish, red coding represents credit
card numbers with the attributes of credit card numbers coded in
black, plus the existence of evidence verifying usage by the
conspiracy, for example, a receipt in a vehicle in which
merchandise purchased with the counterfeit credit card was
recovered or video surveillance of a member of the conspiracy
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using such card. Exhibit 1A contains 49 credit card numbers and
corresponding information coded in red with actual losses
totally approximately $84,000.
Special Agent Windish explained that blue coding represents
credit card numbers and their respective related information for
which the investigation uncovered evidence verifying usage by
the conspiracy, but did not find such numbers on computers used
by the conspiracy or on computer printouts belonging to the
conspiracy. Exhibit 1A contains 318 credit card numbers and
corresponding information coded in blue with actual losses
totaling approximately $523,000.
Special Agent Windish further testified that he and other
case agents compiled Exhibit 1A as a master spreadsheet of the
evidence gathered over the course of the criminal investigation
of the conspiracy which evidence was put on “initial
spreadsheets [that] were created as arrests were occurring, as
warrants were occurring, before we were preparing evidence and
discovery, as we were getting evidence from banks or from stores
and receipts.” (J.A. 731). He also described the various
methods he and the other agents used to weed out incomplete or
unreliable information and to avoid double-counting.
On July 20, 2012, the district court sentenced Seignious to
120 months’ imprisonment and three years’ supervised release.
Pursuant to the MVRA, id. § 3663A, the district court ordered
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Seignious to pay $1,213,347 in restitution at the rate of $25
per month; payments to begin when Seignious starts serving his
term of supervised release. The $1,213,347 amount is the
identical amount of restitution sought by the government, which
amount the government asserted below it had established in
actual losses caused by the conspiracy through the testimony of
Special Agent Windish, as aided by Government Exhibit 1A.
Notably, the district court determined the restitution
amount without making findings on the record regarding the
actual losses the scheme caused specific victims. Accordingly,
instead of identifying individual victims and their losses, the
district court’s judgment simply directed that restitution be
paid to the Clerk of Court.
Seignious noted this timely appeal on August 7, 2012.
Roughly one week later, the government submitted a document for
filing which specifies the total actual losses suffered by each
of the banks and retailers listed as victims in Government
Exhibit 1A. Such document, which the government refers to as
the Restitution Worksheet, also specifies the victims’ names and
respective addresses. On August 15, 2012, the district court
entered the Restitution Worksheet as a sealed document on its
docket.
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B.
Seignious’ appellate counsel (Appellate Counsel) filed an
Anders brief, certifying that there are no meritorious issues
for appeal, but questioning whether the district court
adequately complied with Federal Rule of Criminal Procedure 11
when accepting Seignious’ guilty plea and whether the district
court properly sentenced Seignious. For his part, Seignious
filed a pro se supplemental brief, in which he contests the
district court’s application of several sentencing enhancements.
The government did not file a response to either brief.
Based upon our court’s obligation under Anders to
independently review the record, we ordered Appellate Counsel
and the government to submit briefs addressing: (1) whether the
government and the district court sufficiently complied with
§ 3664(a)-(d); (2) if so, whether the restitution order is
adequately supported by the evidence, and whether the district
court sufficiently explained its reasoning when imposing
restitution; and (3) if so, whether the district court erred in
failing to specifically identify in the judgment the victims
eligible to receive restitution and their respective losses.
Our order also directed that, to the extent not already in the
record on appeal, the government provide a copy of each version
of the spreadsheet it had submitted to the district court to
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support its arguments regarding losses attributable to
Seignious’ offenses.
In response to our order, Appellate Counsel filed an
opening brief addressing the identified issues and the
government filed a response brief. Although Appellate Counsel
did not file a reply brief, we allowed Seignious to file a pro
se supplemental reply brief. Having reviewed the entire record
in accordance with Anders, we set the case for oral argument and
directed counsel to focus on the restitutionary issues we had
ordered briefed.
II.
We first take up the issue of whether the government and
the district court sufficiently complied with § 3664(a)-(d), the
statutory section setting forth the procedures for issuance and
enforcement of an order of restitution under the MVRA. Id.
§ 3663A(d).
A.
As a threshold matter, we address our standard of review
with respect to this issue. Because Seignious never brought to
the district court’s attention any deficiency in the
government’s and/or the district court’s compliance with such
procedures, we are constrained to review for plain error. Fed.
R. Crim. P. 52(b) (“A plain error that affects substantial
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rights may be considered even though it was not brought to the
court’s attention.”). See also Puckett v. United States, 556
U.S. 129, 134 (2009) (“If a litigant believes that an error has
occurred (to his detriment) during a federal judicial
proceeding, he must object in order to preserve the issue. . . .
If an error is not properly preserved, appellate-court authority
to remedy the error (by reversing the judgment, for example, or
ordering a new trial) is strictly circumscribed.”).
Plain error review has four prongs. The first prong
requires the existence of legal error “that has not been
intentionally relinquished or abandoned, i.e., affirmatively
waived, by the appellant.” Id. at 135. The second prong
requires that the legal error at issue “be clear or obvious,
rather than subject to reasonable dispute.” Id. The third
prong requires that the clear or obvious legal error at issue
“have affected the appellant’s substantial rights, which in the
ordinary case means [the defendant] must demonstrate that it
‘affected the outcome of the district court proceedings.’” Id.
(quoting United States v. Olano, 507 U.S. 725, 734 (1993)).
“Fourth and finally, if the above three prongs are satisfied,
the court of appeals has the discretion to remedy the error——
discretion which ought to be exercised only if the error
seriously affect[s] the fairness, integrity or public reputation
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of judicial proceedings.” Id. (internal quotation marks
omitted) (alteration in original).
B.
The MVRA provides that, “[n]otwithstanding any other
provision of law, when sentencing a defendant convicted of an
offense [against property under Title 18, including any offense
committed by fraud or deceit], the court shall order, in
addition to . . . any other penalty authorized by law, that the
defendant make restitution to the victim of the offense . . . .”
Id. § 3663A(a)(1). See also id. § 3663A(c)(1) (“This section
shall apply in all sentencing proceedings for convictions of
. . . any offense——(A) that is—— . . . (ii) an offense against
property under this title . . . , including any offense
committed by fraud or deceit . . . .”). Notably, “under the
MVRA, each member of a conspiracy that in turn causes property
loss to a victim is responsible for the loss caused by the
offense,” not merely for the losses caused by a particular
conspirator’s overt acts. United States v. Newsome, 322 F.3d
328, 341 (4th Cir. 2003). The MVRA further provides that “[a]n
order of restitution under [the MVRA] shall be issued and
enforced in accordance with section 3664.” Id. § 3663A(d).
Section 3664(a), for its part, directs the district court
to order preparation of a presentence report that will include
“information sufficient for the court to exercise its discretion
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in fashioning a restitution order” including “to the extent
practicable, a complete accounting of the losses to each victim
. . . and information relating to the economic circumstances of
each defendant.” Id. § 3664(a). Section 3664(b) directs the
district court to disclose such information to the parties.
Section 3664(c) specifies that “this chapter [(Miscellaneous
Sentencing Provisions)], chapter 227 [(Sentences)], and Rule
32(c) of the Federal Rules of Criminal Procedure [(Sentence)]
shall be the only rules applicable to proceedings under this
section.” Id. § 3664(c).
In addition, under § 3664(d), “to the extent practicable,”
the government must provide information concerning restitution
to the probation officer sixty days in advance of the scheduled
sentencing date, id. § 3664(d)(1); the probation officer, in
turn, must, to the extent practicable, provide notice to and
collect information from victims, id. § 3664(d)(2), and the
defendant must provide the probation officer with information
concerning his background, financial resources and ability to
pay restitution, id. § 3664(d)(3). Under § 3664(d)(4), the
district court can require other information, including
documentation or testimony. “If the victim’s losses are not
ascertainable by the date that is 10 days prior to sentencing,”
the district court can set another date for disclosure of this
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information, up to ninety days after sentencing. Id.
§ 3664(d)(5).
C.
Our thorough review of the record regarding the procedural
history leading to the district court’s order of restitution
reveals that restitution was imposed without the various
procedural requirements of § 3664(a)-(d) being observed. Such
circumstance, however, entitles Seignious to no appellate
relief. This is so because, assuming arguendo that the
imposition of restitution in this case without the various
procedural requirements of § 3664(a)-(d) being observed
constitutes clear or obvious legal error, Seignious has failed
to carry his burden on appeal of demonstrating that such error
affected his substantial rights, i.e., that such error
“‘affected the outcome of the district court proceedings.’”
Puckett, 556 U.S. at 135 (quoting Olano, 507 U.S. at 734).
The record leaves no doubt that the district court would
have imposed the same amount of restitution on Seignious
regardless of whether every requirement of § 3664(a)-(d) had
been meticulously met in his case. When the district court
imposed restitution at Seignious’ final sentencing hearing, on
July 20, 2012, it stated as follows: “I impose restitution in
the amount stated by government counsel, which is $1,213,347.”
(J.A. 889). The district court’s reference to “the amount
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stated by government counsel,” refers to the following colloquy
between government counsel Assistant United States Attorney
Tamera Fine and the district court earlier during the same
hearing:
[MS. FINE:] And, finally, Your Honor, United
States has established that there are actual losses in
the amount of $1,213,347 in this case. We would ask
that a restitution order in that full amount be
entered, joint and several with other defendants in
this case.
THE COURT: If you could say that amount again,
please?
MS. FINE: Certainly. The amount that was
testified to by Special Agent Windish from his
spreadsheet . . . is $1,213,347. Thank you, Your
Honor.
THE COURT: Good. Thank you, Miss Fine.
(J.A. 866).
The spreadsheet to which government counsel refers in this
quoted passage from the transcript of Seignious’ sentencing
hearing is Government Exhibit 1A. To reiterate, the government
introduced Exhibit 1A through the testimony of Special Agent
Windish during the last of five hearings held over the course of
two months for the purpose of taking evidence on Guidelines’
issues in dispute for sentencing, including the applicable loss
figure under USSG § 2B1.1(b)(1). This Guidelines’ section
provides for increasing amounts of levels to be added to a
defendant’s base offense level under the Guidelines based upon
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the greater of actual loss (i.e., “the reasonably foreseeable
pecuniary harm that resulted from the offense”), USSG
§ 2B1.1(b)(1), comment.(n.3(A)(i)), or intended loss (i.e., “the
pecuniary harm that was intended to result from the offense
. . .”), id. § 2B1.1(b)(1), comment.(n.3(A)(ii)).
Seignious had the opportunity to cross examine Special
Agent Windish about how he arrived at the figure of $1,213,347
in actual losses caused by the conspiracy and about the creation
of Exhibit 1A. In fact, Seignious availed himself of these
opportunities and presented argument to the district court that,
with respect to USSG § 2B1.1(b)(1), “the amount of [actual
fraud] loss that the government has sufficiently proven
attributable to this conspiracy is $251,496.” (J.A. 518). The
district court rejected this argument and found, for purposes of
USSG § 2B1.1(b)(1), the loss figure to be between $2.5 and $7
million, which range the district court characterized as “a more
than conservative loss figure . . . .” (J.A. 1020). Notably,
in support of the district court’s characterization of this loss
figure as conservative, the district court stated in its
sentencing memorandum that “the cooperator testimony established
by a preponderance [of the evidence] that the actual losses
attributable to the conspiracy exceeded $7 million.” Id. In
this regard, the district court summarized the testimony of the
following three cooperating witnesses———Jones, Myers, and
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Dansbury. Seignious had the opportunity to cross examine each
of these witnesses as well.
In sum, all of the evidence upon which the district court
relied in determining the appropriate amount of restitution to
impose upon Seignious under the MVRA was before the district
court in the context of resolving the parties’ dispute regarding
the appropriate loss amount to be used in applying USSG
§ 2B1.1(b)(1). Seignious had fair opportunity to challenge such
evidence. Under these circumstances, we are not surprised that
he cannot show prejudice resulting from restitution being
imposed upon him without, in large part, the various procedural
requirements of § 3664(a)-(d) being observed. Accordingly,
Seignious fails the third prong of plain error review on this
issue.
III.
We now turn to consider whether the restitution order is
adequately supported by the evidence. At no point below did
Seignious object to the amount of restitution imposed upon him
or dispute the amount of restitution proposed by the government.
Accordingly, as Seignious concedes, we are constrained to review
this issue for plain error. Fed. R. Crim. P. 52(b). See also
Puckett, 556 U.S. at 134.
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Under plain error review, we must first consider whether
the district court committed legal error. Puckett, 556 U.S. at
135. In the present context, this means that we must first
consider whether the district court’s factual finding that,
based upon the preponderance of the evidence, the bank fraud
conspiracy caused $1,213,347 in actual losses is clearly
erroneous. 18 U.S.C. § 3664(e) (district court to resolve any
dispute as to proper amount of restitution by preponderance of
the evidence); United States v. Wilkinson, 590 F.3d 259, 271
(4th Cir. 2010) (district court’s actual loss finding under MVRA
is reviewed under clearly erroneous standard). In answering
this question, we remain mindful of the Supreme Court’s oft-
quoted delineation of when a district court’s finding is clearly
erroneous: “[W]hen although there is evidence to support it,
the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.”
United States v. United States Gypsum Co., 333 U.S. 364, 395
(1948). Some thirty-seven years later, the Court explained that
“[t]his standard plainly does not entitle a reviewing court to
reverse the finding of the trier of fact simply because it is
convinced that it would have decided the case differently.”
Anderson v. Bessemer City, 470 U.S. 564, 573 (1985). Rather, as
the Court cautioned, “[i]f the district court’s account of the
evidence is plausible in light of the record viewed in its
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entirety, the court of appeals may not reverse it even though
convinced that had it been sitting as the trier of fact, it
would have weighed the evidence differently.” Id. at 573–74.
Here, we conclude that the district court’s account of the
evidence is plausible in light of the record viewed in its
entirety. Accordingly, we uphold the district court’s finding
of fact that the bank fraud conspiracy caused $1,213,347 in
actual losses as not clearly erroneous.
The parties are on the same page that Seignious is only
responsible to pay restitution under the MVRA for the actual
losses suffered by the victims of his offenses, including the
conspiracy offense. As for Appellate Counsel, in the
Supplemental Opening Brief we ordered him to file, Appellate
Counsel takes the position that “the evidence was sufficient to
support the [$1,213,347] order of restitution.” (Supplemental
Opening Br. of Appellate Counsel at 22). The government takes
the same position.
In his pro se supplemental response to the government’s
Supplemental Brief, Seignious takes the position that the
evidence in the record does not support actual losses of
$1,213,347. According to Seignious, at most, the record
supports restitution in the amount of $176,336.36. He complains
in large part that the testimony of his coconspirators regarding
the profitability of their fraud scheme is too vague to be
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relied upon by the district court in calculating restitution.
He also repeatedly makes the point that Agent Windish admitted
the possibility that actual losses attributed on Exhibit 1A to
the credit card numbers coded in black (accounting for
approximately half of the $1,213,347 figure) could have been
caused by other criminals who were not part of the conspiracy at
issue in the present case.
Although the district court could have done a better job of
making a record below with respect to restitution, after
reviewing the record as a whole, we are not convinced that a
mistake has been committed with respect to the district court’s
finding that the conspiracy caused $1,213,347 in actual losses.
First, not even counting any of the credit card numbers coded in
black, Government Exhibit 1A, as supported by the testimony of
Special Agent Windish, supports approximately half of the total
actual loss figure right off the bat. These are credit card
numbers for which the government obtained evidence directly
implicating the conspiracy in the actual loss listed on
Government Exhibit 1A.
Now for the credit card numbers coded in black. We readily
acknowledge the possibility, as Special Agent Windish
acknowledged during his testimony, that other criminals could
have separately obtained the same credit card numbers as the
bank fraud conspiracy at hand and caused the losses listed on
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Exhibit 1A during the exact same time period the conspiracy at
hand operated. The problem for Seignious, however, is that the
conclusion that the bank fraud conspiracy at hand caused the
actual losses occurring during the life of such conspiracy with
respect to the credit card numbers indisputably illegally
obtained by and found within the care, custody, and control of
such conspiracy is plausible in light of the record viewed in
its entirety.
Added on top of the testimony of Special Agent Windish and
Government Exhibit 1A is the testimony of Seignious’ numerous
coconspirators. The district court expressly credited and
accepted all of the following testimony of Seignious’
codefendants Jones, Myers, and Dansbury, as summarized by the
district court in its August 10, 2012 order addressing various
Guidelines issues, including the amount of loss under USSG
§ 2B1.1(b)(1):
Sherice Jones testified . . . that between 3 and 5
crews of between 3 and 5 strikers each “went out every
day” to make fraudulent purchases. She explained
that, depending on the type of merchandise, each crew
could purchase anywhere from $5,000 to $10,000 in
merchandise per day. The merchandise was then either
sold or returned, for cash, to the store where it had
been purchased. Jones also testified that over the
course of the conspiracy, she estimated that the
scheme brought in “millions of dollars” worth of
merchandise by using “thousands” of fake credit cards.
Mandy Myers, a striker, testified that she personally
made between $400,000 and $500,000 in fraudulent
purchases over the course of her 15-month involvement
in the scheme. Jermaine Dansbury, a wrangler,
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testified that he took crews of 2 to 5 strikers out 4
to 7 times per week, and that his crews could “bring
in” between $5,000 to $20,000 per week on average.
Dansbury explained that the total amounts were
inconsistent based on a variety of factors, but that
his crews could sometimes purchase thousands of
dollars’ worth of merchandise in just a few hours.
(J.A. 1019-20). The district court also held that the evidence
amply demonstrated by a preponderance of the evidence that: (1)
“there were at least 50 strikers involved in the scheme, though
less than a third were actually indicted,” (J.A. 1017); (2)
during the life of the conspiracy from December 2007 through
August 2010 “the illegal conduct was consistent and persistent,”
id.; and (3) with respect to the scope of the conspiracy,
“hundreds of individuals were being victimized and . . . the
losses totaled in the millions of dollars,” (J.A. 1019).
Although we need not solely rely on Jones’ testimony in
support of the district court’s actual loss finding, Jones’
testimony goes a long way to support such a finding and is not
too vague to be probative on issues of actual loss as alleged by
Seignious. Based upon the most conservative figure in Jones’
testimony regarding the fraudulent purchasing modus operandi of
a single crew working for the conspiracy during its time of
operation (i.e., $5,000 per day), a single crew working for the
conspiracy for just one year fraudulently purchased $1,825,000
in merchandise. This amount is $611,653 more than the amount of
restitution the district court ordered Seignious to pay under
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the MVRA. Given that “[t]he settled law of this circuit
recognizes that the testimony of a defendant’s accomplices,
standing alone and uncorroborated, can provide an adequate basis
for conviction,” United States v. Burns, 990 F.2d 1426, 1439
(4th Cir. 1993), there is no basis for us to conclude that the
district court’s actual loss figure of $1,213,347 is clearly
erroneous.
Finally, assuming arguendo the district court’s actual loss
finding is clearly erroneous, thus satisfying the first prong of
plain error review, we cannot say that such error is clear or
obvious. Puckett, 556 U.S. at 135. Therefore, Seignious fails
the second prong of plain error review as well, making going
further in our plain error analysis a fruitless exercise. In
sum, Seignious is entitled to no relief with respect to his
appellate challenge to the district court’s factual finding
underlying its order of restitution regarding the actual losses
caused by the conspiracy.
IV.
We next consider whether the district court sufficiently
explained its reasoning when imposing restitution. At no point
did Seignious object to the adequacy of the district court’s
explanation of its reasoning when imposing such restitution.
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Accordingly, as Seignious concedes, we review for plain error.
Fed. R. Crim. P. 52(b). See also Puckett, 556 U.S. at 134.
Assuming arguendo that Seignious has established the first
two prongs of the four prong test for obtaining appellate relief
under plain error review, Olano, 507 U.S. at 732, 734, the
analysis stops because Seignious cannot establish the third
prong—i.e., Seignious cannot establish that the district court’s
failure to sufficiently explain its reasoning with respect to
imposing restitution upon him under the MVRA affected his
substantial rights. The overarching point is that there is no
reason to believe that the amount of restitution the district
court ordered Seignious to pay under the MVRA would have been
any different had the district court expressly explained its
reasoning in imposing such restitution.
V.
The last issue for which we ordered briefing is whether the
district court erred in failing to specifically identify in its
July 25, 2012 judgment the victims eligible to receive
restitution and their respective losses. Because Seignious
filed no objection in this regard, we review for plain error.
Fed. R. Crim. P. 52(b). See also Puckett, 556 U.S. at 134.
Under plain error review, we hold Seignious is entitled to
no relief. Jumping straight to the third prong of the test for
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plain error review (i.e., the prejudice prong), Seignious has
failed to establish that the filing of the Restitution Worksheet
approximately one week after the filing of his criminal judgment
affected his substantial rights. Puckett, 556 U.S. at 135.
Accordingly, there is no basis to grant Seignious any appellate
relief on this issue.
VI.
We have examined the issues raised by Seignious in his pro
se briefing and his Appellate Counsel’s Anders brief. We
conclude that all such issues lack merit. Furthermore, in
accordance with our obligations under Anders, 386 U.S. at 744,
we have reviewed the entire record in this case and find no
reversible error. Accordingly, we affirm Seignious’ convictions
and sentence in toto, as well as the district court’s order of
restitution.
AFFIRMED
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