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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-15245
Non-Argument Calendar
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D.C. Docket No. 2:12-cr-00140-MEF-WC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
QUENTIN COLLICK,
DEATRICE SMITH WILLIAMS,
Defendants-Appellants.
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Appeals from the United States District Court
for the Middle District of Alabama
________________________
(May 6, 2015)
Before HULL, MARCUS and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
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Following a jury trial, Defendants Quentin Collick and Deatrice Smith
Williams were convicted of multiple charges stemming from a tax fraud scheme.
Specifically, Defendant Collick was convicted of one count of conspiracy to
defraud the government, 18 U.S.C. § 286; three counts of theft of public money, 18
U.S.C. §§ 641, 642; three counts of aggravated identity theft, 18 U.S.C.
§ 1028A(a)(1), (c)(1); and three counts of wire fraud, 18 U.S.C. § 1343.
Defendant Deatrice Smith Williams was convicted of one count of conspiracy to
defraud the government, 18 U.S.C. § 286; three counts of wire fraud, 18 U.S.C.
§ 1343; and three counts of aiding and abetting aggravated identity theft, 18 U.S.C.
§§ 1028A(a)(1) and 2.
On appeal, Defendant Collick challenges only his convictions, arguing that
the district court erred in denying his motion for a judgment of acquittal on all
counts and that his convictions should be vacated because of alleged juror
misconduct. Defendant Smith Williams challenges only her total 51-month
sentence, arguing that the district court erred in applying a sophisticated means
enhancement under U.S.S.G. § 2B1.1. After review, we affirm the Defendants’
convictions and sentences.
I. MOTION FOR JUDGMENT OF ACQUITTAL
The district court did not err in denying Defendant Collick’s motion for a
judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 based on
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insufficient evidence. 1 First, the testimony of Corey Thompson, the Defendants’
co-conspirator, established that Defendant Collick voluntarily participated in a
conspiracy to defraud the government by committing tax fraud. See United States
v. Gupta, 463 F.3d 1182, 1194 (11th Cir. 2006) (stating that to sustain a conviction
for conspiracy to defraud the government under 18 U.S.C. § 286, the government
must prove “the existence of an agreement to achieve an unlawful objective, the
defendant’s knowing and voluntary participation in the conspiracy, and the
commission of an overt act in furtherance of it” (quotation marks omitted)).
Specifically, Thompson testified that he and Defendant Collick agreed to file
fraudulent tax returns over the internet using stolen identities and thereby obtain
other individuals’ refund checks. Thompson’s testimony further established that
Defendant Collick committed acts in furtherance of the conspiracy, such as: (1)
obtaining stolen identities from his mother-in-law, Defendant Smith Williams, who
had access to identifying information through her work at a medical debt collection
business, Hollis Cobb Associates; (2) buying prepaid debit cards in the name of the
stolen identities so that tax refunds from the false returns could be deposited
directly on the cards; and (3) providing mailing addresses to receive prepaid cards
1
We review de novo the district court’s denial of a Rule 29 motion for judgment of
acquittal, viewing all the evidence in the light most favorable to the government and drawing all
reasonable inferences in favor of the jury’s verdict. United States v. Hunt, 526 F.3d 739, 744
(11th Cir. 2008). We will not overturn a guilty verdict “if any reasonable construction of the
evidence would have allowed the jury to find the defendant guilty beyond a reasonable doubt.”
United States v. Rodriguez, 732 F.3d 1299, 1303 (11th Cir. 2013).
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and refund checks, including an address on Hinchcliff Road. Thompson,
meanwhile, learned how to use the stolen identities Defendant Collick obtained
from Defendant Smith Williams to create fraudulent paperwork and to file false tax
returns and then taught Defendant Collick how to file the false returns. Thompson,
who worked as a cable and internet installer, also rerouted his and Defendant
Collick’s internet traffic through other IP addresses while they were filing the false
tax returns so that it would appear the returns were being filed by someone else.
This evidence was more than sufficient to support Defendant Collick’s conspiracy
conviction.
Given that Thompson testified that he and Defendant Collick used the
internet to perpetrate their scheme, his testimony also established that Collick
committed wire fraud. See United States v. Ward, 486 F.3d 1212, 1221-22 (11th
Cir. 2007) (stating that an 18 U.S.C. § 1343 conviction for wire fraud requires
evidence that the defendant (1) intentionally participated in a scheme to defraud
another of property, and (2) used or caused the use of wires to execute the scheme
to defraud).
Further, Defendant Collick’s convictions for theft of government money
were supported by Thompson’s testimony and the testimony of Ryan McCommons
and Jennifer Simmons, two victims of the fraud scheme. See United States v.
McRee, 7 F.3d 976, 980 (11th Cir. 1993) (en banc) (stating that to support an 18
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U.S.C. § 641 conviction, the government must prove that (1) the money or
property belonged to the government; (2) the defendant fraudulently appropriated
the money or property for his own use or the use of others; and (3) the defendant
did so knowingly and willfully with the intent to either temporarily or permanently
deprive the owner of the use of the money or property). According to Thompson,
he and Defendant Collick filed fraudulent tax returns in the names of both
McCommons and Simmons, among others, using Defendant Collick’s Hinchcliff
Road address. McCommons and Simmons testified that, as a result of the false
returns and their forged signatures on the refund checks, they were deprived of the
government refunds actually owed to them.
In turn, the evidence of Defendant Collick’s theft of government money, in
conjunction with the evidence that Defendant Collick used stolen identities he
obtained from Defendant Smith Williams, supported Defendant Collick’s
convictions for aggravated identity theft. See United States v. Barrington, 648
F.3d 1178, 1192 (11th Cir. 2011) (stating that to prove a violation of 18 U.S.C.
§ 1028A(a)(1), aggravated identity theft, the evidence must establish that the
defendant (1) knowingly transferred, possessed, or used; (2) the means of
identification of another; (3) without lawful authority; (4) during and in relation to
a felony enumerated in 18 U.S.C. § 1028A(c), one of which is theft of government
money in violation of 18 U.S.C. § 641).
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Defendant Collick’s challenge to the sufficiency of the evidence rests
entirely on his argument that Thompson’s testimony was not credible. Credibility
determinations, however, are left to the jury, and we assume the jury resolved any
credibility evaluations in favor of the verdict. Gupta, 463 F.3d at 1194. The fact
that Thompson stood to benefit from his testimony, has lied in the past, and has
engaged in criminal behavior does not make his testimony per se incredible. See
United States v. Thompson, 422 F.3d 1285, 1291 (11th Cir. 2005). Thompson’s
testimony was plausible on its face, coherent, and consistent and could not be
considered incredible as a matter of law. See id. (explaining that to be considered
incredible as a matter of law, the testimony must be about facts that the witness
could not possibly have observed or that defy the laws of nature).
Moreover, Thompson’s testimony was amply corroborated by other
witnesses, including Kimberly Curry, who testified that she agreed to let Defendant
Collick have mail sent to her Hinchcliff Road address and that she did not
recognize the names on any of the refund checks that were later sent to that
address. In addition, Curry’s mother, Cassandra Shepard, testified that after she
returned some of the mysterious refund checks being sent to the Hinchcliff Road
address to the Internal Revenue Service, Defendant Collick called and asked about
the mail, and Shepard told him what she had done. Finally, Kelly O’Donnell, the
office manager at Hollis Cobb Associates, testified that Defendant Collick’s
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mother-in-law, Defendant Smith Williams, used the company’s database to access
the patient accounts of McCommons and Simmons, along with other individuals
who had their identities stolen.
While Defendant Collick contends he was an unwitting participant in
Thompson’s scheme, the evidence, viewed in the light most favorable to the
government, amply showed that Collick knowingly and willfully joined the
scheme. Because the government’s evidence was sufficient for a reasonable jury
to convict Defendant Collick on all counts, the district court did not err in denying
his Rule 29 motion.
II. JUROR MISCONDUCT
Defendant Collick argues that he should be granted a new trial based on
juror misconduct that violated his Fifth Amendment right not to testify. 2 The only
evidence Collick offers to show juror misconduct, however, is an evaluation form
completed by one of the jurors after the trial, which Collick argues indicates that
2
We review for an abuse of discretion a district court’s decision not to grant a new trial
based on alleged juror misconduct. United States v. Siegelman, 640 F.3d 1159, 1181 (11th Cir.
2011). The government asserts that we should review Defendant Collick’s juror misconduct
claim only for plain error because Collick did not seek a new trial before the district court on this
basis. We need not resolve this issue because Collick’s juror misconduct claim fails under either
standard of review.
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the juror’s determination of guilt was influenced by Collick’s decision not to
testify. 3
Such evidence is excluded under Federal Rule of Evidence 606, which
prohibits evidence of, inter alia, a juror’s statements about the juror’s “mental
processes concerning the verdict.” See Fed. R. Evid. 606(b)(1); United States v.
Siegelman, 640 F.3d 1159, 1185 (11th Cir. 2011) (explaining that “the Supreme
Court has recognized “a near-universal and firmly established common-law rule
flatly prohibiting the use of juror testimony to impeach a verdict,” which is now
codified in Rule 606(b)). Although Rule 606 contains several exceptions, Collick
does not contend that any of them apply. See Fed. R. Evid. 606(b)(2) (permitting
juror testimony about whether (1) extraneous prejudicial information was
improperly brought to the jury’s attention; (2) an outside influence was improperly
brought to bear on any juror; or (3) a mistake was made on the verdict form).
Accordingly, Collick has not shown any basis for vacating his convictions and
granting him a new trial.
III. SOPHISTICATED MEANS ENHANCEMENT
Defendant Smith Williams challenges the district court’s application of a
two-level sophisticated means enhancement, pursuant to U.S.S.G. § 2B1.1(b),
based on her co-conspirators’ relevant conduct.4
3
On the comments portion of the juror evaluation form, the juror wrote, “I think Collick
needed to have said something. Not saying anything made him look guilty.”
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A defendant’s offense level is increased by two levels if she used
sophisticated means during either the execution or concealment of the offense
conduct. U.S.S.G. § 2B1.1(b)(10)(C). “Sophisticated means” refers to especially
complex or intricate conduct. Id. § 2B1.1 cmt. n.9(B). Where, as here, the offense
involves a criminal conspiracy, the advisory guidelines calculations are based on
all relevant conduct, which includes “all reasonably foreseeable acts and omissions
of others in furtherance of the jointly undertaken criminal activity.” Id.
§ 1B1.3(a)(1)(B).
Here, Defendant Smith Williams does not dispute that Collick and
Thompson’s use of prepaid debit cards, other people’s mailing addresses, and other
computer IP addresses constituted “sophisticated means” in furtherance of the tax
fraud conspiracy. Rather, Defendant Smith Williams contends that their actions
were not reasonably foreseeable to her because she did not understand how they
would carry out the tax fraud.
The problem for Defendant Smith Williams is that the district court found by
a preponderance of the evidence that she actually knew of the means used by
Thompson and Collick to file the false tax returns because she traveled to Alabama
4
In reviewing a sophisticated means enhancement, we review the district court’s fact
findings for clear error and its application of the guideline provision to those facts de novo.
United States v. Humber, 255 F.3d 1308, 1311 (11th Cir. 2001). Whether a co-conspirator’s acts
are reasonably foreseeable to the defendant as relevant conduct is a fact finding reviewed for
clear error. United States v. Cover, 199 F.3d 1270, 1274 (11th Cir. 2000).
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to learn how to file the false tax returns for herself. This finding is supported by
the record. Specifically, at trial, Thompson testified that, during one of his trips
with Collick to collect refund checks, Collick said that his mother-in-law,
Defendant Smith Williams, was planning to visit so she could learn from Collick
how to file false tax returns using stolen identities.
There is no merit to Defendant Smith Williams’ argument that the means
Thompson and Collick used were too technologically advanced to be reasonably
foreseeable. A defendant need not have fully understood the precise means used
for those means to be reasonably foreseeable. It is sufficient that Defendant Smith
Williams was aware of the sophisticated means being used by her co-conspirators.
Thus, the district court properly applied the sophisticated means enhancement in
calculating Defendant Smith Williams’s advisory guidelines range.
For these reasons, we affirm the Defendants’ convictions and sentences.
AFFIRMED.
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