No. 04-5622
File Name: 06a0216n.06
Filed: March 29, 2006
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
LARRY LAMONT COWAN, ) DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
Before: MARTIN, NELSON, and COLE, Circuit Judges.
DAVID A. NELSON, Circuit Judge. This is an appeal from a judgment of conviction
and sentence in a criminal case. The defendant argues (1) that the district court committed
clear error in finding consent to a search that produced evidence which the court declined to
suppress; (2) that the court abused its discretion in admitting evidence of a prior crime; and
(3) that the court unconstitutionally enhanced the defendant’s sentence on the basis of a fact
that was not found by a jury.
We are satisfied that the district court’s evidentiary determinations did not constitute
reversible error. Because the defendant admitted the fact that was used to enhance his
sentence, moreover, there was no violation here of the Sixth Amendment right to a jury trial.
For these reasons, and because the defendant does not unequivocally seek a remand on the
No. 04-5622
Page 2
ground that the district court mistakenly regarded the sentencing guidelines as mandatory,
we shall affirm the challenged judgment.
I
The defendant, Larry Cowan, was indicted on charges that included conspiracy to
commit credit card fraud, possession of a credit card re-encoding device, and credit card
fraud.
Mr. Cowan filed a pre-trial motion to suppress evidence found in his car at the time
of his arrest. At a hearing on the motion, a secret service agent testified that Mr. Cowan
consented to the search of his vehicle. Mr. Cowan denied giving consent, but the district
court believed the agent. Accordingly, the court denied Cowan’s motion to suppress.
Four of Mr. Cowan’s alleged co-conspirators testified against him at trial. Their
testimony indicated that Mr. Cowan asked others to use an electronic device to “skim”
numbers from credit cards, that Cowan provided others with fraudulent credit cards for use
at various stores, and that Cowan himself purchased a $3500 gift card with a fraudulent credit
card. A secret service agent testified that three fraudulently re-encoded credit cards were on
Mr. Cowan’s person at the time of his arrest and that a re-encoding device was found with
related computer equipment in Cowan’s car.
Mr. Cowan took the stand and denied any involvement in the credit card fraud about
which the other witnesses had testified. He denied that the re-encoding device had been in
No. 04-5622
Page 3
his car and claimed to have “no idea” how credit cards in his possession had come to be re-
encoded. On cross-examination, the government sought to elicit testimony that Cowan had
previously been arrested with fraudulent credit cards and, in connection with that arrest, had
pleaded guilty to possession of a forged instrument. Mr. Cowan objected, but the district
court held that such testimony was admissible under Rules 404(b) and 609, Federal Rules of
Evidence. The court instructed the jury to consider the testimony only as evidence of
knowledge and intent.
The jury found Mr. Cowan guilty of conspiracy to commit credit card fraud,
possession of a re-encoding device, and credit card fraud. A probation officer prepared a
presentence report that recommended (among other things) a seven-level increase in Mr.
Cowan’s offense level because his conduct had resulted in losses totaling between $120,000
and $200,000. Mr. Cowan made no objection to the contents of the presentence report. The
district court therefore accepted the probation officer’s calculation of a guideline sentence
range of 46 to 57 months. Stating that it saw no “reason to go particularly high or
particularly low in this particular case,” the court sentenced Mr. Cowan to imprisonment for
a term of 50 months. The court also ordered Cowan to pay restitution in the amount of the
loss calculated by the probation officer. Mr. Cowan filed a timely notice of appeal.
No. 04-5622
Page 4
II
A
Mr. Cowan maintains that the district court should have granted his motion to
suppress the re-encoding device and other evidence found in his car. “In reviewing a district
court’s suppression determinations, this Court reviews findings of fact for clear error, and
legal conclusions de novo.” United States v. Lawrence, 308 F.3d 623, 626-27 (6th Cir. 2002)
(internal quotation marks omitted).
Disbelieving Mr. Cowan’s testimony and believing the testimony of the secret service
agent, the district court found as a fact that Cowan had consented to the search of his vehicle.
That finding is entitled to great deference. “[F]indings of fact anchored in credibility
assessment are generally not subject to reversal upon appellate review.” Id. at 627 (internal
quotation marks omitted). “[W]hen there are two permissible views of the evidence,”
moreover, “the fact finder’s choice between them cannot be clearly erroneous.” Id. (internal
quotation marks omitted).
Mr. Cowan argues that the secret service agent’s testimony was so clearly incredible
that the district court was required to reject it. We are not persuaded. In our view, a
reasonable fact finder could credit the agent’s testimony that he arrived at the scene
approximately one minute after Cowan was arrested, even though another officer testified
that he “explained to [Cowan] what was going on” and read Cowan the Miranda warnings
No. 04-5622
Page 5
between the moment of the arrest and the moment of the secret service agent’s arrival. It is
not clear that the officer’s conversation with Cowan had to have taken substantially more
than one minute. And even if the agent underestimated the time between the arrest and his
arrival, the remainder of his testimony could still be believed. Accordingly, we defer to the
district court’s credibility determination.
B
Mr. Cowan’s second argument is that the district court erred in admitting evidence of
his prior arrest and plea of guilty to a charge of possession of a forged credit card. The
district court’s decision to admit the challenged evidence is reviewed for abuse of discretion.
United States v. Haywood, 280 F.3d 715, 720 (6th Cir. 2002).
Under Rule 404(b) of the Federal Rules of Evidence, “[e]vidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person in order to show action
in conformity therewith.” Such evidence “may, however, be admissible for other purposes,
such as proof of . . . intent, . . . knowledge, . . . or absence of mistake or accident . . . .” Id.
The district court did not abuse its discretion in determining that evidence of Mr.
Cowan’s previous possession of a fraudulent credit card was “probative of a material issue
other than character.” Haywood, 280 F.3d at 720 (internal quotation marks omitted). Cowan
put knowledge and intent at issue by testifying that he had “no idea” how credit cards in his
possession had come to be re-encoded. The challenged evidence countered Cowan’s
No. 04-5622
Page 6
testimony by tending to show that he knew the cards were fraudulent and that he intended
them to be misused.
Nor did the district court abuse its discretion in determining that the probative value
of the evidence was not outweighed by the danger of unfair prejudice. In the circumstances
of this case — where fraudulent credit cards were found on Mr. Cowan’s person — we think
the jury was more likely to infer knowledge and intent than to draw an improper “propensity”
inference from the evidence of Cowan’s prior conduct. It is significant, in this regard, that
the district court gave an appropriate limiting instruction. See United States v. Foster, 376
F.3d 577, 592 (6th Cir.) (holding that an appropriate instruction “limit[s] any possible unfair
prejudice”), cert. denied, 543 U.S. 1012 (2004).1
Even if the admission of the challenged evidence constituted an abuse of discretion,
the error would be harmless. The evidence against Mr. Cowan — particularly his co-
conspirators’ testimony and the physical evidence found in his possession — was very
strong, and Cowan’s flat denial of any involvement in the conspiracy simply strained
credulity.
1
Because the evidence was admissible under Rule 404(b), we need not decide whether
it was also admissible under Rule 609, Fed. R. Evid.
No. 04-5622
Page 7
C
Finally, Mr. Cowan argues that the district court violated his Sixth Amendment right
to a jury trial by enhancing his sentence on the basis of a judicially determined fact, i.e., the
amount of the losses caused by Cowan’s criminal conduct. He relies on United States v.
Booker, 543 U.S. 220, 244 (2005), where the Supreme Court held that “[a]ny fact (other than
a prior conviction) which is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury verdict must be admitted by
the defendant or proved to a jury beyond a reasonable doubt.” Mr. Cowan did not raise a
Sixth Amendment argument in the district court, so this court’s review is for plain error.
No plain Sixth Amendment error occurred here. By failing to object to the
presentence report, Mr. Cowan admitted the accuracy of the probation officer’s loss
calculation. See United States v. Adkins, 429 F.3d 631, 632-33 (6th Cir. 2005); United States
v. Settle, 414 F.3d 629, 631-32 n.1 (6th Cir. 2005). “Admitted facts . . . need not be proved
to a jury beyond a reasonable doubt” under Booker. Settle, 414 F.3d at 631-32 n.1.
Although the Sixth Amendment was not violated, the district court did plainly err by
sentencing Mr. Cowan as if the sentencing guidelines were mandatory. See United States
v. Barnett, 398 F.3d 516, 525-26 (6th Cir.), cert. dismissed, 126 S.Ct. 33 (2005). But it is our
understanding that Mr. Cowan, who did not raise the error in his principal brief, does not
seek a remand on this basis. While the error was belatedly cited in the reply brief, Mr.
Cowan’s lawyer acknowledged at oral argument that a remand unaccompanied by an
No. 04-5622
Page 8
invalidation of the district court’s loss calculation might not be in his client’s best interest.
Accordingly, we decline to remand for re-sentencing under Barnett. Cf. United States v.
Murdock, 398 F.3d 491, 502 (6th Cir. 2005) (declining to address a Barnett claim that was
not raised on appeal); United States v. Milan, 398 F.3d 445, 455 n.7 (6th Cir. 2005) (same).
AFFIRMED.