UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4812
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANIKA N. GREENE, a/k/a Neek, a/k/a Anika Carroll,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Arenda L. Wright Allen,
District Judge. (4:14-cr-00032-AWA-LRL-2)
Submitted: December 22, 2016 Decided: March 7, 2017
Before GREGORY, Chief Judge, WYNN, Circuit Judge, and DAVIS, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Fernando Groene, FERNANDO GROENE, P.C., Williamsburg, Virginia,
for Appellant. Dana J. Boente, United States Attorney, Kaitlin C.
Gratton, Brian J. Samuels, Assistant United States Attorneys,
Newport News, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anika N. Greene was convicted by a jury of conspiracy to
commit bank and wire fraud, bank fraud, wire fraud, access device
fraud, and three counts of aggravated identity theft, in violation
of 18 U.S.C. §§ 2, 1028A, 1029(a)(2), 1343-44, 1349 (2012). She
was sentenced to concurrent terms of 24 months’ imprisonment on
the aggravated identity theft convictions, and 18 months’
imprisonment on the remaining counts, to run concurrently with
each other and consecutive to the 24-month terms. On appeal,
Greene argues that the district court erred in allowing the
Government to introduce evidence about her participation in
uncharged fraud, there was insufficient evidence to support her
aggravated identity theft convictions, and her conduct did not
justify an enhancement under U.S. Sentencing Guidelines Manual
2B1.1(b)(10) (2015). For the reasons that follow, we vacate
Greene’s conviction on Count Five (aggravated identity theft) and
remand for entry of an amended judgment. In all other respects,
we affirm.
I.
Greene first claims that the district court erred in admitting
evidence regarding a separate act of credit card fraud at a Chanel
store. We review a district court’s determination of the
admissibility of evidence for abuse of discretion. United States
v. Queen, 132 F.3d 991, 995 (4th Cir. 1997).
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In denying Greene’s motion to exclude evidence of the Chanel
fraud, the district court concluded that the evidence was intrinsic
to the charged offense and, alternatively, that the evidence was
admissible under Fed. R. Evid. 404(b)(2) to show intent and absence
of mistake or accident. On appeal, Greene challenges the court’s
conclusion that the evidence was intrinsic, but fails to challenge
its independent analysis under Rule 404(b)(2). Because the
“[f]ailure of a party in its opening brief to challenge an
alternate ground for a district court’s ruling waives that
challenge,” Brown v. Nucor Corp., 785 F.3d 895, 918 (4th Cir. 2015)
(alterations and internal quotation marks omitted), we conclude
that Greene has not preserved this issue on appeal.
II.
Next, Greene asserts that there was insufficient evidence to
support her three convictions for aggravated identity theft. We
review the sufficiency of the evidence supporting a conviction de
novo. United States v. McLean, 715 F.3d 129, 137 (4th Cir. 2013).
“A defendant bringing a sufficiency challenge must overcome a heavy
burden, and reversal for insufficiency must be confined to cases
where the prosecution’s failure is clear.” United States v. Engle,
676 F.3d 405, 419 (4th Cir. 2012). In assessing evidentiary
sufficiency, we must determine “whether, viewing the evidence in
the light most favorable to the government, the jury’s verdict is
supported by substantial evidence, that is, evidence that a
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reasonable finder of fact could accept as adequate and sufficient
to support a conclusion of a defendant’s guilt beyond a reasonable
doubt.” McLean, 715 F.3d at 137 (internal quotation marks
omitted).
To establish aggravated identity theft, the Government must
prove that a defendant
(1) knowingly transferred, possessed, or used, (2)
without lawful authority, (3) a means of identification
of another person, (4) during and in relation to a
predicate felony offense. . . . Relevant to the first
element, the government must prove that the accused knew
that the means of identification belonged to another
person.
United States v. Adepoju, 756 F.3d 250, 256 (4th Cir. 2014)
(internal quotation marks omitted).
A.
Count Five of the superseding indictment charged that, on
August 2, 2013, Greene and others established and used a Home Depot
credit card account in B.K.’s name and without B.K.’s permission.
We conclude there is insufficient evidence in the record to sustain
this conviction.
The only evidence connecting Greene to the offense was
location data for the cell phone registered in Greene’s name.
However, no evidence was presented at trial to demonstrate that
Greene was necessarily in the same location as her cell phone on
August 2, 2013. Further, there was no location data for Greene’s
phone for a significant amount of time on August 2, including the
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five hours preceding and following the Home Depot fraud, causing
the Government to rely on the location data of a coconspirator’s
phone in an effort to establish Greene’s location. Moreover, the
Government offered no evidence that Greene knowingly participated
in the scheme or knew that the identifying information of the
victim belonged to a real person, both required elements to
establish aggravated identity theft.
The Government’s failure to present evidence regarding
Greene’s state of mind is also fatal to its argument that Count
Five can be upheld based on Pinkerton v. United States, 328 U.S.
640 (1946). “The Pinkerton doctrine makes a person liable for
substantive offenses committed by a co-conspirator when their
commission is reasonably foreseeable and in furtherance of the
conspiracy.” United States v. Ashley, 606 F.3d 135, 142-43 (4th
Cir. 2010). Here, the evidence fails to establish that Greene
knew of and knowingly decided to participate in the conspiracy as
of August 2, 2013. Pinkerton is inapplicable if Greene was not a
member of the conspiracy at the time of the Home Depot fraud.
B.
Greene also challenges her aggravated identity theft
convictions arising out of a trip to Ashland, Virginia, on August
30, 2013 (Counts Six and Seven). Count Six charged the use of
J.B.’s identity, while Count Seven was based on the possession of
and plan to use the identifying information of M.V., L.M., and
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R.P. Viewed in the light most favorable to the Government, there
is sufficient evidence to conclude that Greene committed these
offenses.
At trial, coconspirator Alice Howard testified that she,
Greene, and another conspirator traveled from New York City to
Ashland, Virginia, on August 30, 2013, and that Greene drove for
part of the trip. Howard testified that the conspirators obtained
and possessed personally identifying information of J.B., M.V.,
L.M., and R.P, without authority, and used or conspired to use
that information to impersonate the victims and unlawfully access
and transfer funds from their bank accounts. Howard also stated
that all the conspirators, including Greene, knew and discussed
that bank fraud was the purpose of their trip. Although there was
no express testimony that Greene knew that the victim’s identities
belonged to real people, it is reasonable to infer such knowledge
when existing bank accounts are the subject of the fraud. United
States v. Clark, 668 F.3d 568, 574 (8th Cir. 2012) (“A reasonable
juror could infer that Clark . . . knew that banks open accounts
for, and give credit to only real people. Thus, Clark knew that
the scheme could result in successful deposits and withdrawals
only if [the identity belonged to] a real person with a real bank
account.”). Accordingly, the evidence is sufficient to
demonstrate that Greene aided and abetted the commission of the
offenses charged in Counts Six and Seven by willingly driving the
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conspirators to Virginia with knowledge of the purpose of their
trip.
III.
Finally, Greene asserts that the district court erred when it
enhanced her offense level based on USSG § 2B1.1(b)(10). Under
this Guideline, a defendant receives a two-level sentencing
enhancement “[i]f (A) the defendant relocated, or participated in
relocating, a fraudulent scheme to another jurisdiction to evade
law enforcement or regulatory officials . . . or (C) the offense
otherwise involved sophisticated means . . . .” USSG
§ 2B1.1(b)(10). We review the district court’s factual findings
for clear error and its legal conclusions de novo. United States
v. Horton, 693 F.3d 463, 474 (4th Cir. 2012).
On appeal, Greene asserts that her act of driving Howard and
Washington to Virginia did not involve sophisticated means.
However, Greene’s argument only tangentially acknowledges that the
district court found the enhancement applicable under both the
sophisticated means provision, USSG § 2B1.1(b)(10)(C), and the
relocation provision, USSG § 2B1.1(b)(10)(A). We conclude that
the two-level enhancement is plainly appropriate under the
relocation provision based on the evidence that Greene drove her
coconspirators out of state because they believed they would be
caught if they perpetrated the fraud in New York.
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Accordingly, we vacate Greene’s conviction for aggravated
identity theft in Count Five and remand for the entry of an amended
judgment. As to all other claims, we affirm the judgment of the
district court. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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