Case: 12-10648 Document: 00512048736 Page: 1 Date Filed: 11/09/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 9, 2012
No. 12-10648
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
OCTAVIA ANDERSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:11-CR-59-1
Before STEWART, Chief Judge, GARZA, and ELROD, Circuit Judges.
PER CURIAM:*
Octavia Anderson (“Anderson”) appeals her jury conviction and resulting
ten month sentence for possessing and uttering a forged or counterfeited security
in violation of 18 U.S.C. § 513(a). Anderson asserts that the government
constructively amended her superseding indictment, and that the evidence was
insufficient to support the jury’s verdict. She further claims that the district
court erred in imposing a two-level obstruction-of-justice enhancement pursuant
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 11-10648
to U.S.S.G. § 3C1.1 for her failure to appear at her rearraignment hearing. We
AFFIRM.
We review Anderson’s constructive amendment claim de novo. United
States v. Thompson, 647 F.3d 180, 183 (5th Cir. 2011). Our review of her
insufficiency-of-the-evidence claim is “highly deferential to the jury verdict.”
United States v. Elashyi, 554 F.3d 480, 491 (5th Cir. 2008) (internal quotations
omitted). We reverse only if “the evidence, when reviewed in the light most
favorable to the government, would not allow a rational fact finder to find every
element of the offense beyond a reasonable doubt.” Id. at 492.
Under § 513(a), it is a crime to “(1) make, utter or possess (2) a counterfeit
security (3) of an organization (4) with intent to deceive (5) another person,
organization, or government.” United States v. Reasor, 418 F.3d 466, 468 (5th
Cir. 2005). For the purposes of § 513(a), “organization” includes “a legal entity,
other than a government, established or organized for any purpose, and
includes . . . [an] association of persons which operates in or the activities of
which affect interstate or foreign commerce.” § 513(c)(4). Anderson’s
superseding indictment stated:
On or about April 20, 2011, in the Lubbock Division of
the Northern District of Texas, and elsewhere, Octavia
Anderson, defendant, did possess and utter, forged and
counterfeited securities of an organization, as that term
is defined in Title 18, United States Code, Section
513(c)(4), with the intent to deceive another person and
organization, to wit: a check, numbered 1159, on the
account of “Lee Land & Cattle,” in the amount of
$12,153.98, made payable to Norma Veretto, endorsed
by Betty Lee.
Anderson relies on Reasor, and argues that this language constrained the
government to prove the “organization” element through evidence that Lee Land
& Cattle was the organization at issue, and that the government constructively
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No. 11-10648
amended the superseding indictment by offering evidence that Citizens Bank
was the organization at issue.
We disagree. Anderson’s superseding indictment states the elements of
§ 513(a) in general terms. The only reference to Lee Land & Cattle in the
superseding indictment appears in a list of items that describe the check itself.
The term “organization” and Lee Land & Cattle also appear in entirely separate
clauses of the sentence. Therefore, there is no indication from this language, or
any other language in the superseding indictment, that Lee Land & Cattle
served to describe the organization at issue.
Anderson’s reliance on Reasor is also misplaced. Unlike Anderson’s
superceding indictment, the Reasor indictment did not state the elements of
§ 513(a) in general terms. 418 F.3d at 469–70. In the Reasor indictment, the
term “organization” and the name of the disputed organization also appeared in
the same clause of the sentence, which did not include a list of descriptive terms
of the particular security at issue. Id. Rather, Anderson’s superseding
indictment is identical to the indictment at issue in United States v. Wade, 266
F.3d 574 (6th Cir. 2001), a case that the Reasor court explicitly distinguished
because the indictment used “broad general terms similar to the provisions of
§ 513(a).” Id. at 476.
Accordingly, the government was permitted to prove the “organization”
element through evidence involving Citizens Bank. Because Anderson does not
dispute that the forged check belonged to Citizens Bank, or that Citizens Bank
engaged in interstate commerce, the evidence is sufficient to support the jury’s
verdict.
We also conclude that the obstruction-of-justice enhancement under
§ 3C1.1 was proper. We generally review a district court's interpretation or
application of the Sentencing Guidelines de novo and its factual findings for
clear error. United States v. Cisneros–Gutierrez, 517 F.3d 751, 764 (5th Cir.
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2008). “There is no clear error if the district court's finding is plausible in light
of the record as a whole.” Id. (internal quotation marks and citation omitted).
The commentary to § 3C1.1 provides a non-exhaustive list of conduct to which
the obstruction-of-justice enhancement applies, including “willfully failing to
appear, as ordered, for a judicial proceeding.” § 3C1.1, cmt. n.4(E). Anderson
argues that she was not “ordered” to appear for the rearraignment hearing that
she missed. Anderson’s pre-trial release order, however, stated explicitly that
she must “appear in court as required.” Anderson was fully aware of her
scheduled rearraignment hearing, and her presence for it was “required”
considering that its purpose was to accept her own guilty plea.
Therefore, Anderson’s conviction and sentence are AFFIRMED. The
Government’s Motion to Supplement the Appellate Record With a Sealed Grand
Jury Transcript is DENIED.
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