United States v. Shonukan ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4524
MICHAEL SHONUKAN,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Peter J. Messitte, District Judge.
(CR-95-198-PJM)
Submitted: March 10, 1998
Decided: March 23, 1998
Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
_________________________________________________________________
COUNSEL
James K. Bredar, Federal Public Defender, Steven F. Reich, Assistant
Federal Public Defender, Greenbelt, Maryland, for Appellant. Lynne
A. Battaglia, United States Attorney, Jan Paul Miller, Assistant
United States Attorney, Stephen S. Zimmermann, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Michael A. Shonukan appeals his conviction for conspiracy to traf-
fic in unauthorized access devices, in violation of 18 U.S.C.A.
§ 1029(b)(2) (West Supp. 1997); and bank fraud, in violation of 18
U.S.C.A. § 1344 (West Supp. 1997). After reviewing his claims, we
affirm his conviction.
I
In May 1995, Michael Shonukan and two codefendants, Hakeem
Salu and Victor Nwandu, were charged in a multi-count indictment.
Count one charged all three men with conspiracy to traffic in unau-
thorized access devices, using and trafficking in counterfeit access
devices, possession of fifteen or more unauthorized devices, and pos-
session of device-making equipment, in violation of 18 U.S.C.
§ 1029(b)(2). Count two charged Shonukan with defrauding Chevy
Chase Federal Savings Bank by causing the bank to honor an $1800
check in another man's name, in violation of 18 U.S.C. § 1344. Salu
and Nwandu were named in four other counts, and pled guilty before
trial.
The conspiracy allegedly ran from December 1993 to March 1995.
The conspirators obtained and used unauthorized access devices,
including credit cards and convenience checks drawn on unauthorized
credit card accounts. They also shared stolen financial information
among themselves, using it to open fraudulent accounts, often with
their own phone numbers and mailing addresses.
The Government introduced a number of exhibits found in searches
of Shonukan's residence, car, and person, including a variety of bank
records, credit card receipts, and a quantity of correspondence from
banks, all to various names at the address where Shonukan lived
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alone. Also found were a number of payroll receipts that had been
tampered with to show different employers, dates and names. A note-
book containing names and the type of information needed to open
credit card accounts--such as date of birth and mother's maiden name
--was found by police during Shonukan's arrest. An address book
seized from Salu's residence contained seven accounts in the name of
Philip Soucy, two of which used Shonukan's address, and two
accounts in the name of Dwight Frush. Further evidence established
that Shonukan and Salu shared account information and convenience
checks. For example, a $4000 convenience check in the name of
Philip Soucy from an account identified from evidence in Salu's
apartment was deposited by Shonukan in his personal checking
account. Six convenience checks were drawn on fraudulent accounts
in the name of Dwight Frush, accounts opened under a name found
in Shonukan's notebook and with Shonukan's address and phone
number. The jury convicted Shonukan on both conspiracy to traffic
in unauthorized access devices and bank fraud. Shonukan was sen-
tenced to thirty months imprisonment and four years of supervised
release.
II
Shonukan claims that his Fifth and Sixth Amendment rights were
violated because the indictment charged a single conspiracy among
the three codefendants but the evidence at trial established multiple,
separate conspiracies. He also challenges the district court's refusal to
include a multiple conspiracy jury instruction and to allow counsel for
Shonukan to argue the multiple conspiracy theory. We conclude that
these claims lack merit.
"A variance occurs when the evidence at trial establishes facts
materially different from those alleged in the indictment." United
States v. Ford, 88 F.3d 1350, 1360 (4th Cir. 1996), cert. denied, ___
U.S. ___, 65 U.S.L.W. 3369 (U.S., Nov. 18, 1996) (No. 96-6379). In
a conspiracy prosecution, a defendant can establish a material vari-
ance by showing that the indictment alleged a single conspiracy but
the government's proof established multiple, separate conspiracies.
United States v. Kennedy, 32 F.3d 876, 883 (4th Cir. 1994). This is
grounds for reversal only if the appellant demonstrates that the vari-
ance infringed his substantial rights, resulting in actual prejudice. Id.3
The question whether a variance exists is one of law, which we
review de novo. United States v. Williamson, 53 F.3d 1500, 1512
(10th Cir. 1995).
Shonukan bases his argument for a material variance on the follow-
ing facts: Salu and Nwandu pled guilty prior to trial. Nwandu's role
in the conspiracy had been to recode the numbers on the backs of
credit cards, thereby creating counterfeit access devices. Due to the
guilty pleas of Shonukan's codefendants, the Government's evidence
at trial was tailored to prove the unauthorized access aspect of the
conspiracy, as defined in § 1029(a)(2), with no evidence regarding
counterfeiting, which is covered in § 1029(a)(1). However, a conspir-
acy can have more than one objective, and proof that a defendant
agreed to participate in at least one objective is sufficient for convic-
tion. See United States v. Reyes, 930 F.2d 310, 312 (3d Cir. 1991);
United States v. Bucey, 876 F.2d 1297, 1312 (7th Cir. 1989). The
Government did not introduce evidence regarding the counterfeit
access device aspect of the case, but introduced substantial evidence
regarding Shonukan's participation with Salu to use unauthorized
access devices.
We conclude that there was no material variance between the
indictment and the proof offered at trial. There was no proof of multi-
ple conspiracies at trial, but of one aspect of the single conspiracy
alleged in the indictment. Therefore, Shonukan's claim of Fifth and
Sixth Amendment violations fails. Because the evidence did not jus-
tify introduction of an instruction on multiple conspiracies, the district
court did not abuse its discretion in refusing to give a jury instruction
on the issue. See United States v. Burgos, 55 F.3d 933, 935 (4th Cir.
1995) (holding grant or denial of a requested instruction reviewed for
abuse of discretion). Nor was the district court's ruling that counsel
for Shonukan could not argue multiple conspiracies in closing argu-
ment an abuse of direction. See Herring v. New York, 422 U.S. 853,
862 (1975) (district court is accorded wide latitude in controlling clos-
ing argument).
Shonukan also seeks to challenge his sentence, asserting that the
amount of loss calculation under the sentencing guidelines was erro-
neous. Because Shonukan has completed serving his sentence and has
been released by the Bureau of Prisons, this claim is dismissed as
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moot. Lane v. Williams, 455 U.S. 624, 632 (1982). We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED IN PART; DISMISSED IN PART
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