United States v. Barton ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4539
KAY DIANN BARTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
Frank W. Bullock, Jr., Chief District Judge.
(CR-97-150)
Argued: January 29, 1999
Decided: April 2, 1999
Before WILKINS and KING, Circuit Judges, and
GOODWIN, United States District Judge for the
Southern District of West Virginia, sitting by designation.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Stanley Franklin Hammer, WYATT, EARLY, HARRIS,
WHEELER & HAUSER, High Point, North Carolina, for Appellant.
Michael Francis Joseph, Assistant United States Attorney, Greens-
boro, North Carolina, for Appellee. ON BRIEF: Walter C. Holton,
Jr., United States Attorney, Greensboro, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Kay Diann Barton appeals her conviction and sentence for conspir-
acy to use unauthorized access devices. See 18 U.S.C.A. § 1029(a)(2),
(b)(2) (West Supp. 1998). Finding no error, we affirm.
I.
Barton was a sales representative for a cellular telephone company
in Roanoke, Virginia. One of her customers was Patrick Hairston,
who operated a garage known as P&S Automotive. Hairston, in turn,
was acquainted with Robert Dillard. Beginning in the summer of
1996, Barton, Dillard, and Hairston began to use names and credit
information from Barton's customer files to obtain credit fraudulently
at area stores. Generally, one of the three would enter a store and
apply for a credit card using information from Barton's customer
files. If the store approved credit, the conspirator would then use the
credit to purchase items. If the store requested picture identification,
the conspirator involved would cancel the application. This course of
conduct continued until February 1997. The conspirators defrauded
numerous stores in Virginia and North Carolina.
Although Barton, Hairston, and Dillard usually were together when
they conducted the fraudulent transactions, Dillard sometimes acted
on his own. He also recruited other women to fill out false credit
applications. On some of these occasions, Dillard telephoned Hairston
or Barton to ask for credit information to use, which Barton then pro-
vided. On other occasions, Dillard used credit information from other
sources. Dillard estimated the total value of items purchased through
the conspiracy at $200,000.
At trial, Barton admitted engaging in the fraudulent conduct but
claimed that her participation was the product of duress. According
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to Barton, her customer files were stolen from the locked trunk of her
vehicle when she left it at P&S Automotive for repairs. She did not
report the theft to her supervisor for fear of a reprimand. Shortly
thereafter, she was contacted on the telephone by a man who said he
had Barton's customer files and needed "a favor." J.A. 153. Barton
terminated the call immediately. The man telephoned Barton several
more times, and each time she refused to cooperate. Ultimately, Dil-
lard and another man identified only as "Money" approached Barton
in a shopping mall parking lot and demanded that she help them com-
mit credit card fraud using information from the customer files.
According to Barton, the men said they needed her help because a
white woman could obtain credit without photo identification more
easily than could a black man.
Barton also claimed that the men threatened her and her husband.
Barton testified that Dillard said he had overheard a conversation
between Barton and a potential customer during which the customer
had offered to date Barton if she ever separated from her husband.
Barton also claimed that Dillard showed her a device that could be
placed into a vehicle's gasoline tank to cause it to explode. While
Barton was examining the device, Dillard informed her that he was
familiar with her husband's schedule. Barton took this as a threat of
harm to her husband if she did not cooperate. Throughout the ensuing
months, Barton maintained, fear of harm to her husband kept her from
contacting the police.
II.
Barton first challenges the instructions given to the jury by the dis-
trict court. More specifically, she maintains that the district court
erred in refusing her requests for a duress instruction and a "missing
witness" instruction regarding Hairston. We conclude that neither of
the challenged rulings was an abuse of discretion. See United States
v. Abbas, 74 F.3d 506, 513 (4th Cir. 1996) (explaining that decision
whether to give a requested jury instruction rests within the discretion
of the district court).
A.
In order "to establish duress the defendant must show that he acted
under a reasonable fear of an imminent threat of bodily harm and that
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he had no reasonable choice but to commit the illegal act." United
States v. King, 879 F.2d 137, 139 (4th Cir. 1989). Here, assuming that
a threat to a third person could establish a duress defense, the evi-
dence failed to establish that the threat to Barton's husband was
imminent. Accordingly, the district court did not err in refusing to
give the requested instruction. See United States v. Sarno, 24 F.3d
618, 621 (4th Cir. 1994) (stating that district court does not abuse its
discretion in refusing to give duress instruction when evidence is
insufficient, as a matter of law, to support a duress defense).
B.
At the time of trial, Hairston, who was not named in the indictment
that charged Barton, was in federal custody in Virginia on unrelated
charges. Neither the Government nor Barton called Hairston to tes-
tify. Barton now maintains that she was entitled to a "missing wit-
ness" instruction.
If it lies particularly within the Government's power to produce a
witness, and the testimony of that witness would be material to the
case, the defendant is entitled to a charge instructing the jury to pre-
sume that the witness' testimony would be unfavorable to the Govern-
ment. See United States v. Brooks, 928 F.2d 1403, 1412 (4th Cir.
1991). Barton's claim of entitlement to such an instruction rests on
her contention that because Hairston was in federal custody, he was
available only to the Government. This contention, however, is incor-
rect. Barton could have requested the district court to issue a writ of
habeas corpus ad testificandum, thereby requiring Hairston's presence
at trial to testify. See 28 U.S.C.A. § 2241(c)(5) (West 1994);
Muhammad v. Warden, Baltimore City Jail, 849 F.2d 107, 114 (4th
Cir. 1988) (holding that a writ of habeas corpus ad testificandum may
be issued extraterritorially by the district court). There is no indication
in the record that Barton made such a request. And, the fact that Hair-
ston could be expected to assert his Fifth Amendment privilege
against self-incrimination--the basis on which the district court
grounded its refusal to give a "missing witness" instruction--did not
place it particularly within the Government's power to produce him.
See United States v. St. Michael's Credit Union, 880 F.2d 579, 597-
98 (1st Cir. 1989).
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III.
Next, Barton raises several challenges to her sentence. We con-
clude that only her argument concerning the amount of loss attributed
to her for sentencing purposes is worthy of extended discussion.
Barton contends that the district court erred in upwardly adjusting
her offense level by five levels based on an estimated loss of between
$40,000 and $70,000. See U.S. Sentencing Guidelines Manual
§ 2F1.1(b)(1)(F) (1997). Barton concedes that she should be held
responsible for all losses resulting from fraud accomplished using
information from her customer files, regardless of whether she was
present, and all losses resulting from fraud in which she participated.
She maintains, however, that the total of these losses amounts to less
than $40,000 and that she should not be held accountable for addi-
tional losses resulting from fraud accomplished using information that
did not come from her customer files and in which she did not actu-
ally participate. We conclude that the district court did not commit
clear error in calculating the amount of loss attributable to Barton. See
United States v. Loayza, 107 F.3d 257, 265 (4th Cir. 1997).
"A defendant convicted of conspiracy should be sentenced not only
on the basis of his conduct, but also on the basis of conduct of cocon-
spirators in furtherance of the conspiracy that was known to the
defendant or reasonably foreseeable to him." United States v.
Williams, 986 F.2d 86, 90 (4th Cir. 1993). Here, there can be no doubt
that losses beyond those admitted by Barton were reasonably foresee-
able to her. The evidence at trial indicated that on at least one occa-
sion, Barton fraudulently obtained credit using information that did
not come from her customer files. And, Barton was aware that Dillard
and others engaged in fraudulent activities when she was not present.
In light of this evidence, the district court did not commit clear error
in finding that the challenged losses--those resulting from fraud com-
mitted outside Barton's presence by Dillard and others using informa-
tion that did not come from her customer files--were reasonably
foreseeable to Barton.
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IV.
In sum, we conclude that the district court did not abuse its discre-
tion in refusing to give the instructions requested by Barton. Addi-
tionally, we hold that the court did not commit clear error in
determining the amount of loss for sentencing purposes.* Accord-
ingly, we affirm.
AFFIRMED
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*We have carefully examined Barton's remaining allegations of error
and find them to be without merit.
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