United States v. James Bey, Jr. ( 2010 )


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                               File Name: 10a0403n.06
    
                                               No. 08-3396
                                                                                            FILED
                              UNITED STATES COURT OF APPEALS                             Jul 08, 2010
                                   FOR THE SIXTH CIRCUIT                          LEONARD GREEN, Clerk
    
    
    UNITED STATES OF AMERICA,                                )
                                                             )
           Plaintiff-Appellee,                               )
                                                             )
    v.                                                       )   On Appeal from the United States
                                                             )   District Court for the Northern
    JAMES HARRIS BEY, JR.,                                   )   District of Ohio
                                                             )
           Defendant-Appellant.                              )
    
    
    Before: MARTIN, BOGGS, and WHITE, Circuit Judges.
    
           BOGGS, Circuit Judge. James Harris Bey, Jr., was sentenced to 80 months of imprisonment
    
    for masterminding an elaborate check-counterfeiting scheme. He now appeals his sentence, raising
    
    three arguments. First, he asserts that, in determining his role in the scheme, the district court
    
    impermissibly relied on evidence adduced at the plea hearings of other defendants. Second, he
    
    contends that the district court improperly enhanced his base offense level under USSG
    
    §2B1.1(b)(1)(H) because the government failed to prove that he had caused losses in excess of
    
    $400,000. Third, he contends that the district court erred in imposing an enhancement under USSG
    
    §3B1.1(a) because there was insufficient evidence that he was an organizer or leader of a criminal
    
    activity involving five or more participants. For the following reasons, we affirm Bey’s sentence.
    
                                                     I
    
           On December 10, 2007, Bey pleaded guilty to one count of conspiring to pass counterfeit
    
    checks, in violation of 18 U.S.C. § 371, and four counts of passing counterfeit checks, in violation
    No. 08-3396
    United States v. James Harris Bey, Jr.
    
    of 18 U.S.C. § 513(a). He had previously pleaded not guilty but reversed course and entered into
    
    a Rule 11 plea agreement with the government.
    
           In the agreement, Bey conceded his participation in a massive check-passing conspiracy that
    
    existed “from at least June 2000 to at least September 2, 2003.” With respect to the workings of the
    
    conspiracy, the agreement provided, in relevant part, as follows:
    
                   It was a part of the means and methods of the conspiracy that the conspirators would
           and did create counterfeit corporate checks purportedly drawn on accounts of banks and
           credit unions by means of a computer. These checks were computer signed. These
           counterfeited checks were counterfeited securities of the banks and credit unions on which
           they were purportedly drawn.
    
                   It was further a part of the conspiracy that nearly all of the individuals participating
           in the conspiracy resided in the Detroit, Michigan, area. The conspirators would and did
           travel from Michigan to open checking accounts at banks or credit unions in various states
           in order to cash these worthless checks. These counterfeited checks were designed to appear
           to be company payroll checks of various types of companies selected by the conspirators
           which were drawn upon accounts at the banks and credit unions previously referenced.
    
                   On various dates the check passers were transported to motels in the general vicinity
           of the banks or credit unions which had been targeted. The check passers were lodged in
           motels for approximately two or three days. On the first day, the check passers were
           transported to the appropriate state bureau or agency where they obtained State Identification
           Cards. The check passers had their hair styled and were dressed in clothing matching the
           persona of the type of employee they pretended to be, e.g., hardhats for construction workers,
           laboratory coats for lab workers, etc. Using State Identification Cards and small amounts of
           cash the check passers opened checking accounts in their names at the victim banks and
           credit unions. The check passers then deposited a counterfeit check into the checking
           account they had just opened in such a manner as to obtain a temporary credit on uncollected
           funds, thereby temporarily artificially inflating the balance of the checking account.
    
                   Approximately one day later the check passers were transported to various branches
           of the victim organization where they presented and attempted to cash additional counterfeit
           payroll checks at each branch drawing funds from the artificially inflated balance of the
           victim organization’s checking account. Since account activity is not reconciled between the
           various branches until the end of each business day, an artificially inflated balance could be
           cashed out as many times as the number of branches accessible to the conspirators in one
    
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    No. 08-3396
    United States v. James Harris Bey, Jr.
    
           business day. Therefore, for an account with a balance of $1,200 and ten branches accessed
           in one day, the conspirators could withdraw $1,200 ten times for a total of $12,000. . . .
    
                   The activity attributable to James Harris Bey is that he conspired to produce
           counterfeit checks, recruit passers, rent vehicles, choose victims, arrange lodging and meals,
           provide cash to open checking accounts, dress the check passers, obtain new state
           identification cards for the check passers, create false company identification pins for the
           check passers, drive the check passers, and distribute illegal profits. James Harris Bey
           conspired to do the things referenced in the preceding sentence with Fred Lee Kendrick from
           October 2000-January 2003, Emon Weatherspoon from April 2003-July 2003, and with
           Ralph Starr, Jr., from June 2000-July 2000, and from December 2002-November 2003[.]
    
           After delineating the factual basis of the plea, the agreement discussed a number of issues
    
    pertaining to the computation of Bey’s advisory Sentencing Guidelines range. One such issue was
    
    the amount of loss resulting from Bey’s criminal activities. Although the agreement stipulated that
    
    this figure did not exceed $950,000, the parties disagreed as to whether the losses attributable to Bey
    
    exceeded $400,000. If they did—which was the government’s position—Bey’s base offense level
    
    would be subject to a 14-level enhancement. See USSG §2B1.1(b)(1)(H) (instructing courts to
    
    increase the defendant’s base offense level by “14 levels” if the offense resulted in losses of more
    
    than $400,000). If, however, they did not, a 12-level enhancement would apply. See id. at
    
    §2B1.1(b)(1)(G) (prescribing a 12-level increase for losses above $200,000). In light of this dispute,
    
    the parties agreed to let the district court determine the amount of loss from the check-passing
    
    scheme.
    
           In addition to the amount of loss, the parties disagreed on the nature of Bey’s role in the
    
    offense. The government argued that Bey was the leader of the check-passing conspiracy, a
    
    circumstance that would necessitate an additional 4-level enhancement. See USSG § 3B1.1(a) (“If
    
    the defendant was an organizer or leader of a criminal activity that involved five or more participants
    
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    No. 08-3396
    United States v. James Harris Bey, Jr.
    
    or was otherwise extensive, increase by 4 levels.”). Bey, however, denied that he was in charge. As
    
    a consequence, the plea agreement specified that Bey’s role, like the losses he precipitated, would
    
    be determined by the district court.
    
           Bey’s sentencing hearing was held on March 11 and 14, 2008. At the hearing’s conclusion,
    
    the district court adopted the government’s assessment of the losses, finding them to be in excess
    
    of $400,000. The district court also sided with the government on the issue of Bey’s role in the
    
    offense, holding that he was the leader of the check-counterfeiting enterprise. On the basis of these
    
    findings, the district court imposed a 14-level enhancement under §2B1.1(b)(1)(H) and a 4-level
    
    enhancement under §3B1.1(a). The resultant offense level was 23. Determining his criminal history
    
    score to fall within Category IV, the district court found Bey’s advisory Guidelines range to be 70
    
    to 87 months of imprisonment. Upon consideration of the 18 U.S.C. § 3553(a) factors, the district
    
    court sentenced him to a term of 80 months. It is from that sentence that he now appeals.
    
                                                      II
    
           Under our holding in United States v. Bostic, if the district court fails to provide the parties
    
    with an opportunity to object following the pronouncement of the sentence, “they will not have
    
    forfeited their objections and thus will not be required to demonstrate plain error on appeal.” 
    371 F.3d 865
    , 872 (6th Cir. 2004). “A district court can satisfy the requirements of the Bostic rule only
    
    by clearly asking for objections to the sentence that have not been previously raised . . . .” United
    
    States v. Clark, 
    469 F.3d 568
    , 570 (6th Cir. 2006). Simply asking whether there is anything further
    
    is insufficient. See United States v. Thomas, 
    498 F.3d 336
    , 340 (6th Cir. 2007) (“In this case, the
    
    district court asked Thomas’s counsel, ‘Do you have anything further for the record, Mr. Canady?’
    
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    No. 08-3396
    United States v. James Harris Bey, Jr.
    
    . . . We have previously determined that a similar question by the district court is not clear enough
    
    to satisfy the requirements of the Bostic rule.” (citing Clark, 469 F.3d at 570)).
    
            In this case, Bey failed to object to the district court’s sentencing determination. However,
    
    after sentencing him, the district court asked merely whether he had “[a]nything more” to add. As
    
    a result, the district court did not properly pose the Bostic question, and the plain-error standard does
    
    not apply.
    
            Instead,“we review [the] district court’s sentencing determination, ‘under a deferential abuse-
    
    of-discretion standard,’ for reasonableness.” United States v. Lalonde, 
    509 F.3d 750
    , 768 (6th Cir.
    
    2007) (quoting Gall v. United States, 
    552 U.S. 38
    , 51 (2007)). In reviewing for reasonableness, we
    
    must, among other things, “ensure that the district court committed no significant procedural error,
    
    such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines
    
    as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly
    
    erroneous facts, or failing to adequately explain the chosen sentence . . . .” Gall, 552 U.S. at 51.
    
                                                       III
    
            The first issue is whether the district court erred in relying on testimony adduced at the plea
    
    hearings of other defendants to determine Bey’s role in the check-passing scheme. During Bey’s
    
    sentencing hearing, the district court remarked that, in their pleas, “passer after passer after passer
    
    . . . identified Mr. Bey as the person who brought them into the crime and brought them into the
    
    conspiracy and who gave them the checks and the direction.”1 Bey now argues that the district
    
    
            1
           This was not the district court’s only reference to the plea-hearing testimony of other
    defendants. In announcing that it would impose a sentencing enhancement for Bey’s leadership role
    
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    United States v. James Harris Bey, Jr.
    
    court’s reliance on these identifications was improper because he lacked the opportunity to cross-
    
    examine the check passers who identified him. He also argues that, under United States v.
    
    Christman, 
    509 F.3d 299
     (6th Cir. 2007), and United States v. Patrick, 
    988 F.2d 641
     (6th Cir. 1993),
    
    the “statements by [his] alleged coconspirators were ex parte communications upon which the
    
    [j]udge could not rely to resolve a contested factual dispute at sentencing.” Appellant’s Br. at 19.
    
           Insofar as he argues that the district court’s reliance on testimony adduced at separate
    
    proceedings was a violation of his rights under the Confrontation Clause, Bey is wrong. “[I]t is well
    
    established that neither the rules of evidence nor the right to confront witnesses applies at
    
    sentencing.” United States v. Christman, 
    509 F.3d 299
    , 304 (6th Cir. 2007); see also United States
    
    v. Hamad, 
    495 F.3d 241
    , 246 (6th Cir. 2007) (“The right to confront adverse witnesses and to
    
    prohibit the introduction of testimonial hearsay without cross-examination does not apply at
    
    sentencing.”). Indeed, “the district court may consider hearsay evidence in determining a sentence
    
    . . . [so long as the evidence] bear[s] some minimal indicia of reliability in respect of defendant’s
    
    right to due process.”2 United States v. Silverman, 
    976 F.2d 1502
    , 1512 (6th Cir. 1992) (en banc).
    
    
    
    
    in the check-passing scheme, the district court again noted that “person after person after person
    walk[ed] into this courtroom and testif[ied] under oath” that Bey had “recruited them to engage in
    check passing.”
           2
             Though Bey does not raise the issue on appeal, it is clear that the statements of the passers
    bore the necessary indications of trustworthiness. Significantly, the statements were made under
    oath, both at plea hearings and before a grand jury. As the Eleventh Circuit has remarked, “[t]he
    oath is an important indici[um] of reliability.” United States v. Trainor, 
    376 F.3d 1325
    , 1332 (11th
    Cir. 2004). Additionally, the declarations—of which there were many—corroborated one another,
    further underscoring their reliability. See United States v. Hunt, 
    487 F.3d 347
    , 353 (6th Cir. 2007).
    
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    United States v. James Harris Bey, Jr.
    
           Bey is also mistaken if he cites Christman and Patrick for the principle that district courts
    
    are categorically forbidden from relying on evidence adduced at separate proceedings.              In
    
    determining what sentence to impose, “a judge may appropriately conduct an inquiry broad in scope,
    
    largely unlimited either as to the kind of information he may consider, or the source from which it
    
    may come.” United States v. Tucker, 
    404 U.S. 443
    , 446 (1972); see also United States v. Zohfeld,
    
    
    595 F.3d 740
    , 744 (7th Cir. 2010) (noting that sentencing judges are under few constraints in terms
    
    of the information they may consider). In fact, Congress has explicitly provided that “[n]o limitation
    
    shall be placed on the information concerning the background, character, and conduct of a person
    
    convicted of an offense which a court of the United States may receive and consider for the purposes
    
    of imposing an appropriate sentence.” 18 U.S.C. § 3661; see also Christman, 509 F.3d at 304
    
    (noting that “Congress prefers the inclusion rather than the exclusion of information at sentencing”).
    
    Consequently, “[a] district court is indeed permitted to rely on testimony presented at a related
    
    proceeding . . . .” Logan v. United States, 
    208 F.3d 541
    , 544 (6th Cir. 2000); see also United States
    
    v. Berzon, 
    941 F.2d 8
    , 21 (1st Cir. 1991) (“We emphasize that we do not suggest that the district
    
    court was not entitled to hear the testimony at [codefendant’s] sentencing, and, thereafter, consider
    
    it when sentencing defendant.”); United States v. Blackwell, 
    49 F.3d 1232
    , 1236 (7th Cir. 1995)
    
    (“[M]ore than one circuit has condoned reliance on evidence from related trial proceedings of
    
    codefendants.”).
    
           But a district court’s reliance on such evidence is improper if notice was not provided to the
    
    defendant in advance of sentencing. Federal Rule of Criminal Procedure 32(i)(1)(C) states that, “[a]t
    
    sentencing, the court . . . must allow the parties’ attorneys to comment on the probation officer’s
    
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    No. 08-3396
    United States v. James Harris Bey, Jr.
    
    determinations and other matters relating to an appropriate sentence[.]” (emphasis added). In
    
    Christman, we explained that, when undisclosed evidence is factored into the sentencing calculus,
    
    the parties are denied their opportunity to address information germane to the district court’s ultimate
    
    decision. See 509 F.3d at 304–09; see also Patrick, 988 F.2d at 649 (assessing whether a failure to
    
    disclose evidence deprived the defendant of “a sufficient opportunity to challenge [it]”); United
    
    States v. Reynoso, 
    254 F.3d 467
    , 473 (3d Cir. 2001) (“Were a court permitted to impose a sentence
    
    based in part on testimonial or other evidence from another proceeding not involving the defendant
    
    without giving the defendant and the Government advance notice, the defendant’s right to comment
    
    meaningfully on all matters relevant to the sentence would be seriously compromised.”). Like a
    
    number of our sister circuits, we have therefore read Rule 32(i)(1)(C) to require advance notice of
    
    any evidence to be relied upon at sentencing. See Patrick, 988 F.2d at 649 (suggesting that the
    
    district court erred in “fail[ing] to provide advance notice of its intention to rely on matters outside
    
    the record”); see also United States v. Lovelace, 
    565 F.3d 1080
    , 1092 (8th Cir. 2009) (“Both district
    
    courts erred by relying on information at sentencing that was not presented in advance to the
    
    defendant, in accordance with Rule 32.”); United States v. Warr, 
    530 F.3d 1152
    , 1162–63 (9th Cir.
    
    2008) (“Because the district court relied on this study, it should have notified Warr of it before the
    
    sentencing hearing.”).
    
           In this case, though the record is somewhat ambiguous as to the issue of notice, it appears
    
    that the district court failed to apprise Bey in advance of sentencing that it would be relying on
    
    statements made at the plea hearings of other defendants. If this omission occurred, the district court
    
    violated Rule 32(i)(1)(C)’s implicit disclosure requirement, an error that generally requires us to
    
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    No. 08-3396
    United States v. James Harris Bey, Jr.
    
    vacate and remand. See United States v. Gonzalez, 
    529 F.3d 94
    , 97 (2d Cir. 2008) (declaring that
    
    “[r]esentencing is generally required if a court does not comply with the requirements of Rule 32”
    
    (quoting United States v. Margiotti, 
    85 F.3d 100
    , 103 (2d Cir. 1996)).
    
           However, as we announced in Patrick, “improprieties on the part of sentencing judges are
    
    subject to review under the harmless error rule.” 988 F.2d at 647–48. In determining whether a
    
    violation of the disclosure requirement is harmless, several factors are of special significance. First,
    
    the reviewing court may look to whether “other evidence already before the sentencing judge . . .
    
    fully supported the judge’s ultimate finding . . . .” Id. at 648. Next, and more importantly, the
    
    reviewing court should consider whether “advance notice of the potential for reliance upon the
    
    evidence to which [the defendant] objects would . . . have provided [him] with any additional
    
    incentive or ability to challenge the accuracy of the evidence.” Ibid. Also, the reviewing court may
    
    take into account any “failure [on the part of the defendant’s counsel] to ask for a continuance to
    
    enable him to amass evidence to present in rebuttal . . . .” Id. at 649. And, finally, the reviewing
    
    court should check to ensure that, even though notice was not provided in advance of the sentencing
    
    hearing, the defendant “was at least so informed at the hearing . . . and was given an opportunity to
    
    address the evidence prior to the ruling on the issue.” Ibid.
    
           Applying these factors, we find that the district court’s failure to provide advance notice was
    
    harmless. As pertains to the first factor, we note that the district court’s determination regarding
    
    Bey’s role in the offense was amply supported by other evidence. In addition to the passers’
    
    statements at their plea hearings—the evidence of which no advance notice was given—the district
    
    
    
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    United States v. James Harris Bey, Jr.
    
    court had before it the passers’ statements to the FBI,3 Bey’s plea agreement, and the testimony of
    
    Ralph Starr,4 one of Bey’s right-hand men. In their FBI statements, which were introduced through
    
    the testimony of former FBI Special Agent Dean W. Winslow, many of the check passers indicated
    
    that Bey was “the individual who recruited them, who arranged the trips to pass counterfeit checks
    
    in . . . various states, provided them the ability to get state identifications, would provide them either
    
    through a driver of [sic] the checks or provide them directly from himself.” Bey conceded as much
    
    in his plea agreement, another plainly appropriate source of evidence. On top of that, the district
    
    court had Starr’s testimony, in which he unequivocally stated that Bey had spearheaded the check-
    
    passing operation. Starr testified that Bey created the counterfeit checks, handed them out, gave the
    
    instructions, and distributed the ill-gotten spoils. Thus, even if the passers’ plea-hearing testimony
    
    had been subtracted from the sentencing equation, there would have been considerable evidentiary
    
    
    
            3
            At sentencing, Bey objected to the introduction of these statements, presumably on the
    grounds that they were hearsay. However, he does not renew this argument on appeal, and it is
    therefore waived. See Wilson v. Todd, 
    53 F. App'x 744
    , 746 (6th Cir. 2002) (“The failure to present
    an argument in an appellate brief waives appellate review.”).
            4
             Bey argues that any reliance on Starr’s testimony was error because Starr “had credibility
    issues.” Appellant’s Br. at 15. Under 18 U.S.C. § 3742(e), “[t]he court of appeals shall give due
    regard to the opportunity of the district court to judge the credibility of the witnesses . . . .” See also
    United States v. Hurst, 
    228 F.3d 751
    , 761 (6th Cir. 2000) (“The sentencing court’s credibility
    determinations, like other factual findings, must be accepted on review unless shown to be clearly
    erroneous.”); cf. United States v. Dunlap, 
    209 F.3d 472
    , 476 n.8 (6th Cir. 2000) (“[A]ppellate courts
    generally do not review the district court’s determinations regarding witness credibility.”).
    Assuming, arguendo, that the district court’s determination with respect to Starr’s credibility is
    subject to appellate review, there is nothing in the record to suggest that it was clearly erroneous.
    Starr’s statements were consistent with those of the check passers who identified Bey to the FBI, and
    they were also consistent with Bey’s admissions that he produced counterfeit checks and routinely
    took passers on trips to cash them.
    
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    No. 08-3396
    United States v. James Harris Bey, Jr.
    support for the district court’s conclusion that Bey played a leadership role in the check-
    
    counterfeiting scheme.
    
           Moving to the second, and paramount, factor—whether advance notice would have provided
    
    any additional incentive or ability to challenge the accuracy of the evidence—we find that it also cuts
    
    against Bey. In Patrick, we noted:
    
           Where the evidence upon which the sentencing court relies without previously notifying the
           defendant is of the same character, allows the same inferences, and, most importantly, is
           subject to the same arguments in rebuttal as evidence in the record of which the defendant
           is already aware, it seems logical to conclude that advance notice would not give the
           defendant any additional incentive or ability to challenge the evidence.
    
    988 F.2d at 648.
    
           Here, each of the conditions is met. To wit, the plea-hearing testimony of the check passers
    
    was of the same character as evidence in the record. Specifically, the undisclosed statements were
    
    similar to the statements that the passers had given during their interviews with the FBI,5 statements
    
    of which Bey had admittedly known prior to his sentencing hearing.6 In their interviews and at their
    
    plea hearings, the passers identified Bey as the decision maker, indicating that he recruited them,
    
    provided them with counterfeit checks, and gave them directions. The interview statements thus
    
    
    
           5
             The record is devoid of any indication that the passers’ interview statements differed
    materially from their plea-hearing testimony. In fact, the record indicates that they were substantially
    the same. When announcing Bey’s sentence, the district court stated, “I also want to point out that
    many of those individuals who ID’d Mr. Bey, even if they’re not every one of the check passers, they
    were all willing to testify under oath before the grand jury, and in most cases to swear under oath to
    the same effect before me at the time of their plea.” (emphasis added).
            6
            At oral argument, Bey’s appellate counsel conceded that, prior to sentencing, the government
    provided Bey with copies of the passers’ statements to the FBI.
    
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    No. 08-3396
    United States v. James Harris Bey, Jr.
    allowed the same inference as the plea-hearing testimony, namely, that Bey led the conspiracy.
    
    “Under such circumstances, [Bey] already had an adequate incentive to present any evidence or
    
    arguments that he could that would contradict the inference that he was the leader.” Patrick, 988
    
    F.2d at 648. Moreover, the plea-hearing testimony of the passers was subject to the same arguments
    
    in rebuttal as their previous identifications. Any evidence tending to show that Bey was not the
    
    scheme’s leader would be equally damaging to both sets of statements. Similarly, any attacks on the
    
    credibility of the passers, whether based on an incentive to lie, a history of prevarication, or plain
    
    ignorance, would undermine the probative weight of both the interview statements and the plea-
    
    hearing testimony.7 Consequently, advance notice that the sentencing court intended to rely on the
    
    testimony of other defendants at their plea hearings would not have provided Bey with any additional
    
    motivation or capacity to challenge the evidence against him.
    
           Looking to the penultimate factor—whether the defendant’s counsel requested a continuance
    
    to accrue rebuttal evidence—it is evident that this consideration also weighs in favor of a finding of
    
    harmlessness. As we remarked in Patrick, “counsel’s failure to ask for a continuance suggests that
    
    no rebuttal was possible[.]” Id. at 649 (discussing United States v. DeBardeleben, 
    740 F.2d 440
    , 447
    
    (6th Cir. 1984)). Alternatively, such a failure might simply signal counsel’s recognition that the
    
    
           7
             The only argument to which the sworn testimony might be uniquely vulnerable is that the
    passers were induced to identify Bey under oath as part of a plea agreement. In response to this
    observation, however, it should be noted that the testimony of Ralph Starr, who reached a plea
    agreement in exchange for his testimony at Bey’s sentencing hearing, was susceptible to this same
    line of attack. Indeed, Bey’s counsel assailed Starr’s testimony on these very grounds, stating:
    “[T]his man from the very beginning was motivated by this [fifteen-year] mandatory minimum
    sentence he was facing and, in fact, all of this thinking came to fruition because he got substantial
    time off . . . .” Therefore, even this argument is suggested by evidence already in the record.
    
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    No. 08-3396
    United States v. James Harris Bey, Jr.
    previously undisclosed evidence was cumulative and therefore susceptible to arguments that had
    
    already been made. Whatever the precise cause, Bey’s counsel declined to seek a continuance,
    
    strengthening the conclusion that advance notice of the check passers’ plea-hearing testimony was
    
    immaterial.
    
              Lastly, the fourth factor—whether the defendant was informed of the evidence at the hearing
    
    and permitted to challenge it prior to the court’s ruling—also points toward the conclusion that any
    
    notice-related error was harmless. The passers’ plea-hearing testimony was twice referenced during
    
    the course of Bey’s sentencing proceeding, and the first such reference occurred prior to the district
    
    court’s explanation of its sentencing decision. As a consequence, Bey was provided with an
    
    opportunity to contest the legitimacy and force of the evidence on which the sentencing decision
    
    hinged.
    
              Accordingly, we conclude that any failure on the part of the district court to provide Bey with
    
    advance notice of its intention to rely on the statements of other defendants at their plea hearings was
    
    harmless error.
    
                                                        IV
    
              Bey’s next argument is that the district court erred in imposing a 14-level enhancement under
    
    USSG §2B1.1(b)(1)(H) because the government failed to prove by a preponderance of the evidence
    
    that he had caused losses in excess of $400,000. For this argument to prevail, we must conclude
    
    that the district court’s loss calculation—a figure placed at approximately $765,000—was clearly
    
    erroneous. See United States v. Triana, 
    468 F.3d 308
    , 321 (6th Cir. 2006) (“Under the Guidelines,
    
    the district court is to determine the amount of loss by a preponderance of the evidence, and the
    
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    No. 08-3396
    United States v. James Harris Bey, Jr.
    district court’s findings are not to be overturned unless they are clearly erroneous.”); United States
    
    v. Guthrie, 
    144 F.3d 1006
    , 1011 (6th Cir. 1998) (“The determination of the amount of loss is a
    
    finding of fact that we will not disturb unless clearly erroneous.”). “A finding of fact will only be
    
    clearly erroneous when, although there may be some evidence to support the finding, the reviewing
    
    court on the entire evidence is left with the definite and firm conviction that a mistake has been
    
    committed.” United States v. Darwich, 
    337 F.3d 645
    , 664 (6th Cir. 2004) (quoting United States
    
    v. Latouf, 
    132 F.3d 320
    , 331 (6th Cir. 1997)). In applying this standard, “[w]e will uphold the
    
    district court’s decision as long as it has interpreted the evidence in a manner consistent with the
    
    record.” Ibid. (quoting Anderson v. City of Bessemer City, 
    470 U.S. 564
    , 573–74 (1985)). This
    
    means that, “[w]here there are two permissible views of the evidence, the factfinder’s choice
    
    between them cannot be clearly erroneous.” Ibid. (quoting Anderson, 470 U.S. at 574).
    
            Review of the record in this case reveals that the loss calculation was not clearly erroneous.
    
    As an initial matter, we note that the district court’s factual findings with respect to the issue of loss
    
    garner strong support from Bey’s own admissions. During an interview with the FBI, Bey confessed
    
    that “he was once an aspiring rapper . . . [but] more or less gave up on his rapping career to commit
    
    check fraud.”8 Bey further estimated that, by devoting himself to the creation of fake checks, he was
    
    able to defraud banks of “at least $500,000.” Id. at 2. This declaration alone provides ample basis
    
    for imposition of an enhancement under §2B1.1(b)(1)(H).
    
            But there is more. The district court was also presented with the testimony of Special Agent
    
    
    
            8
                Bey’s nom de plume was “JMD,” or “Just Makin’ Dollas,” a sadly appropriate moniker.
    
                                                      - 14 -
    No. 08-3396
    United States v. James Harris Bey, Jr.
    Winslow, who demonstrated that Bey could be linked to twelve hundred counterfeit checks. During
    
    his investigation of Bey’s check-passing ring, Special Agent Winslow interviewed approximately
    
    sixty individuals, each of whom had passed some fraction of the checks in question. Of these sixty
    
    individuals, half identified Bey as the person for whom they were working. Agent Winslow then
    
    connected the spurious checks deposited by these thirty or so passers to the remaining checks
    
    through shared characteristics, which included common routing numbers, account numbers, and
    
    signatories. In all, the fraudulent checks tied to Bey were worth around $765,000, the figure at
    
    which the district court eventually placed the amount of loss.
    
            However, as Bey notes, some evidence suggests that the district court’s loss calculation may
    
    be inflated. In particular, Ralph Starr testified that, at the time of the conspiracy, several autonomous
    
    check-passing rings were contemporaneously operating in the Detroit area. According to Starr, each
    
    of these rings, including Bey’s, was running the same scheme. Starr also indicated that the sundry
    
    check-passing rings all “got the game” from an individual named Chico.
    
            Based on this evidence, Bey argues that the district court should have held him accountable
    
    only for checks that were passed by someone who explicitly identified him as the source. The logic
    
    of this argument is simple. Proceeding from the premise that Chico was the progenitor of the check-
    
    passing scheme, Bey contends that the check-passing rings must have generated checks with similar
    
    characteristics. Assuming this to be the case, the characteristics of the checks are incapable of
    
    inculpating any particular group; while such characteristics might narrow down the pool of potential
    
    sources, they do not single out a specific forger. If this reasoning is accepted and the checks to
    
    which Bey was circumstantially linked are removed from the loss calculation, the value of the
    
                                                     - 15 -
    No. 08-3396
    United States v. James Harris Bey, Jr.
    remaining checks (i.e., those to which he was directly linked through passer identification) does not
    
    exceed $400,000.
    
           Setting aside Bey’s estimation that he was responsible for at least $500,000 in losses, his
    
    argument nonetheless fails. Bey points to no significant evidence in the record establishing that,
    
    because the check-passing groups got the game from Chico, they necessarily passed similar checks.
    
    The only indication that the various groups generated checks came from Bey’s own mouth during
    
    an interview with the FBI, in which he stated that he had disseminated a disk containing data that
    
    would allow others to produce counterfeit checks.9 As this statement is plainly self-serving and finds
    
    no additional support in the record, it lends no great quantum of legitimacy to Bey’s position. The
    
    only person to whom the checks at issue have been in any way linked is Bey, and any speculation
    
    that other individuals may have produced similar checks is insufficient to engender a definite and
    
    firm conviction that a mistake was made.
    
            In addition to raising the specter of independent check-passing rings, Bey observes that a
    
    number of the passers who identified him as the leader of the check-passing scheme initially
    
    implicated someone else. He argues that such inconsistencies indicate that the identifications should
    
    be disregarded. The fact remains, however, that all of those passers ultimately tapped Bey as the
    
    leader of the conspiracy. Though the evidentiary value of the identifications may be slightly
    
    
    
           9
             Not so, says Bey. According to him, Starr’s testimony indicated that the check-passing
    operations created similar checks. See Appellant’s Br. at 14. But Starr merely stated that the groups
    “got the game from [Chico].” Ibid. He never explained whether this meant that Chico provided the
    groups with templates, routing numbers, and equipment, or whether it simply meant that Chico had
    taught them the scheme’s basic idea.
    
                                                    - 16 -
    No. 08-3396
    United States v. James Harris Bey, Jr.
    diminished, there is nothing in the record to indicate that they are plainly incorrect, and the district
    
    court’s willingness to credit them was not clear error.
    
                                                       V
    
           Bey’s final argument is that the district court erred in enhancing his base offense level
    
    pursuant to USSG §3B1.1(a) because the evidence failed to show that he was the leader of the check-
    
    passing scheme. Under §3B1.1(a), a defendant’s base offense level must be increased by four points
    
    “[i]f [he] was an organizer or leader of a criminal activity that involved five or more participants.”
    
    For such an enhancement to be proper, “[t]he prosecution must prove a defendant’s status (as an
    
    organizer, leader, manager or supervisor) by a preponderance of the evidence.” United States v.
    
    Gonzales, 
    929 F.2d 213
    , 216 (6th Cir. 1991) (citing United States v. Backas, 
    901 F.2d 1528
    ,
    
    1529–30 (10th Cir. 1990)). In assessing a district court’s decision that this burden has been met, “we
    
    [have traditionally] reviewed the district court’s factual findings for clear error and its legal
    
    conclusions de novo.”10 United States v. McDaniel, 
    398 F.3d 540
    , 551 n.10 (6th Cir. 2005).
    
           To determine whether a given defendant occupied an organizational or leadership role in a
    
    criminal activity for purposes of §3B1.1(a), courts may consider several factors:
    
           [T]he exercise of decision making authority, the nature of participation in the commission
           of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits
    
    
           10
              “The proper standard of review to employ in evaluating the district court’s imposition of
    [a §3B1.1] enhancement is [actually] subject to some debate.” United States v. Henley, 
    360 F.3d 509
    , 516 (6th Cir. 2004). However, the crux of the debate is whether to move from the traditional
    standard to a more deferential one. See ibid. (discussing “whether the district court’s application of
    section 3B1.1 to the facts of [the] case should be reviewed deferentially or de novo”). Here, the
    district court’s imposition of a §3B1.1(a) enhancement is proper under either standard, so we leave
    the resolution of this debate for another time.
    
                                                     - 17 -
    No. 08-3396
    United States v. James Harris Bey, Jr.
           of the crime, the degree of participation in planning or organizing the offense, the nature and
           scope of the illegal activity, and the degree of control and authority exercised over others.
    
    USSG §3B1.1, comment. (n.4). “There is no requirement . . . that each factor be met.” United States
    
    v. Ospina, 
    18 F.3d 1332
    , 1337 (6th Cir. 1994); see also United States v. Neal, 
    187 F.3d 639
    , 
    1999 WL 551367
    , at *3 (6th Cir. 1999) (unpublished table decision) (“This circuit has remarked that the
    
    Sentencing Commission did not, via note 4, mandate a catalogue of required elements.” (citation
    
    omitted)).
    
           Upon scrutiny of the record, we decline to overrule the district court’s determination that Bey
    
    was the leader of the check-counterfeiting ring. As the district court noted, dozens of check passers
    
    testified under oath that Bey “recruited them to engage in check passing.” Additionally, Bey
    
    conceded that he produced the counterfeit checks, chose the routing numbers with which they were
    
    inscribed, and possessed the equipment with which they were fabricated. Bey also admitted that he
    
    regularly took passers on out-of-state check-passing trips, which Starr’s testimony confirmed. What
    
    is more, Starr indicated in no uncertain terms that Bey “was running things.” In Starr’s words, Bey
    
    was “the type of guy who don’t take no orders from nobody anyway.” Nothing in the record
    
    indicates that this evidence should be disbelieved, and we are satisfied that, under the relevant
    
    factors, the district court did not err in finding that Bey played a leadership role in the offense. A
    
    4-level enhancement under §3B1.1(a) was therefore appropriate.
    
                                                     VI
    
           For the foregoing reasons, we AFFIRM Bey’s sentence.
    
    
    
    
                                                    - 18 -
    

Document Info

DocketNumber: 08-3396

Filed Date: 7/8/2010

Precedential Status: Non-Precedential

Modified Date: 12/21/2014

Authorities (33)

United States v. William P. Trainor , 376 F.3d 1325 ( 2004 )

United States v. Tucker , 404 U.S. 443 ( 1972 )

Anderson v. Bessemer City , 470 U.S. 564 ( 1985 )

Gall v. United States , 552 U.S. 38 ( 2007 )

United States v. James Mitchell Debardeleben , 740 F.2d 440 ( 1984 )

United States v. Ken Roy Backas A/K/A James Smith , 901 F.2d 1528 ( 1990 )

United States v. Sergio Gonzales, A/K/A Sergio Gonzalez , 929 F.2d 213 ( 1991 )

United States v. Robert Alan Berzon , 941 F.2d 8 ( 1991 )

United States v. Ira Silverman (90-3205) Morris G. Woodard (... , 976 F.2d 1502 ( 1992 )

United States v. Johnny Franklin Patrick , 988 F.2d 641 ( 1993 )

United States v. Joaquin Ospina (93-3129) and Mary Miller (... , 18 F.3d 1332 ( 1994 )

United States v. Dashielle Blackwell and David Harvey , 49 F.3d 1232 ( 1995 )

United States v. Louis Margiotti, Jr. , 85 F.3d 100 ( 1996 )

United States v. Sadie Latouf (95-4095), Joseph N. Sarich (... , 132 F.3d 320 ( 1997 )

United States v. Howard Paul Guthrie , 144 F.3d 1006 ( 1998 )

Keith R. Logan v. United States , 208 F.3d 541 ( 2000 )

United States v. James Dunlap (98-3855) and Jakhan Thomas (... , 209 F.3d 472 ( 2000 )

United States v. Scottie Ray Hurst , 228 F.3d 751 ( 2000 )

United States v. Wandy Reynoso , 254 F.3d 467 ( 2001 )

United States v. David E. Henley, Jr. , 360 F.3d 509 ( 2004 )

View All Authorities »