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United States v. Fowler

United States District Court, W.D. Virginia, Harrisonburg Division

December 13, 2016

RICHARD SHELTON FOWLER, et al., Defendants


          Michael F. Urbanski United States District Judge.

         Before the court are defendant Steven Maurice Pemberton's Motion for Acquittal (ECF No. 382) and defendant Richard Shelton Fowler's Motion for Acquittal or, in the Alternative, Motion for a New Trial (ECF Nos. 347, 393). Pemberton asks the court to set aside the jury verdict and enter a judgment of acquittal on the charges of conspiracy to commit credit card fraud (Count 1) and credit card fraud (Count 9). Fowler asks the court to acquit him of conspiracy to commit credit card fraud (Count 1), credit card fraud (Count 7), and receipt of stolen goods (Count 13). For the reasons that follow, defendants' motions are DENIED.


         On July 21, 2015, Pemberton, Fowler, and three other defendants-Leondra Sykes, Alexander Ayanou, and David Yarborough-were charged in a six-count superseding indictment arising from the alleged use of stolen credit card numbers to make fraudulent purchases of household goods.

         Pemberton, Fowler, and Ayanou proceeded to trial on August 3, 2015. At the close of the government's evidence, defendants moved for a judgment of acquittal on all charges. ECF No. 187. The court granted the defendants' motions in part and reserved decision in part. ECF No. 190. The defendants renewed their Rule 29 motions at the close of trial. Id. The court continued to reserve decision, and submitted the remaining counts to the jury. Id. The jury returned a verdict finding Fowler guilty on all remaining counts, but could not reach a verdict as to Pemberton on any count. Ayanou was acquitted on all counts. After the jury returned its verdict, counsel for Fowler requested a poll of the individual jurors pursuant to Federal Rule of Criminal Procedure 31(d). The poll revealed a lack of unanimity as to the jury's verdict, and the court declared a mistrial as to Pemberton and Fowler. ECF No. 208.[1]Pemberton and Fowler then submitted written briefs in support of their motions for acquittal, and the court heard oral argument.

         On February 10, 2016, the court denied their motions for acquittal. ECF Nos. 279, 280. Meanwhile, the government filed a second superseding indictment. ECF No. 258. It charged Pemberton with conspiracy to engage in credit card fraud, in violation of 18 U.S.C. §§ 1029(a)(2) and 1029(c)(1)(A)(i) (Count 1); credit card fraud, in violation of 18 U.S.C. §§ 1029(a)(5), 1029(c)(1)(A)(ii), and 2 (Count 9); and wire fraud, in violation of 18 U.S.C. § 1343 (Counts 10, 11, and 12). Id. Fowler was charged with conspiracy to engage in credit card fraud (Count 1), credit card fraud (Counts 7, 8, and 9), wire fraud (Counts 10, 11, and 12), and receipt of stolen goods, in violation of 18 U.S.C. §§ 2315 and 2 (Count 13).[2] Id.

         Fowler and Pemberton were retried in August 2016. See ECF Nos. 341, 344, 348, 350. During the trial Pemberton and Fowler brought oral motions for acquittal, ECF No. 347, which the court took under advisement as to Count 13, granted as to Counts 8 and 11, and denied as to the remaining counts.[3] ECF No. 350. The jury returned a verdict on August 26, 2016, finding Pemberton guilty of Counts 1 and 9, and not guilty of Count 12. ECF No. 360. The jury found Fowler guilty of Counts 1, 7, and 13, and not guilty of Counts 9, 10, and 12. Id. Pemberton and Fowler subsequently brought motions for acquittal (and, in Fowler's case, for a new trial). The government filed its response on October 21. ECF No. 399.


         Rule 29 of the Federal Rules of Criminal Procedure states that "[a] defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later." Fed. R Crim. P. 29(c)(1). Based on this motion, the court may set aside a guilty verdict, or, "[i]f the jury has failed to return a verdict, the court may enter a judgment of acquittal." Id. at 29(c)(2).

         "A judgment of acquittal based on the insufficiency of evidence is a ruling by the court that as a matter of law the government's evidence is insufficient 'to establish factual guilt' on the charges in the indictment." United States v. Alvarez. 351 F.3d 126, 129 (4th Cir. 2003) (quoting Smalis v. Pennsylvania. 476 U.S. 140, 144 (1986)). "The test for deciding a motion for a judgment of acquittal is whether there is substantial evidence (direct or circumstantial) which, taken in the light most favorable to the prosecution, would warrant a jury finding that the defendant was guilty beyond a reasonable doubt." United States v. MacCloskey, 682 F.2d 468, 473 (4th Cir. 1982). "[Substantial evidence is evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996).

         Accordingly, a court must deny a defendant's motion if the evidence presented at trial, viewed in the light most favorable to the government, is sufficient for a rational juror to find each element of the offense beyond a reasonable doubt. United States v. United Med. & Surgical Supply Corp.. 989 F.2d 1390, 1402 (4th Cir. 1993) (citing Jackson v. Virginia. 443 U.S. 307, 319 (1979)): see also United States v. Friske, 640 F.3d 1288, 1290-91 (11th Cir. 2011) ("In reviewing a sufficiency of the evidence challenge, we consider the evidence in the light most favorable to the [g]overnment, drawing all reasonable inferences and credibility choices in the [government's favor."). Defendants have a heavy burden: The court must refrain from credibility determinations, United States v. Arrington, 719 F.2d 701, 704 (4th Cir. 1983), and "[t]he uncorroborated testimony of one witness may be sufficient to sustain a verdict of guilty, " lid at 705 (citing United States v. Shipp, 409 F.2d 33, 36 (4th Cir. 1969)).

         Federal Rule of Criminal Procedure 33(a), meanwhile, permits the court "to vacate any judgment and grant a new trial if die interest of justice so requires." The court has broad discretion in ruling on Rule 33 motions. The Fourth Circuit has cautioned that a district court "'should exercise its discretion to grant a new trial "sparingly, "' and that it should do so 'only when the evidence weights heavily against the verdict.'" United States v. Perry. 335 F.3d 316, 320 (4th Cir. 2003) (quoting United States v. Arrington, 757 F.2d 1484, 1486 (4th Cir. 1989)) (citing United States v. Wilson, 118 F.3d 228, 237 (4th Cir. 1997)).


         Pemberton first argues that there is insufficient evidence to convict him of Counts 1 and 9. He points to the government's "two primary areas of evidence": the testimony of Renodo Taylor ("Taylor") and call logs showing a number of calls between Taylor and Pemberton. ECF No. 382, at 2. He argues this evidence fails to establish his knowledge of the criminal enterprise, because it demonstrates no awareness "on or before this March 15, 2014 pickup and delivery" for which Pemberton was charged under Count 9. Id. at 4. This same failure taints Pemberton's Count 1 conviction: die government's lack of evidence as to when conversations occurred and what was said means that no reasonable jury could conclude that Pemberton knowingly and voluntarily entered into a conspiracy to commit credit card fraud. Id. at 6-9. Pemberton challenges his Count 1 conviction on venue grounds as well, arguing that die government's evidence only demonstrates acts taken by Pemberton in Maryland, "other than after August 11, 2014; die date [o]n which Mr. Taylor began cooperating with die government." Id. at 6.

         Fowler also challenges his convictions for lack of sufficient evidence, arguing that "there was no evidence that [he] knew anything about (a) die unlawful agreement, (b) the fraudulent use of credit cards by Taylor, (c) the unlawful use of wires by Taylor, or (d) that die property involved was stolen property." ECF No. 393, at 3. Fowler also argues that venue was improper as to Count 13. Under Count 13, Fowler was charged with receiving stolen property in Maryland that was obtained in Virginia. To violate die statute, the property must have "crossed a State or United States boundary after being stolen." 18 U.S.C. § 2315. Fowler argues that, "by grounding the offense in geographic and temporal terms, the legislature has established the venue where the crime must be prosecuted-in this case, in the District of Maryland." ECF No. 393, at 5. The court will address the defendants' arguments as to each count in turn.

         A. Count 1

         Count 1 alleges a conspiracy in which individuals used stolen credit card numbers to purchase household goods from various home improvement stores. One defendant-David Yarborough-illegally obtained a series of credit card numbers from victims in and around Washington, D.C., which he then sold to Renodo Taylor. Taylor used the stolen numbers to purchase merchandise online or via phone from stores in Pennsylvania, Maryland, Virginia, North Carolina, and West Virginia.[4] Taylor allegedly contracted with various individuals- including Pemberton and Fowler-to deliver this merchandise to buyers Taylor identified. Occasionally, goods would be stored at Eagle Haulers, a Maryland storage facility owned by Fowler, before being delivered to one of Taylor's customers.

         To meet its burden on Count 1, the government must prove: (1) that an agreement existed between two or more criminally culpable persons to commit credit card fraud; (2) that the defendants knew of the unlawful agreement; (3) that the defendants knowingly and voluntarily became a part of the unlawful agreement; (4) that at least one overt act was taken in furtherance of the unlawful agreement; and (5) that the unlawful agreement affected interstate commerce. See 18 U.S.C. § 1029. As with any conspiracy, the government need not offer direct evidence of an agreement to commit credit card fraud. "By its very nature, a conspiracy is clandestine and covert, thereby frequently resulting in little direct evidence of such an agreement." United States v. Burgos, 94 F.3d 849, 857 (4th Or. 1996). "Hence, a conspiracy generally is proved by circumstantial evidence and the context in which the circumstantial evidence is adduced." Id. "Circumstantial evidence tending to prove a conspiracy may consist of a defendant's 'relationship with other members of the conspiracy, the length of this association, the defendant's attitude and conduct, and the nature of the conspiracy.'" United States v. Yearwood, 518 F.3d 220, 226 (4th Or. 2008) (citing Burgos, 94 F.3d at 858). Moreover, "a member of a conspiracy may not know its full scope or partake in its full range of activities." United States v. Leonard. 777 F.Supp.2d 1025, 1033 (W.D. Va. 2011). Thus, "the evidence need only establish a slight connection between a defendant and the conspiracy to support conviction." United States v. Green. 599 F.3d 360, 367 (4th Cir. 2010).

         1. Evidence of Pemberton's Role in the Conspiracy

         Pemberton primarily attacks the second and third elements of conspiracy, arguing that there is insufficient evidence to demonstrate that he knew about the stolen credit card numbers, or that he voluntarily and knowingly joined the conspiracy. The government responds that Taylor testified to Pemberton's knowledge of the conspiracy. ECF No. 399, at 8-9. Moreover, circumstantial evidence also indicates Pemberton's knowledge, including Pemberton's abandonment of deliveries in the face of suspicion and the high prices he charged to transport Taylor's goods. Id. at 8. "[M]ost compelling, " the government argues, is the fact that a fraudulent charge was apparent on the paperwork handled by Pemberton on March 15, 2014. Id. at 9. The government contends that this evidence, when viewed in the light most favorable to the prosecution, is sufficient for a reasonable juror to convict Pemberton on Count 1. The court agrees.

         Much of the evidence against Pemberton comes from the trial testimony of Renodo Taylor. Taylor testified that he found Pemberton on the internet and hired him to pick up and drop off goods. Trial Tr., ECF No. 376, at 12:21-13:1.[5] Taylor would call or text Pemberton to tell him delivery details. Pemberton would make the delivery, after which Taylor paid him a fee of between $400 and $1000. Id. at 14:1-15:8. Taylor never gave Pemberton his real name, Id. at 32:5. He did, however, instruct Pemberton on what to do if store employees became suspicious and "call[ed] the cops or something":

A: I told him if they act funny or anything, feel any type of way about them, just to leave it.
Q: Why did you have that discussion with him, to just leave it?
A: So he can be aware of that [sic] they might be calling the cops or something.
Q: Why would they be calling the cops?
A: Because of the fraudulent purchase.
Q: Did you have that discussion with Mr. Pemberton?
A: Yes, sir.

Id. at 31:2-11.

         Pemberton ran into store suspicion "on a few occasions." Id. at 31:23. For example, in March of 2014, there was an "incident" at a Home Depot in Gaithersburg, Maryland. Pemberton went to pick up goods purchased by Taylor, but employees became suspicious. Id. at 30:7-18. Pursuant to Taylor's instructions, Pemberton left the store, and did not pick up the goods that day. Id. at 30:19-22. In another incident, Pemberton was loading goods into his truck, only to have Lowe's employees run out to the truck and abruptly unload it. Id. at 32:1-2. Despite these events, Pemberton continued to make deliveries for Taylor. Id. at 43:16-19.[[6]]

         Moreover, during Taylor's testimony, the government played an audio clip of a phone call between Pemberton and Taylor. In that call, Pemberton tells Taylor, "I'm supposed to get these numbers today, " referring to credit card numbers. Id. at 37:13. Later, Taylor tells Pemberton that he plans to ...

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