United States District Court, W.D. Virginia, Harrisonburg Division
December 13, 2016
UNITED STATES OF AMERICA
RICHARD SHELTON FOWLER, et al., Defendants
Michael F. Urbanski United States District Judge.
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.
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.
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.Pemberton and Fowler then submitted written
briefs in support of their motions for acquittal, and the
court heard oral argument.
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). Id.
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. 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.
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).
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.
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
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)).
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.
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.
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. 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.
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).
Evidence of Pemberton's Role in the Conspiracy
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.
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. 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
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
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.
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
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 use money he has received to purchase more credit
card numbers. Id. at 42:17-19.
testimony alone would allow a reasonable jury to conclude
that Pemberton knowingly joined this conspiracy. That
testimony is only bolstered by other evidence put forward at
trial. United States Secret Service Agent Chad Laub
("Agent Laub") testified to the approximately nine
recorded phone calls made to Pemberton pursuant to
Taylor's cooperation with the government. During these
phone calls, Taylor discussed his plans to acquire new credit
card numbers, necessitating additional deliveries by
Pemberton. Likewise, Agent Lee Micah Bridges, a United States
Department of State diplomatic security officer, testified to
a series of phone Calls between Fowler, Pemberton, and Taylor
preceding a March 15, 2014 fraudulent purchase at a
Lowe's in Charlottesville, Virginia. These calls were
only a small subset of the approximately 635 calls exchanged
by Taylor and Pemberton during the course of this conspiracy.
Baumgartner ("Baumgartner"), a Gaithersburg,
Maryland Home Depot employee, testified that she met
Pemberton on March 23, 2014, when he came to Home Depot to
pick up an order in the name of "Francis Young."
Baumgartner, suspicious that the transaction was fraudulent,
told Pemberton that she would have to speak to colleagues at
the service desk. Instead of waiting as instructed, Pemberton
followed her to the service desk, then abruptly left when
Baumgartner went to a back room to speak to Home Depot's
loss prevention officer.
sure, the evidence is not entirely one-sided. There are ample
reasons to doubt Taylor's credibility,  and there is no
evidence that Pemberton was explicitly informed of the
criminal nature of these transactions. However, it is not the
court's role to resolve credibility issues at this stage,
nor can it decide between conflicting interpretations of the
evidence. See United States v. Murphy. 35 F.3d 143,
148 (4th Cir. 1994) ("The jury, not the reviewing court,
weighs the credibility of the evidence and resolves any
conflicts in the evidence presented, and if the evidence
supports different, reasonable interpretations, the jury
decides which interpretation to believe."). The jury was
entitled to credit Taylor's testimony, and, viewing the
record in the light most favorable to the prosecution, the
jury's conclusion that Pemberton was aware of and
knowingly chose to join the conspiracy is clearly reasonable.
It is not the court's role, at this stage, to upset that
Pemberton's Venue Argument
argues venue in the Western District of Virginia is improper
because "[t]he only evidence presented by the
[g]overnment in this trial" that shows an agreement to
enter the conspiracy "was the March 23, 2014 incident in
Gaithersburg, MD." ECF No. 382, at 5. The government
responds that, in failing to raise this issue until now,
Pemberton waived his venue challenge. ECF No. 399, at 11.
Moreover, "the record is replete with acts committed in
the Western District of Virginia and stores defrauded in this
District." Id., The court agrees: the record
demonstrates that venue in the Western District is
It is a
"settled principle that venue on a conspiracy charge may
be laid 'in any district in which a conspirator performs
an overt act in furtherance of the conspiracy or performs
acts that effectuate the object of the conspiracy.'"
United States v. Smallwood, 293 F.Supp.2d 631, 637
(E.D. Va. 2003) (quoting United States v. Mitchell.
70 F.App'x 707, 711 (4th Cir. 2003)). "Proof of acts
by one co-conspirator can be attributed to all members of the
conspiracy." United States v. Al-Talib, 55 F.3d
923, 928 (4th Cir. 1995). Moreover, "[a]cts in
furtherance of a criminal conspiracy include exploits large
and small, dealings that represent turning points in the
conspiracy and those that merely enable it to continue its
operations." United States v. Smith. 452 F.3d
323, 335 (4th Cir. 2006).
record overflows with overt acts, committed by Pemberton and
others, in the Western District of Virginia. The court need
only point to one of the many fraudulent purchases undertaken
by the defendants. Agent Bridges testified, in March of 2014,
that Pemberton, Fowler, and Taylor engaged in a number of
phone calls in preparation for a purchase from Lowe's in
Charlottesville, Virginia (in the Western District of
Virginia). Pursuant to these calls, Pemberton went
to Lowe's, loaded the merchandise (a generator), and
drove it to Fowler's warehouse in Maryland. All of this
was testified to at trial and, though not uncontroverted, the
jury was entitled to credit this testimony. These acts alone
(leaving aside voluminous testimony of other acts within the
Western District) compel the court to dismiss Pemberton's
the court must reject both of Pemberton's arguments for
acquittal, Pemberton's motion as to Count 1 is DENIED.
Evidence of Fowler's Role in the Conspiracy
Pemberton, Fowler primarily argues that the government has
failed to demonstrate he knew about and voluntarily joined
the conspiracy. Fowler points out that Taylor never told
Fowler about the full extent of the criminal enterprise, and
appears to have merely assumed that Fowler was aware. ECF No.
393, at 4. For its part, die government responds that
circumstantial evidence amply demonstrates Fowler's
knowledge. Moreover, Fowler's behavior is consistent with
a desire to minimize his exposure to criminal liability:
Fowler lied to police and created fake contracts and
paperwork in order to avoid detection. ECF No. 399, at 12-13.
The court again agrees.
Pemberton, the government primarily relies on Taylor's
testimony to show Fowler's participation in the
conspiracy. Taylor found Fowler and his moving company, Eagle
Haulers, on the internet. Trial Tr., ECF No. 376, at
16:20-17:9. Taylor spoke to Fowler on the telephone (or
occasionally in person) and asked him to make pickups and
deliveries, for which Taylor paid Fowler between $800 and
$1000. id. at 18:10-11, 19:1-2. Fowler also
sometimes stored goods for Taylor at the Eagle Haulers
warehouse, Id. at 18:14- 15, and occasionally found
buyers for Taylor, Id. at 24:4-6.
like Pemberton, eventually ran into trouble while filling
Taylor's orders: he was arrested in Pennsylvania after
delivering a generator to a police officer in Maryland,
Id. at 20:11-22, and police once came to his
warehouse to retrieve some lawnmowers he had recently picked
up. Id. at 26:5-7. Fowler too, was
unperturbed; he told Taylor "everything [is] going to be
okay, " and continued to make deliveries. Id.
at 22:22, 25:21-23. He did, however, start charging Taylor
more money to make deliveries. Id. at 28:9-15.
Taylor admits that Fowler was unaware of the criminal
conspiracy at first, Id. at 21:11-15, these events
opened his eyes. Afterwards, Fowler was "leery" of
meeting other drivers at the Eagle Haulers warehouse, and at
first met drivers elsewhere, before concluding that that
behavior might appear suspicious. Id. at 23:17-25
("[T]f something happen[ed] right there in the parking
lot where they [were] switching [trucks], they would be
wondering why they didn't come right to the next block to
the warehouse."). In fact, Fowler shared with Taylor
fraudulent paperwork-fake contracts and invoices that he
believed would protect him from prosecution. Id. at
23:1-3; 114:23-115:1. Moreover, Taylor even attempted to get
more credit card numbers from Fowler, asking him if he had
"any old credit card receipts." Fowler told Taylor
he would look, but ultimately never gave him any.
Id. at 26:23-27:3. In addition, Fowler saw the
paperwork associated with the merchandise being purchased-he
was in a position to note that the names and addresses on the
cards kept changing, despite the fact that he filled all of
these orders for one person. Id. at 117:19-22,
testimony at trial also affirms Fowler's knowledge of the
conspiracy. When authorities searched Eagle Haulers, Fowler
lied to them, claiming he only charged less than $300 dollars
to store two generators, when, in a phone call just prior to
the search, he quoted Taylor a total price of $1200 ($800 to
ship the merchandise, $200 to store it, and $200 to sell
it). Moreover, the search uncovered a
falsified invoice, purporting to show a total fee of $120 to
pick up and store the generators. Fowler also claimed he
spoke on the phone with "John McHomer"-a fictitious
customer created by the authorities pursuant to Taylor's
cooperation with the government.
Pemberton, although the evidence against Fowler was not
entirely uncontroverted, a reasonable jury was entitled to
conclude that Fowler knowledgeably chose to join this
conspiracy. The government offered evidence that Fowler
played an active role in the conspiracy. Pursuant to
Taylor's direction, he picked up, stored, and even sold
merchandise acquired with stolen credit card numbers. Fowler
created false paperwork to hide his tracks, lied to police
officers, and generally planned his behavior so as to best
insulate himself from criminal liability. The
government's evidence, construed in the light most
favorable to the prosecution, supports a finding of guilt
beyond a reasonable doubt on Count 1. Accordingly,
Fowler's motion as to Count 1 is DENIED.
was convicted of credit card fraud under Count 7 for his role
in an October 21, 2013 fraudulent purchase at Lumber
Liquidators in Lynchburg, Virginia. See ECF No. 258. He
argues that the government has failed to carry its burden to
prove liability as an aider and abettor: the evidence does
not establish "that he knew that the offense was being
committed and that he intended that the offense take
place." ECF No. 393, at 3 (internal quotation marks and
emphasis omitted). The court disagrees.
conviction under Count 7 can be sustained based on liability
as a principal, an aider and abettor, or a co-conspirator.
The court will only address aider and abettor liability, as
it finds this issue dispositive. 18 U.S.C. § 2(a)
provides, "Whoever commits an offense against the United
States or aids, abets, counsels, commands, induces or
procures its commission, is punishable as a principal."
See United States v. Akinkoye, 185 F.3d 192, 201
(4th Cir. 1999). To be convicted under this theory, "the
government must show that the defendant knowingly associated
himself with and participated in the criminal venture."
United States v. Kingrea, 573 F.3d 186, 197 (4th
Cir. 2009) (internal quotation marks omitted) (quoting
United States v. Winstead, 708 F.2d 925, 927 (4th
Cir. 1983)). "To prove the element of association, the
government must show that the defendant shared in the
principals' criminal intent." Id.
October 21, 2013, an order was placed in the name of
"Francis Young" for $7, 564.05 worth of wood
flooring at Lumber Liquidators in Lynchburg, Virginia.
Leondra Sykes picked up the flooring and delivered it to
Fowler's Eagle Haulers warehouse in Maryland. A search of
Eagle Haulers uncovered an invoice and a delivery receipt on
company letterhead; the latter document was signed by Fowler.
A separate Eagle Haulers receipt for storage shows the exact
same amount of flooring as the Lumber Liquidators invoice.
Finally, Taylor made three phone calls to a cell phone number
associated with Eagle Haulers on the day of the delivery.
this evidence must be viewed in conjunction with the evidence
supporting Fowler's conviction under Count 1. Fowler was
in a position to appreciate Taylor's culpable behavior:
he knew Taylor made purchases under multiple names, and
charged high prices for storage and delivery. Fowler
demonstrated a pattern of behavior, including misleading
police officers, creating fraudulent documentation, and a
reticence to reveal the location of his warehouse, consistent
with a desire to protect himself from criminal liability.
Moreover, Taylor testified that Fowler was unconcerned with
police confrontations based on his interactions with Taylor,
culminating with Fowler's arrest in Pennsylvania,
believing that the paper trail he created would insulate him.
short, the trial evidence, viewed in the light most favorable
to the prosecution, is sufficient to allow a reasonable jury
to conclude that Fowler, knowingly and with intent, aided and
abetted Taylor's October 2013 credit card fraud.
Fowler's motion as to Count 7 is DENIED.
conviction for credit card fraud under Count 9 stems from the
March 15-16, 2014 fraudulent purchase at Lowe's in
Charlottesville, Virginia. Pemberton argues that
"there is no evidence that provides a reasonable [t]rier
of fact [the information necessary to conclude] that Mr.
Pemberton was aware of any fraudulent use of credit cards on
or before this March 15, 2014 pickup and delivery." ECF
No. 382, at 4. Pemberton hinges this argument on the
purported lack of specific evidence showing his knowledge
"before the March 23, 2014 incident." Id.
The court disagrees.
evidence at trial showed that Taylor used a stolen credit
card number to make a fraudulent purchase at the
Charlottesville Lowe's in the amount of $4, 832.22. This
purchase was preceded by hundreds of calls between Pemberton
and Taylor in the months leading up to this
purchase; moreover, on March 16, the day of the
pickup, numerous calls were made among Fowler, Pemberton and
Taylor. The government also introduced still images showing
Pemberton at Lowe's, loading the generator into his
as with Fowler, these events must be examined in context. The
evidence at trial showed a pattern of fraudulent purchases,
frequently using the same false names paired with different
credit card numbers and addresses. Pemberton was often privy
to the paperwork that evidenced these falsehoods. As
Pemberton points out, Taylor acknowledged that Pemberton was
unaware of the criminal scheme at the beginning; Taylor also
never directly used the term "fraudulent credit card
numbers." However, it does not follow that it was
unreasonable for the jury to conclude mat Pemberton was aware
of the fraudulent scheme by the time he made the pickup on
March 16. On the contrary, the jury reasonably interpreted
the circumstantial evidence as showing beyond a reasonable
doubt that Pemberton did have such knowledge. Because
sufficient evidence supports the jury's reasonable
conclusion as to Pemberton's culpability, the court
cannot set it aside. Accordingly, Pemberton's motion as
to Count 9 is DENIED.
challenges his conviction under Count 13 for receipt of
stolen property on both substantive and procedural grounds.
Substantively, he argues that the government has failed to
show that he knew the property was stolen. ECF No. 393, at 2.
Procedurally, he argues that venue is improper in the Western
District of Virginia: because the charging statute, 18 U.S.C.
§ 2315, only criminalizes receipt of stolen property
"which ha[s] crossed a State or United States boundary
after being stolen, " Fowler's criminal conduct can
only have occurred in Maryland once the property in question
was taken across the Virginia state line. The court will
address both arguments.
Evidence of Fowler's Receipt of Stolen Property
prove a violation of 18 U.S.C. § 2315, the government
must show (1) that the goods received were stolen; (2) that
the goods had a value of at least $5000; (3) that the goods
crossed a state or national boundary after being taken; and
(4) that the defendant knew the goods were stolen. See
United States v. Jones, 797 F.2d 184, 186 (4th Cir.
1986); United States v. Tashjian, 660 F.2d 829, 839
(1st Cir. 1981).
is charged under Count 13 for his receipt of property
purchased by Taylor from Lumber Liquidators in Lynchburg,
Virginia. As described supra, the evidence presented
at trial shows that Taylor purchased 1353.14 square feet of
wood flooring from Lumber Liquidators in October 2013. Taylor
had Leondra Sykes pick up the flooring and deliver it to
Fowler's Eagle Haulers warehouse in Maryland. The jury
reasonably concluded that the evidence at trial supported
convicting Fowler for credit card fraud based on this
fraudulent purchase. Given the jury's conclusion, and
this court's decision to deny Fowler's Rule 29 motion
as to Count 7, Fowler's conviction under Count 13 must
stand. Elements 2 and 3 were established at trial: Invoices
recovered during the search of Eagle Haulers showed that
Sykes delivered the flooring to Fowler in Maryland, and that
the flooring had a value exceeding $5, 000. Elements 1 and 4,
meanwhile, are in fact necessary to Fowler's conviction
under Count 7. See 18 U.S.C. § 1029(a)(2)
(criminalizing "knowingly and with intent to defraud . .
. us[ing] one or more unauthorized access devices . . . and
by such conduct obtaining] anything of value aggregating $1,
000 or more"); supra pp. 15-16. Fowler's
challenges to Count 7 and Count 13 both focus on the
government's failure to prove his knowledge of the
fraudulent transactions. In both cases, the court concludes
that his argument is unfounded, as there was sufficient
evidence to support the jury's decision.
Constitution requires that "[t]he Trial of all Crimes .
. . shall be held in the State where the said Crimes shall
have been committed." U.S. Const, art. Ill. § 2,
cl. 3. This "protect[s] criminal defendants from the
inconvenience and prejudice of prosecution in a far-flung
district bearing no connection to their offenses."
United States v. Smith, 452 F.3d 323, 334 (4th Cir.
2006). Accordingly, unless the criminal statute specifically
provides for venue,  the court must look to "the nature
of the crime alleged and the location of the act or acts
constituting it." United States v. Cabrales,
524 U.S. 1, 5 (1998) (internal quotation marks omitted)
(quoting United States v. Anderson. 328 U.S. 699,
its constitutional dimension, however, proper venue may be
waived by the defendant." United States v.
Ebersole, 411 F.3d 517, 525 (4th Cir. 2005).
Accordingly, before proceeding to the merits, the court must
determine if Fowler waived his improper venue argument by
failing to raise it before trial. See United States v.
Collins. 372 F.3d 629, 633 (4th Cir. 2004).
proper venue is a constitutional right, waivers of venue
rights through failure to object should not readily be
inferred." United States v. Stewart. 256 F.3d
231, 238 (4th Cir. 2001). Thus, defendants may raise venue
objections post-trial, unless "the asserted venue defect
'is apparent on the face of the indictment.'"
Collins, 372 F.3d at 633 (quoting Melia,
741 F.2d at 71). If venue is properly alleged in the
indictment, any venue defect is not apparent. United
States v. Engle. 676 F.3d 405, 413 (4th Cir. 2012).
13 charges, "On or about October 21, 2013, in the
Western Judicial District of Virginia, and elsewhere,
" Fowler received "1353 square feet of Bellawood
flooring fraudulently obtained from the Lumber Liquidators
store in Lynchburg, Virginia and afterward transported to the
State of Maryland." ECF No. 258, at 16-17 (emphasis
added). The emphasized text properly alleges venue: that
Fowler received stolen property in the Western District of
Virginia. Fowler now argues that the evidence presented at
trial fails to support the venue alleged in the indictment-an
argument that could not have been raised before the trial
began. Accordingly, the court concludes that Fowler has not
waived his venue challenge. See Engle, 676 F.3d at
416-17 (because the government alleged that the defendant
committed the offense "in the Eastern District of
Virginia and elsewhere, " venue was properly alleged,
and defendant did not waive venue challenge). Contra
Ebersole, 411 F.3d at 528 (holding a venue challenge
waived "[b]ecause every fact giving rise to
[defendant's] present. . . objection to venue clearly
appeared on the face of the indictment").
acts constituting an offense take place in multiple venues,
the defendant may be prosecuted in any one of those venues.
This is true "notwithstanding the possibility that the
gravamen of the wrongdoing took place elsewhere."
Smith, 452 F.3d at 334. Congress provided for this
possibility in the first paragraph of 18 U.S.C. §
3237(a): "[A]ny offense against the United States begun
in one district and completed in another, or committed in
more than one district, may be inquired of and prosecuted in
any district in which such offense was begun, continued, or
completed." The second paragraph of that statute,
meanwhile, allows broader venue possibilities for
Any offense involving the use of the mails,
transportation in interstate or foreign commerce, or
the importation of an object or person into the United States
is a continuing offense and, except as otherwise expressly
provided by enactment of Congress, may be inquired of and
prosecuted in any district from, through, or into which such
commerce, mail matter, or imported object or person moves.
Id. § 3237(a), ¶ 2 (emphasis added).
government, relying on United States v. Melia, 741
F.2d 70 (4th Cir. 1984), argues that a conviction under 18
U.S.C. § 2315 involves "transportation in
interstate or foreign commerce, " and thus represents a
"continuing offense" for the purposes of 18 U.S.C.
§ 3237(a), ¶ 2. Thus, because the stolen flooring
moved from the Western District of Virginia into the District
of Maryland, venue in either district is proper. Fowler
responds that Melia is no longer valid in light to
subsequent amendments to 18 U.S.C. § 2315. Though Fowler
raises an interesting argument, the court ultimately is
persuaded to agree with the government.
U.S.C. § 2315 was amended in 1986. Prior to this
amendment, the statute criminalized receipt of goods
"moving as, or which are a part of, or which constitute
interstate or foreign commerce." Pub. L. No. 99-646, 100
Stat. § 3618 (Nov. 10, 1986). Melia, decided in
1984, relied on the pre-amendment version of § 2315, and
held that "Section 3237(a) was enacted ... to deal
precisely with th[e] interstate process of wrongdoing"
implicated by § 2315. 741 F.2d at 72 (internal
quotation marks omitted).
however, § 2315 no longer exactly ties itself to
interstate commerce. Instead, the statute now criminalizes
receipt of property "which ha[s] crossed a State or
United States boundary after being
stolen." Fowler argues that this change delinks
§ 2315 from the "continuing offense"
definition in § 3237(a), ¶ 2. Unfortunately for
him, the (admittedly scant) case law on this issue suggests
that, even post-amendment, a violation of § 2315 should
be considered a continuing offense under § 3237(a).
Fourth Circuit has thrice cited Melia subsequent to
§ 2315 being amended. In United States v.
Rowell. No. 90-5347, 1992 WL 11123 (4th Cir. Jan. 28,
1992) (unpublished), the court again faced the same issue,
and concluded that "there is simply no substantial
difference, either factually, or legally, between
Melia and this case." Id. at *3.
Though the court did not expressly refer to the 1986
amendment to § 2315, it appears to have implicitly
determined that the amendment left Melia's venue
United States v. Ebert, 178 F.3d 1287 (4th Cir. May
3, 1999) (unpublished table decision), meanwhile, the Fourth
Circuit opined that a Supreme Court case, United States
v. Cabrales, 524 U.S. 1 (1998), required the court to
reconsider Melia. In Cabrales. the Court
considered a money laundering charge, where the defendant was
charged based on transactions that entirely took place in
Florida. The money, however, was generated in Missouri, where
Cabrales was indicted. Id. at 5. The Court held that
venue was improper in Missouri because the defendant was
charged "with criminal activity 'after the fact'
of an offense begun and completed by others" in
Missouri. Id. at 7. Thus, Cabrales could only be
charged in the venue where his criminal conduct occurred.
This is superficially similar to Fowler: he received goods in
Maryland that were stolen by others in Virginia. However, the
defendant in Cabrales was charged under a statute
that contained no reference to interstate transportation.
Fowler, on the other hand, was prosecuted under § 2315,
which, even post-amendment, still requires some proof of
interstate movement. Therefore, the court's discussion of
Melia was mere dicta, and less compelling
than Rowell's reaffirmation of
Melia's validity. Moreover, Ebert, like
Rowell, was unpublished, and is therefore not
controlling on this court. See United States v.
Adams. 39 F.App'x 36, 38 (4th Circuit 2002)
("Unpublished cases are not binding precedent in this
circuit."). Thus, to the extent Ebert conflicts
with the Fourth Circuit's decision in Melia, it
must give way.
in United States v. Engle, 676 F.3d 405 (4th Cir.
2012), the court considered a different statute, and
analogized to the holding in Melia. See
id. at 417 n.8. The Engle decision noted that
the defendant in Melia "argued that the
essential conduct element of the crime occurred in
Connecticut, and that the circumstance element of interstate
transportation was irrelevant." Id. Because
§ 3237(a) "was enacted ... to deal precisely with
this interstate process of wrongdoing, " the court
rejected the defendant's argument. Id. ellipsis
in original). While Engle's precedential value
is limited because it only references Melia by
analogy, it does reaffirm Melia's viability in
the Fourth Circuit.
meanwhile, cites a lengthy discussion in United States v.
Morgan, 393 F.3d 192 (D.C. Cir. 2004). In that case, the
court upheld a venue challenge in which the defendant
received stolen federal property in one state, but was
prosecuted in the state where the property was stolen. The
court held that venue was improper; the defendant's
offense was not a "continuing offense" within the
meaning of § 3237(a), because, though the property was
transported across state lines, it was only received within
one state. Id. at 198. The court held that
"an offense involves transportation in interstate
commerce only when such transportation is an element of the
offense." The Morgan decision, however,
interpreted 18 U.S.C. § 641 (2000), which contains no
interstate transportation requirement. Moreover, even if
Morgan squarely supported Fowler's argument, it
would be insufficient to overcome the Fourth Circuit
precedent affirming Melia. which is controlling on
sure, Fowler's argument has some appeal, as the
post-amendment version of § 2315, which requires that
stolen property have crossed state or national lines at some
point prior to being received, no longer exactly tracks the
"interstate commerce" language that defines a
"continuing offense" under § 3237(a). However,
until the Fourth Circuit sees fit to revisit Melia.
it remains binding precedent. Fowler received property that
was stolen in the Western District of Virginia and
transported into the District of Maryland. Under §
3237(a), venue is therefore proper in either district.
Accordingly, Fowler's motion as to Count 13 is DENIED.
reasons set forth above, the court DENIES defendants'
motions for acquittal (and, in Fowler's case, for a new
trial). ECF Nos. 347, 382, 393. An appropriate Order will be
 The court granted Alexander
Ayanou's oral motion for a judgment of acquittal. ECF No.
 The indictment originally brought
additional counts of credit card fraud and aggravated
identity theft against Pemberton and Fowler. However, the
government later moved to dismiss these counts, ECF No. 261,
and the court granted the motion. ECF No. 294.
 Thus, the oral motion for acquittal
brought by both parties (ECF No. 347) is resolved except as
to Fowler's challenge to his Count 13 conviction.
 Taylor pled guilty to multiple charges
in a related case, including conspiracy and several counts of
aggravated identity theft. See United States v.
Taylor. No. 5:14-cr-057 (W.D. Va. Aug. 8, 2016) (amended
 Taylor's testimony is the only
official trial transcript on the record, and thus die only
portion of die trial to which this opinion specifically
Pemberton's reaction stands in
contrast to several other drivers, of whom Taylor recalls,
"[A]fter they figured out what was going on, they
didn't want to deal with me anymore." Id.
 Baumgartner became suspicious when she
realized that the customer address on the order was in
Alexandria, Virginia, and that Pemberton had bypassed
multiple, closer Home Depot locations before arriving at the
 For one, Taylor's cooperation with
the government, and the concomitant hope of a reduced
sentence, gives him an incentive to implicate
 Accordingly, because the record is
sufficient to establish proper venue as to Count 1, the court
will not decide if Pemberton waived his venue
 Taylor also testified that Fowler
encountered trouble at a Home Depot, but he could not
remember the date or location of this incident. Id.
at 54:14-55:1. Taylor believes Fowler "knew about the
whole scheme" after that incident: the Home Depot
employees did not allow Fowler to pick up the merchandise,
and "told him it was a fraudulent deal and sent him out
of there." Id. at 60:9-12.
 As with Pemberton, Taylor never gave
Fowler his real name; instead, Fowler referred to him as
"Shorty." Id. at 124:23.
 This phone call, unlike calls to
Pemberton, went unrecorded; Fowler has a Maryland phone
number, and Maryland requires that both parties to a phone
call consent to any recording. Virginia, on the other hand,
only requires one party to consent. Agent Laub testified that
he chose not to record calls to Fowler because, in the event
Fowler was prosecuted in Maryland state court, the recordings
would be inadmissible.
 Taylor purchased merchandise from
Lowe's on March 15; it wasn't picked up by Pemberton
until the 16th.
 Pemberton argues that "[t]he
phone log sheets have no bearing on this issue because Mr.
Taylor has repeatedly asserted that he did not tell Mr.
Pemberton anything when he first started dealing with
him." Id. at 5. While the phone log sheets do
not provide direct evidence of Pemberton's knowledge,
they certainly bear on the issue of accomplice liability. The
jury was entitled to conclude that the numerous calls between
Pemberton and Taylor, combined with Taylor's testimony
and the wealth of circumstantial details indicated
Pemberton's knowledge of his own culpability, demonstrate
beyond a reasonable doubt that Pemberton was aware of, and
intended to advance, Taylor's credit card fraud.
 "Congress may constitutionally
enact a statute for venue 'in any criminal court of the
United States through which a process of wrongdoing
moves.'" United States v. Melia, 741 F.2d
70, 71 (4th Cir. 1984) (per curiam) (quoting United
States v. Johnson. 323 U.S. 273. 276 (1944)).
 This change was not made with any
thought as to how venue under die statute would be affected.
Instead, die change was made for two reasons. First, die
amended language more closely matched a similar statute
dealing with die receipt of stolen vehicles. See
Sen. Rpt. No. 99-278. Second, Congress intended to
"eliminat[e] die present requirement that die property
still be considered as moving in interstate or foreign
commerce at die time die defendant receives, conceals, or
disposes of it." United States v. Trupin. 117
F.3d 678, 683 (2d Cir. 1997) (quoting H.R. Rep. No. 99-797
Defendants often challenged convictions under the
prior version of § 2315 by arguing that, by die time
they received the stolen property, it was no longer a part of
interstate commerce. For example, in United States v.
Licavoli. 604 F.2d 613 (9di Cir. 1979), the Ninth
Circuit Court of Appeals held against a defendant making this
argument, and found that the jury could determine that die
stolen property was still in interstate commerce, despite die
fact mat it crossed state lines prior to being received by
die defendant. Id. at 624. But see United States
v. Strauss. 678 F.2d 886, 894 (11th Cir. 1982) ("A
good mat has come to rest in a state has lost its interstate
character."). The new version of the statute eliminates
this confusion, by specifying that the property need not
still be involved in interstate commerce; so long as
it at one point crossed state or national borders, §
2315 applies. See Trupin. 117 F.3d at 683
("Although die 'moving as interstate commerce'
requirement of die original statute was generally broadly
construed, a number of courts intimated mat, if an item once
moving was found to have 'come to rest, ' subsequent
attempts to receive, conceal, sell, or dispose of the
property would not violate die statute's
 Moreover, as courts around the
country note, the legislative history of § 2315
indicates that Congress intended to include the offense
within the venue provisions of § 3237. E.g..
United States v. Allen. No. 2011-027, 2012 WL
4506547, at *9 (D.V.I. Oct. 2, 2012) (collecting cases). This
legislative history, however, dates from the period before
Congress amended § 2315, which lessens its probative
 The post-amendment version of the
statute likely implicates different conduct. In rejecting a
commerce clause challenge to the post-amendment version of
§ 2315, the Second Circuit Court of Appeals held that
[t]he new law might reach some conduct that was beyond the
scope of the old law, e.g., stolen goods that have come to
rest in their destination state. Yet, it also might be
construed to exclude some conduct that the old law covered,
i.e., wholly intrastate movement of stolen goods that is
nonetheless part of commerce.
 The statute the Engle court
considered, sexual exploitation of a minor, 18
U.S.C.'§ 2251(a), requires that "defendant knew
or had reason to know that the visual depiction will be
transported in interstate commerce, or that the visual
depiction has actually been transported in interstate
commerce." 676 F.3d at 412. Like the pre-amendment
version of § 2315, the language of § 2251(a)
exactly tracks the § 3237(a), ¶ 2 definition of
"continuing offense ("Any offense involving . . .
transportation in interstate or foreign
 The court also referenced an opinion
interpreting the pre-amendment version of § 2315, and
approved of its holding that a violation of § 2315
constitutes a continuing offense under § 3237(a),
¶2. See Id. at 200-01 (citing United States
v. DeKunchak, 467 F.2d 432 (2d Cir. 1972)).
 National case law on the issue is
equally scant: the court found only three cases that squarely
address whether violation of the post-amendment version of
§ 2315 is a continuing offense. All support the
government's position. See Allen. 2012 WL
4506547, at *9; United States v. Geier, No.
CR-08-023, 2008 WL 2338487, at *3 (D. Idaho June 4, 2008);
United States v. Luk, No. 93-276-CR-T-24(A), 1994 WL
125221, at *2 (M.D. Fla. Feb. 11, 1994).