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