United States v. Christopher E. Reese

SUMMARY ORDER Defendant-Appellant Christopher E. Reese appeals the judgment of the United States District Court for the Southern District of New York (Marrero, J.). After a jury trial, Reese was convicted of 1) conspiracy to commit bank fraud in violation of 18 U.S.C. § 1349, 2) bank fraud in violation of 18 U.S.C. § 1344, 3) conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349, and 4) aggravated identity theft in violation of 18 U.S.C. § 1028A. Reese was sentenced to 84 months to run concurrently for counts 1-3 and to 24 months to run consecutively for count 4 for a total of 108 months. 1 *64 Reese appeals his conviction and sentence. Reese argues that there was insufficient evidence of conspiracy to commit wire fraud because he did not obtain the checks by deceit or misrepresentation. He also contends that the Government did not establish that he intended to victimize and defraud a financial institution as required to commit bank fraud or engage in bank fraud conspiracy. We assume familiarity with the underlying facts and procedural posture of this case, to which we refer only as necessary to explain our reasons for affirming. We review a challenge to the sufficiency of evidence de novo. United States v. Rangolan, 464 F.3d 321, 324 (2d Cir.2006). We are “required to draw all permissible inferences in favor of the government and resolve all issúes of credibility in favor of the jury verdict.” United States v. Kozeny, 667 F.3d 122, 139 (2d Cir.2011). We conclude that sufficient evidence was adduced at trial to support Reese’s conviction for conspiracy to commit wire fraud. Reese testified at trial that he and his coconspirators did not simply steal the checks but also manipulated the checks by altering the payee names. Reese also testified there was an understanding as to where and when the checks would be deposited, and his coconspirators were representing themselves as the rightful payees of the checks. This sufficiently supports the jury’s verdict that Reese engaged in conspiracy to commit wire fraud. We also conclude that the evidence at trial sufficiently supported Reese’s conviction for bank fraud and bank fraud conspiracy under 18 U.S.C. § 1344(1) and 18 U.S.C. § 1349. The indictment charged Reese under 18 U.S.C. § 1344(1) and (2). But because Reese was tried and convicted before the Supreme Court held that specific intent to defraud a financial institution was not an element of § 1344(2), Loughrin v. United States, — U.S. -, 134 S.Ct. 2384, 2388-90, 189 L.Ed.2d 411 (2014), the jury would necessarily have had to find such specific intent to convict Reese. United States v. Nkansah, 699 F.3d 743, 748 (2d Cir.2012). We conclude that, based on the evidence adduced at trial, a reasonable jury could have found beyond a reasonable doubt that Reese possessed the requisite intent under § 1344(1). The entities issuing the checks may have been the immediate victims of Reese’s check scheme, but “a defendant may be convicted of federal bank fraud even when the bank is not the immediate victim of a scheme to defraud.” United States v. Rodriguez, 140 F.3d 163, 168 (2d Cir.1998). The defendant need only have “intended to victimize the bank by exposing it to an actual or potential loss.” Id. Reese was shown to have intended to victimize banks because he and his conspirators trafficked in stolen checks and the forged checks were presented to the drawee bank. See United States v. Stavroulakis, 952 F.2d 686, 694-95 (2d Cir.1992) (“Common sense dictates that by charging a scheme to traffic in stolen, blank checks, the indictment accused defendant of engaging in a course of intentionally deceptive conduct directed at the drawee bank.”). The exposure of the banks was not “unclear, remote, or nonexistent.” See Nkansah, 699 F.3d at 750. Whether the banks in this case actually experienced loss is immaterial “because § 1344 punishes not completed frauds, but instead fraudulent schemes.” Loughrin, 134 S.Ct. at 2394 (internal quotation marks and alteration omitted). Because we affirm the conviction on counts 1-3, we also reject Reese’s argument that count 4, the aggravated identity *65 theft conviction, must be reversed because he is not guilty of an underlying predicate offense. Reese also challenges the application of several U.S. Sentencing Guidelines (U.S.S.G.) enhancements: leadership role in a crime involving five or more participants under U.S.S.G. § 3Bl.l(a), use of a minor to commit a crime under U.S.S.G. § 3B1.4, offense involved 10 or more victims under U.S.S.G. § 2Bl.l(b)(2), and loss calculation exceeding $120,000 under U.S.S.G. § 2Bl.l(b)(l)(F). Reese also challenges the district court’s denial of a reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. “Although we review a district court’s legal application of the Guidelines de novo, we review its factual findings deferentially for clear error, bearing in mind that the standard of proof at sentencing is a preponderance of the evidence.” United States v. Gaskin, 364 F.3d 438, 464 (2d Cir.2004) (citations omitted). We conclude the district court did not commit clear error in making the underlying factual findings necessary to apply these sentencing enhancements and to deny the reduction. 2 Nor did the district court err in applying the enhancements as á matter of law. In particular, contrary to Reese’s argument that the minor whose bank account he used and whom he convinced to withdraw money was a victim and that as a result the enhancement should not apply, the use of a minor enhancement applies regardless of whether the minor was a coconspirator or a victim. See id. (“Whether the minor himself engaged in any criminal actions, whether the minor intended to assist in the adult’s criminal activity, or whether the minor even knew that the adult was involved in criminal activity are factors irrelevant to application of the § 3B1.4 enhancement.”). Thus, we conclude that Reese’s sentence was not procedurally unreasonable. See generally United States v. Cavera, 550 F.3d 180, 190 (2d Cir.2008) (en banc). We have considered Reese’s other arguments and find them to be without merit. For the foregoing reasons, we AFFIRM the district court’s judgment of conviction and sentence. Footnotes [1] Reese was also ordered to forfeit $176,663.83 and pay $66,985.55 in restitu *64 tion. Reese also received 3 years of supervised release and was ordered to pay a $400 special assessment. [2] We do not address the propriety of the district court’s subsequent factual findings after Reese was sentenced on January 24, 2014, because Reese did not challenge the timing of the additional findings.