The district court did not err in any respect in convicting and sentencing a defendant alleged to be the ringleader of a conspiracy to convert funds from Capital One accountholders.
Between January and April 2012, Appellant Junaidu Savage and others devised a scheme to defraud Capital One Bank. Savage recruited Jayad Conteh to use her position as a Capital One teller to access customer account information. For each account, Savage or co-conspirators would call Capital One, change the contact phone number on the account, and try to order checks to be delivered by overnight mail. These calls were recorded and later introduced into evidence at Savage’s trial.
The bank eventually detected the scheme and was able to thwart most of the conspirators’ efforts. Conteh was convicted at a jury trial and began providing information to the government in exchange for a reduction of her sentence. In anticipation of Conteh’s testimony against Savage, the government provided Savage with required disclosures of potential impeachment evidence that summarized inconsistent statements Conteh made during their meetings with her.
After the close of evidence at Savage’s trial for bank fraud, including testimony by Conteh, Savage moved for a judgment of acquittal. The district court denied that motion as well as Savage’s request for a specific jury instruction on accomplice testimony.
During deliberations, the jury asked for a written set of jury instructions. The district court declined to provide the court’s copy, which included the judge’s interlineations. The jury then requested the specific written instruction on aiding and abetting, which the district court provided without any interlineations. The jury ultimately convicted Savage on all counts.
At sentencing, the court noted that Savage had made allegedly perjurious statements during his interviews with pre-trial service, later introduced to determine whether he presented a risk of flight or nonappearance. Specifically, Savage stated that he lived in Maryland but didn’t mention his Ohio address or residency (as indicated by his Ohio driver’s license). He also didn’t mention that he possessed an Ohio driver’s license with the name Junaidu Savage and his picture and address on it, when an older license showed the same name and a nearby address but displayed a picture of Savage’s friend. Finally, Savage had concealed his trip to Sierra Leone, where he has family and assets.
The trial court sentenced Savage to a within-guidelines sentence of 87 months in prison, with three years’ supervised release and $36,400 in restitution. Savage appeals his conviction and sentencing on numerous grounds.
Sufficiency of evidence
There was sufficient evidence to convict Savage of the charges against him. It is well settled in this circuit that uncorroborated accomplice testimony may be sufficient to sustain a conviction.
Conteh, a co-conspirator, testified as to Savage’s involvement in the conspiracy and the steps he took to plan and carry out the scheme. She also testified that the phone number used in connection with the scheme belonged to “Jay,” which was what she called Savage, and that it was his voice on the recorded Capital One calls.
The government also introduced videotape evidence of Savage discussing his participation in the scheme with Conteh’s family after she was arrested. Savage said, “I could have found myself in the same situation where she is too. Because I was part of it, you understand?” Also: “We made a big mistake,” and “I will not hesitate to pay …. I don’t think I made over $8,000 on it but I am not looking at that because I was part of it.” Although Savage now argues that these statements never explicitly reference the bank fraud conspiracy, the evidence allowed the jury to reasonably infer that Savage was describing the conspiracy and his participation in it.
The district court did not err in failing to conduct an in camera review to determine whether the material gathered by the government, recorded in the prosecutor’s personal notes of the meeting with Conteh, was subject to disclosure. In camera review is only required if the defendant provides a proper foundation for the request or makes a plausible showing that the files contain evidence material and favorable to the defense. Savage did not meet this burden. When moving to compel, Savage did not even attempt to argue that a Jencks Act statement existed or that the defense was entitled to view the prosecutor’s personal notes. He also didn’t cross-examine Conteh about whether she reviewed the notes or adopted any statement contained within, and he has never represented that Conteh adopted or approved any part of these notes. Nor has he explained what additional inconsistent statements exist. Thus, there is no foundation for a Jencks Act review.
Savage also has not plausibly shown that the files contain evidence material and favorable to him. He argues that one can assume the notes contain inconsistencies in Conteh’s testimony because of other inconsistencies already disclosed, and that impeachment evidence could have reasonably undermined the jury’s view of Conteh’s credibility and, thus, affected the trial result. But this is pure speculation lacking any specificity and, as such, is insufficient to support a finding of materiality.
Additionally, the prosecutor’s notes were used to create summaries of Conteh’s inconsistent statements that were disclosed to Savage. Because Savage heavily relied on these summaries during his cross-examination of Conteh, he has not plausibly shown that lack of access to the actual notes prevented him from effectively using their content.
The district court did not abuse its discretion in providing a jury instruction emphasizing that it could rely on accomplice testimony, without providing the rest of the model instruction that such testimony must also be viewed with caution. The district court substantially covered Savage’s requested instruction by warning the jury to scrutinize all witness testimony, especially the testimony of biased or hostile witnesses, and specifically instructed the jury that it could take prior inconsistent statements into account when considering witness credibility. Savage’s attempts to distinguish accomplice witnesses from all witnesses in this regard is unavailing.
The court also rejects Savage’s argument that the district court abused its discretion by providing only the aiding-and-abetting instruction, which prejudiced him by emphasizing this basis of conviction without taking measures to dilute any undue suggestiveness. The district court has discretion whether and how to respond to the jury’s requests, and here, it responded to the jury’s request for a specific written instruction by providing that instruction. This was not an abuse of discretion. Additionally, the jury had previously been instructed that they were to consider all of the instructions as a whole and regard each instruction in light of all the others, providing an additional safeguard against any prejudice.
The district court did not err in applying U.S. Sentencing Guidelines.
First, the district court did not err in applying a two-level sentencing enhancement for obstruction of justice. The district court found that Savage misrepresented and lied to pre-trial services about where he lived, possessing and presenting state licensing documents that were false. He also lied about his international travel. Finding lack of confusion or mistake as to each lie, the district court described how the false statements contributed to the assessment of pre-trial release. These explanations satisfy the requirement that the district court identify the perjurious statements and make a finding that encompasses all factual elements of perjury.
Second, the district court did not err in applying a 10-level sentencing enhancement based on the amount of loss: $186,000. The district court calculated this amount based on the total funds in each of the seven intended victims’ accounts at the time Conteh first accessed their account information in the Capital One system. The 10-level enhancement followed from the finding that the loss exceeded $150,000 but was less than $250,000.
The district court properly included the balances in bank accounts for which the conspirators failed to actually obtain checkbooks. Unsuccessful attempted fraud does not preclude a court from including the intended loss from the failed attempts in its calculation. This is especially true when, as here the conspirators had already taken steps to steal from these specific victims, but their efforts were thwarted by a third party (in this case, Capital One). It was also reasonable to calculate intended losses based on the account balance on the date the account was accessed and selected for victimization and on the date the process to obtain a checkbook for that account began.
Third, the district court did not err in applying a two-level sentencing enhancement based on use of sophisticated means. The government presented evidence that Savage hid assets, hid transactions, hid his own name, had phones registered in multiple states (none in his name), directed actions of several other conspirators, used insider information provided by a co-conspirator bank employee, and used that information in coordinated steps to circumvent the bank’s fraud countermeasures and take over the victims’ accounts to conceal and execute the scheme — far more than is required for a bank-fraud conspiracy conviction. As the district court put it: “It was not the most complex fraud scheme, but certainly … it was sophisticated enough that the government has met its burden of proof” on the issue.
Fourth, the district court did not err in applying a three-level sentencing enhancement based on his role in the offense as a manager or supervisor. The trial evidence demonstrates that Savage helped recruit Conteh, directed her efforts in the scheme, and delivered proceeds from the fraud to her. This alone is sufficient to support finding that Savage managed or supervised the activities of at least one person. It is also uncontested that the scheme involved five or more participants: Savage and another accomplice planned the scheme, Conteh accessed the customer accounts, and at least two other individuals redeemed fraudulent checks at Capital One locations.
Finally, the district court did not err in requiring parts of Savage’s sentences to run consecutively. Even if there were error in the already-discussed sentencing enhancements, the district court provided specific reasons for consecutive sentencing, many of which were unrelated to the enhancements. The district court noted that the government had not sought the maximum sentence, that the nature and circumstances of the offense were serious, that Savage was a leader and organizer of the criminal group, and that the crime compromised the victims’ credit and confidence in American banking and security.
United States v. Savage, Case No. 16-4704, Mar. 12, 2018. 4th Cir. (Floyd), from DMD at Greenbelt (Russell). Alyssa Christine Pont for Appellant; Ray Daniel McKenzie for Appellee. VLW 018-2-050, 29 pp.