USA v. Laquisha Johnson

Filing

Opinion issued by court as to Appellant Laquisha Q. Johnson. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 03/11/2016

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-12354
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-20827-JEM-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAQUISHA Q. JOHNSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 11, 2016)

Before WILSON, ROSENBAUM and BLACK, Circuit Judges.
PER CURIAM:

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Laquisha Quiette Johnson appeals her convictions for theft of government
funds, in violation of 18 U.S.C. § 641, and her total 21-month sentence, imposed at
the bottom of the guideline range. Johnson raises several issues on appeal, which
we address in turn. After review, we affirm. 1
I. DISCUSSION
A. Sufficiency of the Evidence
Johnson first argues that the district court erred by denying her motion for a
judgment of acquittal based on the government’s failure to establish the mens rea
for theft of government funds. Johnson filed a motion for judgement of acquittal at
the end of the Government’s case, but failed to renew her motion at the close of
evidence. We thus review her sufficiency challenge for “manifest miscarriage of
justice.” United States v. Jones, 32 F.3d 1512, 1516 (11th Cir. 1994).
There was sufficient evidence presented at trial to establish that Johnson had
the requisite mens rea. See United States v. Wilson, 788 F.3d 1298, 1309 (11th
Cir. 2015) (“[T]o establish the requisite criminal intent, the government need only
prove that defendant knowingly used government property for his own purpose in
a manner that deprived the government of the use of that property.” (quotation
marks omitted)). At trial, the jury heard evidence that Johnson contacted her

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Because we write for the parties, we set out only those facts necessary to explain our

decision.
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financial institution, Higher One, in an attempt to obtain the routing number
necessary to route deposits into her Higher One account. Shortly after, the routing
number appeared on a number of fraudulent tax returns, and three tax refunds were
deposited into Johnson’s Higher One account. The illicit source of the deposits
was visible to an account user who logs into the Higher One online account.
Records demonstrated that the account was accessed both through the online
account and through automatic teller machines (“ATMs”) located in the town of
Opa Locka, where Johnson lived. Physical possession of a Higher One debit card
was necessary to access the account through an ATM, and Johnson admitted
retaining possession of her debit card. Johnson also admitted to spending more
than $56,000 when Higher One closed the account and mailed the balance to her
home. Although circumstantial, this evidence is sufficient to prove the requisite
intent. See United States v. McRee, 7 F.3d 976, 982-83 (11th Cir. 1993) (relying
on circumstantial evidence to establish mens rea). Additionally, Johnson testified
that she did not know the source of the funds in her account and believed them to
be a windfall. In light of contradictory evidence presented by the Government, the
jury was entitled to disbelieve this testimony and rely on it as evidence of guilt.
See United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995) (explaining that “a
statement by a defendant, if disbelieved by the jury, may be considered as
substantive evidence of the defendant’s guilt”—“[a]t least where some
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corroborative evidence of guilt exists ”). There was thus sufficient evidence to
support Johnson’s convictions.
B. Obstruction of Justice
Johnson also asserts that the district court erred at sentencing by applying an
obstruction of justice enhancement. The Guidelines provide for a two-level
enhancement when the defendant “willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice.” U.S.S.G. § 3C1.1. A defendant
may obstruct justice by committing perjury during her trial. United States v. Singh,
291 F.3d 756, 763 (11th Cir. 2002). To find that a defendant perjured herself, the
court must conclude that the testimony was made under oath or affirmation, was
false, was material, and was made with the willful intent to provide false testimony
and not as a result of mistake, confusion, or faulty memory. Id. at 763 n.4.
The district court did not clearly err in finding that Johnson committed
perjury during her trial. See id. at 763 (reviewing factual findings supporting an
obstruction of justice enhancement for clear error). The district court found that
Johnson committed perjury by giving false testimony at trial. This determination is
due great deference. See id. (“We . . . accord great deference to the district court’s
credibility determinations.” (quotation marks omitted)). The testimony Johnson
presented was material and directly contradicted the evidence established by the
record. See id. (“[A] general finding that an enhancement is warranted suffices if it
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encompasses all of the factual predicates necessary for a perjury finding.”
(quotation marks omitted)); United States v. Wallace, 904 F.2d 603, 605 (11th Cir.
1990) (holding that a district court’s failure to outline which portions of the
testimony it considered to be false does not preclude review). Thus, the district
court did not err in applying the obstruction of justice enhancement.
C. Production of Unauthorized Access Devices
Finally, Johnson contends that the district court erred at sentencing by
imposing an enhancement for production of unauthorized access devices. Section
2B1.1(b)(11)(B) provides a two-level enhancement for the “production or
trafficking” of any “unauthorized access device or counterfeit access device.”
U.S.S.G. § 2B1.1(b)(11)(B)(i). The district court applied the enhancement, raising
Johnson’s offense level from 14 to 16.2
The district court did not clearly err in applying the § 2B1.1(b)(11)(B)(i)
enhancement. See United States v. Cruz, 713 F.3d 600, 605 (11th Cir. 2013)
(reviewing the district court’s legal conclusions de novo and its factual findings for
clear error). Johnson was convicted of theft of government property; evidence was
presented at trial that she prepared and filed false tax returns using unauthorized
Social Security numbers and other identifying information. Thus, the district court

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The applicable Guidelines range was 21–27 months, and the district court sentenced
Johnson to 21 months. If the district court had declined to apply the § 2B1.1(b)(11)(B)(i)
enhancement, the applicable Guidelines range would have been 15–21 months.
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did not err when it found that Johnson produced unauthorized access devices
within the meaning of § 2B1.1(b)(11)(B)(i). See U.S.S.G. § 1B1.3(a)(1)(A)
(offense enhancements are determined by “all acts and omissions committed,
aided, abetted, counseled, commanded, induced, procured, or willfully caused by
the defendant”).
II. CONCLUSION
We affirm Johnson’s convictions and sentence.
AFFIRMED.

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