US v. Stanley Lessington

Filing 920100318

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4873

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. STANLEY LESSINGTON, Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Charleston. Sol Blatt, Jr., Senior District Judge. (2:04-cr-01092-SB-1)

Submitted:

February 25, 2010

Decided:

March 18, 2010

Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Ray Coit Yarborough, Jr., LAW OFFICE OF RAY COIT YARBOROUGH, JR., Florence, South Carolina, for Appellant. Michael Rhett DeHart, Assistant United States Attorney, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Stanley Lessington appeals from the 121-month sentence imposed following to of make 18 his and jury pass § conviction counterfeit (2006), on two counts checks, of of in

conspiracy violation

business count

U.S.C.

371

one

passing

counterfeit checks, in violation of 18 U.S.C. §§ 513(a), 3147(1) (2006), and two counts of identity theft, in violation of 18 U.S.C. § 1028(a)(7), (b)(1)(D) (2006). Lessington's counsel

filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), appeal, denying asserting but that there are no the meritorious district grounds erred and for in for

questioning

whether to

court counsel

Lessington's

motions

substitute

acquittal pursuant to Federal Rule of Criminal Procedure 29. Lessington filed a pro se supplemental brief, arguing the same issues and raising several additional claims. has not filed a brief. The Government

Finding no error, we affirm.

We review the district court's denial of a motion to substitute counsel for abuse of discretion. Reevey, 364 F.3d 151, 156 (4th Cir. 2004). United States v. Upon review, we

consider the following factors: "(1) the timeliness of [the] [m]otion[]; (2) the adequacy of the court's inquiry into his complaint about counsel; and (3) whether [the defendant] and his counsel experienced a total lack of communication preventing an adequate defense." Id. (internal quotation marks omitted). 2 We

then "weigh these factors against the trial court's interest in the orderly administration of justice." Lessington's trial was set Id. at 157. to begin on Monday,

October 30, 2006; however, he did not request a new attorney until Thursday, October 26, 2006. The day of trial, the

district court allowed Lessington to explain the reasons he was dissatisfied with counsel, addressing each point Lessington

raised in depth. who admitted that

The district court also questioned counsel, he and Lessington had a breakdown in

communication because they did not see the evidence in the same light. However, counsel believed he could articulate a defense On these facts, we find that the district court

nonetheless.

did not abuse its discretion in denying Lessington's motion to substitute counsel. We review the district court's denial of a Rule 29 motion for acquittal de novo. F.3d 150, 160 (4th Cir. 2006). "if there is substantial United States v. Perkins, 470 A jury verdict must be upheld viewed in the Id. light most

evidence,

favorable to the Government, to support it."

We consider

both circumstantial and direct evidence, drawing all reasonable inferences from such evidence in the government's favor. States v. Harvey, 532 F.3d 326, 333 (4th Cir. 2008). Count 1 charged that Lessington and an unindicted coconspirator conspired, in violation of § 371, to possess and 3 United

pass

counterfeit

business

checks

with

the

intent

to

deceive

another person and organization, in violation of § 513(a), based on a transaction requires at McElveen government Chevrolet. to prove: A conviction an under

§ 371

the

"(1)

agreement

between two or more people to commit a crime," in this case a violation of § 513(a), and "(2) an overt act in furtherance of the conspiracy." Cir. 1997). United States v. Ellis, 121 F.3d 908, 922 (4th

"The existence of a tacit or mutual understanding

between conspirators is sufficient evidence of a conspiratorial agreement." Id. (internal quotation marks omitted). To

establish a violation of § 513(a), the government must prove that the defendant: (1) uttered or possessed; (2) a counterfeit security; (3) of an organization that operates in or affects interstate commerce; (4) with the intent to deceive another

person or organization.

18 U.S.C. § 513(a), (c)(4).

A security

is counterfeit if it "purports to be genuine but is not, because it has been falsely made or manufactured in its entirety." U.S.C. § 513(c)(1). At trial, a former McElveen salesman testified that Lessington came to McElveen to purchase a vehicle and that, at Lessington's direction, he drew up the sales contract in the name of Michael Anthony, knowing the name was fictitious. 18

Lessington forged Michael Anthony's name on the contract and took possession of the vehicle, passing a business check for 4

$37,500 drawn on a construction company's account as payment. The contract further provided that an excess payment in the

amount of $5500 would be refunded to Lessington.

Testimony from

co-conspirators confirms that Lessington passed the counterfeit check with the intent to deceive McElveen. The following day,

the salesman passed the check at the bank and returned $5500 to Lessington, as promised in the fraudulent sales contract. Count conspirators 2 charged Lessington §§ 371 and and several 513(a) named on coa Two

with

violating

based

conspiracy that took place between 2003 and October 2005.

co-conspirators testified that they witnessed Lessington print counterfeit payroll and personal checks. Additionally, several

co-conspirators testified that Lessington recruited them to pass counterfeit payroll checks at several stores and to open bank accounts to deposit counterfeit checks in exchange for payment. Further, a former cashier at the St. Stephen IGA testified that Lessington recruited her to cash a number of counterfeit checks for himself and others at the IGA in exchange for payment. Count 3 charged Lessington with knowingly passing a counterfeit David Jones security with of Nationwide to deceive Insurance the St. made payable IGA, to in

intent

Stephen

violation of § 513(a), while on release, in violation of § 3147. At trial, the former IGA cashier testified that she cashed a counterfeit check from Lessington made out to David Jones at the 5

St. Stephen IGA on September 27, 2005.

At the time Lessington

passed the check, he was on pretrial release after entering a not guilty plea to the original indictment in this case. Finally, identity knowingly theft, in Counts 4 and of 5 charged Lessington (b)(1)(D), others' with for

violation

§ 1028(a)(7), and using

possessing,

transferring,

Social

Security numbers, dates of birth, names, driver's licenses, and identification cards with the intent to commit, and to aid and abet in the commission of, passing counterfeit business checks. To establish to a violation prove that of § 1028(a)(7), the or defendant: without the government is

required

(1) lawful

knowingly; authority;

(2) transferred,

possessed,

used

(3) another person's means of identification; (4) with intent to commit, or to aid or abet, any unlawful activity. § 1028(a)(7). Here, in executing the search warrant, officers found numerous forms of identification in Lessington's bedroom, 18 U.S.C.

including a Social Security card and birth certificate belonging to Juan Francisco Arteaga. Law enforcement officials involved

with the case confirmed that Juan Arteaga's Social Security card and birth certificate were used to obtain the fraudulent

driver's license used by Lessington's cousin to pass counterfeit checks and that Lessington used a fraudulent driver's license in a relative's name to cash a counterfeit 6 check at the IGA.

Lessington

admitted

to

obtaining

and

possessing

the

second

fraudulent driver's license, though he denied using it to pass counterfeit checks. Based on the above, we conclude that there is

substantial evidence supporting the jury verdict on each count. Therefore, the district court properly denied Lessington's Rule 29 motion for acquittal. We have also reviewed the issues

raised in Lessington's pro se supplemental brief and find them to be without merit. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm the district court's judgment. requires that counsel inform Lessington, in This court of his

writing,

right to petition the Supreme Court of the United States for further filed, review. but If Lessington believes requests such a that a petition would be be

counsel

that

petition

frivolous, counsel may move in this court for leave to withdraw from representation. thereof was served Counsel's motion must state that a copy on Lessington. We dispense with oral

argument because the facts and legal conclusions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED

7