US v. Anika Greene

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:14-cr-00032-AWA-LRL-2. Copies to all parties and the district court. [1000036756]. [15-4812]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4812

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANIKA N. GREENE, a/k/a Neek, a/k/a Anika Carroll,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Arenda L. Wright Allen,
District Judge. (4:14-cr-00032-AWA-LRL-2)

Submitted:

December 22, 2016

Decided:

March 7, 2017

Before GREGORY, Chief Judge, WYNN, Circuit Judge, and DAVIS, Senior
Circuit Judge.

Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

Fernando Groene, FERNANDO GROENE, P.C., Williamsburg, Virginia,
for Appellant. Dana J. Boente, United States Attorney, Kaitlin C.
Gratton, Brian J. Samuels, Assistant United States Attorneys,
Newport News, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Anika N. Greene was convicted by a jury of conspiracy to
commit bank and wire fraud, bank fraud, wire fraud, access device
fraud, and three counts of aggravated identity theft, in violation
of 18 U.S.C. §§ 2, 1028A, 1029(a)(2), 1343-44, 1349 (2012).

She

was sentenced to concurrent terms of 24 months’ imprisonment on
the

aggravated

identity

theft

convictions,

and

18

months’

imprisonment on the remaining counts, to run concurrently with
each other and consecutive to the 24-month terms.
Greene

argues

Government

to

that

the

district

introduce

court

evidence

about

erred
her

in

On appeal,
allowing

participation

the
in

uncharged fraud, there was insufficient evidence to support her
aggravated identity theft convictions, and her conduct did not
justify an enhancement under U.S. Sentencing Guidelines Manual
2B1.1(b)(10) (2015).

For the reasons that follow, we vacate

Greene’s conviction on Count Five (aggravated identity theft) and
remand for entry of an amended judgment.

In all other respects,

we affirm.
I.
Greene first claims that the district court erred in admitting
evidence regarding a separate act of credit card fraud at a Chanel
store.

We

review

a

district

court’s

determination

admissibility of evidence for abuse of discretion.
v. Queen, 132 F.3d 991, 995 (4th Cir. 1997).
2

of

the

United States

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In denying Greene’s motion to exclude evidence of the Chanel
fraud, the district court concluded that the evidence was intrinsic
to the charged offense and, alternatively, that the evidence was
admissible under Fed. R. Evid. 404(b)(2) to show intent and absence
of mistake or accident.

On appeal, Greene challenges the court’s

conclusion that the evidence was intrinsic, but fails to challenge
its

independent

“[f]ailure
alternate

of

a

ground

analysis
party
for

under

in
a

its

Rule

404(b)(2).

opening

district

brief

court’s

to

ruling

Because

the

challenge
waives

an

that

challenge,” Brown v. Nucor Corp., 785 F.3d 895, 918 (4th Cir. 2015)
(alterations and internal quotation marks omitted), we conclude
that Greene has not preserved this issue on appeal.
II.
Next, Greene asserts that there was insufficient evidence to
support her three convictions for aggravated identity theft.

We

review the sufficiency of the evidence supporting a conviction de
novo.

United States v. McLean, 715 F.3d 129, 137 (4th Cir. 2013).

“A defendant bringing a sufficiency challenge must overcome a heavy
burden, and reversal for insufficiency must be confined to cases
where the prosecution’s failure is clear.” United States v. Engle,
676 F.3d 405, 419 (4th Cir. 2012).

In assessing evidentiary

sufficiency, we must determine “whether, viewing the evidence in
the light most favorable to the government, the jury’s verdict is
supported

by

substantial

evidence,
3

that

is,

evidence

that

a

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reasonable finder of fact could accept as adequate and sufficient
to support a conclusion of a defendant’s guilt beyond a reasonable
doubt.”

McLean,

715

F.3d

at

137

(internal

quotation

marks

omitted).
To establish aggravated identity theft, the Government must
prove that a defendant
(1) knowingly transferred, possessed, or used, (2)
without lawful authority, (3) a means of identification
of another person, (4) during and in relation to a
predicate felony offense. . . . Relevant to the first
element, the government must prove that the accused knew
that the means of identification belonged to another
person.
United States v. Adepoju, 756 F.3d 250, 256 (4th Cir. 2014)
(internal quotation marks omitted).
A.
Count Five of the superseding indictment charged that, on
August 2, 2013, Greene and others established and used a Home Depot
credit card account in B.K.’s name and without B.K.’s permission.
We conclude there is insufficient evidence in the record to sustain
this conviction.
The

only

evidence

connecting

Greene

to

the

offense

was

location data for the cell phone registered in Greene’s name.
However, no evidence was presented at trial to demonstrate that
Greene was necessarily in the same location as her cell phone on
August 2, 2013.

Further, there was no location data for Greene’s

phone for a significant amount of time on August 2, including the
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five hours preceding and following the Home Depot fraud, causing
the Government to rely on the location data of a coconspirator’s
phone in an effort to establish Greene’s location.

Moreover, the

Government offered no evidence that Greene knowingly participated
in the scheme or knew that the identifying information of the
victim

belonged

to

a

real

person,

both

required

elements

to

establish aggravated identity theft.
The

Government’s

failure

to

present

evidence

regarding

Greene’s state of mind is also fatal to its argument that Count
Five can be upheld based on Pinkerton v. United States, 328 U.S.
640 (1946).

“The Pinkerton doctrine makes a person liable for

substantive offenses committed by a co-conspirator when their
commission is reasonably foreseeable and in furtherance of the
conspiracy.”

United States v. Ashley, 606 F.3d 135, 142-43 (4th

Cir. 2010).

Here, the evidence fails to establish that Greene

knew of and knowingly decided to participate in the conspiracy as
of August 2, 2013.

Pinkerton is inapplicable if Greene was not a

member of the conspiracy at the time of the Home Depot fraud.
B.
Greene

also

challenges

her

aggravated

identity

theft

convictions arising out of a trip to Ashland, Virginia, on August
30, 2013 (Counts Six and Seven).

Count Six charged the use of

J.B.’s identity, while Count Seven was based on the possession of
and plan to use the identifying information of M.V., L.M., and
5

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R.P.

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Viewed in the light most favorable to the Government, there

is sufficient evidence to conclude that Greene committed these
offenses.
At trial, coconspirator Alice Howard testified that she,
Greene, and another conspirator traveled from New York City to
Ashland, Virginia, on August 30, 2013, and that Greene drove for
part of the trip.

Howard testified that the conspirators obtained

and possessed personally identifying information of J.B., M.V.,
L.M., and R.P, without authority, and used or conspired to use
that information to impersonate the victims and unlawfully access
and transfer funds from their bank accounts.

Howard also stated

that all the conspirators, including Greene, knew and discussed
that bank fraud was the purpose of their trip.

Although there was

no express testimony that Greene knew that the victim’s identities
belonged to real people, it is reasonable to infer such knowledge
when existing bank accounts are the subject of the fraud.

United

States v. Clark, 668 F.3d 568, 574 (8th Cir. 2012) (“A reasonable
juror could infer that Clark . . . knew that banks open accounts
for, and give credit to only real people.

Thus, Clark knew that

the scheme could result in successful deposits and withdrawals
only if [the identity belonged to] a real person with a real bank
account.”).

Accordingly,

the

evidence

is

sufficient

to

demonstrate that Greene aided and abetted the commission of the
offenses charged in Counts Six and Seven by willingly driving the
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conspirators to Virginia with knowledge of the purpose of their
trip.
III.
Finally, Greene asserts that the district court erred when it
enhanced her offense level based on USSG § 2B1.1(b)(10).
this

Guideline,

a

defendant

receives

a

two-level

Under

sentencing

enhancement “[i]f (A) the defendant relocated, or participated in
relocating, a fraudulent scheme to another jurisdiction to evade
law enforcement or regulatory officials . . . or (C) the offense
otherwise

involved

§ 2B1.1(b)(10).

sophisticated

means

.

.

.

.”

USSG

We review the district court’s factual findings

for clear error and its legal conclusions de novo.

United States

v. Horton, 693 F.3d 463, 474 (4th Cir. 2012).
On appeal, Greene asserts that her act of driving Howard and
Washington

to

Virginia

did

not

involve

sophisticated

means.

However, Greene’s argument only tangentially acknowledges that the
district court found the enhancement applicable under both the
sophisticated means provision, USSG § 2B1.1(b)(10)(C), and the
relocation provision, USSG § 2B1.1(b)(10)(A).
the

two-level

enhancement

is

plainly

We conclude that

appropriate

under

the

relocation provision based on the evidence that Greene drove her
coconspirators out of state because they believed they would be
caught if they perpetrated the fraud in New York.

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Accordingly, we vacate Greene’s conviction for aggravated
identity theft in Count Five and remand for the entry of an amended
judgment.

As to all other claims, we affirm the judgment of the

district court.

We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials
before

this

court

and

argument

would

not

aid

the

decisional

process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

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