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United States v. Savage

United States Court of Appeals, Fourth Circuit

March 12, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
JUNAIDU SALJAN SAVAGE, a/k/a James Kamara, Defendant-Appellant.

          Argued: December 7, 2017

          Appeal from the United States District Court for the District of Maryland, at Greenbelt. George L. Russell, III, District Judge. (8:15-cr-00076-GLR-1)

         ARGUED:

          Alyssa Christine Pont, SHEARMAN & STERLING LLP, Washington, D.C., for Appellant.

          Ray Daniel McKenzie, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.

         ON BRIEF:

          Philip Urofsky, SHEARMAN & STERLING LLP, Washington, D.C., for Appellant.

          Stephen M. Schenning, Acting United States Attorney, Thomas P. Windom, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.

          Before GREGORY, Chief Judge, and KEENAN and FLOYD, Circuit Judges.

         Affirmed by published opinion.

         Judge Floyd wrote the opinion in which Chief Judge Gregory and Judge Keenan joined.

          FLOYD, Circuit Judge

         Junaidu Savage was convicted by a jury of one count of bank fraud conspiracy and two counts of aggravated identity theft. He now appeals his conviction and sentence on several grounds. First, he argues that the district court erred in denying his motion for judgment of acquittal based on insufficient evidence of bank fraud conspiracy. Second, Savage argues that the district court erred in failing to conduct an in camera review to determine whether material required disclosure under the Jencks Act, 18 U.S.C. § 3500(b), or pursuant to Brady v. Maryland, 373 U.S. 83 (1963). Third, Savage argues that the district court erred by not providing his requested jury instruction on accomplice testimony, and by providing the jury with a written copy of the jury instruction on aiding and abetting liability. Finally, Savage challenges the district court's application of the sentencing guidelines on several grounds. For the following reasons, we affirm.

         I.

         Between January and April 2012, Junaidu Savage, Jayad Conteh, and others devised a scheme to defraud Capital One Bank ("Capital One"). According to the trial testimony, Savage and a mutual friend, Mumtaz Sadique, recruited Conteh―a teller at a Capital One branch―to participate in the scheme. At Savage's direction, Conteh used her position as a teller to access customer account information on the bank's internal systems, including confidential personal identifiers necessary to make changes to an account, for accounts that contained at least $10, 000. She would then send the account information to Savage or Sadique using her cell phone or by passing hard copies of the customer information. Many of these communications were with an iPhone with the number ending in 7412, which was registered to the mother of one of Savage's children. Conteh also answered questions about the accounts via text message. For each account Conteh provided information about, Savage and his co-conspirators then called Capital One, changed the contact phone number on the account, and tried to order checks to be delivered by overnight mail. These calls to Capital One were recorded and introduced into evidence. Conteh and Alimamy Jabbie, one of Savage's close friends, later identified Savage's voice on several of these phone calls.

         A fraud investigator testified that Conteh accessed at least seven victims' accounts on multiple occasions without authorization. The evidence showed that the conspirators obtained checkbooks for at least one account, and wrote and cashed checks to empty the victim's account. The bank eventually detected the scheme, and was able to thwart the conspirators' efforts to compromise accounts by requiring customers to provide a password or physically come into the branch to conduct transactions.

         Conteh was arrested in April 2012 and was later convicted by a jury, sentenced to an aggregate term of 64 months of imprisonment, and ordered to pay $36, 000 in restitution. Following her conviction, Conteh entered into a proffer agreement with the government to provide information about the conspiracy on the condition that the information she provided would not be used directly against her. The government met with Conteh four times as part of this agreement. During this period, Savage spoke to Conteh, sent her money for a new lawyer, and sent her text messages, including a message saying, "It was never my intention, I'm sorry" the day she reported to prison. J.A. 606. In summer 2014, Savage visited Conteh's family and discussed his involvement in the fraud; unbeknownst to Savage, this conversation was videotaped. In this recording, Savage stated:

I was somehow involved and I will not try to exclude myself but it was not intended for [Conteh] to end up in this situation.... [E]ven though this was a small thing that we did, it has turned out to be something big that we never imagined.... Today I am here but I could have found myself in the same situation where she is too. Because I was part of it, you understand? ... We made a big mistake and we can only look up to God to see how certain thing [sic] will turn out.... I am willing to help as much as I can. The restitution is $36, 000.00 and I will not hesitate to pay for it. I don't think I made over $8, 000.00 on it but I am not looking at that because I was part of it.

J.A. 139.

         On February 25, 2015, a federal grand jury for the District of Maryland indicted Savage for bank fraud conspiracy, in violation of 18 U.S.C. § 1349 (Count One), and aggravated identity theft, in violation of 18 U.S.C. § 1028A (Counts Two and Three). In March 2016, Conteh and the government changed their proffer agreement to a cooperation agreement in which the government agreed to move for a reduction of her sentence if she adhered to their agreement and provided substantial assistance in their case against Savage in light of the factors set forth in U.S.S.G. §5K1.1, including potentially testifying against him. In anticipation of Conteh's testimony, the government provided Savage with required disclosures containing potential impeachment evidence that summarized inconsistent statements Conteh made during their meetings with her. The inconsistencies concerned matters such as the minimum balance Conteh should look for when targeting an account and whether Conteh received any money from the scheme.

          On the first day of trial, Savage filed a motion to compel any materials related to interviews of Conteh or other witnesses which may contain required disclosures under either the Jencks Act, 18 U.S.C. § 3500(b), or Brady v. Maryland, 373 U.S. 83 (1963). The court dismissed the motion as moot after finding that only the government attorney's personal notes existed, and determining that they did not contain any required disclosures. At trial, Conteh testified to several details of the scheme. For example, she described how Savage and Sadique approached her about the plan, how Savage directed her to access bank accounts, and how she communicated the confidential customer account information to Savage. The prosecution and defense both questioned Conteh about her previous inconsistent statements.

         Savage moved for a judgment of acquittal at the close of the government's case and at the close of evidence; the district court denied both motions. Savage also requested a specific jury instruction on accomplice testimony, which the district court declined to provide. The jury then requested and was provided a written copy of the jury instruction on aiding and abetting liability, which was charged in connection with the aggravated identity theft counts. The jury subsequently convicted Savage on all counts. Savage then moved for a new trial, which the district court also denied.

         At the sentencing hearing, the district court sentenced Savage to a within-Guidelines sentence of a total of 87 months of imprisonment―51 months as to Count One for bank fraud conspiracy, and a mandatory consecutive 24 months each for Counts Two and Three for aggravated identity theft, of which 12 months were to run concurrently. Savage was also sentenced to three years of supervised release and ordered to pay restitution of $36, 400, $300 in special assessments, and forfeiture of substitute property. This appeal followed.

         II.

         We first address Savage's contention that the district court erred in denying his motion for judgment of acquittal based on insufficient evidence of bank fraud conspiracy. We review the denial of a motion for judgment of acquittal de novo. United States v. Gillion, 704 F.3d 284, 294 (4th Cir. 2012). "We will uphold the verdict if, viewing the evidence in the light most favorable to the government, it is supported by substantial evidence, " which is "evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." Id. at 294 (internal quotation marks & citations omitted). "A defendant who brings a sufficiency challenge bears a heavy burden, as appellate reversal on grounds of insufficient evidence is confined to cases where the prosecution's failure is clear." United States v. Clarke, 842 F.3d 288, 297 (4th Cir. 2016) (internal quotation marks, citations & alterations omitted).

         Savage asserts that there is insufficient evidence that he took any participatory action in the bank fraud conspiracy such that a rational factfinder could conclude that he was a knowing and willing participant in the scheme. We disagree. When considering the evidence in the totality, we conclude that there was sufficient evidence to convict Savage of the charges against him. "[T]he law in this Circuit is well settled that uncorroborated testimony of an accomplice may be sufficient to sustain a conviction." United States v. Manbeck, 744 F.2d 360, 392 (4th Cir. 1984). "[O]n appeal, we are not entitled to assess witness credibility, and we assume that the jury resolved any conflicting evidence in the prosecution's favor." United States v. Taylor, 659 F.3d 339, 343 (4th Cir. 2011) (internal quotation marks omitted). 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. Conteh also provided direct testimony that the phone number used in connection with the scheme-the number ending in 7412-belonged to "Jay, " which was what she called Savage. J.A. 518. Additionally, she testified it was Savage's voice on the recorded Capital One phone calls. This testimony was further supported by the testimony of Alimamy Jabbie, one of Savage's close friends, who testified that the voice on the Capital One recordings sounded like Savage's, although he was "not too sure for a hundred percent...." J.A. 822-23. The jury heard Conteh's testimony, along with any alleged inconsistencies, and decided that her testimony was credible. Thus, Conteh's testimony alone is sufficient to support his conviction.

         The government, however, also introduced videotape evidence of Savage discussing his participation in the scheme with Conteh's family after she was arrested. In this recording, Savage made statements including, "I could have found myself in the same situation where she is too. Because I was part of it, you understand?"; "[w]e made a big mistake"; and "I will not hesitate to pay for [Conteh's restitution]. I don't think I made over $8, 000.00 on it but I am not looking at that because I was part of it." J.A. 139. Savage argues that this evidence is insufficient because his statements never explicitly reference the bank fraud conspiracy or his participation in it. However, in reviewing the denial of a motion for judgment of acquittal, "[w]e 'consider circumstantial as well as direct evidence, and allow the government the benefit of all reasonable inferences from the facts proven to those sought to be established, ' and we assume that the jury resolved all contradictions in the testimony in favor of the Government." United States v. Pettiford, 337 Fed.Appx. 352, 355 (4th Cir. 2009) (first quoting United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982); and then citing United States v. Brooks, 524 F.3d 549, 563 (4th Cir. 2008)). This video evidence allowed the jury to make the reasonable inference that Savage was referring to the bank fraud scheme and his participation in it.

         Consequently, we conclude that Savage's conviction was supported by substantial evidence and that the district court did not err ...


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