Argued: December 7, 2017
from the United States District Court for the District of
Maryland, at Greenbelt. George L. Russell, III, District
Christine Pont, SHEARMAN & STERLING LLP, Washington,
D.C., for Appellant.
Daniel McKenzie, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellee.
Urofsky, SHEARMAN & STERLING LLP, Washington, D.C., for
Stephen M. Schenning, Acting United States Attorney, Thomas
P. Windom, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
GREGORY, Chief Judge, and KEENAN and FLOYD, Circuit Judges.
by published opinion.
Floyd wrote the opinion in which Chief Judge Gregory and
Judge Keenan joined.
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.
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
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.
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.
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.
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
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.
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.
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
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
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.
we conclude that Savage's conviction was supported by
substantial evidence and that the district court did not err