*Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.

47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Nos. 06-50479 & 06-50774

UNITED STATES

Plaintiff-Appellee

v.

ALEXIS MORGANFIELD

Defendant-Appellant

Appeals from the United States District Court 

for the Western District of Texas

USDC No. 5:03-CR-10-3

Before DENNIS, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

This court has already decided the same issues in this appeal for the

defendant’s co-conspirators in United States v. Morganfield, 501 F.3d 453 (5th

Cir. 2007). In accordance with this binding precedent, we now also AFFIRM in

part, REVERSE in part, VACATE Alexis Morganfield’s sentence, and REMAND

for re-sentencing. 

Alexis Morganfield was a co-conspirator in the check cashing scheme

described in Morganfield, 501 F.3d at 456–57. Like his co-conspirators in

United States Court of Appeals

Fifth Circuit

F I L E D

November 28, 2007

Charles R. Fulbruge III

Clerk
1 We need not reach Alexis Morganfield’s other challenges to his § 514

convictions, because we now reverse the convictions based on binding

precedent. 

2

Morganfield, Alexis now appeals three counts in his conviction: conspiracy to

utter a fictitious instrument in violation of 18 U.S.C. § 514(a)(2); aiding and

abetting the uttering of a fictitious instrument in violation of 18 U.S.C. §

514(a)(2) and 18 U.S.C. § 2; and aiding and abetting bank fraud in violation of

18 U.S.C. §1344 and 18 U.S.C. § 2. His co-conspirators’ indictments and

convictions in Morganfield are materially indistinguishable from Alexis

Morganfield’s with respect to the legal issues in their appeals. As with Alexis’s

co-conspirators in Morganfield, Alexis also challenges his two convictions for

“uttering of a fictitious instrument” in violation of 18 U.S.C. § 514(a)(2). He

identically challenges the convictions by contending that there is insufficient

evidence to find him guilty, because a facially genuine check, even if worthless,

is not, as a matter of law, a “false or fictitious instrument.” In Morganfield, a

prior panel agreed and reversed his co-conspirators’ § 514 convictions. 501 F.3d

at 457-61. We must now do the same in this case, because the prior panel held

that the checks in this scheme are not “fictitious instruments” within the ambit

of § 514. Alexis Morganfield also raises the exact same challenges to his bank

fraud § 1344 conviction as his co-conspirators in Morganfield. The prior panel

disagreed with his co-conspirators’ challenges, and, therefore, those issues are

now foreclosed by Morganfield. Id. at 463–69. Accordingly, we now AFFIRM

his § 1344 conviction; REVERSE his § 514 convictions;1 VACATE his sentence;

and REMAND for re-sentencing.
3

EDITH BROWN CLEMENT, Circuit Judge, concurring separately:

Given that “[i]t is the firm rule of this circuit that we cannot disregard the

precedent set by a prior panel, even though we perceive error in the precedent,”

see Wilson v. Taylor, 658 F.2d 1021, 1034 (5th Cir. 1981), we are bound by this

Court’s prior opinion in United States v. Morganfield, 501 F.3d 453 (5th Cir.

2007). That panel held that there was insufficient evidence because a legitimate

check, even if it is worthless, does not constitute, as a matter of law, a “false or

fictitious instrument.” 501 F.3d at 457, 460–61. Because defendant Alexis

Morganfield raises the same issue in the instant appeal, our panel is bound by

Morganfield and must also reverse his § 514(a)(2) convictions. 

However, butfor Morganfield, I would have affirmed Alexis Morganfield’s

§ 514(a)(2) convictions. I do not consider the mere fact that the checks at issue

were legitimate to be dispositive of whether they were “false and fictitious.” See

United States v. Riley, 335 F.3d 919, 923, 930 (9th Cir. 2003). It is the use of the

checks to create a fictitious obligation in a scheme to defraud that brings them

within the ambit of § 514(a)(2). Here, the checking accounts were established

using false identification or fraudulent d/b/a certificates, and the checks

identified fictitious payors. Under these facts, genuine checks with an indicia

of falsity (such as a fictitious or nonexistent payor) may constitute a “false or

fictitious instrument.” Accordingly, because Morganfield was actively involved

in creating the false checking accounts and passing the checks with fictitious

payors, there was sufficient evidence to affirm his § 514(a)(2) convictions.