UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-7513

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARIETTA JOYCE CHAPPELL, CHARLES

EDWARD GIBSON, ROBERT NATHANIEL

MITCHEM, and RITA ANN SHEPHARD,

Defendants-Appellants.

Appeals from the United States District Court

For the Southern District of Mississippi

( November 1, 1993 )

Before POLITZ, Chief Judge, REYNALDO G. GARZA and JOLLY, Circuit

Judges.

POLITZ, Chief Judge:

Marietta Chappell, Rita Shephard, Charles Gibson, and Robert

Mitchem appeal their convictions of conspiracy to make, utter, and

possess counterfeit securities in violation of 18 U.S.C. §§ 371,

513(a), and two substantive violations of § 513(a). Mitchem and

Shephard also appeal the sentences imposed. Finding no error, we

affirm.
2

Background

On February 14, 1992 Shephard, accompanied by Chappell,

entered a Wal-Mart store in Ridgeland, Mississippi, seeking to cash

what purported to be a Mississippi Power and Light (MP&L) payroll

check drawn on Trustmark National Bank and payable to Serena Keach.

Shephard presented a counterfeit MP&L identification card in

support of the transaction. A cashier permitted Shephard to tender

the check for a small purchase, returning over $200 in change.

The following day Shephard presented the identification card

and a nearly identical faked MP&L check at a Jackson grocery store.

A clerk took both documents into a back office to ask co-workers

about the check's genuineness. When the clerk returned Shephard

was gone. Around the same time, Trustmark returned unpaid two

other MP&L checks payable to Keach and cashed at Jackson grocery

stores because they bore inaccurate routing and transit numbers.

Shephard presented another MP&L check and identification card,

both bearing Keach's name, on February 15, 1992 at the Sunflower

grocery store in Yazoo City. Manager Randy Jett refused to cash

the check when Shephard could not produce a driver's license. Jett

saw Shephard drive away in a gray car with another woman and two

men. He telephoned a warning to Kevin Helton, manager of the

nearby Super Valu grocery store, that the four were headed his way.

Minutes later Shephard entered the Super Valu with Gibson, again

presenting the MP&L check and identification card. Both fled when

Helton confronted them. Shephard and Gibson entered a gray car

with two other people and drove away; Helton followed in his
 

1Each of these consisted of a piece of yellow safety paper

bearing the Trustmark logo, the facsimile signature of "Doris

Paul," and what purported to be optical scanner routing and account

codes.

3

vehicle and used his cellular telephone to alert authorities. The

fleeing car, driven by Mitchem, crashed into a tree.

Yazoo City police officer Larry Davis saw Mitchem fleeing the

accident scene on foot, running into nearby woods. On the wrecked

car's back seat police found a typewriter. In the typewriter case

they found three counterfeit checks payable to Keach drawn on

Trustmark and a counterfeit check payable to Kendre Batliner drawn

on First American Bank. Examination of the typewriter ribbon

indicated that it had produced the counterfeit checks and identity

documents used by the four. A search of the car further yielded a

lamination kit, 15 blank documents,1 a South Carolina

identification card bearing Mitchem's name and photograph, and a

booklet handwritten by Mitchem entitled "Target 92," detailing

plans for a large scale check-passing scheme. Authorities

broadcast a description of Mitchem and arrested Gibson, Chappell,

and Shephard. A search for Mitchem in the immediate area proved

fruitless.

Approximately two hours later Yazoo City deputy sheriff Randy

Veazey, who had participated in the initial search for Mitchem, saw

a man attempting to flag a car a short distance from the crash

site. As the man's physical appearance and clothing met the

broadcast description of Mitchem and he appeared to have been

running through the woods and responded evasively to an offer of
 

2Count Four -- dismissed by the government prior to trial --

charged violation of 18 U.S.C. §§ 2, 513(a) in connection with the

counterfeit First American Bank check found in the defendants' car.

4

assistance, Veazey requested identification. When the man produced

no identification, Veazey took him into custody. While in custody,

after police identified him and provided Miranda warnings, Mitchem

consented in writing to a search of his Jackson hotel room. The

search revealed Shephard's Kentucky identification and 36 blank

documents identical to those found in the getaway car, all bearing

Mitchem's fingerprints. They also found a billfold containing

Chappell's identification and a letter addressed to Kendre

Batliner, produced by the typewriter found in the vehicle.

The grand jury returned a four-count indictment against

Chappell, Mitchem, Gibson, and Shephard. Count One charged

conspiracy to make, utter, and possess counterfeit securities with

intent to deceive in violation of 18 U.S.C. §§ 371, 513(a). Counts

Two and Three charged violations of 18 U.S.C. §§ 2, 513(a) arising

from presentation of counterfeit checks at the Sunflower and Super

Valu markets, respectively.2 The district court denied pretrial

motions by all defendants to dismiss the indictment and by Mitchem

to suppress evidence recovered as a result of his arrest, including

that from his hotel room. After the government's case-in-chief and

again at the close of evidence all defendants unsuccessfully moved

for judgment of acquittal. The jury found the defendants guilty on

all three counts, and the trial court denied post-trial motions.

The district court imposed concurrent 21-month prison terms on

Chappell, Gibson, and Shephard, and concurrent 54-month prison
 

3United States v. Garner, 581 F.2d 481 (5th Cir. 1978).

 

4Glasser v. United States, 315 U.S. 60 (1942).

 

5Jackson v. Virginia, 443 U.S. 307 (1979).

 

6E.g., United States v. Heath, 970 F.2d 1397 (5th Cir. 1992),

cert. denied, 113 S.Ct. 1643 (1993).

 

7That statute, as relevant hereto, provides:

Whoever makes, utters or possesses a counterfeited

security . . . of an organization, or whoever makes,

utters or possesses a forged security . . . of an

organization, with intent to deceive another person,

organization or government shall be fined not more than

$250,000 or imprisoned for not more than 10 years, or

both.

5

terms on Mitchem. It further sentenced each to concurrent

three-year supervised release terms, restitution, and the statutory

assessments. All four defendants timely appealed.

Analysis

1. Sufficiency of the Evidence

The defendants each challenge the sufficiency of the evidence.

Mindful that weight and credibility assessments lie within the

exclusive province of the jury,3 in considering this claim we view

the evidence and draw all reasonable inferences most favorable to

the verdict.4 If the evidence so viewed would permit a rational

jury to find all elements of an offense proven beyond a reasonable

doubt, we must affirm the conviction.5 The evidence need not

exclude all hypotheses of innocence.6

In a prosecution under 18 U.S.C. § 513(a),7 the government

must prove that the defendants: (1) made, uttered, or possessed
 

8E.g., United States v. Chaney, 964 F.2d 437 (5th Cir. 1992).

 

9E.g., United States v. Frydenlund, 990 F.2d 822 (5th Cir.

1993).

6

(2) a counterfeit security (3) of an organization (4) with intent

to deceive another person, organization, or government. To obtain

a conspiracy conviction under 18 U.S.C. § 371, the government had

to demonstrate an agreement by two or more persons to violate the

law, an overt act by any coconspirator in furtherance of the

scheme, and each defendant's knowing and voluntary participation.8

Concert of action may give rise to an inference that defendants

entered into the requisite agreement.9

Defendants claim that because the government failed to

demonstrate any connection of the Super Valu and Sunflower

supermarkets to interstate commerce, the district court should have

granted their motions for judgment of acquittal. We find this

argument unpersuasive. While section 513(c)(4) defines

"organization" as an entity which "operates in or the activities of

which affect interstate or foreign commerce," the statute provides

no such definition for the term "person." Section 513 does not

require the government to demonstrate an individual victim's

connection to interstate commerce. The uncontroverted evidence

shows that the defendants sought to induce store employees to part

with money in their possession through presentation of counterfeit

documents. Ordinarily, where a defendant utilizes counterfeit

securities in an effort to obtain property from or induce action by

an organization, section 513 requires the government to prove the
 

10Likewise, Gibson's contention that the government failed to

prove Trustmark's status as an "organization" for the purposes of

section 513 is frivolous.

7

victim's connection to interstate commerce. The instant scheme was

structured to deceive the check-cashing employees; the charged

offenses involved intent to deceive those persons. The

government's failure to demonstrate a connection of the grocery

stores to interstate commerce, therefore, in the context of this

case, does not render the evidence insufficient to support

convictions under section 513.

Shephard further suggests that inasmuch as the government

failed to prove the connection of MP&L to interstate commerce it

did not prove that the offenses charged involved counterfeit

securities of an "organization" as defined in section 513. The

mere fact that the documents proffered to merchants in this scheme

purported to be checks drawn on the account of MP&L in no way

diminishes the fact that they also purported to be drawn on that

company's account at Trustmark. As the government points out,

section 513 does not expressly or impliedly state that a document

may be the security of only one organization. Shephard's attempt

to raise a sufficiency challenge by characterizing the counterfeit

checks as "of MP&L" rather than as "of Trustmark" is frivolous.10

Finally, Chappell, Gibson, and Mitchem claim that the

government failed to carry its burden of proof with regard to their

involvement in the offenses charged, presenting proof only of their

presence at the crime scene. We disagree. Review of the record

indicates that the government presented evidence from which a
 

11E.g., United States v. Shelton, 937 F.2d 140 (5th Cir.),

cert. denied, 112 S.Ct. 607 (1991).

 

12E.g., United States v. Barksdale-Contreras, 972 F.2d 111 (5th

Cir. 1992), cert. denied, 113 S.Ct. 1060, 1614 (1993).

 

13E.g., United States v. Green, 964 F.2d 365 (5th Cir. 1992),

cert. denied, 113 S.Ct. 984 (1993).

 

14See United States v. Varkonyi, 645 F.2d 453 (5th Cir. 1981)

(indictment sufficient notwithstanding failure to allege all

elements of offense charged where indictment referred to statute).

 

15Shephard and Gibson further raise multiplicity and duplicity

challenges to the indictment. Failure to raise the duplicity point

8

reasonable jury could conclude that each actively participated in

both the conspiracy and substantive offenses. This contention

fails.

2. The Indictment

Shephard and Mitchem fault the district court's denial of

their motion to dismiss the indictment for failure to identify the

victims of the check-passing scheme and their connection to

interstate commerce. We review de novo district court rulings

regarding the sufficiency of indictments.11 An indictment need only

charge the essential elements of the offense, permitting the

accused to prepare a defense and protecting against double

jeopardy.12 Practical rather than technical considerations govern

resolution of such challenges and we will not reverse for minor

deficiencies which do not prejudice the accused.13 The indictment

in this case more than adequately alerted the defendants to the

conduct prosecuted. It referred to section 513.14 While a more

careful drafting of the indictment might have occurred, we perceive

no prejudice to the defendants.15
at trial waived that claim. United States v. Baytank (Houston),

Inc., 934 F.2d 599 (5th Cir. 1991). As to multiplicity, the

defendants argue that by charging possession and uttering of a

single check at two separate grocery stores the indictment

improperly splintered a single offense. We do not agree. Congress

intended separate presentations of a single counterfeit instrument

to constitute separate offenses. These contentions are frivolous.

We likewise find no merit in Shephard's contention that the

government constructively amended the indictment by arguing in

closing that Trustmark would have been the ultimate victim of the

defendants' fraud if it had succeeded.

 

16E.g., United States v. Moore, 997 F.2d 55 (5th Cir. 1993).

9

3. Expert Testimony

Shephard next argues that the trial court improperly permitted

Wayne Humphrey, Trustmark's assistant security officer, to testify

as an expert witness in the field of detecting counterfeit checks.

Humphrey testified that irregularities in the checks, such as

inaccurate routing and account numbers, incorrect electronic

coding, and absence of perforation, identified them as forgeries.

Shephard contends that "detecting counterfeit checks" does not

constitute a proper field of expertise and that, in any event,

Humphrey's training as a bank security officer did not qualify him

as an expert. Under Fed.R.Evid. 702, "[i]f . . . specialized

knowledge will assist the trier of fact to understand the evidence

or to determine a fact in issue, a witness qualified as an expert

by knowledge, skill, experience, training, or education may testify

thereto in the form of an opinion or otherwise." We will reject

district court rulings on the admissibility of expert testimony

only if manifestly erroneous.

16 Humphrey's years of experience

afforded specialized knowledge permitting him to assist the jury in

evaluating the genuineness of the documents. The district court
 

17Mitchem also suggests that the district court should have

granted his suppression motion because authorities arrested him in

violation of Mississippi law and failed to bring him promptly

before a magistrate judge after arrest. Assuming arguendo that

police in fact violated state law in arresting him, this contention

nonetheless lacks merit. United States v. Walker, 960 F.2d 409

(5th Cir.) (in federal prosecution, federal rather than state law

governs admissibility of evidence obtained by state authorities),

cert. denied, 113 S.Ct. 443 (1992). With regard to the latter

point, although Mitchem claims improper delay in his presentation

to a magistrate judge, he does not suggest that authorities

obtained the evidence of which he sought suppression as a result of

any improper delay. This contention fails. See United States v.

Perez-Bustamante, 963 F.2d 48 (5th Cir.), cert. denied, 113 S.Ct.

663 (1992); United States v. Bustamante-Saenez, 894 F.2d 114 (5th

Cir. 1990).

 

18E.g., Walker; United States v. Rocha, 916 F.2d 219 (5th Cir.

1990), cert. denied, 111 S.Ct. 2057 (1991).

 

19E.g., United States v. Butler, 988 F.2d 537 (5th Cir. 1993)

(quoting United States v. Simmons, 918 F.2d 476 (5th Cir. 1990)),

pet. for cert. filed, _____ U.S.L.W. _____ (Sept. 23, 1993)

(No. 93-6127).

10

did not err in permitting his testimony.

4. Fourth Amendment

Mitchem assigns as error the district court's ruling on his

motion to suppress evidence recovered from his person and hotel

room, claiming that they were fruits of an arrest without probable

cause in violation of the fourth amendment.17 Police may make a

warrantless arrest where there is probable cause to believe that an

offense has occurred. We previously have held that police officers

may develop probable cause for a warrantless arrest on the basis of

information communicated to them by other officers.18 We must

accept trial court fact-findings made in the course of ruling on

suppression motions unless clearly erroneous or influenced by an

incorrect view of the law.19 However, we review de novo its
 

20See United States v. Cooper, 949 F.2d 737 (5th Cir. 1991),

cert. denied, 112 S.Ct. 2945 (1992).

 

21See United States v. Hernandez, 825 F.2d 846 (5th Cir. 1987)

(officers had probable cause to arrest defendants matching physical

description provided by witness near scene of crime shortly after

commission), cert. denied, 484 U.S. 1068 (1988).

 

22The Sentencing Guidelines treat violations of section 513(a)

under U.S.S.G. § 2B5.2. That provision, in turn, calls for

application of U.S.S.G. § 2F1.1.

11

ultimate conclusion regarding probable cause.20

Here, the district court found that Davis observed Mitchem at

the crash scene and transmitted a fairly detailed description of

his physical appearance and clothing. Veasey participated in a

search for Mitchem at the crash site. Two hours later and a short

distance away, Veazey observed a muddy, sweaty man matching the

transmitted description wearing torn clothes attempting to flag

down a car, who responded evasively when offered assistance. The

record supports the district court's conclusion that Veazey

arrested Mitchem with probable cause.21

5. Sentencing

a. Amount of Loss

Both Shephard and Mitchem challenge the district court's

finding as to intended loss under U.S.S.G. § 2F1.1.22 The district

court made this determination by adding together the values of the

three checks charged in the indictment, a check cashed by the

defendants in Frankfort, Kentucky, the five checks found by police

in the getaway car, and 16 checks reflected on the typewriter

ribbon, for a total of $4,296.29. It then assessed the value of

the 51 blank checks found in the car and hotel room at $13,617 by
 

23United States v. Wimbish, 980 F.2d 312 (5th Cir. 1992), cert.

denied, 113 S.Ct. 2365 (1993), abrogated in part on other grounds,

Stinson v. United States, _____ U.S. _____, 113 S.Ct. 1913 (1993).

 

24U.S.S.G. § 2F1.1, cmt. 8.

 

25U.S.S.G. § 2F1.1, cmt. 7.

12

assigning to each the average value of the checks actually

recovered. The district court thus concluded that the defendants

intended to inflict a total loss of $20,838.75, resulting in a

four-point offense level increase under U.S.S.G. § 2F1.1(b)(1)(E).

Mitchem and Shephard argue that the district court should not have

considered the 51 blank checks and, in any event, that it valued

those documents in an arbitrary manner. These contentions

misperceive the law.

We review district court determinations regarding amount of

loss under U.S.S.G. § 2F1.1 under the clearly erroneous standard.23

Commentary to section 2F1.1 states that "[f]or the purposes of

subsection (b)(1), the loss need not be determined with precision.

The court need only make a reasonable estimate of the loss, given

the available information."24 Further, the commentary indicates

that "if an intended loss that the defendant was attempting to

inflict can be determined, this figure will be used if it is

greater than the actual loss."25 The record in the instant case

reflects that the defendants produced or attempted to negotiate at

least 25 counterfeit checks having a total value of $4,296.29. In

addition, the defendants had in their possession the "Target 92"

booklet, detailing a plan to pass as many as 155 checks in an

effort to procure as much as $300,000. On the facts of this case,
 

26See United States v. Sowels, 998 F.2d 249 (5th Cir. 1993) (no

clear error where district court in theft case calculated amount of

intended loss as total credit limits of stolen credit cards).

 

27Under U.S.S.G. §§ 2B5.2, 2F1.1 the district court set

Mitchem's base offense level at 6, assessing increases totaling

eight points under §§ 2F1.1(b)(1)(E), 2F1.1(b)(2)(A), and 3C1.1,

and permitting a two-point reduction under U.S.S.G. § 3E1.1 for

acceptance of responsibility. The resulting offense level of 12,

combined with Mitchem's criminal history score of 25, resulted in

a Guideline Sentencing range of 30-37 months imprisonment in

Criminal History Category VI. The district court departed upward

17 months from the top of that range.

 

2818 U.S.C. § 3553(b); see also U.S.S.G. § 4A1.3 (district

court may depart from guideline sentencing range where criminal

history score inadequately reflects past criminal conduct or

likelihood or recidivism).

13

we cannot say that the district court acted improperly by including

the 51 blank checks found in the car and hotel room, or by

assigning to them the average value of the other checks actually

produced and negotiated.

26 We conclude that the district court's

assessment of intended loss was conservative; it manifestly was not

clearly erroneous.

b. Upward Departure

Mitchem finally challenges the justification for and extent of

the upward departure imposed by the district court.27 Trial courts

may impose sentences outside the range established by the

guidelines in cases presenting "aggravating or mitigating

circumstance[s] of a kind, or to a degree, not adequately taken

into account by the Sentencing Commission in formulating the

guidelines that should result in a sentence different from that

described."28 When imposing such a sentence, however, the district

court must articulate on the record acceptable reasons for
 

2918 U.S.C. § 3553(c); United States v. Carpenter, 963 F.2d 736

(5th Cir.), cert. denied, 113 S.Ct. 355 (1992).

 

30United States v. Lambert, 984 F.2d 658 (5th Cir. 1993) (en

banc) (citing United States v. Velasquez-Mercado, 872 F.2d 632 (5th

Cir.), cert. denied, 493 U.S. 866 (1989)).

 

31E.g., United States v. McKenzie, 991 F.2d 203 (5th Cir.

1993).

 

32U.S.S.G. § 4A1.3.

 

33U.S.S.G. § 4A1.2 cmt. 8 (prior sentences for conduct

resembling that of which defendant convicted, although not factored

into criminal history score due to staleness, may support upward

departure under U.S.S.G. § 4A1.3); see also Carpenter (stale

convictions support upward departure under U.S.S.G. § 4A1.3).

 

34The further challenges to the sentencing are raised for the

first time on appeal or are patently frivolous.

14

departure,29 and the departure must be reasonable.30 We review

district court decisions to depart only for abuse of discretion.31

The Sentencing Guidelines expressly authorize departure where

"reliable information indicates that the criminal history category

does not adequately reflect the seriousness of the defendant's past

criminal conduct or the likelihood that the defendant will commit

other crimes."32 Mitchem's criminal history score of 25 far

exceeded the minimum score for Criminal History Category VI and did

not take into account several stale counterfeiting and forgery

offenses.33 These facts fully support the district court's

conclusion that Criminal History Category VI inadequately reflected

the seriousness of Mitchem's criminal background and likelihood of

recidivism. They further support the reasonableness of the

departure imposed.34

The convictions and sentences are AFFIRMED.