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United States v. Baldwin

United States Court of Appeals, Eleventh Circuit

December 17, 2014

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
EARNEST BALDWIN, EARL BALDWIN, Defendants - Appellants. UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
LINETEN BELIZAIRE, Defendant - Appellant

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Appeals from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:12-cr-20763-CMA-3. D.C. Docket No. 1:12-cr-20763-CMA-1.

For UNITED STATES OF AMERICA, Plaintiff - Appellee (13-12973): Lisette Marie Reid, Michael Berger, Wifredo A. Ferrer, Maurice A. Johnson, Lisa Tobin Rubio, Kathleen Mary Salyer, U.S. Attorney's Office, MIAMI, FL.

For EARNEST BALDWIN, Defendant - Appellant (13-12973): Martin Alan Feigenbaum, Martin A. Feigenbaum, Esq., SURFSIDE, FL.

For EARL BALDWIN, Defendant - Appellant (13-12973): Margaret Y. Foldes, Michael Caruso, Federal Public Defender, Federal Public Defender's Office, MIAMI, FL; Michael D. Spivack, Federal Public Defender's Office, FORT LAUDERDALE, FL.

For UNITED STATES OF AMERICA, Plaintiff - Appellee (13-12999): Stephen Schlessinger, Michael Berger, Wifredo A. Ferrer, Maurice A. Johnson, Kathleen Mary Salyer, U.S. Attorney's Office, MIAMI, FL.

For LINETEN BELIZAIRE, Defendant - Appellant (13-12999): Philip Robert Horowitz, Law Office of Philip R. Horowitz, Esq., MIAMI, FL.

Before ED CARNES, Chief Judge, and RESTANI,[*] Judge, and ROBRENO,[**] District Judge.

OPINION

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RESTANI, Judge

Appellants were charged with various crimes arising out of a scheme involving the unauthorized use of personal identifying information to claim fraudulent tax refunds, which were deposited onto debit cards opened in the names of identity theft victims. Appellants Earnest Baldwin (" Earnest" ) and Earl Baldwin (" Earl" ) were convicted by a jury. Earnest and Earl appeal their convictions and sentences. Appellant Lineten Belizaire (" Belizaire" ) pleaded guilty, but appeals his sentence. After careful consideration and with the benefit of oral argument, we affirm the district court in all respects.

BACKGROUND

In January 2012, Earnest was pulled over for making an improper left turn, and during the course of the stop, police saw evidence of possible identity theft and/or tax fraud in plain view. A search of the vehicle revealed mail addressed to people unrelated to Earnest or the vehicle's passenger, thirty-nine debit cards, a laptop, approximately $4,000 in cash, and documents and notebooks containing individuals' names, dates of birth, Social Security numbers, and addresses. The papers and notebooks contained: (1) over 1,000 individuals' names, Social Security numbers, and dates of birth; (2) IRS telephone numbers; (3) personal identification numbers for online tax returns; (4) requested refund amounts, totaling over $1 million; (5) debit card account numbers; (6) employer identification numbers; and (7) email addresses for online tax returns. From this evidence, investigators discovered that hundreds of fraudulent tax returns had been filed. Approximately $1.8 million in fraudulent refunds had been requested, and the IRS paid out approximately $840,000. Many of these refunds were loaded onto debit cards.

In addition to the evidence found in the vehicle he was driving, Earnest also was linked to residences where the returns were filed and was photographed by surveillance cameras using the unauthorized debit cards. Earl was implicated in the conspiracy because tax returns were filed from internet protocol (" IP" ) addresses registered in his name, and he also was recorded by surveillance cameras using unauthorized debit cards. Earnest and Earl were convicted of conspiracy to commit fraud against the government with respect to claims in violation of 18 U.S.C. § 286, conspiracy to use unauthorized access devices in violation of 18 U.S.C. § 1029(b)(2), use of unauthorized access devices in violation of 18 U.S.C. § 1029(a)(2), and aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). Earnest also was convicted of possessing

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fifteen or more unauthorized access devices in violation of 18 U.S.C. § 1029(a)(3). Earl was sentenced to a total of 84 months' imprisonment. Earnest was sentenced to a total of 172 months' imprisonment.

Belizaire was implicated in recruiting people to provide addresses to receive debit cards that would be loaded with fraudulent tax refunds, exchanging personal identification information of victims, filing the fraudulent returns, and using debit cards loaded with fraudulent refunds. Belizaire pleaded guilty to conspiracy to defraud the government with respect to claims in violation of 18 U.S.C. § 286 and aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). He was sentenced to 105 months' imprisonment as to the conspiracy count and was given a consecutive sentence of 24 months' imprisonment on the aggravated identity theft count, for a total of 129 months' imprisonment.

DISCUSSION

Earnest appeals the district court's denial of his motion to suppress certain incriminating evidence, the district court's denial of his motion for mistrial, the district court's denial of his motion for acquittal on the two conspiracy counts and the aggravated identity theft counts, and various aspects of his sentence. Earl challenges the district court's denial of his motion for acquittal on the two conspiracy counts and the aggravated identity theft counts, the district court's instructions to the jury on the aggravated identity theft counts, and various aspects of his sentence. Belizaire also challenges various aspects of his sentence. We first discuss the issues pertaining to the determination of guilt or innocence for Earl and Earnest. We then discuss the sentencing issues as they pertain to each defendant.

I. Issues Bearing on Determination of Guilt

A. Earnest Baldwin

1. Denial of Motion to Suppress

Earnest argues that the district court erred in admitting evidence discovered during the search of the vehicle he was driving, which occurred after he had been arrested for presenting his brother's driver's license as his own to a police officer. In reviewing a denial of a motion to suppress, we review the district court's factual findings for clear error and the application of the law to those facts de novo. United States v. Yeary, 740 F.3d 569, 579 n.25 (11th Cir. 2014).

Earnest's argument is meritless. " If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment . . . permits police to search the vehicle without more." Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996). The district court found, and Earnest does not challenge, that there was mail from the IRS not addressed to Earnest or the other passenger in the vehicle, debit cards not in their names, and currency within plain view. This was sufficient to establish probable cause to search the vehicle for evidence relating to identity theft and tax fraud. To the extent that Earnest argues that the police were required to obtain a warrant before allegedly opening a duffel bag found in the vehicle, his arguments are unavailing. Once probable cause exists to search the vehicle, the police may search all parts of the vehicle, and any containers therein, where the object of the search might be found. Wyoming v. Houghton, 526 U.S. 295, 301, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999). Earnest's reliance on the Supreme Court's pronouncements in Arizona v. Gant regarding searches of automobiles incident

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to arrest is misplaced, as probable cause existed to support the search of the vehicle independent of his arrest. See 556 U.S. 332, 347, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (noting that warrantless searches for evidence relevant to crimes other than the offense of arrest would be authorized if probable cause existed to search for evidence of those crimes).

2. Denial of Motion for Mistrial

Earnest argues that the district court should have granted a mistrial when Earl's counsel suggested that Earnest had taken advantage of Earl and referred to the biblical story of Cain and Abel. We review the refusal to grant a mistrial for abuse of discretion. Frederick v. Kirby Tankships, Inc., 205 F.3d 1277, 1285 (11th Cir. 2000). We find no such abuse.

Earnest argues that a mistrial was " manifestly necessary," because the mutually antagonistic defenses of Earl and Earnest made it impossible for Earnest to receive a fair trial. But " co-defendants do not suffer prejudice simply because one co-defendant's defense directly inculpates another, or it is logically impossible for a jury to believe both co-defendants' defenses." United States v. Blankenship, 382 F.3d 1110, 1125 (11th Cir. 2004). Furthermore, the specific comments complained of by Earnest were isolated and served mainly as commentary on the government's characterization of Earnest, rather than as an attempt by Earl to independently inculpate Earnest. We find no abuse of discretion in the district court's refusal to grant Earnest a mistrial based on these statements. See id. at 1122, 1125-26 (holding that there was neither prejudice nor a need for a mistrial despite repeated remarks by counsel for co-defendant directly targeting appellants).

3. Sufficiency of Evidence Regarding Fraudulent Claims Conspiracy

Earnest argues that the evidence was insufficient to convict him of conspiracy to submit fraudulent claims to the government. Earnest argues that there was no evidence that he personally filed any fraudulent tax returns; rather, the only evidence linking him to the conspiracy was his receipt of the conspiracy's proceeds. We review challenges to the sufficiency of the evidence to support a conviction de novo, viewing the evidence and all reasonable inferences derived therefrom in the light most favorable to the government. United States v. To, 144 F.3d 737, 743 (11th Cir. 1998).

18 U.S.C. § 286 provides that:

Whoever enters into any agreement, combination, or conspiracy to defraud the United States, or any department or agency thereof, by obtaining or aiding to obtain the payment or allowance of any false, fictitious or fraudulent claim, shall be fined under this title or imprisoned not more than ten years, or both.

To prove the conspiracy element, the government was required to show " the existence of an agreement to achieve an unlawful objective, the defendant's knowing and voluntary participation in the conspiracy, and the commission of an overt act in furtherance of it." United States v. Gupta, 463 F.3d 1182, 1194 (11th Cir. 2006). " [T]he extent of participation in the conspiracy or extent of knowledge of details in the conspiracy does not matter if the proof shows the defendant knew the essential objective of the conspiracy." Id. (internal quotation marks omitted).

There was overwhelming evidence of a scheme to defraud involving coordinated activity among the individuals charged. Although there was no testimony that Earnest personally filed a fraudulent return, other evidence presented at trial clearly

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was sufficient to link Earnest to the scheme and to convict Earnest of this charge. As already described, Earnest was pulled over while driving a vehicle full of evidence linked to the conspiracy. Earnest's fingerprints were found on the computer screen and on one of the documents, and his personal documents were mixed in with this evidence. When Earnest was pulled over, he attempted to hide some of the mail. Earnest's address and the employer identification number for Earnest's previous employer repeatedly appeared on the fraudulent returns, and fraudulent returns were filed from an IP address registered to a residence associated with Earnest. Earnest also was photographed making withdrawals of the refunds using reordered cards with the same ...


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