Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 3:10-cr-00199-TJC-MCR-1.
For United States of America, Plaintiff - Appellee: Cherie Krigsman, Robert E. O'Neill, U.S. Attorney's Office, Tampa, FL; Arnold B. Corsmeier, Bonnie Ames Glober, U.S. Attorney's Office, Jacksonville, FL.
For Dennis Gray Williams, Defendant - Appellant: Shawn A. Arnold, John Philip Leombruno, The Arnold Law Firm, Jacksonville, FL.
Before MARTIN and ROSENBAUM, Circuit Judges, and COOGLER,[*] District Judge.
COOGLER, District Judge:
Dennis Gray Williams (" Williams" ) appeals his convictions under a seven-count indictment for the passing of " false or fictitious" instruments (Counts 1-5), in violation of 18 U.S.C. § 514(a); the use of an unauthorized " access device" (Count 6), in violation of 18 U.S.C. § 1029(a)(5) and (c)(1)(B); and failure to appear (Count 7), in violation of 18 U.S.C. § 3146(a)(1) and (b)(1)(A)(ii). Williams argues that the fraudulent checks that served as the basis for his conviction were not " false or fictitious instruments" as the phrase is used in § 514. Williams further argues that evidence of his use of the bank account and routing numbers found on ordinary paper checks to effect online transactions does not support his conviction in Count Six for the unauthorized use of an " access device" under § 1029. Finally, Williams argues that a violation of the terms of supervised release is not a sufficient predicate offense to support his conviction for failure to appear under § 3146.
After careful review of the record and the briefs of the parties, and having the benefit of oral argument, we affirm Williams's convictions.
A. Counts 1-5: Passing of a " False or Fictitious Instrument" Under 18 U.S.C. § 514
From January 2010 to April 2010, Williams passed or facilitated in passing
illegal checks on at least five occasions. Four of the checks bore the account and routing numbers for an account at CNL Bank belonging to Mark and Laurie Gelman. The fifth check appeared to be a cashier's check issued from SunTrust Bank purporting to be on behalf of Jim and Kathleen Smith. However, the check actually contained an account and routing number for a bank account owned by the Florida Healthy Kids Corporation. Williams crafted all of the checks at issue from whole cloth using blank check stock and check-writing software.
In January 2010, Williams passed the first of these fake checks. The check was in the amount of $844.35 and was made payable to Kendra Lowery. The check purported to be drawn from a CNL Bank account owned by D.G. Williams Company, Inc. However, the check actually bore the routing and account numbers for the Gelmans' CNL Bank account, and thus resulted in the withdrawal of funds from that account. Also in January 2010, Williams passed a fake check to Darrel Thomas (" Thomas" ) as payment for labor Thomas performed. The check was for $486.30 and purported to draw payment from a CNL Bank account owned by Lake County Collision, Inc. Again, the check actually bore the account and routing numbers for the Gelmans' account.
Williams passed fake checks in a similar manner on two other occasions, one in March 2010 and the other in April 2010, to pay a utility bill ($430) and to purchase pre-paid cell phone minutes ($300), respectively. The first of these checks actually purported to draw from the Gelmans' account and bore the falsified signature of Laurie Gelman, while the second of these checks claimed to be from an account belonging to Lannetta C. Spivey. Also in March 2010, Williams used a fake check to purchase jewelry from Brandi Goetzman (" Goetzman" ). Goetzman sold jewelry through Craigslist.com. When inquiring about purchasing jewelry from Goetzman, Williams represented to her that his name was Jim Smith. Goetzman required payment by certified funds, prompting Williams to give her what appeared to be a cashier's check for $4,500.00. The cashier's check purported to be drawn from the SunTrust Bank account of Jim and Kathleen Smith. However, the check actually displayed the account and routing numbers for a SunTrust Bank account belonging to the Florida Healthy Kids Corporation.
B. Count Six: Use of an Unauthorized Access Device Under 18 U.S.C. § 1029
Starting in late 2009, Williams used the account and routing numbers associated with the Gelmans' CNL Bank account to make online payments for various goods and services, including payments on a Wal-Mart credit card, payments to a cell phone service provider, and payments to a rental storage company. These transactions resulted in Williams obtaining things of value in excess of $6,700.00 from December 2009 through April 2010. Unlike the transactions forming the basis for the charges in Counts 1-5, no paper instrument was issued, exchanged, or created. Rather, Williams made " electronic check" payments via the companies' websites by inputting the account and routing number belonging to the Gelmans' CNL account. The transactions were then charged against the Gelmans' account without their consent.
C. Count Seven: Failure to Appear Under 18 U.S.C. § 3146
Throughout the time Williams engaged in the above-discussed conduct, he was on supervised release due to previous federal convictions. In 2003, Williams was convicted of uttering a counterfeit check, and
in 2004 he was convicted of committing credit card fraud. In April 2010, Williams was arrested for violating the terms of his supervised release. He was later released on his own recognizance, and a hearing was set for May 27, 2010. Notice of the hearing was mailed to both Williams and his counsel. Williams failed to appear at the hearing, resulting in the charge asserted in Count Seven.
D. Procedural History
On September 15, 2010, a federal grand jury in the Middle District of Florida returned a seven-count superseding indictment charging Williams with intentionally passing false or fictitious instruments, in violation of 18 U.S.C. § 514 (Counts 1-5); fraudulently obtaining money or property through unauthorized use of an access device, in violation of 18 U.S.C. § 1029 (Count 6); and failing to appear at his supervised release revocation hearing, in violation of 18 U.S.C. § 3146 (Count 7). The trial of this matter was somewhat unusual in that, with the consent of the government, Williams elected to waive his right to a trial by jury, and thus was tried under a non-jury format as provided in Fed. R. Crim. P. 23(a) and (c). Following conclusion of the government's case-in-chief, Williams moved for a judgment of acquittal under Fed. R. Crim. P. 29(b), arguing that the evidence offered at trial was insufficient to convict him under the charged statutes. The district court reserved ruling on the motion until the parties had an opportunity to submit arguments. On September 21, 2011, the district court issued an order and memorandum of opinion denying Williams's Rule 29 motion. The district court publicly announced the verdict in June 2012. Williams filed a motion seeking a new trial pursuant to Fed. R. Crim. P. 33. The district court denied ...