NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 16-1198 _____________

UNITED STATES OF AMERICA

v.

LEONARD HERRINGTON, Appellant _____________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal No. 2-14-cr-00315-005) District Judge: Honorable Wendy Beetlestone ______________

Submitted Under Third Circuit L.A.R. 34.1(a) September 11, 2017 ______________

Before: VANASKIE, RENDELL and FISHER, Circuit Judges

(Filed: December 22, 2017) ______________

OPINION* ______________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. VANASKIE, Circuit Judge.

Appellant-Defendant Leonard Herrington appeals from the order of the District

Court denying his motion for a judgment of acquittal based on insufficient evidence and

from the judgment of sentence imposing restitution despite an untimely request by the

Government. Upon review, we will affirm both orders for the reasons that follow.

I.

Leonard Herrington was a member of a criminal group that defrauded banks by

cashing counterfeit checks and obtaining loans through fraudulent applications. The

group was led by Herrington’s cousin, Adolphus William Cato. According to the

testimony of Sean Finn, another member of the group, Cato would apply for bank loans

online using “somebody’s Social Security number, somebody’s name, birthdate and all

that”—information which Cato received from his wife. (App. 114.) Eventually, Cato

would follow up with the bank by phone to check on the status of the loan. When the

loan was approved, Cato would send a “runner” to the bank to sign the forms and collect

the money. These runners were provided with fake identification—produced by Cato—

matching the identity under which the loan application had been filed, and Cato would

instruct the runners on how to answer questions posed by bank officials.

Herrington’s role in the organization was to, among other things, recruit runners to

carry out Cato’s loan scam. Specific to the charges in this case, Herrington recruited his

friend Michael Jaje into the scheme. Herrington offered Jaje a chance to “make some

quick easy money.” (App. 140.) After Jaje expressed interest, Herrington met Jaje at a

CVS so that Jaje could obtain a passport photo that Cato would turn into a driver’s

2 license. Herrington paid for the photo, and Herrington and his girlfriend, Zabrina, drove

Jaje to meet with Cato. Herrington explained to Jaje that Cato would make a fake

driver’s license with Jaje’s photo. Later that evening, Herrington sent Jaje a text message

explaining how to dress for his encounter at the bank. When Jaje expressed concern

about being caught, Herrington told him, “It’s cool. Don’t worry about it. Me and my

girl did it before.” (App. 143.)

Herrington and Zabrina picked Jaje up the next day, and together they drove to a

Wawa market where they met Cato. Herrington and Cato went into the Wawa and were

having a conversation when they emerged a short time later. Herrington eventually told

Jaje to join them. Cato gave Jaje a fake Pennsylvania driver’s license in the name of

Matthew Baker—a real person—but with Jaje’s photo. The license was wrapped in a

piece of paper with Matthew Baker’s name and social security number, the identity under

which the loan application had been filed. Cato reassured Jaje that that the scheme would

be “real easy,” and he would only have to sign the bank documents. (App. 146–47.)

Herrington and Zabrina then drove Jaje to the bank, where they again met with

Cato. Cato handed Jaje a cell phone and said, “Here, take this in case you need to call

somebody.” (App. 149.) Cato instructed Jaje to enter the bank and ask for Sonia, who

would then call Jaje into her office to sign for the loan. Jaje entered the bank and

followed Cato’s instructions. Jaje pretended to be Matthew Baker, and provided

information consistent with the identification and details Cato had given him. When Jaje

finished signing the paperwork, the police were waiting to arrest him.

3 Herrington was indicted by a grand jury in the Eastern District of Pennsylvania

charging: (i) conspiracy to commit bank fraud and the use of unauthorized access

devices; (ii) bank fraud and aiding and abetting; and (iii) aggravated identity theft and

aiding and abetting. He was convicted of all three charges after a jury trial. Herrington

filed a post-trial motion for a judgment of acquittal directed against his aggravated

identity theft conviction, but the motion was denied by the District Court.

Herrington’s presentence report (“PSR”) was prepared on or about October 21,

2015. No restitution was assessed because Herrington’s conviction was limited to a

single attempted offense, and the Government filed no timely objection. On January 5,

2016, the day of Herrington’s sentencing, the Government sent a letter to the District

Court requesting restitution in the amount of $24,921.62. The Government’s position

was that, because Herrington had been convicted of conspiracy to commit bank fraud

between October 2013 and May 2014, and because another bank fraud committed by

Cato’s organization had occurred on March 11, 2014 and had yielded a loss of

$24,921.62, Herrington was eligible for consideration for joint and several restitution

regarding the March 11th fraud.

A separate hearing was scheduled for January 20, 2016, to address the availability

of restitution in light of Herrington’s claim that the Government had waived mandatory

restitution by failing to object to the PSR within the time required by Federal Rule of

Criminal Procedure 32(f)(1) and Eastern District of Pennsylvania Local Rule 32.3(4).

After argument, the District Court determined that the mandatory nature of restitution

under the Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A, overrides

4 the federal and local rules. The District Court then ordered restitution in the amount

requested by the Government.

Herrington appeals the District Court’s denial of his post-trial motion for a

judgment of acquittal challenging the sufficiency of the evidence presented at trial with

regard to the aggravated identity theft conviction. He also appeals the District Court’s

imposition of restitution.

II.1

Herrington first challenges the District Court’s ruling on his post-trial motion for a

judgment of acquittal. Aggravated identity theft under 18 U.S.C. § 1028A(a)(1) “requires

the Government to show that the defendant knew that the means of identification at issue

belonged to another person.” Flores-Figueroa v. United States,

(2009). In other words, a defendant must know that he is using an identity belonging to a

real person rather than a fictitious person. Despite the jury verdict, Herrington asserts

that the evidence presented at trial was insufficient to prove that he knew the identity of a

real person was being used in obtaining the fraudulent bank loan.

A district court ruling on a motion for judgment of acquittal based on insufficiency

of the evidence must “review the record in the light most favorable to the prosecution to

determine whether any rational trier of fact could have found proof of guilt beyond a

reasonable doubt based on the available evidence.” United States v. Smith,

(3d Cir. 2002) (quoting United States v. Wolfe,

(3d Cir. 2001)).

1 The District Court had jurisdiction over this matter under

. We have appellate jurisdiction under

.

5 To avoid “usurp[ing] the role of the jury by weighing credibility and assigning weight to

the evidence, or by substituting its judgment for that of the jury,” United States v. Brodie,

(3d Cir. 2005) (internal citations omitted), insufficiency should be

found only “where the prosecution’s failure is clear.” Smith,

(quoting

United States v. Leon,

(3d Cir. 1984)). “The jury’s verdict will be

overturned ‘only when the record contains no evidence, regardless of how it is weighted,

from which the jury could find guilt beyond a reasonable doubt.’” United States v. Riley,

(3d Cir. 2010) (quoting United States v. Miller,

(3d

Cir. 2008)). We exercise plenary review over such appeals and independently apply the

same standard as the district court. Brodie,

.

Herrington asserts that the Government never proved that he was aware that M.B.

or Matthew Baker, the victim whose identity was used in the loan scam, was a real

person. In Herrington’s view, the Government was only able to show that he was

involved in recruiting Jaje as the runner—a role that did not necessarily require

knowledge of the victim’s identity. Cato, on the other hand, had applied for the loan in

Baker’s name, called the bank to check on the status of the application, created the fake

documents from Baker’s identity, and instructed Jaje on how to proceed.

The Government’s theory rests largely on circumstantial evidence and inferences.

First, the Government argues that Herrington, through experience and common sense,

would have realized that a sophisticated financial institution like a bank would perform

even a minimal level of due diligence on a loan application for a significant sum of

money. This diligence would include checking whether the loan application is associated

6 with a real person. Thus, the Government asserts that the jury could have concluded that

anyone would know that a bank loan would only be granted to a real person with a real

social security number.

Second, the Government highlights the testimony of Sean Finn, a former associate

of Cato’s who appears to have played roughly the same “recruiter” role as Herrington in

the loan scam operation. Finn testified that, through his role, he was aware that real

identities were used in the loan scam. Finn also explained that he knew the scam would

not work unless the victims were real. The Government argues that the jury could have

concluded that Herrington had the same knowledge of the operation as Finn given their

similar roles. The Government also emphasizes that the amount and quality of contacts

between Herrington and Cato bolsters such an inference.

Finally, the Government argues that the jury could have concluded from

Herrington’s reassurance to Jaje—i.e., his indication that “me and my girl did it

before”—that Herrington had acted as a runner in the past and therefore would

understand that a real identity was required to complete the scam. (App. 143.)

Because we are reviewing a jury verdict, we view the evidence in the light most

favorable to the prosecution. Through this lens, we conclude that the aforementioned

pieces of evidence could lead a rational trier of fact to find proof beyond a reasonable

doubt that Herrington knew that M.B. or Matthew Baker was a real person.2 Thus, we

2 Even if the evidence had been insufficient to allow a reasonable juror to conclude that Herrington knew that Matthew Baker was a real person, his challenge would still fail under the Pinkerton theory pursued by the Government. The Government had alleged that Herrington was a conspirator and thus responsible for any reasonably foreseeable 7 find no error in the District Court’s denial of Herrington’s motion for judgment of

acquittal.

III.

Herrington additionally challenges the District Court’s decision to impose

restitution at sentencing despite the Government’s failure to file a timely objection to the

PSR, which recommended no restitution. As explained above, the Government waited

until the day of Herrington’s sentencing to request restitution. Herrington argues that the

Government’s request for restitution was untimely under Federal Rule of Criminal

Procedure 32(f)(1) and Eastern District of Pennsylvania Local Rule 32.3(4), which

require that objections to the PSR be made within 14 days of the PSR’s receipt. The

District Court decided that it was bound to impose restitution due to the “mandatory

nature” of the MVRA. Appellant’s Br. at 4.

“We review a restitution order ‘under a bifurcated standard: plenary review as to

whether restitution is permitted by law, and abuse of discretion as to the appropriateness

of the particular award.’” United States v. Simmonds,

(3d Cir. 2000)

(quoting United States v. Crandon,

(3d Cir. 1999)). Because

Herrington’s only challenge is to the legality, rather than the amount, of the restitution,

our review is plenary. United States v. Quillen,

(3d Cir. 2003).

crimes committed by his co-conspirators as long as they were committed during and in furtherance of the conspiracy. United States v. Ramos,

(3d Cir. 1998). At a minimum, the evidence clearly shows that Cato was aware that Matthew Baker was a real person and that the use of a real identity was reasonably foreseeable. Thus, Herrington bears responsibility as a co-conspirator. 8 The purpose of the MVRA is, “to the extent possible, to make victims whole, to fully

compensate victims for their losses, and to restore victims to their original state of well-

being.”

at 222 (quoting Simmonds,

). To aid in effectuating this

purpose, the MVRA states:“Notwithstanding any other provision of law, when sentencing

a defendant convicted of an offense described in subsection (c), the court shall order, in

addition to, or in the case of a misdemeanor, in addition to or in lieu of, any other penalty

authorized by law, that the defendant make restitution to the victim . . . .” 18 U.S.C. §

3663A(a)(1). Our sister circuits have held that the “notwithstanding” language in §

3663A(a)(1) should be read as “Congress’s indication that the statute containing that

language is intended to take precedence over any preexisting or subsequently-enacted

legislation on the same subject.” United States v. Puentes,

(11th Cir.

2015) (quoting Castro v. Sec’y of Homeland Sec.,

(11th Cir. 2006)).

In United States v. Puentes, the Eleventh Circuit held that a district court acted beyond its

authority when it reduced a defendant’s mandatory restitution obligation under Federal

Rule of Criminal Procedure 35(b) because allowing such a reduction under Rule 35(b)

would “conflict with the scheme enacted by Congress in the MVRA.”

at 606–07; see

also United States v. Williams,

(6th Cir. 2010) (concluding that “the

mandatory language of the MVRA trumps the equitable policies underlying the

discretionary doctrines of collateral estoppel and judicial estoppel”). In much the same

way, a finding that restitution was foreclosed by an untimely request under Federal Rule

of Criminal Procedure 32(f)(1) or Eastern District of Pennsylvania Local Rule 32.3(4)

would plainly conflict with the mandatory nature of restitution under the MVRA. The

9 District Court did not err in adhering to the MVRA by imposing restitution upon

Herrington.

IV.

For the foregoing reasons, we will affirm the District Court’s October 15, 2015,

order denying Herrington’s motion for a judgment of acquittal and the District Court’s

judgment of sentence entered January 21, 2016.

10