     12-608-cr
     United States v. Stringer




 1                                UNITED STATES COURT OF APPEALS
 2                                    FOR THE SECOND CIRCUIT


 3                                                  August Term, 2012

 4                     (Argued:May 9, 2013                          Decided: September 17, 2013)


 5                                Docket Nos. 12-608-cr (L), 12-779-cr (CON)


 6   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

 7   UNITED STATES OF AMERICA,

 8                     Appellee,

 9   v.

10   THOMAS B. STRINGER,

11                     Defendant-Appellant.

12   -------------------------------X

13   Before: LEVAL, CABRANES, and PARKER, Circuit Judges.

14            Defendant Thomas B. Stringer appeals from a judgment of conviction in the
15   United States District Court for the Southern District of New York (Lynch, J.) after a jury
16   trial at which he was found guilty of bank fraud and aggravated identity theft. Stringer
17   contends that Count Two of the superseding indictment (the aggravated identity theft
18   count) was constitutionally deficient, and that the district court abused its discretion in
19   denying his request for a continuance. The Court of Appeals (Leval, J.) rejects both
20   contentions. The judgment of the district court is AFFIRMED.



                                                                1
 1                                               Tina Schneider, Law Office of Tina Schneider,
 2                                               Portland, ME, for Appellant.

 3                                               Andrea L. Surratt, Assistant United States
 4                                               Attorney (Brent S. Wible, Assistant United
 5                                               State Attorney, on the brief), for Preet Bharara,
 6                                               United States Attorney for the Southern District
 7                                               of New York, for Appellee.


 8   LEVAL, Circuit Judge:

 9          Defendant Thomas B. Stringer appeals from his conviction on both counts of a

10   superseding indictment after a jury trial in the United States District Court for the

11   Southern District of New York (Lynch, J.). The jury found him guilty of bank fraud in

12   violation of 18 U.S.C. § 1344 (Count One) and unlawful use of another person’s means of

13   identification in relation to the bank fraud in violation of 18 U.S.C. §§ 1028A(a)(1) and

14   (c)(5) (Count Two). Stringer contends that Count Two was constitutionally deficient for

15   failure to name or sufficiently identify the person or persons whose means of

16   identification he used in the bank fraud scheme. He also contends that the superseding

17   indictment, filed 25 days prior to the day scheduled for the start of trial, substantially

18   altered the nature of the allegations, and that the district court therefore abused its

19   discretion by refusing to postpone the trial to allow him adequate time to prepare to

20   defend against the new charges. We reject Stringer’s contentions and affirm the

21   conviction.




                                                    2
 1                                       BACKGROUND

 2         On June 29, 2010, Stringer was arrested on a federal criminal complaint charging

 3   him with bank fraud and aggravated identity theft. The complaint set forth a detailed

 4   factual narrative describing the nature and operation of Stringer’s scheme to use names

 5   and identification documents of other persons to open bank accounts funded with forged

 6   checks and withdraw the proceeds. On July 20, 2010, the government filed a two-count

 7   indictment (the “original indictment”) charging Stringer with bank fraud and aggravated

 8   identity theft. One week later, on July 27, 2010, the government made evidentiary

 9   disclosures to Stringer, which included the names of two persons which he used to open

10   fraudulent bank accounts. On May 12, 2011, the court set down the case for a trial to

11   begin on July 25, 2011. On June 30, 2011, the government filed a two-count superseding

12   indictment (the “superseding indictment”) charging the same offenses with some

13   alteration of the language describing them.

14         The superseding indictment charged as follows:

15                                         COUNT ONE
16         1. The Grand Jury charges:
17         From in or about February 2007 up to and including in or about August 2007,
18         in the Southern District of New York and elsewhere, [Stringer] willfully and
19         knowingly did execute and attempt to execute a scheme and artifice to defraud
20         a financial institution . . . , and to obtain moneys, funds, credits, assets,
21         securities, and other property owned by, and under the custody and control of,
22         such financial institution, by means of false and fraudulent pretenses,
23         representations, and promises, to wit, [Stringer] created counterfeit checks
24         drawn on an account at JP Morgan Chase in Manhattan, which he deposited
25         into fraudulently created accounts at SunTrust Bank in Florida.
26         (Title 18, United States Code, Sections 1344 & 2.)


                                                   3
 1                                         COUNT TWO
 2         2. The Grand Jury further charges:
 3         From in or about February 2007 up to and including in or about August 2007,
 4         in the Southern District of New York and elsewhere, [Stringer] knowingly did
 5         transfer, possess, and use, without lawful authority, a means of identification
 6         of another person, to wit, one and more names, during and in relation to a
 7         felony enumerated in Title 18, United States Code, Section 1028A(c), to wit,
 8         the bank fraud charged in Count One of this Indictment.
 9         (Title 18, United States Code, Sections 1028A(a)(1), (c)(5).)
10
11   United States v. Stringer, No. 12-0608 Appendix (“App.”) 21-22.

12         Among the changes of language as between the original and the superseding

13   indictments was that while Count Two of the original indictment asserted that Stringer

14   used the name of one other person (identified as “Victim - 1”) in a scheme involving bank

15   accounts and checks in that person’s name, the superseding indictment alleged without

16   specification that Stringer used “one and more names” in carrying out the fraud scheme.

17         The court convened a conference to arraign Stringer on the superseding indictment

18   on July 6, 2011. After the superseding indictment was read, Stringer asked the court about

19   the significance of the change from the allegation of “Victim - 1” to “one and more

20   names.” The government advised that Stringer had perpetrated the fraud using at most

21   two names. The court directed the government to advise Stringer’s counsel of the two

22   names (which in fact had been revealed in the documents disclosed by the government a

23   year earlier). The court deferred the arraignment as to Count Two in order to allow

24   Stringer more time to confer with his lawyer about the superseding indictment.

25         That evening, Stringer told his counsel he wanted a new lawyer. At a conference

26   the following day, July 7, the court told Stringer he would not be allowed to change

                                                 4
 1   lawyers because there was no reason to doubt his attorney’s competence to try the case

 2   and because a change would necessitate delaying the trial. The district court also stated

 3   that any motion Stringer might make to adjourn the trial due to the recent filing of the

 4   superseding indictment would be denied, because the superseding indictment neither

 5   added any new charges, nor presented a new theory, nor made changes for which the

 6   defense had no ability to prepare. The court characterized the superseding indictment as

 7   charging “the same checks, the same banks, the same scheme, the same names that have

 8   been provided by the government in discovery all along,” so that the changes were

 9   essentially “ministerial.” United States v. Stringer, No. 12-0608 Government Addendum

10   (“Add.”) 20.

11          Stringer asserted at this conference that Count Two of the superseding indictment

12   was defective because of the failure to specify a victim’s name. The court rejected the

13   contention but added that the government would be limited to proving the two victims

14   (whose names had been disclosed a year earlier) so there could be “no ambiguity

15   remaining about what the charge is.” Id. at 19.

16          Trial began on July 25, 2011. On the first day of trial, Stringer submitted a motion

17   seeking, inter alia, (1) to represent himself at trial; (2) to dismiss Count Two as deficient,

18   and (3) to postpone the trial to afford him time to prepare his own defense. The district

19   court granted Stringer’s request to proceed pro se, but declined to dismiss Count Two or

20   postpone the trial.



                                                   5
 1          Stringer represented himself at trial, with his former defense attorney acting as

 2   stand-by counsel. On July 29, 2011, a jury found Stringer guilty on both counts of the

 3   superseding indictment.1 Stringer moved for a judgment of acquittal pursuant to Federal

 4   Rule of Criminal Procedure 29 or, in the alternative, for a new trial pursuant to Rule 33;

 5   the district court denied both motions. His judgment of conviction was entered on

 6   February 8, 2012, and the district court sentenced him to 60 months’ imprisonment, to be

 7   followed by five years’ supervised release. Stringer was ordered to pay $104,731 in

 8   restitution and a $200 mandatory special assessment. This timely appeal followed.

 9                                            DISCUSSION

10   I. Sufficiency of the Superseding Indictment

11          Stringer contends that Count Two of the superseding indictment is constitutionally

12   defective for failure to identify any person whose means of identification he used in the

13   commission of the bank fraud. The sufficiency of an indictment is a question of law,

14   which we review de novo. See, e.g., United States v. Geibel, 369 F.3d 682, 689 (2d Cir.

15   2004). Pursuant to Federal Rule of Criminal Procedure 7(c)(1), an indictment “must be a

16   plain, concise, and definite written statement of the essential facts constituting the offense

17   charged.” An indictment is sufficient if it “first, contains the elements of the offense

18   charged and fairly informs a defendant of the charge against which he must defend, and,

19   second, enables him to plead an acquittal or conviction in bar of future prosecutions for

            1
              As to Count Two, the jury found Stringer guilty of aggravated identity theft as to one of
     the two alleged victims.


                                                     6
 1   the same offense.” Hamling v. United States, 418 U.S. 87, 117 (1974); see also United

 2   States v. De La Pava, 268 F.3d 157, 162 (2d Cir. 2001) (“An indictment must sufficiently

 3   inform the defendant of the charges against him and provide enough detail so that he may

 4   plead double jeopardy in a future prosecution based on the same set of events.”); United

 5   States v. Pirro, 212 F.3d 86, 91 (2d Cir. 2000) (“A criminal defendant is entitled to an

 6   indictment that states the essential elements of the charge against him.”).

 7          We reject Stringer’s contention. We have held that to satisfy the pleading

 8   requirements of Rule 7(c)(1), an indictment need “do little more than to track the

 9   language of the statute charged and state the time and place (in approximate terms) of the

10   alleged crime.” Pirro, 212 F.3d at 92 (internal quotation marks omitted). An indictment

11   “need not be perfect, and common sense and reason are more important than

12   technicalities.” De La Pava, 268 F.3d at 162.

13          When a crime, unlike the murder of a specified individual, is capable of repetition

14   on the same day, or within a specified time frame, the indictment will rarely provide

15   sufficient detail so that, on its face, it guarantees protection against double jeopardy.

16   Examples commonly seen in federal courts are indictments charging a defendant with

17   having, on or about a specified date, distributed an approximate quantity of a mixture or

18   substance containing cocaine. A defendant may have committed the acts described in

19   such an indictment a hundred times on or about the day specified, each one separately

20   prosecutable. Stringer’s indictment included far more limiting specificity. In addition to

21   tracking the language of the pertinent criminal statute and specifying the time frame of

                                                    7
 1   the commission of the offense, Count Two, by cross referencing Count One, provided

 2   substantial additional detail as to the means by which Stringer committed the offense. It

 3   specified that he committed the fraud by “creat[ing] counterfeit checks drawn on an

 4   account at JP Morgan Chase in Manhattan, which he deposited into fraudulently created

 5   accounts at SunTrust Bank in Florida.” App. 21. Notwithstanding its failure to specify the

 6   names of persons whose identifying documents were used, this charge, compared to many

 7   commonplace indictments, contained substantially more limiting detail.

 8          When the charges in an indictment have stated the elements of the offense and

 9   provided even minimal protection against double jeopardy, this court has “‘repeatedly

10   refused, in the absence of any showing of prejudice, to dismiss . . . charges for lack of

11   specificity.’” United States v. Walsh, 194 F.3d 37, 45 (2d Cir. 1999) (quoting United

12   States v. McClean, 528 F.2d 1250, 1257 (2d Cir. 1976)). Here, Stringer does not even

13   attempt to argue that he suffered any prejudice. The government had provided him with

14   the criminal complaint, which outlined his crimes in detail, as well as disclosures that

15   included the victims’ names, well in advance of trial. Taking these disclosures into

16   account, it is beyond question that Stringer was sufficiently informed to defend against

17   the charges and to be protected against the risk of double jeopardy (for which the trial

18   record provides further protection). See Walsh, 194 F.3d at 45 (discovery cannot save a

19   defective indictment but, “where the indictment has been found even minimally

20   sufficient, a court may look to the record as a whole in determining whether” the

21   constitutional requirements have been met); United States v. Stavroulakis, 952 F.2d 686,

                                                   8
 1   693 (2d Cir. 1992) (“When an indictment delineates the elements of a charged offense,

 2   however concisely, the underlying concerns of proper pleading—notice of the charge to

 3   be met and protection against double jeopardy—may be further promoted by a bill of

 4   particulars or pre-trial discovery.”). We conclude that Count Two was not constitutionally

 5   deficient.2

 6          In support of his argument, Stringer cites Russell v. United States, 369 U.S. 749

 7   (1962), a 50 year-old precedent, which is one of the very rare cases in which an

 8   indictment that tracked the statutory language and furnished the pertinent dates was held

 9   insufficient. In Russell, the defendants were charged under a federal statute that made it a

10   crime for a witness before a congressional committee to refuse to answer questions

11   pertinent to the committee’s inquiry, 2 U.S.C. § 192. Id. at 752. The case arose out of the

12   controversial McCarthy-era hearings of the Committee on Un-American Activities of the

13   House of Representatives and the Internal Security Subcommittee of the Senate Judiciary

14   Committee. Id. at 752, n.3. The Supreme Court ruled that the indictments were

15   insufficient because they failed to specify the subject matter of the congressional inquiry.

16          The Court stressed that:

17          [w]here . . . the indictment has not identified the topic under inquiry, the Court
18          has often found it difficult or impossible to ascertain what the subject was. The
19          difficulty of such a determination in the absence of an allegation in the
20          indictment is illustrated by [a recent case in which] the members of this Court

            2
              We note that the Eighth Circuit has recently upheld the sufficiency of a charge of the
     same offense. See United States v. Dvorak, 617 F.3d 1017, 1026 (8th Cir. 2010). Because the
     charging language in Dvorak included more identification of the victim than contained in
     Stringer’s indictment, the Dvorak precedent is not helpful to either side.

                                                     9
 1          were in sharp disagreement as to what the subject under subcommittee inquiry
 2          had been. . . . [In a second similar case], the Court found it not merely difficult,
 3          but actually impossible to determine what the topic under subcommittee
 4          inquiry had been at the time the petitioner had refused to answer the questions
 5          addressed to him.

 6   Id. at 759.

 7          The Court continued, in discussing another similar case previously before it:

 8          [At the beginning of one hearing], the Chairman and other subcommittee
 9          members made widely meandering statements, purporting to identify the
10          subject matter under inquiry. . . . But when [a subsequently charged defendant]
11          was called to testify before the subcommittee no one offered even to attempt
12          to inform him of what subject the subcommittee did have under inquiry. . . . It
13          is difficult to imagine a case in which an indictment’s insufficiency resulted
14          so clearly in the indictment’s failure to fulfill its primary office–to inform the
15          defendant of the nature of the accusation against him.

16   Id. at 767.

17          In light of these statements, it is clear that the Supreme Court’s decision in Russell

18   must be seen as addressed to the special nature of a charge of refusal to answer questions

19   in a congressional inquiry and not as a broad requirement applicable to all criminal

20   charges that the indictment specify how each essential element is met. This view of

21   Russell was confirmed by the Supreme Court’s more recent decision in United States v.

22   Resendiz-Ponce, 549 U.S. 102 (2007). In that case, the Supreme Court rejected the

23   contention that an indictment charging a previously deported alien with illegal “attempt”

24   to reenter the United States was deficient for failure to specify the overt acts constituting

25   the attempt. The Court agreed with the defendant’s proposition that “an overt act

26   qualifying as a substantial step towards the completion of” the illegal objective was an


                                                    10
 1   essential element of the crime of attempt, but nonetheless concluded that an indictment

 2   asserting the “attempt” without specification of the acts constituting the attempt was

 3   legally sufficient. Id. at 107-08. Addressing the defendant’s contention that the Court’s

 4   ruling in Russell supported his argument, the Court explained:

 5          [Defendant] is of course correct that while an indictment parroting the
 6          language of a federal criminal statute is often sufficient, there are crimes that
 7          must be charged with greater specificity. A clear example is the statute making
 8          it a crime for a witness summoned before a congressional committee to refuse
 9          to answer any question pertinent to the question under inquiry. . . . As we
10          explained at length in our opinion in Russell . . . , a valid indictment for such
11          a refusal to testify must go beyond the words of [the statute] and allege the
12          subject of the congressional hearing in order to determine whether the
13          defendant’s refusal was pertinent. Based on a number of cases arising out of
14          congressional investigations, we recognized that the relevant hearing’s subject
15          was frequently uncertain but invariably central to every prosecution under the
16          statute. Both to provide fair notice to defendants and to ensure that any
17          conviction would arise out of the theory of guilt presented to the grand jury,
18          we held that indictments under [that statute] must do more than restate the
19          language of the statute.

20   Id. at 109-10 (internal citation and quotation marks omitted).

21          The Resendiz-Ponce Court concluded that the reasoning of Russell “suggests that

22   there was no infirmity [in the indictment alleging illegal attempted reentry into the United

23   States]. . . . [U]nlike the statute at issue in Russell, guilt under [the statute charged against

24   Resendiz-Ponce] does not depend so crucially upon such a specific identification of fact.”

25   Id. at 110 (internal quotation marks omitted).

26          The message of the Supreme Court’s discussions in Russell and Resendiz-Ponce is

27   that for certain statutes specification of how a particular element of a criminal charge will be

28   met (as opposed to categorical recitation of the element) is of such importance to the fairness

                                                    11
 1   of the proceeding that it must be spelled out in the indictment, but there is no such universal

 2   requirement. See Hamling, 418 U.S. at 118 (explaining Russell as holding that, “[w]here guilt

 3   depends so crucially upon such a specific identification of fact, our cases have uniformly held

 4   that an indictment must do more than simply repeat the language of the criminal statute”

 5   (internal quotation marks omitted)). Other examples that courts have found to fall in that less-

 6   common category have been specification of what statements are alleged to be false, and in

 7   what respect they are false, in charges of criminal falsity, see United States v. Tonelli, 577

 8   F.2d 194, 200 (3d Cir. 1978) (“Because the indictment in this case did not set forth the

 9   precise falsehoods alleged and the factual bases of their falsity with sufficient clarity to

10   permit a jury to determine their verity and to allow meaningful judicial review of the

11   materiality of those falsehoods, the conviction here must be vacated.” (internal quotation

12   marks and alterations omitted)); Pirro, 212 F.3d at 93 (same for indictment charging filing

13   of a false tax return), and the type of controlled substance alleged to have been manufactured,

14   distributed, dispensed, or possessed when charging under the controlled substances statute,

15   21 U.S.C. § 841, see, e.g., United States v. Thomas, 274 F.3d 655, 660 (2d Cir. 2001) (type

16   of drugs is an element of the offense that must be charged in the indictment). We do not

17   believe that the name of the victim in a charge under Section 1028A falls in that narrow

18   category.3 It is of course an essential element of the charge, unquestionably important, and
            3
               Stringer is correct that the Supreme Court held in Flores-Figueroa v. United States, 556
     U.S. 646 (2009) that the text of “[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.” Id.
     at 657. Nothing in Flores-Figueroa, however, suggests that an indictment must specify the name
     of an alleged victim. Indeed, by tracking the statutory language of 18 U.S.C. § 1028A–and
     alleging that Stringer “knowingly did transfer, possess, and use, without lawful authority, a

                                                     12
 1   the defendant is of course entitled on demand to its disclosure in a bill of particulars or

 2   otherwise. However, we conclude that, notwithstanding the failure of Stringer’s indictment

 3   to name the persons whose means of identification were used in the commission of bank

 4   fraud, the indictment was constitutionally adequate.

 5   II. Denial of the Continuance

 6          Stringer’s second contention is that the district court abused its discretion in

 7   refusing to postpone the trial date upon the filing of the superseding indictment to allow

 8   him additional time to prepare to meet the new charges.4 There is no merit in this

 9   contention. This is for two reasons. First, during the pre-trial proceedings Stringer never

10   asked for an adjournment of trial based on changes introduced by the superseding

11   indictment. He did ask to postpone the trial, but gave other reasons in support of the

12   demand–his desire to change lawyers and his decision to represent himself.5 The court

13   reasonably refused to adjourn trial on these bases. Second, trial courts enjoy very broad

14   discretion in granting or denying trial continuances. Sanusi v. Gonzales, 445 F.3d 193,

15   199-200 (2d Cir. 2006). Appellate review of a trial court’s refusal to delay trial is for


     means of identification of another person”–the superseding indictment necessarily charged
     Stringer with knowingly using the name of a real, as opposed to a fictitious, person unlawfully.
             4
               Stringer is not contending that the filing of a superseding indictment triggered a
     requirement of a 30-day delay prior to trial under the Speedy Trial Act, 18 U.S.C. § 3161(c)(2), a
     position the Supreme Court rejected in United States v. Rojas-Contreras, 474 U.S. 231, 234
     (1985). He argues only that the court abused its discretion in failing to postpone the trial.
             5
               Were we to conclude that some of Stringer’s arguments made on his own behalf at the
     July 6 and 7, 2011 conferences should be construed as requesting postponement of the trial by
     reason of need to prepare to defend against new allegations in the superseding indictment, this
     would not change our ruling, as the district court’s refusal to postpone the trial based on its
     assessment that the changes were insubstantial was clearly within its discretion.

                                                    13
 1   abuse of discretion, and “we will find no such abuse unless the denial was an ‘arbitrary

 2   action that substantially impaired the defense.’” United States v. O’Connor, 650 F.3d 839,

 3   854 (2d Cir. 2011), cert. denied, 132 S. Ct. 1040 (2012) (quoting United States v. Beverly,

 4   5 F.3d 633, 641 (2d Cir. 1993)). A defendant must show “both arbitrariness and prejudice

 5   in order to obtain reversal of the denial of a continuance.” United States v. Miller, 626

 6   F.3d 682, 690 (2d Cir. 2010). Stringer has failed to establish either.

 7          While the changes in language from the original indictment to the superseding

 8   indictment, which included an additional month in the period during which Stringer was

 9   alleged to have carried out his scheme of fraud, could have provided for the inclusion of

10   very extensive criminal activity not covered by the original indictment, the district court

11   satisfied itself that in fact the superseding indictment introduced no significant change.

12   There was no abuse of discretion, indeed no impropreity of any kind in the court’s ruling.

13                                         CONCLUSION

14          The judgment of the district court is AFFIRMED.




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