                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 10a0231n.06

                                             No. 08-6135                                    FILED
                                                                                        Apr 14, 2010
                           UNITED STATES COURT OF APPEALS                         LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                       )
                                                )
        Plaintiff-Appellee,                     )       ON APPEAL FROM THE UNITED
                                                )       STATES DISTRICT COURT FOR
v.                                              )       THE EASTERN DISTRICT OF
                                                )       TENNESSEE
RONALD D. ADKINS,                               )
                                                )       OPINION
        Defendant-Appellant.                    )



Before: MARTIN and GIBBONS Circuit Judges, and MARBLEY, District Judge.*

        MARBLEY, District Judge. Defendant-Appellant, Ronald Adkins, appeals his conviction

of all charges in a six-count indictment. He alleges that the district court erred in: (1) issuing a jury

instruction on a Pinkerton theory of liability, resulting in confusion on the part of the jurors;

(2) denying his Rule 29 motion for acquittal based on insufficient evidence to support his conviction

on Counts 3 and 6; and (3) denying his request for a two offense level reduction based on the fact

that he played a minor role in the offense. Because the district court’s jury instructions adequately

informed the jury of the law, there was sufficient evidence to support his conviction on all six counts,

and the district court did not abuse its discretion in denying him a reduction, we AFFIRM Adkins’s

conviction.




        *
        The Honorable Algenon L. Marbley, United States District Judge for the Southern District
of Ohio, sitting by designation.
No. 08-6135
United States v. Adkins

                                        I. BACKGROUND

       Defendant-Appellant, Ronald Adkins, along with Sam Patton and Timothy Brown, was

originally charged on May 8, 2007, in a two-count indictment alleging conspiracy, in violation of 18

U.S.C. § 371, and interstate transportation of fraudulently obtained goods, in violation of 18 U.S.C.

§ 2314. All three men were indicted on June 25, 2006. On April 8, 2008, as Adkins was preparing

for trial on the original indictment, the grand jury returned a superseding indictment. The

superseding indictment alleged six counts: (1) conspiracy to commit identity theft, wire fraud, and

interstate transportation of fraudulently obtained goods, in violation of 18 U.S.C. § 371; (2)

conspiracy to possess fraudulent identification documents, in violation of 18 U.S.C. §§ 1028(a)(3)

& (f); (3) aggravated identity theft based on false identification documents, in violation of 18 U.S.C.

§ 1028A; (4) interstate transportation of fraudulently obtained goods, in violation of 18 U.S.C. §

2314; (5) wire fraud, in violation of 18 U.S.C. § 1343; and (6) aggravated identity theft based on

wire fraud, in violation of 18 U.S.C. § 1028A. The charges alleged that Adkins, Patton, and Brown

drove from Detroit to Atlanta to purchase goods for resale using fraudulent identification and the

personal identifying information of others.

       Patton and Brown both entered guilty pleas, and were sentenced to twenty and forty-five

months’ imprisonment, respectively. Adkins went to trial and was convicted on all six counts. He

was sentenced to fifty-four months’ imprisonment—thirty months each on Counts 1, 2, 4, and 5, to

be served concurrently, and twenty-four months each on Counts 3 and 6, to run concurrently with

each other, but consecutive to all other counts.

       At trial, it was established that Patton, Brown, and Adkins planned a trip to Atlanta to

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United States v. Adkins

purchase items for resale using fraudulent identification documents. Patton had purchased credit

reports of various individuals, and he created false identification documents using the individuals’

information and photographs of Brown and Adkins. Patton had separate agreements with Brown and

Adkins regarding how to split the proceeds from their scheme. Because Adkins and Brown had

previously worked together on an identity theft scheme in Columbus, Ohio—for which Adkins was

arrested two years earlier—Adkins would get fifty percent of the proceeds from resale of items he

purchased using the fraudulent identification documents. Brown was to receive a smaller percentage

of the proceeds from resale of his purchases.

       On their way from Detroit to Atlanta, the three men stopped at Hamilton Place Mall in

Chattanooga, Tennessee, where Brown and Adkins made purchases. Adkins used a Michigan

driver’s license with his picture and the name and other personal information belonging to a George

Hanna. Adkins purchased a Rolex watch for $9,924 at Reed’s Jewelry Store. Julie Ann Horton, the

woman who sold the Rolex to Adkins, authenticated the store’s videotape of the transaction, but she

was unable positively to identify Adkins as either the person to whom she had sold the watch or the

person in the video.

       An officer testified at trial that all three men were arrested on December 12, 2006, when

Brown was pulled over driving a U-Haul truck that contained fraudulently obtained merchandise and

several fraudulent identification documents. Adkins and Patton had been following Brown in

another vehicle. Officers searched both the U-Haul truck and Patton’s motel room. They found

more fraudulently obtained merchandise, receipts, and false identification documents in the motel

room. The only document taken from Adkins’s person was his own driver’s license, which he

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No. 08-6135
United States v. Adkins

provided to police. The three men were then taken to the police station and separated. A driver’s

license with the name George Hanna was found discarded in the waste basket near where Adkins had

been sitting.

       The government introduced evidence of Adkins’ prior 2004 arrest relating to identity theft

in Columbus, Ohio, including two Michigan driver’s licenses and two social security cards that had

been obtained from Adkins during the investigation. Gerald Phillip Hanna testified that he had been

notified in December 2006 by a jewelry store that he had opened an account at the store. He testified

to both his social security number and his birthday—his social security number was one off from the

number used on the driver’s license discarded at the police station, and his birthday was in the same

month and close to the same day as the birthday listed on that document.

       Patton testified that he had purchased credit reports of various individuals from a contact at

a mortgage company, and that he created fake driver’s licenses using information from those reports

and photographs of Brown and Adkins. He testified that he recalled making two fake driver’s

licenses for Adkins to use. He also testified that, upon being instructed to purchase a silver Rolex

watch, Adkins purchased a gold watch instead. That was one of several problems Adkins had in

fulfilling his duties as assigned. He was also unable to remember the social security number he was

supposed to use, and he was often declined in his attempts to make fraudulent purchases. The only

specific purchase Patton could recall Adkins making was the Rolex, and the only false identification

Patton remembered Adkins possessing was the George Hanna driver’s license. He also testified that

eventually, Adkins was assigned to drive the U-Haul and was not allowed to make any more

purchases.

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No. 08-6135
United States v. Adkins

       At the close of the government’s case, Adkins made a Rule 29 motion, alleging that the

government had failed to establish that he was knowingly involved in wire fraud, knowingly

participated in a scheme to possess five or more fake identification documents, or knowingly

possessed the identity of another person. The court denied the motion without explanation.

       The defense presented two witnesses. The first was Dr. Ron Niedberding, the Bureau of

Prisons psychologist who had determined that Adkins was competent to stand trial. Dr. Niedberding

testified that Adkins’s tests revealed an IQ of 73, putting him in the bottom 4% of the population.

He also testified that he believed Adkins could function at a slightly higher level than his IQ score

indicated, and that Adkins told him that he thought the charges against him should be dropped

because his job was just to drive the truck.

       At the conclusion of the case, the court instructed the jury. As to Count 1, conspiracy, the

court instructed the jury that they must find, beyond a reasonable doubt, that:

       First, two or more persons conspired or agreed to commit the crime of interstate
       transportation of fraudulently obtained goods, wire fraud, or identity theft; second,
       the defendant knowingly and voluntarily joined the conspiracy; and, third, a member
       of the conspiracy did one of the overt acts described in the indictment for the purpose
       of advancing or helping the conspiracy. You must be convinced that the government
       has proven all of these elements beyond a reasonable doubt in order to find the
       defendant guilty of the conspiracy charge.

As to Counts 3 through 6, the court gave the jury a Pinkerton instruction:

       Counts 3 through 6 of the indictment accuse the defendant of committing the crimes
       of identity theft, interstate transportation of fraudulently obtained goods, and wire
       fraud. There are three ways that the government can prove the defendant guilty of
       these crimes. The first is by convincing you that the defendant personally committed
       or participated in the crime. The second way is if the defendant was an aider and
       abettor, as I instructed you previously. The third way is based on the legal rule that
       all members of a conspiracy are responsible for acts committed by the other members

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No. 08-6135
United States v. Adkins

       as long as those acts are committed to help advance the conspiracy and are within the
       reasonably foreseeable scope of the agreement. In other words, under certain
       circumstances, the act of one conspirator may be treated as the act of all. This means
       that all the conspirators may be convicted of a crime committed by only one of them,
       even though they did not all personally participate in that crime themselves. But for
       you to find the defendant guilty of Counts 3, 4, 5, or 6 based on this legal rule, you
       must be convinced that the government has proved each and every one of the
       elements of the offenses beyond a reasonable doubt. This does not require proof the
       defendant specifically agreed or knew that the crime would be committed, but the
       government must prove that the crime was within the reasonable contemplation of
       the persons who participated in the conspiracy. The defendant is not responsible for
       the acts of others that go beyond the fair scope of the agreement as the defendant
       understood it. If you are convinced that the government has proved all of these
       elements, say so by returning a guilty verdict on the charge or charges. If you have
       a reasonable doubt about any one of them, then the rule that the act of one conspirator
       is the act of all would not apply.

       The jury convicted Adkins of all six charges. Following the trial, the defense moved for a

judgment of acquittal on Count 6, or for a new trial on Count 6, or for concurrent sentences on

Counts 3 and 6, alleging that there was insufficient evidence to support a conviction on Counts 3 and

6. The court denied the motion, concluding that Adkins had not alleged a legitimate double jeopardy

claim, and that the jury could have concluded that his possession of the false driver’s license was

connected to wire fraud.

       The presentence report was provided to the parties on July 8, 2008. It found a base offense

level for the theft and fraud counts of 7 under the United States Sentencing Guidelines Section

2B1.1(a)(1). It increased the offense level by 10 levels because it held Adkins responsible for the

total loss attributable to the conspiracy, which was $68,434. The offense level was increased another

2 levels based on the fact that there were 12 individual victims and 26 victim companies in the

conspiracy. With an offense level of 15 and a criminal history category of III, the advisory guideline


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No. 08-6135
United States v. Adkins

range was 24-30 months, with additional 24- or 48-month consecutive sentences, for a total range

of 48-78 months. The defense objected that Adkins was not given a two level reduction for playing

a minor role in the offense.

       At the sentencing hearing, Adkins contended that he should be given the two level reduction

because he was less culpable than Patton or Brown. The court acknowledged the availability of a

reduction for playing a minor role in the offense, but determined that Adkins did not qualify as a

minor participant. He was then sentenced to a total of fifty-four months’ imprisonment.



                                       II. JURISDICTION

       This Court has jurisdiction over Appellant’s appeal of his conviction pursuant to 28 U.S.C.

§ 1291 because the district court entered a final judgment, and Appellant timely filed a notice of

appeal. This Court has jurisdiction to review the district court’s sentencing determination pursuant

to 18 U.S.C. § 3742(a) as a result of the final judgment entered by the district court and Appellant’s

timely filing of a notice of appeal pursuant to 28 U.S.C. § 1291.



                                         III. ANALYSIS

                               A. THE PINKERTON INSTRUCTION

                                      1. Standard of Review

       A district court’s jury instructions are “‘reviewed as a whole to determine whether they

adequately inform the jury of relevant considerations and provide a basis in law for the jury to reach

its decision.’” Innes v. Howell Corp., 76 F.3d 702, 714 (6th Cir. 1996) (quoting Beard v.

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No. 08-6135
United States v. Adkins

Norweigian Caribbean Lines, 900 F.2d 71, 72 (6th Cir. 1990)). The judgment will be reversed “only

if the instructions, viewed as a whole, were confusing, misleading and prejudicial.” United States

v. Clark, 988 F.2d 1459, 1468 (6th Cir. 1993).

                                             2. Analysis

        Adkins alleges that the district court erred in instructing the jury on the Pinkerton theory of

liability with respect to Counts 3-6. The Pinkerton theory of liability is predicated on the idea that

once a participant decides to join a conspiracy, he is responsible for any substantive offenses

committed by his co-conspirators in furtherance of the conspiracy. Pinkerton v. United States, 328

U.S. 640, 647 (1946). The district court instructed the jury pursuant to Pinkerton on Counts 3-6,

regarding the substantive offenses underlying the conspiracy. Adkins contends that this instruction,

viewed properly in context with all of the other instructions, confused or misled the jury. We

disagree.

        In support of his contention, Adkins relies on United States v. Henning, 286 F.3d 914 (6th

Cir. 2002), for the proposition that when a defendant is charged with both substantive crimes and

a conspiracy, a Pinkerton instruction can effectively relieve the government of its burden of proof

with regard to the substantive crimes. This reliance is misplaced. In Henning, after instructing the

jury on the conspiracy charge, the district court instructed the jury on Pinkerton liability with respect

to the substantive crimes charged. Henning, 286 F.3d at 920. The district court later reversed the

conspiracy conviction, but did not consider the effect that reversal might have had on the substantive

crime convictions: “it failed to consider that, pursuant to the Pinkerton instruction, the jury may have

convicted Henning on the substantive counts only because they believed he was guilty of

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No. 08-6135
United States v. Adkins

conspiracy.” Id. The Henning decision is inapposite here, where the conspiracy conviction was

never disturbed. Even if the jury convicted on the substantive counts only because it found that

Adkins was guilty on the conspiracy count, there was no error—that is the essence of Pinkerton

liability, and the district court properly instructed the jury as such.

        Adkins’s contention that the jury may have only convicted him on the conspiracy charge due

to the Pinkerton instruction is unpersuasive, given that the jury was instructed on the conspiracy

charge first, and the Pinkerton instruction itself indicated that it only applied to Counts 3-6, which

were the substantive crime charges.

        The jury instructions, viewed as a whole—considering the conspiracy instructions in

conjunction with the Pinkerton instruction—were neither confusing nor misleading. On the contrary,

they accurately and adequately informed the jury of the law.

                                   B. THE RULE 29 MOTION

                                        1. Standard of Review

        An appellate court reviews a district court’s “denial of a Rule 29 motion for judgment of

acquittal due to insufficient evidence under the same standard as the district court.” United States

v. Beddow, 957 F.2d 1330, 1334 (6th Cir. 1992). When confronted with a Rule 29 motion, a trial

court “must consider all of the evidence in a light most favorable to the government and grant the

motion when it appears to the Court that the evidence is insufficient to sustain a conviction.” United

States v. Adamo, 742 F.2d 927, 932 (6th Cir. 1984). All reasonable inferences must be drawn in

favor of the government, and “[i]t is not necessary that the evidence exclude every reasonable

hypothesis except that of guilt.” Id.

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United States v. Adkins

                                            2. Analysis

       Adkins alleges that the government failed to prove, beyond a reasonable doubt, that he knew

that the false social security number and personal information on the false driver’s license belonged

to someone else, or that he knew that he did not have lawful authority to possess the identification.

Consequently, Adkins contends, he was entitled to a judgment of acquittal due to insufficient

evidence on Counts 3 and 6, which both alleged aggravated identity theft. The district court rejected

that claim, as do we.

       The statute under which Adkins was charged provides that “[w]hoever, during and in relation

to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without

lawful authority, a means of identification of another person shall, in addition to the punishment

provided for such felony, be sentenced to a term of imprisonment of 2 years.” 18 U.S.C. §

1028A(a)(1). The court instructed the jury that the elements of the offense for Count 3 were: (1) the

defendant knowingly possessed a means of identification of another person; (2) the defendant knew

that the means of identification belonged to another person; (3) the defendant knew that he had no

lawful authority to possess the means of identification; and (4) the defendant possessed the means

of identification during and in relation to the crimes of possession of fraudulent identification

documents and conspiracy to do the same. Similarly, the court instructed the jury that the elements

of the offense for Count 6 were: (1) the defendant knowingly possessed a means of identification of

another person; (2) the defendant knew that the means of identification belonged to another person;

(3) the defendant knew that he had no lawful authority to possess the means of identification; and

(4) the defendant possessed the means of identification during and in relation to the crime of wire

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No. 08-6135
United States v. Adkins

fraud.

         As a threshold matter, we note that the district court properly instructed the jury on Counts

3 and 6. Adkins points the Court’s attention to Flores-Figueroa v. United States, 129 S.Ct. 1886,

1894 (2009), in which the Supreme Court held that a conviction for aggravated identity theft must

be supported by evidence “that the defendant knew that the means of identification at issue belonged

to another person.” The district court here included that element as the second element of the offense

for Counts 3 and 6.

         The government produced evidence that Adkins had previously been arrested for using false

identification, so a reasonable inference may be drawn that Adkins knew he had no lawful authority

to possess a driver’s license in the name of George Hanna.1 Additionally, the government produced

evidence that, upon being taken to the police station, Adkins discarded the false identification in the

waste basket—further proof that he knew he did not have any authority to possess the license. It was

also established at trial that, although Adkins was not personally involved in Patton’s purchase of

credit reports from his contact at a mortgage company, he did know that Patton made such a

purchase, and that the false identification Adkins used to make purchases was created by combining

a picture of himself with information from the credit reports. Thus, a reasonable inference

supporting the conviction may be drawn that he knew the false identification he was using belonged

to someone else.

         As to the wire fraud, a copy of the George Hanna driver’s license taken at Reed’s Jewelry



         1
             Presumably, Adkins knew his own name, and that it was not “George Hanna.”

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No. 08-6135
United States v. Adkins

Store on December 2, 2006, matched the George Hanna driver’s license that Adkins attempted to

discard at the police station on December 12, 2006. The jury could reasonably infer that Adkins had

been in possession of the license from December 2, 2006, to December 12, 2006, and that his

possession was in connection with the wire fraud that occurred on December 2, 2006. In addition,

while the actual wire transmission occurred on December 2, 2006, the government presented

evidence, in the form of Patton’s testimony, that the fraud scheme continued until all three men were

arrested on December 12, 2006. Thus, it would also be reasonable for the jury to infer that Adkins’s

possession of the George Hanna license was in relation to the wire fraud.

       Because Adkins’s conviction on Counts 3 and 6 is supported by sufficient evidence in the

record, his conviction is affirmed.

                             C. THE SENTENCING REDUCTION

                                      1. Standard of Review

       A district court’s sentencing decisions are reviewed under the advisory sentencing guidelines

for abuse of discretion. United States v. Shor, 549 F.3d 1075, 1077 (6th Cir. 2008) (citing Gall v.

United States, 552 U.S. 38, 46 (2007)). In particular, a district court’s decision regarding the minor

participant reduction is given significant deference. United States v. Gabbard, 586 F.3d 1046, 1052

(6th Cir. 2009) (“While an independent review of the record might lead us to grant the minor

participant reduction, the essentially factual nature of the district court’s determination requires us

to give substantial deference to the sentencing court.”). Thus, a reviewing “‘court will not disturb

the district court’s determination of a defendant’s role in the criminal activity unless it is clearly

erroneous.’” United States v. Samuels, 308 F.3d 662, 672 (6th Cir. 2002) (quoting United States v.

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United States v. Adkins

Williams, 940 F.2d 176, 180 (6th Cir. 1991)).

                                           2. Analysis

       The United States Sentencing Guidelines permit a two offense level reduction “[i]f the

defendant was a minor participant in any criminal activity.” U.S.S.G. § 3B1.2(a). A defendant

“‘seeking a downward adjustment of a sentence otherwise required by the guidelines . . . has the

burden of proving by a preponderance of the evidence his or her entitlement to a reduction.’” United

States v. Mahan, 190 F.3d 416, 425 (6th Cir. 1999) (quoting United States v. Adu, 82 F.3d 119, 123

(6th Cir. 1996)). The two level reduction “applies to a defendant who is substantially less culpable

than most other participants, but whose role could not be described as minimal.” Mahan, 190 F.3d

at 426 (citing U.S.S.G. § 3B1.2, cmt. n.3). A defendant is not “automatically entitled to a minor

participant reduction simply because [a co-conspirator] could have been deemed a more culpable

participant than [the defendant].” United States v. Jackson, 55 F.3d 1219, 1225 (6th Cir. 1995).

       The district court’s decision not to grant Adkins the two level reduction was not clearly

erroneous. The district court explained its decision as follows:

       The defendant is asking for a role adjustment because he submits he’s a minor
       participant in criminal activity. This role is appropriate when someone is less
       culpable than most of the other participants but his role could not be described as
       minimal. And as the defendant concedes, he bears the burden of proving he played
       a minor role.

       Here we have concerted activity where each person involved in the activity is
       responsible for all the actions of the others. The defendant’s role in this case was
       more than just driving a vehicle. When he was apprehended, he had some false
       identification on him. I don’t recall whether it was in just one name or multiple
       names. I also don’t recall whether there were credit cards on his person. But I do
       recall that there was a false identification document in his possession or that had
       recently been in his possession when he was stopped.

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United States v. Adkins

       The Court, in considering that the defendant bears the burden of proof on this issue,
       will deny the request. It is not at all evident, from the evidence that came in and the
       arguments, that the defendant is less culpable than most other participants, especially
       in this particular transaction where he was actually someone who actually made
       purchases, went in and made false statements. So the Court will deny that objection.

       The court considered the evidence presented and determined that, given Adkins’s role in

making purchases with false identification documents and making false statements to store

employees, he could not be considered a minor participant. By Adkins’s own admission, he wanted

to play a larger role than Patton would allow due to his difficulty remembering what he was

supposed to do and say while making purchases—a factor that counsels against awarding a minor

participant reduction. See Gabbard, 586 F.3d at 1052 (affirming district court’s denial of reduction,

“in light of [the defendant’s] attempt to increase his role in the conspiracy”). We see no clear error

in the district court’s analysis, and we afford the court’s decision the proper deference by affirming

it.

                                       IV. CONCLUSION

       For the foregoing reasons, Appellant’s conviction and sentence are AFFIRMED.




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