           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                               FILED
                                                                           November 28, 2007

                                Nos. 06-50479 & 06-50774                 Charles R. Fulbruge III
                                                                                 Clerk

UNITED STATES

                                                    Plaintiff-Appellee
v.

ALEXIS MORGANFIELD

                                                    Defendant-Appellant



                   Appeals from the United States District Court
                         for the Western District of Texas
                              USDC No. 5:03-CR-10-3


Before DENNIS, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
       This court has already decided the same issues in this appeal for the
defendant’s co-conspirators in United States v. Morganfield, 501 F.3d 453 (5th
Cir. 2007). In accordance with this binding precedent, we now also AFFIRM in
part, REVERSE in part, VACATE Alexis Morganfield’s sentence, and REMAND
for re-sentencing.
       Alexis Morganfield was a co-conspirator in the check cashing scheme
described in Morganfield, 501 F.3d at 456–57. Like his co-conspirators in

       *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
Morganfield, Alexis now appeals three counts in his conviction: conspiracy to
utter a fictitious instrument in violation of 18 U.S.C. § 514(a)(2); aiding and
abetting the uttering of a fictitious instrument in violation of 18 U.S.C. §
514(a)(2) and 18 U.S.C. § 2; and aiding and abetting bank fraud in violation of
18 U.S.C. §1344 and 18 U.S.C. § 2.       His co-conspirators’ indictments and
convictions in Morganfield are materially indistinguishable from Alexis
Morganfield’s with respect to the legal issues in their appeals. As with Alexis’s
co-conspirators in Morganfield, Alexis also challenges his two convictions for
“uttering of a fictitious instrument” in violation of 18 U.S.C. § 514(a)(2). He
identically challenges the convictions by contending that there is insufficient
evidence to find him guilty, because a facially genuine check, even if worthless,
is not, as a matter of law, a “false or fictitious instrument.” In Morganfield, a
prior panel agreed and reversed his co-conspirators’ § 514 convictions. 501 F.3d
at 457-61. We must now do the same in this case, because the prior panel held
that the checks in this scheme are not “fictitious instruments” within the ambit
of § 514. Alexis Morganfield also raises the exact same challenges to his bank
fraud § 1344 conviction as his co-conspirators in Morganfield. The prior panel
disagreed with his co-conspirators’ challenges, and, therefore, those issues are
now foreclosed by Morganfield. Id. at 463–69. Accordingly, we now AFFIRM
his § 1344 conviction; REVERSE his § 514 convictions;1 VACATE his sentence;
and REMAND for re-sentencing.




      1
       We need not reach Alexis Morganfield’s other challenges to his § 514
convictions, because we now reverse the convictions based on binding
precedent.

                                                                               2
EDITH BROWN CLEMENT, Circuit Judge, concurring separately:

Given that “[i]t is the firm rule of this circuit that we cannot disregard the
precedent set by a prior panel, even though we perceive error in the precedent,”
see Wilson v. Taylor, 658 F.2d 1021, 1034 (5th Cir. 1981), we are bound by this
Court’s prior opinion in United States v. Morganfield, 501 F.3d 453 (5th Cir.
2007). That panel held that there was insufficient evidence because a legitimate
check, even if it is worthless, does not constitute, as a matter of law, a “false or
fictitious instrument.” 501 F.3d at 457, 460–61. Because defendant Alexis
Morganfield raises the same issue in the instant appeal, our panel is bound by
Morganfield and must also reverse his § 514(a)(2) convictions.
      However, but for Morganfield, I would have affirmed Alexis Morganfield’s
§ 514(a)(2) convictions. I do not consider the mere fact that the checks at issue
were legitimate to be dispositive of whether they were “false and fictitious.” See
United States v. Riley, 335 F.3d 919, 923, 930 (9th Cir. 2003). It is the use of the
checks to create a fictitious obligation in a scheme to defraud that brings them
within the ambit of § 514(a)(2). Here, the checking accounts were established
using false identification or fraudulent d/b/a certificates, and the checks
identified fictitious payors. Under these facts, genuine checks with an indicia
of falsity (such as a fictitious or nonexistent payor) may constitute a “false or
fictitious instrument.” Accordingly, because Morganfield was actively involved
in creating the false checking accounts and passing the checks with fictitious
payors, there was sufficient evidence to affirm his § 514(a)(2) convictions.




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