                            NOT FOR FULL-TEXT PUBLICATION
                                  File Name: 10a0409n.06
                                                                                              FILED
                                            No. 09-1103                                    Jul 12, 2010
                                                                                    LEONARD GREEN, Clerk
                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

               Plaintiff-Appellee,
                                                       ON APPEAL FROM THE
v.                                                     UNITED STATES DISTRICT
                                                       COURT FOR THE EASTERN
CHRYSTALIN CARTER,                                     DISTRICT OF MICHIGAN
a/k/a Chrystalin Carter-Smith,

            Defendant-Appellant.
_________________________________/

BEFORE: BOGGS, SUHRHEINRICH, and ROGERS, Circuit Judges.

       SUHRHEINRICH, Circuit Judge. Chrystalin Carter (“Carter”) appeals her convictions

and sentence for her role in two conspiracies: (1) bank account fraud, and (2) mortgage fraud. On

appeal, Carter argues that the district court 1) erroneously refused to give a jury instruction on good

faith, 2) erroneously restricted the testimony of a defense witness, 3) imposed an unreasonable

sentence, and 4) used an improper method of jury selection. For the reasons set forth below, we

AFFIRM the convictions and sentence.

                                           I. Background

                                A. Account Takeover Conspiracy

       The first three convictions arose from a conspiracy, designed by Carter and Elise Bell

(“Bell”), to fraudulently remove $150,000 from the account of Donna Cheng (“Cheng”). Carter has

an extensive criminal history, including convictions for embezzlement, forgery, uttering and
publishing, and possession of a firearm by a felon. Bell, a “graphic designer,” is a longtime friend

of Carter’s who has used her expertise in graphic design to create forged documents.

       Cheng had a money market account at Charter One Bank. In December 2004, Samer

Beidoun (“Beidoun”), a teller at Charter One, used Charter One’s computer system to access Cheng’s

personal information at work after hours and without a legitimate business purpose. Carter and Bell

then used this information to obtain a $150,000 counterfeit check in Cheng’s name. Next, an

acquaintance provided Carter with the contact information for Tequila Wilkerson (“Wilkerson”)—an

assistant manager at a Comerica Bank branch located in Sterling Heights, Michigan. Carter set up

a meeting with Wilkerson, whom Carter had apparently never met, purportedly to discuss real estate

investments. Carter and Bell, who presented herself as “Donna,” met with Wilkerson a few days

later. The conversation at the meeting eventually turned from real estate to Wilkerson’s work at the

bank. Carter asked about Comerica’s security systems and the bank’s procedures for opening an

account, and Wilkerson answered these questions in detail. Carter and “Donna” then informed

Wilkerson that they would open up accounts at the bank in the coming days.

       Subsequent to this meeting, Bell met Wilkerson at a Comerica branch in Sterling Heights,

Michigan, opened an account, and deposited the $150,000 counterfeit check. Once the standard bank

hold on the account expired, Bell used Cheng’s name to withdraw the money, and after numerous

transactions, a substantial amount of that money was directed to accounts controlled by Carter: an

account at Huntington Bank in the name of Breeze Financial and an account at Peoples Trust Credit

Union in the name of Blaque Reign Contracting. For example, a check in the amount of $47,903.47

was issued from Cheng’s Comerica bank account and deposited into the Breeze Financial account,

and a check in the amount of $34,876.47 was issued from Cheng’s Comerica Bank account and


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deposited into the Blaque Reign Contracting account. Through these and other transactions, Carter

made approximately $91,779.94 from the fraud. Cheng did not learn about the withdrawal from her

account for several months. Once she did, she notified her bank, at which point bank employees and

law enforcement discovered and unraveled the conspiracy.

                                    B. Mortgage Fraud Scheme

        The fourth conviction arose from Carter’s dealings in July 2003 with a home in Detroit,

Michigan, located at 4095 Tuxedo Street. Two weeks after purchasing this home, Carter executed

a quitclaim deed of the property to herself and her boyfriend, Kenneth Pitts (“Pitts”), as joint tenants.

In July 2004, they executed a quitclaim deed for the property to Pitts alone, and Pitts obtained a

$44,000 cash-out mortgage on the property. In September 2004, the property was sold for $57,000

to “Taz Peoples,” who was in reality Carter’s sister using an alias that Carter has used in the past.

For instance, Carter attempted to obtain an Ohio identification card in June 2004 under the name of

Taz Peoples, but was apprehended by authorities. Both Carter and Pitts were required to sign the

deed, despite the earlier quitclaim deed to Pitts only, because the July 2004 deed had not shown up

yet in the formal recording records. Taz Peoples financed the property with a $51,300.00 mortgage,

which was used to pay off the $44,000 mortgage. No payments on the $51,300.00 mortgage were

made, and the property was soon foreclosed on. Argent Mortgage and its assigns lost $51,300.00

plus related expenses as a result of the transaction.

                                       C. Procedural History

        Carter was indicted and tried for the following charges: 1) conspiracy to use a means of

identification of another person to commit access device fraud, in violation of 18 U.S.C. § 1028(f);

2) unauthorized use of an access device—aiding and abetting, in violation of 18 U.S.C. §§


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1029(a)(2) & 2; 3) conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 1344 & 1349; and

4) conspiracy to commit wire fraud, in violation of 18 U.S.C. §§ 1343 & 1349. Beidoun, Bell, and

Wilkerson were also indicted for the first three counts of the indictment. Beidoun and Wilkerson

pled guilty prior to trial. Bell’s whereabouts are currently unknown. Carter’s jury trial began on

August 18, 2008, and continued until August 25, 2008. Wilkerson testified for the Government.

Carter testified in her defense, and the Government impeached her with her prior convictions. The

jury found Carter guilty on all counts, and the district court sentenced her to concurrent 37-month

prison terms, followed by three years of supervised release. The court also ordered her to pay

restitution amounts of $116,503.67to Charter One Bank and $53,000.00 to Argent Mortgage. Carter

appeals.

                                              II. Analysis

                                         A. Jury Instruction

        Carter argues that the district court erred when it declined to give a good-faith instruction to

the jury. This court reviews “a district court’s failure to give a requested jury instruction for abuse

of discretion.” United States v. Baker, 197 F.3d 211, 218 (6th Cir. 1999). “Generally, a defendant

is entitled to an instruction on defense theories that are supported by law and raised by the evidence

presented.” United States v. Tarwater, 308 F.3d 494, 510 (6th Cir. 2002) (citing United States v.

Duncan, 850 F.2d 1104, 1118 (6th Cir. 1988)). But, this court reviews a jury charge “as a whole to

determine whether the charge fairly and adequately submit[ted] the issues and law to the jury.”

United States v. Heath, 525 F.3d 451, 455-56 (6th Cir. 2008) (citing United States v. Buckley, 934

F.2d 84, 87 (6th Cir. 1991)). “A trial court’s refusal to give a requested jury instruction is reversible

error only if the instruction is (1) correct, (2) not substantially covered by the actual jury charge, and


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(3) so important that failure to give it substantially impairs defendant’s defense.” Id. (quoting United

States v. Sassak, 881 F.2d 276, 279 (6th Cir. 1989)). In sum, this court reverses a district court’s

decision “only if the instructions, viewed as a whole, were confusing, misleading and prejudicial.”

Id. at 456 (quoting United States v. Clark, 988 F.2d 1459, 1468 (6th Cir. 1993)).

       Assuming, arguendo, that Carter offered a “correct” jury instruction, her claim still fails

because her good-faith defense was substantially covered by the jury charge. See Tarwater, 308 F.3d

at 510, (proceeding directly to an analysis of the second factor). The district court gave adequate

instructions because it instructed the jury on the specific intent required for a conviction. As

explained by the trial judge at the hearing on the motion to stay execution of judgment and motion

for bond pending appeal:

       [T]he jury instructions made clear that in order for the jury to find the defendant
       guilty of the charges the jury would have to find that she knowingly, willfully and
       unlawfully committed the offenses and gave the jury the definition of knowingly,
       gave the jury the definition of willfully, and gave the definition of unlawfully.

       This court’s explanation in Tarwater, a tax fraud case, is also instructive:

       The district court instructed the jury on the specific intent required for a conviction
       for filing false tax returns by stating:

               The word “willfully,” as used in this statute, means a voluntary,
               intentional violation of a known legal duty. In other words, the
               defendant must have acted voluntarily and intentionally and with the
               specific intent to do something he knew the law prohibited, that is to
               say, with intent either to disobey or to disregard the law. Negligent
               conduct is not sufficient to constitute willfulness.

               The jury’s conclusion that Tarwater acted willfully would necessarily
               negate any possibility of “good faith” in filing false tax returns.

Id. (internal citations omitted); see also United States v. Pomponio, 429 U.S. 10, 13 (1976) (per

curiam) (holding in a tax fraud case that a good-faith instruction was unnecessary because the trial


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judge adequately instructed the jury on willfulness). Thus, Carter’s claim fails because the jury’s

finding that she had the required mens rea for a conviction negated any possibility of a good-faith

defense.

                                      B. Dismissal of Witness

       Carter argues that the district court erred when it limited the direct examination of Kenyon

Johnson (“Johnson”) on relevancy grounds. This court reviews a district court’s evidentiary rulings

for an abuse of discretion. United States v. Wagner, 382 F.3d 598, 616 (6th Cir. 2004) (citing United

States v. Bartholomew, 310 F.3d 912, 920 (6th Cir. 2002)). Specifically, “‘[b]road discretion is

given to district courts in determinations of admissibility based on considerations of relevance . . .

and those decisions will not be lightly overruled.’” Id. (quoting United States v. Jackson-Randolph,

282 F.3d 369, 376 (6th Cir. 2002)).

       Johnson testified for the defense that he was a realtor who specialized in refurbishing

properties, and that Carter worked as the general contractor for some of his projects. Early in his

testimony, the Government objected to his testimony on relevancy grounds. After some discussion,

Carter’s counsel conceded that Johnson had no personal knowledge of the conduct at issue at trial

or of the funds from Cheng’s Comerica Bank account. After a proffer by Carter’s counsel, the

district court dismissed Johnson as a witness. The court gave the following explanation for

Johnson’s dismissal:

       The offense here regarding the Donna Cheng account relates to discrete monies that
       were withdrawn from the Donna Cheng account, and allegedly the defendant
       participated by identifying, by making arrangements with the witness from Comerica
       that that account be opened at Comerica and money be put in it and then monies were
       traced from that account to People's Bank and Huntington Bank, and those are
       discrete transactions. The fact that the defendant was engaged otherwise in a
       legitimate business is no arguable -- has no arguable relevance to the charges.


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Carter contends that the district court should have allowed Johnson to continue testifying because

his testimony was relevant to her good-faith argument. Specifically, she maintains that it helped

establish that it was customary for Carter to receive large amounts of money into her accounts for

refurbishment projects, which she claims supports her position that she was a passive recipient of

these funds.

       The dismissal was not an abuse of discretion because, as the district court stated, the legality

of Carter’s other business dealings was not at issue. Johnson’s testimony is not relevant to the

determination of whether Carter conspired to commit access device fraud, committed access device

fraud, conspired to commit bank fraud, or conspired to commit wire fraud, which is where her good-

faith defense could find traction. Thus her claim fails.

       Moreover, even if the district court abused its discretion, the error was harmless because

Carter presented her good-faith argument during her own testimony, making it unlikely that the error

materially affected the verdict. See United States v. Mackey, 265 F.3d 457, 463 (6th Cir. 2001)

(errors regarding the admission of evidence are subject to harmless error analysis).

                                           C. Sentence

       Carter argues that the district court imposed a sentence that was unreasonable and

inconsistent with 18 U.S.C. § 3553(a) and United States v. Booker, 543 U.S. 220 (2005). “Pursuant

to the Supreme Court’s mandate in Booker, we review for reasonableness a sentence imposed under

an advisory guidelines scheme.” United States v. Dixon, 194 F. App’x 344, 347 (6th Cir. 2006)

(citation omitted). When this court reviews a sentence, it ensures that the district court committed

no significant procedural errors and then considers the substantive reasonableness of the sentence




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imposed. United States v. Grossman, 513 F.3d 592, 595 (6th Cir. 2008) (quoting Gall v. United

States, 552 U.S. 38, 51 (2007)).

         Carter’s arguments focus on the substantive reasonableness of her sentence, so this court need

not consider whether the sentence was procedurally reasonable. United States v. Vallellanes, 339

F. App’x 579, 582 (6th Cir. 2009). “A sentence is substantively unreasonable if the district court

select[s] the sentence arbitrarily, bas[es] the sentence on impermissible factors, fail[s] to consider

pertinent § 3553(a) factors or giv[es] an unreasonable amount of weight to any pertinent factor.” Id.

(quoting United States v. Walls, 546 F.3d 728, 736 (6th Cir. 2008)). There is a rebuttable

presumption of reasonableness if the sentence falls within the properly calculated Guidelines range.

United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en banc).

                                      1. Sentencing Disparity

         Carter argues that the district court erred when it refused to consider the disparity between

her sentence and Wilkerson’s, pursuant to § 3553(a). A wide disparity does exist between these two

sentences: Wilkerson had a Guidelines range of 15-21 months, but was sentenced to one day in

prison with credit for one day served and 3 years of supervised release. Carter had a guidelines range

of 37-46 months, and was sentenced to 37 months in prison. Nevertheless, the district court did not

abuse its discretion when it refused to compare the two sentences. As previously explained by this

court:

         Subsection 3553(a)(6) is concerned with national disparities among the many
         defendants with similar criminal backgrounds convicted of similar criminal conduct.
         It is not concerned with disparities between one individual’s sentence and another
         individual’s sentence, despite the fact that the two are co-defendants. . . .

         A district judge, however, may exercise his or her discretion and determine a
         defendant's sentence in light of a co-defendant’s sentence. That action, however,


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       would be a discretionary one because the district court is not required to consider that
       type of disparity under § 3553(a)(6).

United States v. Simmons, 501 F.3d 620, 623-24 (6th Cir. 2007) (citations omitted). Accordingly,

Carter’s argument fails because the reasonableness of Wilkerson’s sentence is not before the court.

See United States v. Burley, 241 F. App’x 290, 299-300 (6th Cir. 2007).

       Although the above analysis is dispositive, it is worth noting that there are many reasonable

explanations for the sentencing disparity. Unlike Carter, Wilkerson confessed and cooperated with

the Government, she was only convicted on the third count of the indictment, she did not have an

extensive criminal history, and she was recruited into the conspiracy by Carter.

                                  2. Leadership Enhancement

       Carter appeals the 2-point enhancement to her offense level because she was “an organizer,

leader, manager, or supervisor” in the subject “criminal activity.” U.S.S.G. § 3B1.1(c)). As an

initial matter, there is an open question with regard to the standard of review:

       As for the district court’s § 3B1.1 legal conclusions, this court has not settled on the
       appropriate standard–de novo review or, in light of Buford v. United States, 532 U.S.
       59, 121 S.Ct. 1276, 149 L.Ed.2d 197 (2001), something more deferential. United
       States v. Young, 553 F.3d 1035, 1052 (6th Cir.2009) (noting “confusion within this
       circuit concerning the standard of review that should be applied to a district court's
       decision to impose a leadership enhancement under § 3B1.1”); see also United States
       v. Ashiq, 307 Fed. App’x. 913, 915-16 (6th Cir.2009) (same).

United States v. Elliot, 327 F. App’x 540, 544 (6th Cir. 2009). In Elliot, the court “bypass[ed]

settling the standard of review because even under de novo review [the defendant’s] challenge

fail[ed].” Id. Likewise, we decline to resolve this dispute because Carter’s claim fails under either

standard of review.




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       Here, the focus of Carter’s argument is not that the 2-point enhancement was unreasonable

on its own; her argument is that it was unreasonable because neither Wilkerson nor Beidoun received

such an enhancement. As discussed above, the reasonableness of the sentences received by Carter’s

co-defendants is not at issue. Nevertheless, even if her argument is construed to mean that

Wilkerson and Beidoun were the actual leaders of the conspiracy, it still fails because it was

established at trial that Carter led the conspiracy. She received most of the funds, recruited

Wilkerson, and planned how to execute the fraud.

                                            3. Restitution

       Carter argues that her restitution amount was unreasonable when compared to Wilkerson’s

The court did not order Wilkerson to pay restitution, even though she testified at trial that she

received approximately $30,000 for her services; in contrast, the court ordered Carter to pay to

Charter One Bank a restitution amount of $116,503.67—the same amount as Beidouin. Again, the

reasonableness of Wilkerson’s sentence is not at issue. Additionally, the award of restitution and

the amount awarded were reasonable because Carter was involved in two fraudulent schemes that

led to losses of more than $201,300, and she received a substantial portion of that money. See

United States v. Bogart, 576 F.3d 565, 569 (“the amount of restitution ordered by the district court

is reviewed for an abuse of discretion.”)

                                    4. Familial Obligations

       Carter argues that the district court erred when it did not give a downward departure because

she is the primary caregiver of her three children, but mentioned Wilkerson’s “extraordinary family

obligations” as a reason for her lower sentence. As already discussed, the reasonableness of

Wilkerson’s sentence is not an issue before the court. Furthermore, the district court acted within


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its discretion when it did not impose a downward departure for familial reasons after giving Carter

the opportunity to argue in favor of a downward departure. United States v. Husein, 478 F.3d 318,

326 (6th Cir. 2007) (mentioning that such downward departures are not only discretionary, but also

discouraged). Although it is unfortunate that Carter has made choices that will separate her from her

children, this reality is not unusual. In fact, it could have been clear error if the district court had

issued a downward departure. See United States v. Holmes, 983 F.2d 1069 (table), 1992 WL

393583, at *7 (6th Cir. Dec. 31, 1992) (per curiam) (holding that despite the defendant’s status as

the sole supporter of his wife and three children, the district court erred when it gave a downward

departure for familial obligations because “departure downward in sentencing is not justified [for

family reasons] except in unusual circumstances”).

                   5. Tether and Complying with the Directives of the Court

        Carter argues, without any supporting case law, that the court erred when it refused to issue

a downward departure for the 241 days she spent on tether prior to trial and for her compliance with

“the directives of the Court.” With regard to the tether argument:

        Under 18 U.S.C. § 3585(b), “[a] defendant shall be given credit toward the service
        of a term of imprisonment for any time he has spent in official detention prior to the
        date the sentence commences” in two situations: “(1) as a result of the offense for
        which the sentence was imposed; or (2) as a result of any other charge for which the
        defendant was arrested after the commission of the offense . . . .”

United States v. Carpenter, No. 07-4496, 2009 WL 4981682, at *4 (6th Cir. Dec. 22, 2009).

However, there is no case law that suggests that time on tether can qualify as service of a term of

imprisonment under the statute, and there is no plausible argument for why it would count. Carter’s

“directives of the court” argument, which she does not expound upon, is too vague to warrant

consideration, and is thus waived. See Dillery v. City of Sandusky, 398 F.3d 562, 569 (6th Cir. 2005)


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(“It is well-established that ‘issues adverted to in a perfunctory manner, unaccompanied by some

effort at developed argumentation, are deemed waived.’”).

                                  D. Improper Juror Selection

       Carter alleges in the “Summary of the Argument” section of her brief that “[the] district court

also erred when is [sic] excused the only black juror through questionable blind draw method, even

though defense counsel objected.” Carter has not adequately raised this issue. It is not discussed

anywhere else in her brief except for the above sentence and it was not mentioned at oral argument.

Therefore, it too is waived. See id.

                                         III. Conclusion

       For the foregoing reasons, we AFFIRM Carter’s conviction and sentence.




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