             Case: 12-15207     Date Filed: 11/18/2013   Page: 1 of 13


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-15207
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 1:11-cr-20701-JLK-2



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

ANJA KARIN KANNELL,
JOSEPH HARVEY,

                                                            Defendants-Appellants.

                          ________________________

                  Appeals from the United States District Court
                      for the Southern District of Florida
                         ________________________

                               (November 18, 2013)

Before WILSON, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      Anja Kannell and her husband, Joseph Harvey, appeal their convictions and

sentences for offenses they committed in a scheme to defraud disaster relief
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agencies. Kannell was convicted and sentenced to 159 months of imprisonment

for 12 counts of mail fraud, 18 U.S.C. § 1341, 13 counts of wire fraud, id. § 1343,

6 counts of access device fraud, id. § 1029(a)(2), (b)(1), and 4 counts of aggravated

identity theft, id. § 1028A(a)(1), (c)(5). Harvey received the same sentence

following his convictions for 13 counts of mail fraud, id. § 1341, 16 counts of wire

fraud, id. § 1343, 7 counts of access device fraud, id. § 1029(a)(2), (b)(1), and

4 counts of aggravated identity theft, id. § 1028A(a)(1), (c)(5). Kannell and

Harvey challenge the denial of Kannell’s motion to dismiss six counts of the

indictment; several evidentiary rulings; the treatment of a “claim number” as an

“access device”; and the calculation of the amount of intended loss and the number

of victims of their fraud for sentencing purposes. Kannell also challenges the

reasonableness of her sentence and, for the first time, an alleged violation of the

Speedy Trial Act and the warrantless search of a storage unit rented by Harvey.

We affirm.

      The district court did not err by denying Kannell’s motion to suppress

evidence recovered from her computers. Kannell extinguished any reasonable

expectation of privacy she had in the computers by allowing her daughter to

retrieve the machines from Kannell’s hotel room to sell them. See United States v.

Jacobsen, 466 U.S. 109, 117, 104 S. Ct. 1652, 1658 (1984). When later confronted

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by agents of the United States Postal Inspection Service, Kannell’s daughter had, at

the least, common authority over the computers to give them to the agents. See

United States v. Matlock, 415 U.S. 164, 170–71 & n.7, 94 S. Ct. 988, 993 & n.7

(1974). And the district court did not clearly err in finding that Kannell’s daughter

relinquished the computers voluntarily. See United States v. Long, 866 F.2d 402,

404–05 (11th Cir. 1989). Kannell’s daughter testified that she was

“uncomfortable” with the agents coming to her residence, but she acknowledged

that she consented in writing to a search of the computers and that she knew she

was free to end the encounter with the agents. Harvey, for the first time on appeal,

adopts Kannell’s argument regarding the motion to suppress, but Harvey waived

this issue by not raising it before trial and fails to provide any good cause to excuse

that waiver. See Fed. R. Crim. P. 12(b)(3); United States v. Lall, 607 F.3d 1277,

1288 (11th Cir. 2010).

      The district court also did not abuse its discretion by admitting evidence,

under Federal Rule of Evidence 404(b), about Kannell and Harvey’s involvement

in similar, uncharged fraudulent activities. During the investigation, agents

obtained claim forms showing that Kannell and Harvey filed about 200 fraudulent

applications for unemployment relief with five disaster relief agencies using the

names of individuals whose identities Kannell and Harvey had stolen. The agents

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also obtained records of bank accounts controlled by Kannell and Harvey

establishing that they had made numerous deposits of fraudulently obtained federal

income tax refunds and disaster relief payments. Agents later arrested Kannell and

Harvey and seized from their automobile numerous notebooks, claim forms, lists,

computer disks, and more than 50 access devices that contained stolen personal

identification information used to file false relief forms and income tax returns.

This evidence was relevant to prove that Kannell and Harvey knew how to file

fraudulent claims for disaster relief, were familiar with using stolen identities, and

intended to steal and misuse personal identification information for personal gain.

See United States v. Brown, 665 F.3d 1239, 1248 (11th Cir. 2011). And the

district court eradicated “[a]ny possible unfair prejudice” by instructing the jury

during the trial and before deliberations that it could consider the noncharged

conduct only as proof of Kannell and Harvey’s intent and motive to commit the

charged offenses. See United States v. Spoerke, 568 F.3d 1236, 1251 (11th Cir.

2009).

      The district court also did not err by refusing to dismiss six counts of the

indictment charging Kannell and Harvey for defrauding Job Service North Dakota

and the New York State Department of Labor. Kannell argues, and Harvey adopts

the argument on appeal, that the prosecutor violated their right to due process

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under the Fifth Amendment by indicting them for the six offenses without

sufficient proof, but “a grand jury indictment that is valid on its face may not be

challenged on the ground that the grand jury acted on the basis of inadequate or

incompetent evidence,” In re Grand Jury Proceedings, 142 F.3d 1416, 1425 (11th

Cir. 1998). Kannell and Harvey base their argument on the failure of the

prosecutor to produce a transcript of specific portions of Postal Inspector Claudia

Angel’s testimony, but a transcript was never produced because the trial reporter’s

recording equipment malfunctioned. Although grand jury “proceedings must be

recorded by a court reporter or by a suitable recording,” the “validity of a

prosecution is not affected by the unintentional failure to make a recording.” See

Fed. R. Crim. P. 6(e)(1). Kannell and Harvey argue, for the first time on appeal,

that they were “hampered” in their ability to cross-examine Inspector Angel, but

the Sixth Amendment entitles a defendant “only to an opportunity for effective

cross-examination, not cross-examination that is effective in whatever way, and to

whatever extent, the defense might wish.” Mills v. Singletary, 161 F.3d 1273,

1288 (11th Cir. 1998) (quoting United States v. Frost, 61 F.3d 1518, 1525 (11th

Cir. 1995)). Kannell and Harvey also argue that the prosecutor violated the “spirit”

of the Jencks Act, but the prosecutor was not required to produce a transcript that,

without dispute, was never in its possession. See United States v. Naranjo, 634

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F.3d 1198, 1211 (11th Cir. 2011). Kannell further argues, for the first time, about

the violation of her right to effective assistance of counsel and the rule of lenity,

but we will not consider these arguments because they are raised for the first time

in Kannell’s reply brief. See United States v. Lopez, 649 F.3d 1222, 1246 (11th

Cir. 2011).

      Kannell argues, for the first time, that the district court violated the Speedy

Trial Act by sua sponte continuing the date for her trial without determining that

the continuance served the ends of justice or outweighed her right to a speedy trial,

see 18 U.S.C. § 3161(h)(7), but Kannell waived this argument. The Act provides

that a defendant is entitled to have her indictment dismissed if she is not tried

within 70 days from the filing of the indictment, 18 U.S.C. § 3161(c)(1), but she

waives the right to contest the timeliness of the prosecution by failing to “move for

dismissal prior to trial,” id. § 3162(a)(2). Because Kannell failed to challenge the

continuance earlier, the issue is not properly before us on appeal. See United

States v. Ambrose, 707 F.2d 1209, 1213 (11th Cir. 1983).

      Kannell also, for the first time, argues that the district court plainly erred by

admitting into evidence items recovered from a storage facility because they were

obtained without a warrant in violation of the Fourth Amendment. Kannell waived

this argument because she moved to exclude the items solely under Rule 404(b)

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and did not object when they were admitted into evidence. See United States v.

Miller, 22 F.3d 1075, 1080 (11th Cir. 1994) (refusing to consider “grounds for

suppression . . . [that] were not meaningfully presented to, and thus not addressed

by, the district court”). In the alternative, Kannell cannot establish plain error

because the undisputed evidence established that a private individual transferred

the items in the storage unit to law enforcement. Nydia Cedillo, the manager for

the storage facility, testified without dispute that she auctioned off Harvey’s

storage unit after he failed to pay several months’ rent on the unit, despite agreeing

to pay the rent after being arrested; the winning bidder gave Cedillo some items

from the unit; and Cedillo delivered those items to Investigator Angel. The Fourth

Amendment “proscrib[es] only governmental action; it is wholly inapplicable to a

search or seizure, even an unreasonable one, effected by a private individual not

acting as an agent of the Government or with the participation or knowledge of any

governmental official.” Jacobsen, 466 U.S. at 113–14, 104 S. Ct. at 1656 (internal

quotation marks and citation omitted). No Fourth Amendment violation occurred

because Cedillo, a private individual, delivered the items to Investigator Angel.

      The district court did not err by denying Harvey’s and Kannell’s motions to

acquit them of five charges of access device fraud related to the Deepwater

Horizon oil spill. Harvey and Kannell argue that the claim numbers they

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fraudulently obtained from the Gulf Coast Claims Facility did not qualify as

“access devices” because the claim numbers did not give them access to anything

of value, but we disagree. The term “access device” is broadly defined to include

an “account number[] . . . or other means of account access that can be used, alone

or in conjunction with another access device[] to obtain money, . . . or that can be

used to initiate a transfer of funds.” 18 U.S.C. § 1029(e)(1). Shandarese Garr, the

manager for the Gulf Coast Facility, testified that claimants received unique claim

numbers used to process and to service their claims for disaster relief and then

directed payment by wire transfer or mail by providing the claim number in

combination with another access device, such as a social security number. And

Robert Passero, a fraud analyst for the Postal Inspection Service, testified about

how the claim numbers assigned by the Facility “function[ed] as an access device”

and how Harvey and Kannell used the claim numbers to have disaster relief

payments deposited into accounts they controlled at the Security Services Federal

Credit Union. Because the evidence established that Harvey and Kannell used the

claim numbers fraudulently to obtain money and to initiate transfers of funds, see

id., a jury could have reasonably found that the claim numbers qualified as access

devices.

      The district court did not clearly err in enhancing Harvey and Kannell’s base

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offense level for having more than 50 victims. The Sentencing Guidelines provide

a four-level increase in a defendant’s base offense level if his offense involved 50

or more victims. United States Sentencing Guidelines Manual § 2B1.1(b)(2)(B)

(Nov. 2011). “[I]n a case involving means of identification[,] victim means (i)

[“any person who sustained any part of the actual loss,” id. § 2B1.1 cmt. n.1]; or

(ii) any individual whose means of identification was used unlawfully or without

authority.” Id. § cmt. n.4(E). Although the parties argued at the sentencing

hearing about whether persons had a pecuniary loss to qualify as victims under

subsection (i), the district court based its decision on the definition of victims

provided in subsection (ii). When Kannell argued that the persons identified by the

government “didn’t incur any pecuniary harm,” the district court responded that

the persons had suffered “the theft of identity.” Later, the district court overruled

Harvey and Kannell’s objection to the enhancement based on its finding “that the

actual number of victims who had their identity actually stolen, or were in the

process of being stolen, exceeds 600 . . . [based on] the evidence of the notebooks”

in which Kannell had kept a record of their false claims. Harvey and Kannell

argue that the prosecutor failed to prove that the notebooks contained names of

actual individuals, but the district court was entitled to rely on undisputed factual

statements in the presentence investigation report that Harvey and Kannell stole

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“other people’s identities” to file fraudulent claims and that those victims fit a

“common profile.” See Fed. R. Crim. P. 32(i)(3)(A) (“At sentencing, the court . . .

may accept any undisputed portion of the presentence report as a finding of fact.”).

For the first time in their reply briefs, Harvey and Kannell argue that applying the

definition of “victim” in subsection (ii) violates the Ex Post Facto Clause, but our

long-standing precedent precludes defendants from raising even constitutional

“issue[s] for the first time in a reply brief,” United States v. Magluta, 418 F.3d

1166, 1185 (11th Cir. 2005).

      The district court also did not clearly err in determining that Harvey and

Kannell intended to inflict a loss of more than $2.5 million. During trial, claims

handlers for the five disaster relief agencies testified about the approximately 200

suspicious claims filed by Harvey and Kannell. Robert Passero, a fraud analyst for

the Service, testified about how Harvey and Kannell filed fraudulent claims for

disaster unemployment relief; fraudulently obtained federal income tax refunds;

and traced the fraudulently obtained funds to deposits Harvey and Kannell made in

numerous bank accounts. Before the sentencing hearing, Passero filed an affidavit

to which he attached a chart that described each fraudulent claim for disaster

unemployment relief, its amount, and whether the claim corresponded to an

intended or actual loss. The chart showed that Harvey and Kannell filed false

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claims for $1,205,114 in disaster relief for the Deepwater Horizon oil spill;

$836, 912 for flooding in North Dakota; $260,520 for relief in Louisiana after

Hurricanes Gustav and Ike; $246,408.34 for flooding in Mississippi; and $71,998

in New York after Tropical Storm Irene. Although Harvey and Kannell were not

indicted for all their claims for disaster relief, the uncharged claims constituted

relevant conduct, see United States v. Hamaker, 455 F.3d 1316, 1336 (11th Cir.

2006), and the district court could consider that conduct in making a reasonable

estimate of the loss, U.S.S.G. § 2B1.1 cmt. n.3(C). Harvey and Kannell argue that

the government used the maximum possible amount for each fraudulent claim, but

the claims handlers for the disasters in North Dakota, Louisiana, and New York

testified about using lower weekly benefits for some false claims and higher

benefits for other claims. Even if we were to assume that the government used the

maximum possible loss amount, the loss calculation would still be reasonable. The

district court was entitled to find that, to support their lavish lifestyle, Harvey and

Kannell intended to “get as much money as they possible could from the claims

they were submitting,” but “were apprehended before all of the losses and the

monies could be paid.” See United States v. Willis, 560 F.3d 1246, 1251 (11th Cir.

2009) (affirming an estimate of loss based on “specific circumstantial evidence—

mainly Defendant’s course of conduct—to calculate the loss Defendant intended to

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cause”). The district court did not clearly err in enhancing Harvey’s and Kannell’s

base offense levels by 18 points for intending to cause a loss between $2.7 million

and $7 million. See U.S.S.G. § 2B1.1(b)(1)(J).

      The district court also did not abuse its discretion by sentencing Kannell to

159 months of imprisonment. The district court found that Kannell submitted

hundreds of fraudulent claims to disaster relief agencies and the Internal Revenue

Service with the “inten[t] [to cause a] loss of greater than $2.5 million”; stole the

identification information of more than 600 persons; and achieved her crimes using

“multiple bank accounts, multiple alias names, . . . access devices and fraudulent

mail and sophisticated computer work.” Kannell moved for a downward variance

based on her lack of a criminal history and the need to provide for her child, but

the district court reasonably determined that “[t]he seriousness of [Kannell’s]

offense outweighed [those] issues.” The district court reasonably determined that a

sentence around the middle of Kannell’s advisory guideline range of 135 to 168

months of imprisonment would best address the statutory sentencing factors. See

18 U.S.C. § 3553(a). And the district court was entitled to consider conduct of

which Kannell was acquitted, see United States v. Culver, 598 F.3d 740, 752 (11th

Cir. 2010), and the charges brought against her husband as being “reasonably

foreseeable . . . in furtherance of [their] jointly undertaken criminal activity,”

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U.S.S.G. § 1B1.3(a)(1)(B). Kannell argues that the consideration of acquitted

conduct violated her right to due process under the Fifth Amendment and the

Double Jeopardy Clause of the Sixth Amendment, but her arguments are

foreclosed by our holding in Culver that relying on acquitted conduct does not

“violate [a defendant’s] constitutional rights.” 598 F.3d at 753. Kannell also

argues that she should have received a lesser sentence than her husband, but the

evidence established that she equally participated in the fraudulent conduct.

Kannell’s sentence is reasonable.

      We AFFIRM Kannell’s and Harvey’s convictions and sentences.




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