Submitted: January 10, 2018
from United States District Court for the Western District of
Arkansas - El Dorado
LOKEN, BEAM, and KELLY, Circuit Judges.
Atkins appeals following a guilty verdict and sentence on one
count of conspiracy to commit wire fraud in violation of 18
U.S.C. § 1343 and three counts of money laundering in
violation of 18 U.S.C. § 1957(a) and (d). Atkins
challenges the district court's denial of his motion for
judgment of acquittal, comments made by the government during
trial, and various aspects of his sentencing. For the reasons
stated herein, we affirm.
a grand jury charged Atkins with taking part in a scheme from
January 2011 through March 2012 to defraud Georgia Pacific, a
company that operated a paper mill in Arkansas. The premise
of the alleged scheme was to obtain money from Georgia
Pacific by falsely presenting scale tickets for non-existent
pulpwood loads that resulted in payments to Atkins. The
indictment alleged that Atkins, an independent contractor who
delivered wood supplies to the Georgia Pacific paper mill,
caused an employee at the mill who worked as a
scaler/security guard in the scale house, to generate these
false scale tickets. This employee, Mary Baker, would then
receive a small kickback for her role in the scheme. Because
wire transmissions and bank transfers were involved, the
grand jury charged Atkins with one count of conspiracy to
commit wire fraud and three counts of money laundering.
Following a seven-day jury trial wherein Atkins represented
himself under the supervision of an appointed attorney, the
jury returned guilty verdicts on all counts.
Motion for Judgment of Acquittal
close of the government's case at trial, Atkins moved for
judgment of acquittal on all counts, which the district court
denied. On appeal, Atkins claims that there was insufficient
evidence supporting convictions on each count and that the
district court should have thus granted his motion.
"This court reviews de novo the denial of a motion for
judgment of acquittal, viewing the evidence most favorably to
the guilty verdict, resolving all evidentiary conflicts in
favor of the government, and accepting all reasonable
inferences from the evidence." United States v.
Morris, 817 F.3d 1116, 1119 (8th Cir. 2016).
the conspiracy conviction, the basis of Atkins' argument
on appeal (and at trial) is that the government's primary
witness, Atkins' alleged co-conspirator Mary Baker, was
not reliable. However, viewing the evidence in the light most
favorable to the guilty verdict, the government presented
ample evidence of Atkins' participation in the
conspiracy. To support a conspiracy conviction, the
government was required to show: (1) an agreement between
Atkins and one or more persons to commit wire fraud; (2)
Atkins knew of the agreement; and (3) Atkins intentionally
joined the agreement. United States v. Foster, 740
F.3d 1202, 1205 (8th Cir. 2014). We do not "reweigh the
evidence or assess the credibility of witnesses."
United States v. Whitlow, 815 F.3d 430, 435 (8th
Cir. 2016). Mary Baker's testimony, supported by
recovered text messages, described how Atkins approached her
and how the two carried out the scheme. The testimony of the
investigating corporate security officer who discovered the
double-weighs, viewed favorably in light of the guilty
verdict, was also more than sufficient to support the
conviction in the case. Thus, the district court did not err
in denying Atkins' motion for judgment of acquittal at
the close of the government's case.
money laundering charges (counts two through four), Atkins
argues that the government failed to present sufficient
evidence on two of the elements. Precisely, he claims the
government failed to prove the transactions were derived from
wire fraud and that he knew the funds involved proceeds of a
criminal offense. Again, he bases this claim largely on his
assertion that Mary Baker's testimony was unreliable, a
credibility determination we do not assess on appeal.
Id. Carefully reviewing the case presented by the
government at the time of Atkins' motion, there is no
support for his arguments. The testimony of Mary Baker, along
with that of Atkins' accountant, his daughter, and the
other government witnesses, as well as the evidence
supporting the monetary transactions, sufficiently met the
government's burden on these charges.
count three particularly, Atkins argues, for the first time
on appeal that the government failed to establish that the
transfer of funds was of a value greater than $10, 000
because the government improperly aggregated separate
transactions to arrive at the requisite $10, 000 amount
required by statute to support the charge. He argues the
plain language of 18 U.S.C. § 1957 prohibits this
practice and the district court should have dismissed this
count sua sponte. Because this contention is raised for the
first time on appeal, we review it for plain error only.
United States v. Drapeau, 827 F.3d 773, 777 (8th
Cir. 2016). There was no error, much less plain error here.
In the indictment, count three charges Atkins with a
violation of 18 U.S.C. § 1957(a) and (d) by causing
cashier's checks in the amount of $9, 000 and $4, 000 to
be issued from First National Bank in Crossett, Arkansas,
which checks purchased a $13, 000 tractor, when said funds
consisted of the proceeds of the specified unlawful activity
of wire fraud. The violative transaction was Atkins'
purchase of a $13, 000 tractor. The fact that Atkins tried to
disguise his payment by purchasing separate but consecutive
cashier's checks on the same day and then orchestrated
the payment for the tractor in two installments with the
separate checks is of no significant consequence and the
district court did not commit plain error by not dismissing
this count sua sponte.
B.Credibility of ...