US v. Savage: A conspiracy of folks recruited a Capital One Bank teller to provide them with customer account information, and developed a scheme to defraud the bank. The teller, Ms. Conteh, went to trial and was later convicted; she was sentenced to 64 months of imprisonment and ordered to pay $36k in restitution. She decided to enter a proffer agreement with the government, to provide information about the conspiracy on condition that the information would not then be used against her. Conteh provided investigators with evidence about Savage, which lead to the instant case against him.
Savage went to trial on charges of bank fraud and aggravated identity theft and a jury convicted him. He appealed on several grounds: the district court erred in denying his motion for judgment of acquittal based on insufficient evidence of bank fraud conspiracy; the district court erred in failing to conduct an in camera review to determine whether some material required disclosure pursuant to the Jencks Act or Brady; the district court erred by not providing his requested jury instruction on accomplice testimony and by giving the jury a copy of an instruction on aiding and abetting liability; and lastly, the district court erred in its application of the guidelines on several grounds. The Fourth Circuit affirmed the convictions and sentence.
The Fourth Circuit considered each of Savage’s issues, starting with his challenge to the sufficiency of the evidence of a bank fraud conspiracy. Largely reliant on Conteh’s testimony, the government showed Savage’s involvement in the conspiracy and the steps he took to carry out the fraud. The Fourth Circuit found that Conteh’s testimony alone was sufficient to support Savage’s conviction for bank fraud.
Savage argued that material gathered by the government in its meetings with Conteh was subject to disclosure under either the Jencks Act or Brady. The material involved was the prosecutor’s personal notes. The Fourth Circuit discussed how before a court must conduct an in camera review to determine whether a Brady violation has occurred, the defendant must make a “plausible showing” that the government’s information was material and favorable to the defense. Further, a Jencks Act review is only required if the defendant provides a proper foundation. Here, the Fourth Circuit held that Savage did not even attempt to argue a Jencks Act statement existed, or that the defense was entitled to review the prosecutor’s notes; he merely asserted that inconsistent statements might exist, which the Fourth Circuit found insufficient to require the court to conduct an in camera review.
Regarding the jury instructions, the Fourth Circuit found that the district court “substantially covered” Savage’s requested instruction on accomplice testimony because it warned the jury that it had to scrutinize all witness testimony and to take prior inconsistent statements into account. It found no abuse of discretion. Also, during deliberations, the jury requested a copy of all the jury instructions, which request the district court rejected, because the full copy of instructions contained the “judge’s interlineations.” However, the court did provide the jury with a copy of the aiding and abetting liability instruction without any interlineations. Savage argued that this caused him prejudice by emphasizing the based of conviction without taking measures to dilute any undue suggestiveness. The Fourth Circuit found no abuse of discretion, finding that the court has discretion whether and how to respond to jury questions.
At sentencing, Savage received several enhancements: for obstruction of justice; for amount of loss; for the use of sophisticated means; and for his role as manager or supervisor. Savage reportedly gave perjured statements during his interviews with pretrial services (e.g. failing to give his address in Ohio where he allegedly resides, while providing that he lives in Maryland; concealing international travel to Sierra Leone where members of his family reside). The Fourth Circuit found no error the application of this enhancement, as only one penjurious statement is necessary to apply this one. One the amount of loss, the district court applied the same loss calculation for Savage as it used in Conteh’s sentencing, and the Fourth Circuit found that the sentencing court need only make a “reasonable estimate of loss, given the available information” and found no error. The Fourth Circuit found that the use of sophisticated means enhancement was not in error by Savage taking several steps to conceal his own identity and distance himself from the scheme, and having the means to store money in Africa and disguising the source of his money. Finally, the enhancement for managerial role was not in error because of Conteh’s testimony about how he managed her activities, and it was uncontested that the scheme involved five or more participants.