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United States v. White

United States Court of Appeals, Sixth Circuit

January 13, 2017

United States of America, Plaintiff-Appellee,
v.
Sandra Maxine White, Defendant-Appellant.

          Argued: December 1, 2016

         Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:13-cr-00222—Paul Lewis Maloney, District Judge.

          ARGUED: Matthew T. Nelson, WARNER, NORCROSS & JUDD LLP, Grand Rapids, Michigan, for Appellant.

          Hagen W. Frank, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.

          ON BRIEF: Matthew T. Nelson, C. Ryan Grondzik, WARNER, NORCROSS & JUDD LLP, Grand Rapids, Michigan, for Appellant.

          Hagen W. Frank, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.

          Before: MOORE and CLAY, Circuit Judges; HOOD, District Judge. [*]

          OPINION

          KAREN NELSON MOORE, Circuit Judge.

         Sandra White ("White") and her husband Joseph White operated a travel agency. In order to obtain low airline fares for the agency's clients, White routinely booked military-rate travel for her non-military-member clients. When airlines became suspicious of White's practices, and asked her for proof of her clients' military status, White manufactured fake military identification cards and sent them to the airlines as alleged proof of her clients' military credentials. The airlines suspected that the military identification cards were forged and contacted investigators. After a jury trial, White was convicted of mail fraud and aggravated identity theft, and sentenced to a total of ninety-four months of imprisonment.

         White now challenges her conviction and sentence on the basis that (1) the district court read an improper definition of the term "use" into the aggravated identity theft statute; (2) the district court abused its discretion in refusing to admit certain evidence of White's intention to repay some of the airlines' losses; and (3) the district court erred in calculating the amount of White's victims' losses. For the reasons set forth below, we AFFIRM the judgment of the district court.

         I. FACTS AND PROCEDURE

         Defendant Sandra White and her husband Joseph White owned and operated Corporate Travel Consultants/Travel by Design, Inc. ("CTC") from 1989 through 2011. R. 89 (Stipulation) (Page ID #480). The agency's accreditation was revoked in 2003 after audits conducted by United Airlines determined that CTC generally and White specifically had engaged in fraudulent ticketing schemes that cost the airline nearly $100, 000 in airfares. R. 112 (Presentence Investigation Report ("PSR")) (Page ID #572). White nonetheless continued her work as a travel agent as a subcontractor for other accredited travel agencies throughout the country, enabling her to maintain her practice of acquiring and selling airfares. Id. White continued to obtain fraudulent ticket fares for her clients by providing false information about her clients' ages, possession of various discount certificates, and military status. Id. As a travel agent, White had an opportunity to obtain additional revenue through commissions, service fees, and additional bookings. R. 143 (Trial Tr. Vol. 4 at 735) (Page ID #1477). At trial, White's victims testified that she charged service fees and other airfare directly to her clients' credit cards, sometimes for persons other than those specific clients, and sometimes without their permission. R. 142 (Trial Tr. Vol. 3) (Page ID #1264, 1343-44).

         When travel agencies violate an airline's fare policy in a manner that causes the airline financial loss, the airline issues Agency Debit Memoranda ("ADM") detailing the loss and requiring payment to the airline. R. 112 (PSR) (Page ID #571). An operator of one of the travel agencies with whom White subcontracted testified at trial that within two years of working with White, the agency received more than $100, 000 in ADMs based on airfare that White booked with Delta and United Airlines. R. 144 (Trial Tr. Vol. 5 at 894-95, 909, 913-14) (Page ID #1636-37, 1651, 1655-56). During one six-month period between January 1, 2010 and June 30, 2010, one of the travel agencies for which White was a subcontractor saw its percentage of sales resulting in ADMs increase from "[n]ot even a quarter of one percent, less than a half of a percent" to nearly fifteen percent. Id. at Page ID #1654-57.

         The fraudulent scheme that is largely at issue in this case concerns White's practice of securing lower rates by falsely informing airlines that her clients were members of the United States Armed Forces. R. 143 (Trial Tr. Vol. 4) (Page ID #1497-99); R. 144 (Trial Tr. Vol. 5) (Page ID #1656-57). Because of the volume of White's bookings, airlines and other travel agencies became suspicious. When White was asked by her subcontracting partners to produce proof that her customers qualified for military discounts, she created false Armed Forces Identification ("AFID") cards using customers' real names and actual dates of birth. R. 143 (Trial Tr. Vol. 4) (Page ID #1500-1501). The airlines determined that the cards White manufactured were fraudulent and subsequently notified the United States Secret Service. R. 139 (Trial Tr. Vol. 1) (Page ID #923-28).

         Sandra White was charged with wire fraud in a single-count Indictment on November 7, 2013. R. 1 (Indictment) (Page ID #1). On February 27, 2014, the Government filed a First Superseding Indictment charging White with wire fraud and aggravated identity theft. R. 2 (First Superseding Indictment) (Page ID #9). In addition, her husband, Joseph White, was charged. The Government offered the Whites a deal wherein White would plead guilty to the wire fraud count and Joseph White would accept a diversionary disposition. R. 31 (Plea Agreement) (Page ID #77). Joseph White refused the agreement, and the Whites proceeded toward trial. Two months before trial, White moved to dismiss Count Two, the aggravated identity theft count, which the government opposed. R. 53 (Mot. to Dismiss) (Page ID #190); R. 56 (Resp. in Opp.) (Page ID #215). The district court denied the motion. R. 148 (Mot. Hr'g) (Page ID #2160-61); R. 63 (Order) (Page ID #242). White filed a motion for reconsideration immediately before trial, R. 81 (Mot. for Reconsideration) (Page ID #453), and the district court again denied the motion to dismiss Count Two. R. 91 (Order) (Page ID #484); R. 139 (Trial Tr. Vol. 1) (Page ID #743- 745).

         During trial, White attempted to offer evidence about her repayment of some of the airlines' and travel agencies' losses that resulted from her scheme. The district court permitted White to examine witnesses about actual repayments that were made to victims; however, White was not permitted to delve into loss-recoupment negotiations that took ...


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