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United States v. Presendieu

United States Court of Appeals, Eleventh Circuit

January 19, 2018


         Appeals from the United States District Court for the Southern District of Florida D.C. Docket No. 1:15-cr-20032-DPG-1

          Before JORDAN, HULL and BOGGS, [*] Circuit Judges.

          HULL, Circuit Judge:

         After their guilty pleas, defendant Stanley Presendieu appeals his convictions and defendant Scarlee Valias Jean appeals her sentence. Having carefully reviewed the record and the parties' briefs, and with the benefit of oral argument, we (1) affirm Presendieu's convictions and (2) vacate Jean's sentence and remand for further proceedings.

         I. BACKGROUND

         This case involves an illegal check-cashing scheme in which both defendants participated. At the time of their guilty pleas, both defendants stipulated to factual proffers that outlined their crimes.

         A. Habib and Kwik Stop

         In their factual proffers, both defendants admit the following facts about their illegal check-cashing scheme with Husein Habib.

         From 2010 to 2014, Habib owned and operated Noor Enterprises of South Florida, LLC, which did business as Kwik Stop Food Store ("Kwik Stop"). At Kwik Stop, Habib cashed legitimate checks for customers. In addition, Habib provided illicit check-cashing services to defendants Presendieu and Jean, as well as others, in return for a percentage of the value of each check. Habib would cash checks for Presendieu and Jean, which they had unlawfully obtained and on which they had forged endorsements. To provide these illicit check-cashing services, Habib maintained business checking accounts at "FDIC insured financial institutions including Wachovia, Bank of America, and SunTrust."

         The defendants unlawfully obtained checks from a variety of sources. For example, Presendieu admitted that many of his checks were either "United States Treasury checks that had been stolen from the mail" or "Treasury or cashier's checks obtained through filing fraudulent tax returns that made false claims for refunds." Likewise, Jean admitted that she unlawfully obtained "mainly government checks" and that she would get "cashier's checks around tax season time."

         When cashing a check with Habib, the defendants forged the payee's endorsement, and Habib required the defendants to provide documents with falsified identification in the names of the payees listed on the checks. Habib scanned the falsified identification, [1] along with the forged endorsements on the checks themselves, and stored the images in his Kwik Stop computer records.

          In June 2013, unbeknownst to the defendants, federal law enforcement officers uncovered Habib's illegal check cashing, executed a search warrant on the premises of Kwik Stop, and seized a computer and various records. As a result, Habib agreed to cooperate with the investigation and made numerous audio-visual recordings of the defendants and other individuals cashing checks with forged endorsements and discussing the falsification of the payee-identification documents.

         B. Presendieu's Factual Proffer

         Throughout 2010 and 2011, codefendant Jason Miles brought Habib hundreds of unlawfully obtained checks with forged endorsements and counterfeit identification documents for the payees. Miles and Habib later had a falling out, and Miles introduced defendant Presendieu to Habib as a "resource for cashing illicit checks."

         As early as March 2012, defendant Presendieu used Habib's service to cash a variety of unlawfully obtained checks, including checks stolen from the mail and checks obtained through filing fraudulent tax returns. Many of the fraudulent tax refund checks that Presendieu cashed through Kwik Stop were from returns filed through B.D. Tax Services, a company registered to codefendant Latasha Pharr.

          At one of the recorded meetings, Presendieu warned Habib "not to talk to law enforcement, instructing him to keep his mouth shut and he'll be safe." In a later recording, Presendieu stated that he had checks to cash but still needed to "pay for 'faces, ' in the amount of $100 for each 'face' and $100 for the real driver's license number." At this meeting, Presendieu produced five United States Treasury checks. In a recording dated September 20, 2013, Presendieu told Habib that he would begin using identifications with real driver's license numbers and admitted that the numbers he had used in the past were not real.

         Habib also recorded a meeting on October 2, 2013, in which Presendieu presented a United States Treasury check in the amount of $17, 800 made payable to a victim identified in the indictment as "U.O." The following day, Presendieu returned with a counterfeit driver's license purportedly for U.O. and told Habib that the license number on the counterfeit identification was real. When Habib objected that the name was misspelled and the check was not endorsed, Presendieu forged U.O.'s signature on the back of the check. In an interview with federal agents, U.O. later confirmed that the signature was not his own, that he had not authorized Presendieu to endorse checks for him, and that the driver's license Presendieu presented was fake.

         On October 4, 2013, Habib recorded Presendieu's producing a Florida driver's license with the correct spelling of U.O.'s name and several additional

          United States Treasury checks. Habib again objected to the driver's license for U.O., noting that it had a "black guy's face on a Jewish name." Presendieu reviewed the additional checks and discussed the names and races he would make for each check's identification. Presendieu then discussed splitting the check proceeds with Habib on a 60/40 basis and advised that his contacts had more checks, amounting to at least $50, 000 in increments of less than $1, 000. On October 5, Presendieu provided copies of ten driver's licenses and endorsed a check made payable to a victim identified as "R.R."

         On October 7, 2013, Presendieu and Habib discussed how long they had known each other. Habib indicated that "in 2012, [Presendieu] gave him 300 checks and the bank rejected half of them because the real payees had not endorsed them." Presendieu recalled that the early checks he brought to Kwik Stop were cashier's checks and that he started bringing "statue" [United States Treasury] checks in the summer.

         On October 14, 2013, Presendieu introduced Habib to codefendant Jean. In Presendieu's presence, Jean explained to Habib her source for obtaining checks and the connections she had to conceal her fraudulent check-cashing activities.

         By June 2014, Habib began to make audio-visual and audio recordings of Latasha Pharr, who also brought unlawfully obtained checks to cash at Kwik Stop. In these recordings, Pharr discussed her previous relationship with Presendieu.

          Pharr mentioned checks that Presendieu brought to Kwik Stop to cash, referencing her role in the production of those checks and claiming that Presendieu failed to pay her for them.

         C. Jean's Factual Proffer

         In a separate factual proffer, Jean admitted that Habib recorded her engaging in illegal check-cashing activity. Jean's factual proffer also contains information, identical to that recounted above, about Habib and his methods for cashing unlawfully obtained checks.

         On October 14, 2013, the day of their initial meeting, Habib recorded defendant Jean saying that she had "partners that have tax fraud things going on." Jean also told Habib that she had "an ID guy who gets ID's to her so that nothing can be traced." Jean told Habib that she expected 70 percent of the proceeds from the cashed checks. When Habib suggested a meeting with his cousin who cashes checks, Jean responded that she did not want to take any risks. Later, in a recorded phone call on October 17, 2013, Presendieu informed Habib that Jean and her associate were scared because Habib's cousin "sound[ed] like he [was] the police."

         In a recorded phone call on October 24, 2013, Jean and Habib discussed- among other things-that Jean's "ID guy had returned to Pakistan and would not be back until February." They also discussed the size of the checks that Jean could bring to Habib, and Jean "assure[d] Habib that she [would] bring the right information for checks and correct identification."

         In a recorded meeting on October 25, 2013, a relative of Jean's brought Habib a check in the amount of $21, 366, made payable to an individual identified in the indictment as "J.W." When Habib complained that the endorsement signature on the check was different from the signature on the identification, the relative called Jean via speaker phone. During this call, Jean admonished her relative for referring to her as Scarlee instead of "Jasmine" or "Sky." Jean then verbally confirmed that "the social security number for the check [was] correct" and told Habib that "she won't go lower than [a] 60/40" split of the check's proceeds.

         Habib also recorded an October 28, 2013 meeting with Jean during which Jean presented four checks totaling $15, 000 and four Florida identification cards. For one of these checks, which was in the amount of $12, 000, Jean agreed to furnish a social security number.

         At another recorded meeting, on October 30, Jean confirmed that she "forwarded" the social security number for the $12, 000 check. Habib also returned the $21, 366 check payable to victim J.W., telling Jean that the amount payable was too large and that "the signatures [on the check and identification did] not match." Habib gave Jean partial payment for the other checks that had been cashed, and Jean discussed again "her source for identification documents." Jean also told Habib that she "does $20-30, 000 every week" in illicit checks and that she expected to have "a load of checks to cash" in December and January from a "tax season company."

         On November 6, 2013, Jean was recorded giving Habib six checks totaling $34, 500 and corresponding Florida identification cards. When Habib commented that the picture on one of the identification cards had been used before, Jean responded that "she [did] not think her ID people" would use a duplicate photo because "it would be dumb." Jean then described herself as "a boss, " but claimed that the "real boss" was in Atlanta. Jean then stated that she did not work for anyone and that she "pays people for checks and identification." Jean and Habib reviewed Jean's checks, and Habib noted that they totaled $34, 500.

         In another recorded meeting, on November 13, 2013, Jean expressed concern because someone walked by and took a picture of her vehicle's tag. Habib paid Jean $9, 000 for previous checks and asked her to initial a document showing that she received payment. Jean did not want to initial any documents. They then discussed Presendieu, and Habib told Jean that he would no longer do business with her because she was still connected to Presendieu.

         On November 15, 2013, Jean told Habib that her boss was coming to "straighten things out." Jean returned with codefendant Brian Deronceler, who described himself as a "boss" and explained that he was not associated with Presendieu. Deronceler produced four checks and corresponding Florida identification cards, and Habib told Deronceler that one of the identification photos had been used with another check. Nonetheless, Habib agreed that he would try to cash these checks.

         In her factual proffer, Jean stipulated that federal agents identified and interviewed a number of individuals whose names appeared on stolen United States Treasury checks that Jean had brought to Habib to cash. All of these victims confirmed that Jean was not authorized to possess their checks, cash those checks, or use their signatures.

         Because the defendants raise wholly different issues on appeal, we discuss their cases separately.


         Because Presendieu challenges his guilty plea, we review his indictment, his plea colloquy, Federal Rule of Criminal Procedure 11(b), and relevant case law.

         A. Presendieu's Indictment and Plea Agreement

         After being indicted on 15 federal charges relating to the check-cashing scheme, Presendieu pled guilty to only two charges: (1) conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349 (Count 1), and (2) aggravated identity theft, in violation of 18 U.S.C. § 1028A (Count 31). In the written plea agreement, the government agreed to dismiss the remaining thirteen counts in the indictment, and Presendieu waived his right to appeal his sentence, so long as it did not exceed the statutory maximum penalty and was within the advisory guidelines range established by the district court at sentencing.

         In addition to the plea agreement, Presendieu signed a seven-page, detailed "Factual Proffer in Support of Guilty Plea." As outlined above, in the factual proffer, Presendieu admitted that he used Habib's illicit check-cashing services and that Habib maintained business checking accounts at federally insured banks. Presendieu further admitted to cashing through Habib many stolen, fraudulent, or unlawfully obtained checks, forging endorsements on them, and using false identification documents to cash them.

         B. Plea Colloquy

         On August 6, 2015, the district court held a change-of-plea hearing pursuant to Rule 11(b). The district court explained to Presendieu that "Count 1 charges you with conspiracy to commit bank fraud in violation of [18 U.S.C. § 1349]" and "Count 31 charges you with aggravated identity theft in violation of [18 U.S.C. § 1028A]." When the district court asked whether Presendieu intended to plead guilty to these charges, Presendieu responded, "Correct, sir."

         By way of personal background, Presendieu stated that he was 33 years of age and had a high school diploma. When asked whether he was "under the influence of any alcohol, narcotics or medication, " Presendieu responded in the negative. When asked whether he had "ever been diagnosed or treated for a mental illness, " Presendieu responded, "No, sir."

         When asked by the district court, Presendieu confirmed that he had signed his written plea agreement and was "able to read and understand all of [its] terms." Presendieu further confirmed that he had "enough time to discuss everything that's contained in the written plea agreement with [his] attorney."

         Turning to the specific terms of the written plea agreement, the district court asked whether Presendieu was aware that, in exchange for pleading guilty to Counts 1 and 31, the government would dismiss the remaining counts against him. Presendieu stated that he understood. As to the possible punishments, Presendieu acknowledged his understanding that Count 1 carried a maximum sentence of 30 years' imprisonment, that Count 31 carried a mandatory minimum of two consecutive years' imprisonment, and that he would be responsible for restitution in excess of $2, 500, 000. The district court also confirmed that Presendieu understood the application of the sentencing guidelines and had an opportunity to discuss those matters with his attorney.

         When the district court asked whether he had "any questions at all about anything that is set forth in [the] written plea agreement, " Presendieu responded, "No, not at all, sir." When asked again whether he had "had enough time to speak to [his] attorney about everything that's set forth in the written plea agreement, " Presendieu replied in the affirmative. Presendieu confirmed that no one had promised him anything in return for his plea other than what was set forth in the written agreement and that no one had threatened him or forced him to enter the plea.

         The district court then reviewed with Presendieu all of the rights he was waiving and losing by entering a guilty plea. Presendieu affirmed his understanding that he was forgoing his rights to a jury trial, to be represented by an attorney during trial, to have the government prove the charges against him beyond a reasonable doubt, to cross-examine the government's witnesses, and to call his own witnesses and compel their appearance by subpoena. Presendieu also confirmed his understanding that an adjudication of guilt on Counts 1 and 31 would deprive him of certain rights, including the rights to vote, to hold public office, to serve on a jury, to possess a firearm, to reside in certain public housing, and to maintain certain professional licenses. When asked whether he discussed these consequences with his attorney, Presendieu responded, "Yes, sir."

         The district court again asked whether Presendieu had "had enough time to discuss this case and this plea with [his] attorney, " to which Presendieu replied, "Yes, sir." Presendieu stated that he and his attorney discussed all possible defenses that he might have raised to the charges in the indictment and that he had no trouble communicating with his attorney. Presendieu averred that his attorney carried out his wishes and that he was fully satisfied with his attorney's representation.

         As to the factual basis for the plea, Presendieu affirmed that he had signed the factual proffer accompanying his written plea agreement. The district court asked whether Presendieu was "able to read and understand everything contained in the written factual proffer, " to which he responded, "Yes, sir." Presendieu also answered affirmatively that he had had ...

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