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United States v. Stringer

United States Court of Appeals, Second Circuit

September 17, 2013

UNITED STATES OF AMERICA, Appellee,
v.
THOMAS B. STRINGER, Defendant-Appellant.

Argued: May 9, 2013

Defendant Thomas B. Stringer appeals from a judgment of conviction in the United States District Court for the Southern District of New York (Lynch, J.) after a jury trial at which he was found guilty of bank fraud and aggravated identity theft. Stringer contends that Count Two of the superseding indictment (the aggravated identity theft count) was constitutionally deficient, and that the district court abused its discretion in denying his request for a continuance. The Court of Appeals (Leval, J.) rejects both contentions.

Tina Schneider, Law Office of Tina Schneider, Portland, ME, for Appellant.

Andrea L. Surratt, Assistant United States Attorney (Brent S. Wible, Assistant United State Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, for Appellee.

Before: LEVAL, CABRANES, and PARKER, Circuit Judges.

LEVAL, Circuit Judge:

Defendant Thomas B. Stringer appeals from his conviction on both counts of a superseding indictment after a jury trial in the United States District Court for the Southern District of New York (Lynch, J.). The jury found him guilty of bank fraud in violation of 18 U.S.C. § 1344 (Count One) and unlawful use of another person's means of identification in relation to the bank fraud in violation of 18 U.S.C. §§ 1028A(a)(1) and (c)(5) (Count Two). Stringer contends that Count Two was constitutionally deficient for failure to name or sufficiently identify the person or persons whose means of identification he used in the bank fraud scheme. He also contends that the superseding indictment, filed 25 days prior to the day scheduled for the start of trial, substantially altered the nature of the allegations, and that the district court therefore abused its discretion by refusing to postpone the trial to allow him adequate time to prepare to defend against the new charges. We reject Stringer's contentions and affirm the conviction.

BACKGROUND

On June 29, 2010, Stringer was arrested on a federal criminal complaint charging him with bank fraud and aggravated identity theft. The complaint set forth a detailed factual narrative describing the nature and operation of Stringer's scheme to use names and identification documents of other persons to open bank accounts funded with forged checks and withdraw the proceeds. On July 20, 2010, the government filed a two-count indictment (the "original indictment") charging Stringer with bank fraud and aggravated identity theft. One week later, on July 27, 2010, the government made evidentiary disclosures to Stringer, which included the names of two persons which he used to open fraudulent bank accounts. On May 12, 2011, the court set down the case for a trial to begin on July 25, 2011. On June 30, 2011, the government filed a two-count superseding indictment (the "superseding indictment") charging the same offenses with some alteration of the language describing them.

The superseding indictment charged as follows:

COUNT ONE

1. The Grand Jury charges:

From in or about February 2007 up to and including in or about August 2007, in the Southern District of New York and elsewhere, [Stringer] willfully and knowingly did execute and attempt to execute a scheme and artifice to defraud a financial institution . . ., and to obtain moneys, funds, credits, assets, securities, and other property owned by, and under the custody and control of, such financial institution, by means of false and fraudulent pretenses, representations, and promises, to wit, [Stringer] created counterfeit checks drawn on an account at JP Morgan Chase in ...

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