Wednesday, August 13, 2008

An Honest and Stupid Mistake

A case from Texas illustrates how people can get caught up in what is known as a Nigerian or a 419 (after a provision in the Nigerian criminal code) scam.

The case is Tran v. State, 2007 WL 2050305 (Texas Court of Appeals 2007), and here are the fac
On October 29, 2004, Tran, an engineer for a NASA contractor, opened an account in his son's name at the Johnson Space Center (`JSC’) Credit Union. On the same day, he endorsed and deposited a check made payable to him from Marc USA/Pittsburgh Inc. (`Marc USA’) in the amount of $128,486. In early November, Tran made four cash withdrawals totaling $20,500. On November 8, 2004, Tran executed wire transfers of $45,000 to a bank in Japan and $30,000 to a bank in the Netherlands. Tran subsequently made another cash withdrawal and another wire transfer to the Netherlands. On November 15, 2004, Tran endorsed and deposited a second check from Marc USA in the amount of $193,758. Tran subsequently made several cash withdrawals and wire transfers to the banks in Japan and the Netherlands. On December 3, 2004, Tran endorsed and deposited a third check from Marc USA in the amount of $197,337. Three days later he wire transferred $20,000 to Barclays Bank in London. He also withdrew cash and wired $168,000 to the bank in Japan.

On December 17, 2004, Tran endorsed and deposited a check from Sundance Square Management Corp. (`Sundance Square’) for $237,653.33. On December 23, 2004, Tran withdrew $5000 in cash and wired $10,000 to Barclays Bank in London. After making this final wire transfer, Tran began calling the JSC Credit Union and requesting that his wire transfers be rescinded. An employee of the credit union [said] that during this time period, Tran phoned her ten to twenty times per day requesting that the bank reclaim the transferred funds. On December 24, 2004, the Sundance Square check was returned to the JSC Credit Union because the issuing bank determined it was counterfeit. Debra Reeder, vice-president of accounting at the credit union then reviewed the first three large checks that Tran had deposited and determined that they were also counterfeit. Marc USA did not issue the checks and did not consent to Tran negotiating or possessing the checks.

Secret Service Agent Steve Dudek conducted an investigation into the . . .checks. Dudek interviewed Tran, and . . .Tran made a statement. . . . In his statement, Tran claimed to have lost almost $200,000 as the victim of a `Nigerian 419 scam’ during 2002 and 2003. Tran said he received an email in 2004 from someone who claimed he could help Tran recoup his losses from the previous scam. Several emails, many from an alleged Nigerian official, Idiata Aigbedion, and an alleged attorney, Francis Ehimen, ensued. According to Tran, at the direction of Aigbedion and Ehimen, he agreed to open a separate account at his credit union. Tran indicated he only agreed to participate if he did not have to contribute any of his own money. Tran admitted that he deposited the four checks and made wire transfers to various banks around the world, something he had agreed to do in exchange for a fee. He also made several cash withdrawals. Tran stated he did not know that the first three checks were counterfeit until he was arrested. When the fourth check did not clear, Tran said, `the bank caught it this time.’ According to Tran, it was only then that he realized he `had made an honest and stupid mistake.’
Tran v. State, supra.

Tran was charged with theft, a felony, and was convicted by a jury. The trial court sentenced him to serve 25 years in prison. Not surprisingly, he appealed, which is what this opinion is about.

Tran claimed the evidence presented to the jury was not sufficient to justify their finding him guilty. In considering this claim, the Court of Appeals noted that in reviewing the "legal sufficiency of the evidence, we do not ask whether we believe that the evidence at trial established guilt beyond a reasonable doubt. . . . Rather, we examine the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.” Tran v. State, supra.

The court then explained what the jury had to find to convict Tran of theft:
A person commits theft if he unlawfully appropriates property with intent to deprive the owner of it without the owner's effective consent. . . .The jury charge . . . included an instruction on the law of parties. A person is criminally responsible as a party to an offense if the offense is committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.

[T]he jury was authorized to convict Tran as a principle if it found that Tran, pursuant to one scheme and continuing course of conduct, appropriated by acquiring and otherwise exercising control over money owned by Debra Reeder and the JSC Credit Union, with the intent to deprive the complainants of the property. The jury was also authorized to convict him as a party if it found beyond a reasonable doubt that Idiata Aigbedion or Francis Ehimen unlawfully, pursuant to one scheme and continuing course of conduct, appropriated by acquiring or otherwise exercising control over money owned by Debra Reeder and the JSC Credit Union with the intent to deprive the complainants of the property, and that Tran, with the intent to promote or assist the commission of the offense, solicited, encouraged, directed, aided or attempted to aid Idiata Aigbedion or Francis Ehimen to commit the offense.
Tran v. State, supra.

In deciding whether a rational jury could have convicted Tran, the court noted that “the crucial issue is intent.” There was no dispute about what the DID (the actus reus of the crime); the only dispute was whether he acted with the necessary intent, the mens rea of the crime. The Court of Appeals found that there was evidence from which a rational jury could have found, beyond a reasonable doubt, that Tran intentionally committed theft:
Secret Service agents reviewed email correspondence and other documents found on the hard drive of Tran's home computer. Tran corresponded via email with Idiata Aigbedion and Francis Ehimen. Over the course of the email correspondence, Tran received wire transfer instructions. On October 8, 2004, prior to receiving the first check, Tran sent an email to Ehimen stating, `Let's hope this check is for real.’ In a subsequent email correspondence with Aigbedion Tran stated:

Since the Sept. 11, 2001 terrorist attacked [sic] on the U.S. Soil, the U.S. Justice department had a new Law, the Patriot Act, which was created by the U.S. Congress, It has the legal right to monitor all money transactions in and out of the country, especially from those countries that are listed under Terrorist is [sic] watch. Unfortunately, Nigeria is on that list.

When they see a large sum of cash send [sic] in to Nigeria with no clear business or personal reasons, they can stop it . . . and give it back to the sender. They are not confiscating it, because they are suspicious of the transaction only, if they have considered as some sort of illegal activity, then they will take away the money and conducting a formal investigations, this is how my previous attorney and his `clowns’ were arrested, last time.

Based on these emails, the jury could have inferred that Tran knew the checks were counterfeit and thus that Tran was not the victim of a scam. Tran expressed concern that the checks were not “real” and discussed with Aigbedon how to avoid regulations intended to discover suspicious transactions.

Tran made inconsistent statements to credit union employees about the nature of the account he opened in his son's name. He initially told the credit union that the account was for his son's college fund, but when Reeder asked where the large checks originated, Tran told her he was attempting to start a business in another country. The email correspondence also revealed that Tran conducted the transactions under the guise of an international business. Further, Tran's actions prior to the deposit of the last check indicated he was not an innocent victim of a scam. Tran phoned the credit union ten to twenty times per day attempting to reclaim the money from the wire transfers. The jury could have inferred from this evidence that Tran knew the checks were counterfeit and had reason to believe that the credit union would discover the theft.
Tran v. State, supra.

I don’t know how often people get prosecuted for participating in these scams, but I find several reported cases in which people were prosecuted for doing essentially what Tran did. And, like Tran, they argued that they were innocent dupes. In those cases, too, the government was able to establish the necessary intent with evidence from the person’s computer, as we have here, and/or by using inferences from the way they conducted themselves. (Referring to why your former attorney and his “clowns” were arrested in connection with a similar incident is a pretty good way to help the government out, here.)

We hear a lot about Nigerian scams, but I don’t think we hear much about the people in the U.S. who become accomplices to those perpetrating these scams. Even though I tend not to have a great deal of sympathy for those who fall for the scams (you are, after all, being asked to break the law to some extent, which has always been the “hook” in this kind of con), it’s still a pretty rotten thing to do.

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