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United States v. Landrum

United States District Court, Seventh Circuit

May 13, 2013



ROBERT M. DOW, Jr., District Judge.

This matter is before the Court on Petitioner Sarita Landrum's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 [1] and the United States' response in opposition [12]. For the reasons stated below, the Court denies Petitioner Landrum's motion [1].

I. Background

On April 15, 2010, the Special January 2009 Grand Jury indicted Sarita Landrum with four counts of mail fraud affecting a financial institution, in violation of 18 U.S.C. § 1341. On April 29, 2010, Landrum appeared for her arraignment and pleaded not guilty to all counts. On May 18, 2011, Landrum withdrew her plea of not guilty to Count Four of the indictment and pled guilty to Count Four of the indictment pursuant to a written plea agreement. Landrum's written plea agreement included the following factual basis, in relevant part:

Beginning no later than in or about July 2009, and continuing until at least on or about September 11, 2009, at Chicago, in the Northern District of Illinois, Eastern Division, and elsewhere, defendant SARITA LANDRUM (hereinafter "LANDRUM"), Dwayne L. Hogans (hereinafter "Hogans"), together with their co-schemers, devised, intended to devise, and participated in a scheme to defraud and to obtain money and property by means of materially false and fraudulent pretenses, representations, and promises, which scheme affected a financial institution, and for the purpose of executing the scheme and attempting to do so caused certain matter to be delivered by the United States Postal Service, in violation of Title 18, United States Code, Section 1341.

From in or around December 2007 through in or around September 11, 2009, LANDRUM was employed as a customer service representative at a Fifth Third Bank branch located at 1606 E. 79th Street, Chicago, Illinois.... As an employee of Fifth Third Bank, LANDRUM had access to personal and account information regarding account holders at Fifth Third Bank, but was authorized to use this information solely in the performance of her official duties.

In the summer of 2009, Hogans recruited LANDRUM to assist Hogans in a scheme to fraudulently obtain money from Fifth Third Bank. More specifically, Hogans recruited LANDRUM to provide Hogans with sensitive personal and account information of account holders at Fifth Third Bank that, as LANDRUM well knew, Hogans would use fraudulently to withdraw money from the victims' accounts. Moreover, Hogans instructed LANDRUM to seek out and provide Hogans with information about accounts with high balances. Hogans offered to pay LANDRUM several thousand dollars in cash in exchange for this information. LANDRUM knew that she was not authorized to provide Hogans with this information, and knew that HOGANS intended to use the information to withdraw funds fraudulently from victims' accounts at Fifth Third Bank without the victims' knowledge or authorization. With this knowledge, LANDRUM agreed to participate in the scheme.
Beginning no later than July 2009 and continuing through at least August 2009, LANDRUM provided Hogans with sensitive personal and account information of at least 34 different account holders at Fifth Third Bank. This information included the account holders' names, home addresses, home telephone numbers, dates of birth, social security numbers, drivers' license numbers, key words or mothers' maiden names, checking account numbers, savings account numbers, debit card numbers, and the balance in each account held at Fifth Third Bank. In the majority of cases, LANDRUM relayed this information by printing out internal Fifth Third Bank documents referred to as customer "profiles" and giving those documents to Hogans.
On at least one occasion, LANDRUM accessed an account at Fifth Third Bank, changed the mailing address of that account to an address controlled by Hogans, and ordered that a new debit card be mailed to the address controlled by Hogans, all without the account holder's knowledge or authorization.
The accounts compromised by LANDRUM during the course of the scheme suffered a total of $479, 351.04 in fraudulent transactions, causing a total actual loss of $450, 751.06....

See Doc. 64 at 2-4 in Case. No. 10-cr-15. In her plea agreement, Landrum further admitted that: (1) she had read the charges against her contained in the indictment, and that those charges had been fully explained to her; (2) she fully understood the nature and elements of the crimes with which she was charged; and (3) she would plead guilty because she was in fact guilty of the charge contained in Count Four of the indictment. The plea agreement further explained that the maximum possible term of imprisonment was 30 years and that Landrum could not be sentenced to a term of imprisonment for the offense. Landrum further acknowledged in her plea agreement that the total amount of restitution owed to the victims was $450, 751.06.

The plea agreement also set forth numerous rights that Landrum would be waiving by pleading guilty, including her right to a public and speedy trial by jury, the possibility of a bench trial if all parties agreed, the right to strike potential jurors for cause or without cause at any jury trial, the fact that jurors would be instructed at any trial that she was presumed innocent and that the Government bore the burden of proving her guilty beyond a reasonable doubt, the requirement that the jury agree unanimously in order to convict her, the right of defendant to confront and cross-examine any witnesses called by the Government, a defendant's right to call witnesses in her defense and to require the attendance of witnesses through the subpoena power of the Court, and her right to refuse to testify at trial or to choose to testify in her own defense. The plea agreement explicitly provided, "Defendant further understands that any appeal must be filed within 14 calendar days of the entry of the judgment of conviction." In her plea agreement, Landrum acknowledged, "Defendant understands that by pleading guilty she is waiving all the rights set forth in the prior paragraphs, with the exception of the appellate rights specifically preserved above. Defendant's attorney has explained those rights to her, and the consequences of her waiver of those rights."

Landrum further acknowledged that "no threats, promises, or representations have been made, nor agreements reached, other than those set forth in this Plea Agreement to cause defendant to plead guilty." Finally, in the paragraph immediately above her signature, Landrum "acknowledge[d] that she had read this Plea Agreement and carefully reviewed each provision with her attorney. Defendant further acknowledges that she understands and voluntarily accepts each and every term and condition of this Agreement."

At the change-of-plea hearing, the Court placed Landrum under oath. While under oath, she confirmed that she had enough time to talk to defense counsel George Pappas about the case, that she had told counsel everything she knew about the case, and that she was satisfied with Mr. Pappas's efforts on her behalf. She further confirmed that she understood the charges against her. The Court then explained in detail the numerous rights that she would be giving up if she pleaded guilty, including, among other things, the right to a trial by jury, to plead not guilty, the fact that she would be presumed innocent at any trial and could not be convicted unless the Government presented evidence proving her guilty beyond a reasonable doubt. Landrum confirmed that she understood each of these rights. The Court further explained that Landrum would have the right to appeal her sentence within 14 days if she believed that it was incorrect, and Landrum again confirmed that she understood this. The Court then reviewed the written plea agreement with Landrum, who confirmed that no other agreements or promises had been made to her that were not in writing, that her signature appeared on the last page of the plea agreement, that she read the plea agreement before she signed it, and that she reviewed it with defense counsel before signing it.

In Landrum's presence, the Government then orally reiterated that the maximum term of imprisonment for Count Four was 30 years, that probation was not an option under the law, and that the parties had agreed to restitution in the amount of $450, 751.06. The Court, the Government, and defense counsel then explained the parties' differing preliminary calculations under the Sentencing Guidelines. After these positions had been explained, the Court explained to Landrum that the Court could not determine which calculation of the guidelines was correct until after the Presentence Investigation Report ("PSR") had been prepared, and that, in any event, the Court had the authority to impose a sentence that was higher than the guideline range, that if the sentence turned out to be more severe than what Landrum was hoping for, she would have no right to withdraw her plea, and that the final decision as to Landrum's ultimate sentence would rest with the Court. Landrum confirmed that she understood these points and also confirmed that her decision to plead guilty was voluntary. The Government then summarized the factual basis in language that largely tracked the language of the written plea agreement. The Court then asked Landrum whether the Government's evidence was correct, and Landrum confirmed that it was correct, that there was nothing she disagreed with, and there was nothing that she wanted to add to the Government's statement at that time. Landrum then stated that her plea to Count Four of the indictment was guilty. The Court accepted her plea and entered a finding of guilty as to Count Four of the indictment.

Prior to the preparation of the PSR, the Government submitted its version of the offense to the probation officer and to defense counsel. The Government's version explained, "It is clear that LANDRUM did not personally initiate any of the fraudulent transactions on the compromised accounts." Nevertheless, the Government's version maintained that Landrum was responsible for the loss amount on all of the accounts that she compromised because she was a substantial and contributing cause of that loss. See also U.S.S.G. § 1B1.13(a)(3). The Government's version explained that co-defendant Dwayne Hogans also recruited Tiffany Nelson, another teller who worked at a different Fifth Third Branch, to help him in the scheme. The Government set forth a chart summarizing Fifth Third Bank's employee access logs, which logs showed that, for all 34 accounts that were compromised as a part of the scheme, Landrum personally accessed each of those accounts, and that of those 34 accounts, Fifth Third Bank's logs also showed that Nelson accessed the accounts. For all but one of those accounts, no actual loss occurred. Victim MJD was the one victim whose account sustained an actual loss, and whose account was accessed by both Landrum and Nelson. The ...

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