Youngstown Daily Legal News

Man who pretended to work for FBI, defrauded his employer, loses appeal

ANNIE YAMSON
Special to the Legal News
Published: November 3, 2014

An opinion released recently by the 6th U.S. Circuit Court of Appeals affirmed the judgment of the U.S. District Court for the Northern District of Ohio in a fraud case.

The defendant, Robert Berryhill, pleaded guilty to mail fraud, wire fraud, false personation of an officer or employee of the U.S. and aggravated identity theft.

He was sentenced to 75 months in prison.

In his appeal to the 6th Circuit, Berryhill claimed that, in accepting his plea, the district court failed to establish a factual basis for the identity theft charge.

He also claimed his convictions for false personation and aggravated identity theft violated the Double Jeopardy Clause of the Fifth Amendment and that his sentence was substantively unreasonable.

Berryhill’s convictions stemmed from a scheme he devised to defraud his employer, Carnegie Management and Development Corporation.

At the time of Berryhill’s crimes, Carnegie had contracted two of its subsidiaries to build two buildings for the FBI.

Berryhill submitted false invoices to companies retained as subcontractors on the two projects.

Those subcontractors paid the false invoices and passed the costs on to Carnegie’s subsidiaries.

The personation and identity theft charges arose out of an incident in which Berryhill, pretending to be an FBI employee named W.C.M., demanded payment from the subcontractors.

Berryhill entered guilty pleas to all counts but reserved his right to appeal any sentence beyond the statutory maximum or outside the guideline range along with the district court’s determination of his criminal history category.

Instead, Berryhill’s main argument on appeal concerned the district court’s acceptance of his guilty plea to aggravated identity theft.

He cited Federal Rule of Criminal Procedure 11(b)(3) which states that “before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.”

Since Berryhill failed to object on that basis during his plea hearing, the appellate panel reviewed the district court’s compliance with the rule for plain error.

“A person is guilty of aggravated identity theft if he ‘knowingly transfers, possesses or uses without lawful authority a means of identification of another person’ during and in relation to certain enumerated felonies,” wrote Judge Martha Craig Daughtrey on behalf of the court of appeals.

According to Berryhill, the evidence at his plea hearing did not establish that W.C.M. was the identity of another person or that Berryhill knew it was the identity of another.

“This claim is belied by the record,” wrote Judge Daughtrey, who noted that Berryhill acknowledged that he engaged in the conduct described in the information.

Judge Daughtrey also pointed out that the government could successfully prove Berryhill sent an e-mail on July 28, 2008 as part of his scheme to defraud.

In that e-mail, he falsely pretended to be an employee acting under the authority of the U.S. and knew that the name W.C.M. belonged to someone else.

“Although the plea colloquy could have described the act of identity theft in more specific terms, Berryhill’s admission, coupled with the terms of the information, was sufficient to establish, for the purposes of Rule 11, that W.C.M. was a person and that Berryhill knew as much,” wrote Judge Daughtrey.

Berryhill also contended that convicting him of both aggravated identity theft and false personation of an officer violated his rights under the Double Jeopardy Clause.

Again, the court of appeals noted that Berryhill never raised this argument during his plea hearing so it reviewed for plain error.

“To establish plain error, Berryhill must show that an error occurred in the district court, that the error was plain, that it affected the defendant’s substantial rights and that it seriously affected the fairness, integrity or public reputation of the proceedings,” wrote Judge Daughtrey. “Here, the claim fails in the first prong of the standard.”

The appellate panel held that the Double Jeopardy Clause prohibits multiple punishments for the same offense.

Berryhill’s crimes, however, each included an element that the other did not.

Judge Daughtrey noted that the personation charge required that Berryhill pretend to be a federal officer or employee to obtain a thing of value.

The identity theft charge, on the other hand, required that the criminal act be committed “in relation to one of several enumerated felonies, including, as relevant to Berryhill, wire fraud.”

In the end, Berryhill did challenge his sentence, arguing that it was substantively unreasonable.

But, after concluding that the 75-month sentence was within the guideline range, the appellate panel overruled his claim.

Berryhill’s arguments were overruled and the judgment of the district court was affirmed with judges Helene White and David McKeague concurring.

The case is cited United States v. Berryhill, Case No. 13-3945.

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