United States of America v. Tarkara Cooper and Brian Bryant

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 28, 2019Decided February 11, 2020
No. 17-3057
UNITED STATES OF AMERICA,
APPELLEE
v.
TARKARA COOPER AND BRIAN BRYANT,
APPELLANTS
Consolidated with 18-3021
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cr-00152-3)
(No. 1:15-cr-00152-5)
Dennis M. Hart, appointed by the Court, argued the cause
and filed the briefs for appellant Tarkara Cooper.
Brian J. Young, appointed by the Court, argued the cause
and filed the briefs for appellant Brian Bryant.
Katherine M. Kelly, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jessie K. Liu,
U.S. Attorney, and Elizabeth Trosman and John P. Mannarino,
Assistant U.S. Attorneys.

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Before: SRINIVASAN and RAO, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.
RANDOLPH, Senior Circuit Judge: Several individuals in
the District of Columbia acted together to steal millions of
dollars from the Federal Treasury. Their method of operation
was this. First beg, steal, purchase or borrow other people’s
identities including, most importantly, their Social Security
numbers. Then file false income tax returns seeking refunds in
their names. Keep the refund requests relatively small. List on
the tax returns the addresses, not of the purported filers, but of
one or another co-conspirator. Then, when the refund checks
from the Treasury arrive, compromise bank tellers, negotiate the
checks, and deposit the proceeds in the conspirators’ personal
accounts. This multi-year conspiracy netted a total of nearly $5
million in tax refunds from the Treasury.
Antonio Cooper, a bus driver and the hub in the wheel in
this conspiracy, entered a plea of guilty and testified for the
prosecution against others, including his niece, Tarkara Cooper.
The jury convicted her and Brian Bryant of theft of public
money and conspiracy to defraud the United States. See 18
U.S.C. §§ 641, 371. The jury also convicted Bryant of
aggravated identity theft. See 18 U.S.C. § 1028A. The court
sentenced Ms. Cooper to 63 month’s imprisonment, 36 month’s
supervised release, and ordered her to pay nearly $2 million in
restitution. The court sentenced Bryant to 100 month’s
imprisonment, 36 month’s supervised release, and ordered him
to pay some $650,000 in restitution. Both defendants appeal
their convictions and their sentences.

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The evidence showed that Antonio Cooper gathered names,
birth dates and Social Security numbers from friends, family
members, strangers, and “wherever [he] could.” Using this
information, he filed more than a thousand fraudulent federal
income tax returns seeking refunds. The typical refund check
was between $1,000 and $3,000. To receive the refunds from
the Treasury, the fraudulent tax returns listed Mr. Cooper’s
address or the addresses of other participants in his scheme, one
of whom was his niece Tarkara Cooper. More than 450
fraudulent tax returns seeking refunds of more than $1,200,000
listed Ms. Cooper’s address. When the refund checks arrived
she handed them to her uncle, who paid her $50 to $100 per
check. He then deposited the checks in his bank account or the
accounts of other co-conspirators. Antonio Cooper also sold
some of the checks to others, including Bryant.
For his part, Bryant helped Mr. Cooper cash the refund
checks and received half of the face value of those checks in
exchange. Brianna Turner, a former Bank of America
employee, testified that she helped Bryant deposit some of these
checks. She said that Bryant expressed a willingness to
compensate her in exchange for violating the Bank’s rules on
third-party deposits. Bryant paid Turner between $300-$600 per
check deposited. He controlled dozens of bank accounts into
which refund checks were deposited.
At some point in 2010, Postal Inspector Maria Couvillion
opened an investigation after detecting what appeared to be
fraudulent tax returns being sent through the mail. Not until six
years later did a grand jury return indictments against Antonio
Cooper, Tarkara Cooper, Bryant and others. In the interim, the
conspirators carried on, filing more fake returns and cashing
more refund checks.

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I.
We take up first the district court’s rejection of Tarkara
Cooper’s pretrial motion to suppress statements she made to
federal agents. The evidence at the suppression hearing showed
that before dawn on December 1, 2010, twelve law enforcement
officers – eleven federal agents and one from the local police –
arrived at the door of Cooper’s home in a “multi unit residential
complex” in the District of Columbia. The officers were there
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to execute a search warrant. An agent knocked and announced
their presence. Cooper opened the door and some of the agents
entered. Inside were Cooper’s six-to-seven year old daughter
and an adult female friend of Cooper’s. After being
interviewed, the friend left.
About an hour into the search, two agents began
interviewing Cooper in her living room. At some point in the
questioning, she admitted receiving in the mail at her address
one to five refund checks each week, and that her uncle paid her
when she turned over the checks to him. She argues here, as she
did in the district court, that the government could not introduce
these statements at trial because the agents did not first give her
Miranda warnings. See Miranda v. Arizona, 384 U.S. 436
(1966).
The district court denied Cooper’s motion. The court found
that Cooper “was not coerced into answering questions” and that
Rule 41 of the Federal Rules of Criminal Procedure establishes
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two types of search warrants – a daytime warrant and a nighttime
warrant. It is difficult to obtain a nighttime warrant (see Rule
41(e)(2)(ii)), so investigators usually opt for a daytime warrant. But
Rule 41(a)(2)(B) defines “daytime” as “the hours between 6:00 a.m.
and 10:00 p.m. according to local time.” So-called “daytime”
warrants therefore may be executed while it is still dark outside.

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she was not in custody within the meaning of Miranda. At trial,
an agent who interrogated Cooper testified about her statements.
Before a suspect in custody is interrogated, she must be
advised of her Miranda rights. See Stansbury v. California, 511
U.S. 318, 322 (1994). If the interrogating officers do not
provide Miranda warnings, any statements the suspect makes
are generally inadmissible at trial. Id. The obligation to apprise
the suspect of her rights attaches “only where there has been
such a restriction on a person’s freedom as to render [her] ‘in
custody.’” Id. (quoting Oregon v. Mathiason, 429 U.S. 492, 495
(1977)).

A suspect is “in custody” if the circumstances of the
questioning “present a serious danger of coercion.” Howes v.
Fields, 565 U.S. 499, 508-09 (2012). To determine whether
such a danger existed, courts first consider whether a reasonable
person in the suspect’s position would have felt that “she was
not at liberty to terminate the interrogation and leave.” Id. at
509 (internal quotation marks omitted). Relevant factors in this
assessment include the location of the questioning, statements
made during the interview, the presence of any physical
restraints, and whether the interviewee was released once the
interrogation ended. Id.
Because “[n]ot all restraints on freedom of movement
amount to custody for purposes of Miranda,” a finding that a
person in the suspect’s shoes would not have felt free to leave
does not end the inquiry. Id. Rather, courts must then ask “the
additional question whether the relevant environment presents
the same inherently coercive pressures as the type of station
house questioning at issue in Miranda.” Id. We review de novo
the district court’s custody determination, and we review the
underlying factual findings for clear error. United States v.
Brinson-Scott, 714 F.3d 616, 621 (D.C. Cir. 2013).

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Examination of the evidence before the district court at the
suppression hearing and at trial reveals no clearly erroneous
factual findings. Instead, the evidence amply supports the
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conclusion that Cooper was not in custody when she admitted
that she was aware of, and participated in, her uncle’s fraud.

The agents questioned Cooper in her living room. When an
interview takes place in a suspect’s home, that circumstance
usually weighs against finding the kind of custodial situation
that merits a Miranda warning. See, e.g., Beckwith v. United
States, 425 U.S. 341, 342, 347-48 (1976); United States v. Luck,
852 F.3d 615, 621 (6th Cir. 2017); 2 Wayne R. LaFave et al.,
Criminal Procedure § 6.6(e) (4th ed. 2014).
Before the interview began, the agents told Cooper that she
was a subject of an investigation and described “the voluntary
nature of the interview.” They asked her “if she would agree to”
answer their questions. She agreed. The evidence shows, in
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other words, that Cooper’s statements were given freely and
voluntarily. Such statements “remain a proper element in law
enforcement.” Miranda, 384 U.S. at 478.
In addition, no weapons were brandished and no handcuffs
were used. Cooper was “cooperative,” and the agents employed
Cooper did not renew her suppression motion at trial. While
2
we may therefore consider trial evidence to affirm, but not to reverse,
the district court’s pretrial ruling on the motion, see United States v.
Hicks, 978 F.2d 722, 724-25 (D.C. Cir. 1992), the evidence at trial
basically duplicated the evidence at the suppression hearing.
The parties did not discuss whether this exchange was a
3
functional equivalent of some of the standard Miranda warnings (“you
have the right to remain silent” and you have the right “to stop
answering at any time”). See Duckworth v. Egan, 492 U.S. 195, 202-
03 & n.4 (1989).

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a “professional and cordial tone.” At no point did Cooper ask to
end the questioning. And once the interview was over, the
agents left without arresting her. Put simply, these facts do not
portray an environment presenting a meaningful danger of
coercion.
Cooper’s argument to the contrary focuses on a fifteen-
minute break during the questioning. She needed to take her
daughter to school, and so the agents drove them to the school,
dropped her daughter off, and returned to the house with Cooper
to resume the interview. Cooper alleges that the agents refused
to let her leave the house unaccompanied, and that this refusal
illustrates the custodial nature of the questioning.

Not so. Cooper offers no evidence that she asked to take
her daughter to school alone but was prevented from leaving.
For safety reasons, if a person leaves her residence during the
execution of a search warrant, she is not typically allowed to
return until the search is completed. It is thus as likely as not
that the agents gave Cooper a ride so that she could return to her
house while the search was ongoing. And while she was in the
agents’ car, Cooper was not asked any questions.
These circumstances do not amount to custody within the
meaning of Miranda. Indeed, to hold otherwise would be akin
to suggesting that voluntary statements uttered during the
execution of a valid search warrant are inadmissible at trial
absent the issuance of a Miranda warning. The Supreme Court
has rejected such an expansive view. See Andresen v. Maryland,
427 U.S. 463, 475 (1976). The district court thus correctly
concluded that Cooper’s statements could be used at trial.

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II.
Cooper and Bryant also challenge the use of Special Agent
LaRose as a summary witness. Before trial, the government
asked the court to impose what it called the “Rule on
Witnesses.” Although the government did not mention it, Rule
615 of the Federal Rules of Evidence governs these sorts of
requests. The Rule provides: “At a party’s request, the court
must order witnesses excluded so that they cannot hear other
witnesses’ testimony.” The “must” command is softened with
four exceptions. The government asked the court to make an
exception for IRS Special Agent Milne, who was the “lead case
agent,” and for IRS Special Agent LaRose, because “his
testimony will be to summarize the evidence that is admitted and
put it in context.” The defendants did not object to the request.
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Both IRS agents attended the entire trial. Milne sat at
counsel table. LaRose sat in the audience. The prosecution
apparently decided not to use Milne as a witness. The
prosecution called LaRose toward the end of its case-in-chief
Rule 615 “does not authorize excluding an officer or employee
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of a party that is not a natural person, after being designated as the
party’s representative by its attorney.” Fed. R. Evid. 615(b). This
exception appears to cover Special Agent Milne. Another exception
to Rule 615 allows a witness to attend the trial if the party shows that
he is “essential to presenting the party’s claim or defense.” Fed. R.
Evid. 615(c). It may be that the government intended Special Agent
LaRose to be covered by this exception. See United States v. Pulley,
922 F.2d 1283, 1286 (6th Cir. 1991) (“Where the government wants
to have two agent-witnesses in attendance throughout the trial, it is
always free to designate one agent as its representative under subpart
[b] and try to show under subpart [c] that the presence of the second
agent is ‘essential’ to the presentation of its case.”); United States v.
Farnham, 791 F.2d 331, 335 (4th Cir. 1986).

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without attempting to qualify him as an expert witness under
Federal Rule of Evidence 702.
5
LaRose’s lengthy testimony on direct examination dealt
with extensive and detailed charts listing bank records, tax
returns, refund checks, and more connecting the defendants with
the tax fraud. He testified, for example, that after December 1,
2010, when the agents searched Cooper’s residence, 65 refund
checks totaling $151,853.24 were mailed to her home. Of those,
59 checks were negotiated, totaling $141,333.49.
Rule 1006 of the Federal Rules of Evidence permits the use
of summary charts “to prove the content of voluminous
writings.” The records here were indeed voluminous – many
millions of dollars in fraudulent refunds, thousands of phony tax
returns, hundreds of refund checks sent to many addresses,
checks cashed by others, deposits made in multiple accounts by
multiple co-conspirators, and more. Little wonder that the
charts were admitted without objection.
Cooper and Bryant complain that the district court erred in
allowing LaRose to testify about matters other than those
contained in the charts. Their complaint greatly exaggerates the
record.
Federal Rule of Criminal Procedure 16(a)(1)(G) requires, at the
5
defendant’s request, that “the government must give to the defendant
a written summary of any testimony that the government intends to
use under Rules 702, 703, or 705 of the Federal Rules of Evidence
during its case-in-chief at trial.” See also LCvR 16.5(b) (requiring
pretrial statements that include “a schedule of witnesses to be called
by the party” and that expert witnesses “be designated by an
asterisk”). It may be that, because its pretrial materials failed to
identify LaRose as an expert, the government believed it would be
unable to qualify him as an expert at trial.

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A prosecutor’s “non-expert summary witness can help the
jury organize and evaluate evidence which is factually
complex.” United States v. Lemire, 720 F.2d 1327, 1348 (D.C.
Cir. 1983). Putting it in terms of “helping the jury” may suggest
that prosecutors call summary witnesses for some neutral,
educational trial purpose. That of course is not true.
Prosecutors call witnesses, including summary witnesses, to
prove their case – to help convince the jury that the defendant is
guilty as charged.
It follows that there must be limitations on the sort of “help”
a government summary witness may provide. One of the most
important is this: the witness may not usurp the jury’s fact-
finding function by summarizing or describing not only what is
in evidence but also what inferences should be drawn from that
evidence. United States v. Hampton, 718 F.3d 978, 983 (D.C.
Cir. 2013). Another danger to be guarded against is that the jury
will treat summary testimony “as additional evidence or as
corroborative of the truth.” Lemire, 720 F.3d at 1348. See also
Lauren Weiser, Requirements for Admitting Summary Testimony
of Government Agents in Federal White Collar Cases, 36 AM.
J. CRIM. L. 179, 181-82 (2009).
LaRose, the defendants claim, crossed these lines. They
argue that the government functionally introduced the agent as
though he were an expert witness by reviewing at length his
training and professional background. LaRose then appeared to
present an expert opinion, suggesting that based on his fifteen
years of experience as an investigator, it is not uncommon for
fraudsters to open and use multiple bank accounts to avoid
detection by bank employees. The defendants suggest it is
possible that the jury simply relied on LaRose’s expertise and
experience, rather than its own review of the record, to conclude
that the signatures were indeed forged and that the scheme
participants used several bank accounts to escape detection.

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The defendants also argue that LaRose discussed evidence
that was, at the time of his testimony, not yet admitted. He
testified before two of the government’s witnesses, Chyna
Watkins and Vincent Short, took the stand. Watkins was
Bryant’s girlfriend, and she told the jury that she “gave him
access to” her bank account and allowed him to deposit
thousands of dollars into it. She later withdrew the money for
him in exchange for a series of small payments. Short was one
of the scheme’s victims. He testified that he lost his
identification card, that he did not recognize a tax return filed in
his name listing Cooper’s address, and that he did not sign a
check made payable to Bryant that appeared to contain his
signature.
Before Watkins and Short offered this testimony, LaRose
stated that Watkins’s account was under Bryant’s control. He
also referred to Short’s “purported” signature on the check to
Bryant. According to the defendants, by doing so he improperly
bolstered the credibility of Watkins’s and Short’s subsequent
testimony.
Cooper and Bryant also take issue with LaRose’s count-by-
count synthesis of the government’s evidence against them.
They argue that the government used the agent to present
conclusory testimony that effectively served as a second closing
argument.
But even if the district court erred in allowing LaRose to
stray beyond a narrow summary of the evidence reflected in the
charts, Cooper and Bryant have not shown that they were
substantially prejudiced by this error. See United States v.
Miller, 738 F.3d 361, 372 (D.C. Cir. 2013); Kotteakos v. United
States, 328 U.S. 750, 776 (1946). LaRose’s testimony was
extensive, consuming 150 pages of transcript. The defendants
point to a minuscule portion of what he said. The alleged errors

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were, in other words, quite minor. Without LaRose’s testimony,
the record still contains overwhelming evidence of the
defendants’ guilt. Any error was thus harmless.
Consider the evidence against Cooper. She confessed that
she had an agreement with her uncle to receive payment in
exchange for giving him the checks that were mailed to her
home. The hundreds of checks mailed to her address amply
support the finding that she was a knowing participant in the
scheme. Her uncle also testified that he told Cooper the tax
checks she was receiving were not “legit.” She “knew about
everything.” In addition, Cooper was identified in video
surveillance footage interacting with a bank teller who helped
the participants perpetrate the fraud. The strength of this
evidence makes it very unlikely that the portion of LaRose’s
testimony Cooper complains about materially influenced the
jury’s verdict.
The evidence against Bryant was also compelling. Antonio
Cooper testified that Bryant helped him cash the refund checks
and received half of the face value of those checks in exchange.
Brianna Turner, the former bank teller, admitted that she helped
Bryant deposit some of these checks in exchange for
compensation.
The government presented evidence of multiple bank
accounts controlled by Bryant into which dozens of refund
checks were deposited. For example, Bryant deposited 26
refund checks totaling more than $115,000 into a Capital One
account in his name between May 2011 and July 2012.
Further minimizing the effect of any possible error was the
district court’s limiting instruction, which informed the jury that
LaRose’s summaries “are not in and of themselves proof of the
facts,” and that his testimony was to be used “only as a matter

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of convenience.” This instruction, virtually identical to the one
issued by the trial court in Lemire, helped lower the risk that the
jury would take the summary testimony for more than it was
worth. See Lemire, 720 F.2d at 1348 n.32. Juries “are presumed
to follow their instructions,” and the record offers no reason to
doubt the validity of that presumption here. Zafiro v. United
States, 506 U.S. 534, 540 (1993) (internal quotation marks
omitted).
More still, the defendants had an opportunity to cross-
examine LaRose. They did so, eliciting testimony that LaRose
is not a hand-writing expert and that he lacked personal
knowledge about whether Bryant controlled Watkins’s bank
account. In sum, Watkins’s and Short’s testimony, as well as
the record evidence, fully corroborated LaRose’s summary of
the investigation. We therefore find that his testimony did not
meaningfully prejudice the defense.
III.
We have reviewed and reject the defendants’ remaining
arguments. Cooper moved for a mistrial during the
government’s rebuttal. She alleged that the prosecutor
improperly lumped her together with co-defendants whose
participation in the scheme was much more substantial. The
district court denied this motion. It did not err by doing so. The
prosecutor did not misstate the evidence applicable to Cooper,
and the occasional inadvertent references to “these defendants”
when discussing acts not attributable to Cooper were quickly
remedied. See United States v. Gartmon, 146 F.3d 1015, 1026
(D.C. Cir. 1998).
The defendants also challenge the sentences the district
court imposed, suggesting that the loss amounts attributed to
Cooper and Bryant were too high. The court attributed a loss to

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the Treasury of about $650,000 to Bryant’s participation in the
scheme, and a loss of around $4.6 million to Cooper’s
participation. These findings of fact must be upheld unless they
are clearly erroneous. United States v. Day, 524 F.3d 1361,
1367 (D.C. Cir. 2008). They are not.
The value of the bank accounts reasonably connected to
Bryant’s participation in the scheme was at least $528,252.94.
And the government presented evidence of checks attributable
to co-conspirators’ home addresses that were not attributed to
particular bank accounts. The value of such checks was well
over a million dollars, and at least some are reasonably
connected to Bryant’s role in the fraud.

Similarly, the amount attributed to Cooper—the entire
intended loss attributable to her uncle’s scheme—was not
clearly erroneous. See United States v. Seiler, 348 F.3d 265, 268
(D.C. Cir. 2003) (noting that, in determining a sentence in a
conspiracy case, the district court takes into account “all
reasonably foreseeable acts and omissions” committed by others
in furtherance of the conspiracy) (internal quotation marks
omitted). Because, as the district court noted, Cooper’s
participation in the scheme was “neither minor nor minimal,” it
was not clear error to conclude that her co-conspirators’ actions
were reasonably foreseeable to her.
Cooper also challenges the restitution the district court
ordered her to pay. But the Mandatory Victim Restitution Act
requires defendants to reimburse victims for the actual, provable
loss suffered. See United States v. Fair, 699 F.3d 508, 512-13
(D.C. Cir. 2012). The government showed that Cooper’s
participation in the scheme cost the Treasury at least $1.9
million. Requiring this amount in restitution was therefore
appropriate.

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For these reasons, the defendants’ convictions and the
sentences they received are affirmed.
So ordered.