United States v. Giannone , 360 F. App'x 473 ( 2010 )

Filed: January 27, 2010
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4844(L)
(3:06-cr-01011-CMC)
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JONATHAN GIANNONE,
Defendant - Appellant.
O R D E R
The court amends its opinion filed January 7, 2010, as
follows:
On page 2, attorney information section, the name “Drummond C.
Smith, LAW OFFICES OF THOMAS F. LIOTTI, Garden City, New York, for
Appellant” is added at line 4.
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4844
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JONATHAN GIANNONE,
Defendant - Appellant.
No. 08-5020
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JONATHAN GIANNONE,
Defendant - Appellant.
No. 08-8386
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JONATHAN GIANNONE,
Defendant - Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Columbia. Cameron McGowan Currie,
District Judge. (3:06-cr-01011-CMC)
Argued: December 2, 2009 Decided: January 7, 2010
Before NIEMEYER and AGEE, Circuit Judges, and John Preston
BAILEY, Chief United States District Judge for the Northern
District of West Virginia, sitting by designation.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
ARGUED: Thomas F. Liotti, LAW OFFICES OF THOMAS F. LIOTTI,
Garden City, New York, for Appellant. Dean A. Eichelberger,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina,
for Appellee. ON BRIEF: Drummond C. Smith, LAW OFFICES OF
THOMAS F. LIOTTI, Garden City, New York, for Appellant. W.
Walter Wilkins, United States Attorney, Robert F. Daley, Jr.,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
A jury convicted Jonathan Giannone of three counts of wire
fraud, in violation of 18 U.S.C. § 1343, and two counts of
aggravated identity theft, in violation of 18 U.S.C. § 1028A.
It found that during May and June 2005, Giannone transmitted
over the Internet 8 stolen account numbers of Bank of America
debit cards as samples of what he had for sale to a confidential
informant and 21 stolen account numbers, along with the names of
11 account holders, of Bank of America debit cards in
furtherance of an actual sale to the confidential informant.
The district court sentenced Giannone to 65 months’ imprisonment
-- 41 months on the wire fraud counts and 24 months to run
consecutively on the aggravated identity theft counts.
On appeal, Giannone raises numerous errors relating to his
convictions and sentence. For the reasons that follow, we
affirm his convictions, but vacate his sentence and remand for
resentencing.
I
The United States Secret Service conducted an online
undercover investigation from its offices in Columbia, South
Carolina, known as “Operation Anglerphish,” which was designed
to identify persons using the Internet to commit identity theft,
credit card fraud, fraud, and related crimes. A target of this
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investigation was an online community that trafficked in
personal information and engaged in other criminal activities
over the Internet. After Brett Shannon Johnson was arrested in
Charleston County, South Carolina, for defrauding sellers on the
Internet, he agreed to cooperate in the investigation as a
confidential informant. In cooperation with the Secret Service,
Johnson operated under his online user name “Gollumfun” while
the Secret Service recorded his chats with transcripts of
keystrokes and real-time video of his computer screen.
Several online chats occurred in which Pit Boss 2600 and
CIA INTEL, online user names used interchangeably, contacted
Johnson, who was a well-known and skilled member of the
community trafficking in personal information. The person
behind the names Pit Boss 2600 and CIA INTEL offered to sell
Johnson some “seriously good dumps,” referring to the data
encoded on the magnetic strip on the back of a credit or debit
card. That person then sent Johnson over various Internet
transmissions eight account numbers for Bank of America debit
cards, along with the names of the account owners, as samples of
what he had for sale. While all of these accounts were
inactive, the person indicated that he could sell Johnson more
numbers in the future.
On June 4, 2005, the person behind Pit Boss 2600 sold
Johnson 21 debit card numbers for $600. The person requested
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that the $600 be deposited in a Bank of America checking
account, and two days later, the person transferred 21 Bank of
America account numbers to Johnson, as well as the names of 11
of the account holders. After the transfer, undercover agents
deposited $600 into the bank account, from which the defendant
in this case, Giannone, withdrew $500. Determining that
Giannone was Pit Boss 2600 and CIA INTEL, the Secret Service
arrested Giannone in New York and took him to South Carolina,
where he was tried and convicted of five counts, three for wire
fraud and two for aggravated identity theft.
The Secret Service was able to identify Giannone as the
individual using the Pit Boss 2600 and CIA INTEL online user
names based on his own e-mails, as well as external evidence.
Two witnesses who knew Giannone testified that he used the Pit
Boss 2600 name when chatting. But more significantly, Pit Boss
2600 made statements online to Johnson that his “legit” American
Express card number ended with 1001 and that his account had
been upgraded from gold to platinum status. This number and
status corresponded to Giannone’s actual American Express
account. In chats, Pit Boss 2600 and CIA INTEL also referred to
various travels throughout the United States, often for the
purpose of executing scams. Bank records and flight records
subpoenaed by the Secret Service demonstrated that Giannone had
actually made the trips referred to by Pit Boss 2600 and CIA
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INTEL. The government also demonstrated that Pit Boss 2600 and
CIA INTEL were the same person with evidence that the two
identities were used interchangeably in conversations with
Johnson. Moreover, CIA INTEL indicated during a chat that he
was also Pit Boss 2600.
In sentencing Giannone, the district court applied an
intended loss figure in the amount of $132,327.17 to determine
Giannone’s offense level, applying U.S.S.G. § 2B1.1(b)(1). The
court also applied a two-level sentencing enhancement on the
wire fraud counts pursuant to U.S.S.G. § 2B1.1(b)(10)(B) because
the offenses involved the trafficking of unauthorized access
devices, i.e., the account numbers.
This appeal followed.
II
For his most substantial argument, Giannone contends that
the district court gave an erroneous instruction to the jury on
the meaning of “knowingly” in 18 U.S.C. § 1028A, the aggravated
identity theft statute. In Flores-Figueroa v. United States,
129 S. Ct. 1886 (2009), which was decided after the jury was
instructed in this case, the Supreme Court held that to convict
a defendant under § 1028A, the government had to prove that the
defendant knew that the “‘means of identification’ he or she
unlawfully transferred, possessed, or used, in fact, belonged to
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‘another person.’” Id. at 1888 (emphasis added). At trial,
however, the district court instructed the jury that a defendant
need not know that the means of identification in fact belonged
to another person, which was consistent with then-existing
Fourth Circuit law. See United States v. Montejo, 442 F.3d 213,
215-17 (4th Cir. 2006). Because Giannone did not,
understandably, object to the instruction, our review is for
plain error under Federal Rule of Criminal Procedure 52(b).
While the government concedes that the failure to give an
instruction consistent with Flores-Figueroa was plain error that
affected Giannone’s substantial rights, it urges that we not
take notice of the error because allowing the conviction to
stand will not “seriously affect the fairness, integrity, or
public reputation of judicial proceedings.” It argues that the
proceedings overwhelmingly demonstrated that Giannone knew that
the means of identification he sold to Johnson belonged to other
people. See Johnson v. United States, 520 U.S. 461, 469-70
(1997) (citing United States v. Olano, 507 U.S. 725, 732 (1993))
(declining to notice plain error because of clear evidence of
guilt); United States v. Cedelle, 89 F.3d 181, 186 (4th Cir.
1996) (same).
We agree and decline to notice the error. The record
demonstrates that the entire purpose of the transaction between
Giannone and Johnson was to traffic in the identities of real
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people. Indeed, Giannone provided the names of 11 of the 21
account holders whose accounts he sold to Johnson for $600,
demonstrating that he knew that the account numbers were
associated with actual people. Moreover, Giannone stipulated at
trial that if any of the account holders referred to in the
indictment were called to testify, they would state that the
accounts were theirs and were transmitted without authorization.
The situation here is not unlike that in Cedelle where we
declined to notice plain error when overwhelming evidence
indicated that a defendant knew he was receiving depictions of
actual minors engaged in sexually explicit conduct, even though
the jury was not instructed on the required knowledge element.
Cedelle, 89 F.3d at 185-86. The evidence here clearly
demonstrates that Giannone not only trafficked in the means of
identification of others but knew that the means of
identification belonged to real persons.
III
Giannone also argues -- correctly -- that the district
court erred by imposing a two-level sentencing enhancement under
U.S.S.G. § 2B1.1(b)(10), calling for an enhancement when a crime
involves the trafficking of an unauthorized access device -- in
this case the bank debit cards.
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The application notes to the Guidelines governing
aggravated identity theft state that this enhancement should not
apply to a defendant convicted of aggravated identity theft when
the defendant is also convicted of the offense underlying the
aggravated identity offense, in this case the wire fraud. See
U.S.S.G. § 2B1.6, App. Note 2. The reason is obvious. The
aggravated identity theft charge itself imposes an additional,
consecutive two-year sentence for the unauthorized use or
transfer of the account numbers, and therefore the enhancement
in § 2B1.1(b)(10) would amount to double counting.
Even though Giannone did not object to the enhancement
below, we take notice of the plain error, vacate Giannone’s
sentence, and remand for resentencing.
IV
Giannone’s other arguments on appeal do not merit
significant discussion. First, he contends that the district
court abused its discretion by denying his pretrial motion to
transfer this case under Federal Rule of Criminal Procedure Rule
21(b) to the Eastern District of New York, where he lives.
While we have already denied Giannone’s petition for a writ of
mandamus challenging the district court’s denial of his transfer
motion, we again conclude the district court did not abuse its
discretion. While Giannone does live in New York and witnesses
9
are located there, the violations here occurred over the
Internet between New York and South Carolina, where there are
also witnesses.
Giannone also contends that the district court erred by
denying his post-trial motion for a new trial based on his claim
that the government withheld exculpatory impeaching information
in violation of Brady and that newly discovered evidence
demonstrated his innocence. In a pre-trial motion to dismiss,
Giannone submitted a chat transcript, which he then alleged
demonstrated that he was not the individual associated with the
screen names Pit Boss 2600 and CIA INTEL. After his conviction,
he admitted to the government that he had fabricated the chat
transcript, and his counsel (despite relying on the transcript
in briefs before this Court) reiterated that concession at oral
argument. Prior to this admission, however, the government had
prepared a video demonstration for trial to show the jury how an
online chat transcript could be fabricated. The trial court
ultimately did not permit the government to introduce the
demonstration into evidence, but Giannone claimed in his post-
trial motion that the evidence was Brady material inasmuch as it
could demonstrate that the evidence of the transcripts between
himself and Johnson were similarly fabricated. This argument is
baseless because the demonstration was not exculpatory but
instead would only demonstrate that Giannone had committed a
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fraud on the court. It would do nothing to refute the
considerable real-life testimony corroborating the chats between
Johnson and Giannone.
Giannone also bases his Brady argument in part on a March
1, 2007 letter written by Johnson to the district judge, which
contained descriptions of Johnson’s misdeeds, Secret Service
misconduct, and Johnson’s drug addiction. Giannone claims that,
although the letter was written during trial, he never received
the letter during trial and thus was unable to use it because
the government and the court suppressed the letter until after
trial. The record establishes, however, that the letter did not
arrive at the court until March 13, 2007, which was after the
trial had been completed, and that Giannone was promptly given
the letter.
Giannone’s other claimed Brady violations about withholding
his police record, grand jury testimony, and other miscellaneous
post-trial matters are no more persuasive. We conclude that
Giannone simply has not demonstrated any Brady violation.
Next, Giannone argues that certain flight, credit card, and
bank records were improperly admitted into evidence because they
were not properly authenticated. He did not, however, object to
the evidence on this basis, and therefore any review is for
plain error. There clearly was no plain error as, contrary to
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Giannone’s contentions on appeal, he expressly consented to the
admissibility of the exhibits during the course of trial.
Next, Giannone contends that the district court abused its
discretion in allowing a Secret Service agent to testify about
his experiences with airport security without being qualified as
an expert witness. This argument is frivolous. The agent
simply testified that in order to fly on an airline, one must
show identification that matches one’s airline ticket. This was
a factual matter, not a matter for expert testimony.
Giannone next claims that the evidence was insufficient to
show that he knowingly used the means of identification of
another person, as required by 18 U.S.C. § 1028A. The evidence
refuting this argument has already been discussed in connection
with his challenge to the jury instruction on § 1028A, and,
based on that evidence, we reject his argument that the evidence
was insufficient to support a conviction.
Next, Giannone contends that the district court erred by
using the total balance of the 21 debit card accounts sold,
i.e., $132,327.17, as the intended loss for purposes of
sentencing. He notes that the amount actually realized in using
the debit cards amounted to only $12,546.92. This argument,
however, overlooks that the Sentencing Guidelines require that
the greater of the actual or intended loss be applied in
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computing an offense level. See U.S.S.G. § 2B1.1, App. Note
3(A).
Finally, Giannone argues that based on his cooperation
following conviction, he was entitled to a motion by the
government for a downward departure pursuant to U.S.S.G.
§ 5K1.1. We have held, however, that we may only review “a
prosecutor’s decision not to move for departure if the refusal
is based on an unconstitutional motive, such as race or
religion, or is not rationally related to permissible government
objective.” United States v. LeRose, 219 F.3d 335, 341-42 (4th
Cir. 2000). Because no improper motive has been demonstrated,
we will not review the prosecutor’s exercise of discretion.
In sum, we affirm Giannone’s convictions and vacate his
sentence, remanding for resentencing without the two-level
enhancement under U.S.S.G. § 2B1.1(b)(10).
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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