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United States of America v. Mark Green

May 16, 2011

UNITED STATES OF AMERICA
v.
MARK GREEN



The opinion of the court was delivered by: Juan R. Sanchez, J.

MEMORANDUM

On November 4, 2009, Defendant Mark Green was convicted ofone count of conspiracy to commit access device fraud, in violation of 18 U.S.C. § 1029(b)(2) (Count I); two counts of unauthorized use of an access device, in violation of 18 U.S.C. § 1029(a)(2) (Counts II and III); and one count of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1) (Count V).*fn1 Green asks this Court to arrest judgment on his convictions, dismiss his Indictment, enter a judgment of acquittal, or grant him a new trial. For the following reasons, Green's omnibus motion is denied. FACTS

From January to June of 2007, Green obtained stolen personal identification information for two individuals, Keith Berthrong and Frank Monzo. He used the information to apply for credit cards and create identification documents in the names of the two men, and then used the fraudulently obtained credit cards to purchase goods and services in Pennsylvania, New Jersey, and Delaware.

Green's illegal activity was uncovered during a joint investigation by the Secret Service and the Upper Dublin Township Police Department. While investigating Green, Secret Service Agent Sabrina Cipriano received notice from U.S. Postal Inspector Brian Shannon that the name Frank Monzo had become related to an address which Cipriano believed Green was using. Cipriano contacted Monzo to see if he had been the victim of identity theft, and he told her approximately $400,000 of fraudulent charges had been incurred under his name.

By researching the fraudulent purchases made in Monzo's name, Agent Cipriano and Upper Dublin Township Police Detective Daniel Wade discovered that Green had used credit cards in Monzo's name to pay for repairs made to a Mercedes Benz in Fort Washington, Pennsylvania. Their investigation revealed that Green dropped off the car and told repair shop employees it belonged to his company, Lotus Dotson Auto Sales.*fn2 The total cost of the repair work was $12,002.35. While the car was undergoing repairs, two individuals came to the repair shop on three separate occasions to make installment payments for the repairs. A Discover card in the name of Keith Berthrong was charged $2,500 on one occasion and $4,000 on another, and a Macy's VISA card in the name of Frank Monzo was charged $2,500. These payments were made at Green's direction by two individuals who acted as Green's employees, Josephine Breslin and Green's co-defendant Linwood Scott.*fn3 When Breslin and Scott were interviewed by police, they said Green provided them with the credit cards and paid them to make the payments at the repair shop.

After discovering that fraudulent credit cards were being used to pay for the car repairs, Detective Wade obtained a search warrant for the Mercedes Benz. Upon searching Green's car, he found, inter alia, (1) a photocopy of an envelope addressed to Frank Monzo, (2) a Bank of America account statement addressed to Monzo, (3) a tax payment form with Monzo's name on it, (4) a W.S.S. Bank checking account statement in Monzo's name, and (5) a number of insurance documents for the Mercedes addressed to Green.

At the same time Agent Cipriano and Detective Wade were investigating Green, he was involved in an identity fraud investigation conducted by Pennsylvania State Police Trooper David Shearn, a vehicle fraud investigator. Shearn's investigation involved a man named Tracy Lamont Green, who resided at 1979 Renovo Street, one of several addresses associated with Mark Green. When Shearn submitted a photograph of Tracy Lamont Green to PennDOT, the agency used its facial recognition software to determine Tracy Lamont Green was in fact the Defendant, Mark Green.

Having discovered that he was under investigation, Green contacted federal law enforcement agents on November 16, 2007, and said he wished to speak to them. Green thereafter voluntarily appeared at the Upper Dublin Township Police Department for an interview. Before he arrived, Green was advised he would be arrested after he made his statement because he had an open arrest warrant in Upper Dublin for criminal charges related to this matter. Green knowingly waived his Miranda rights before speaking to police. In addition to Detective Wade, Agent Cipriano, and Inspector Shannon, Green met with the Assistant United States Attorney investigating his case and FBI Agent Bob Loughney.

During the interview, Green admitted to the above conduct and provided additional information about how he accomplished his crimes. Green said he was "the boss" of an identity theft scheme and explained that he directed the actions of four different people who obtained identity information and used fraudulently obtained credit cards to make purchases. Trial Tr. II, Nov. 3, 2009, 145. Green explained that one member of his conspiracy, Eric Williams, would steal personal identifying information from mailboxes, cars, purses, and wallets. After Williams obtained driver's licenses, credit cards, and mail from his victims, he would provide the information he gleaned from these documents to Green, who would then apply for credit cards in these individuals' names. Green also admitted he gave credit cards issued in the names of Berthrong and Monzo to Breslin and Scott, and paid Breslin and Scott to use such cards to pay for repairs to his Mercedes Benz. Green told the interviewers he had also used the credit card in Monzo's name to purchase a Corvette, a Chevrolet SUV, and a Land Rover. At the time of his interview, Green told law enforcement personnel he no longer had the phony credit cards or any phony identification cards because he had thrown them into a dumpster at a Philadelphia construction site. When police searched an apartment affiliated with Green, however, they recovered a Macy's card and two fraudulent driver's licenses in Monzo's name.*fn4

On January 24, 2008, a federal grand jury indicted Green on the charges described above. On November 4, 2009, after a three-day trial, a jury returned guilty verdicts on Counts I, II, III, and

V. DISCUSSION

Green first seeks an arrest of judgment on his convictions pursuant to Federal Rule of Criminal Procedure 34(a), which requires a court to arrest judgment if the court does not have jurisdiction of the charged offense." Green contends this Court lacked jurisdiction over his Indictment because Counts I, IV, and V failed to state that the conspiracy he engaged in or his possession of fraudulent credit cards affected interstate commerce. Green relies on United States v. Spinner, 180 F.3d 514 (3d Cir. 1999), which he contends stands for the proposition that "[w]hen any count of an indictment fails to charge an [effect] on interstate or foreign commerce as an element of the offense, the Court lacks jurisdiction over the entire indictment." Def.'s Post-Verdict Mot. 1.

The Indictment sets forth the offenses with which Green is charged in language mirroring the words of the criminal statutes. The access device fraud statute referenced in Counts II and III provides, in relevant part, "Whoever . . . (2) knowingly and with intent to defraud traffics in or uses one or more unauthorized access devises during any one-year period, and by such conduct obtains anything of value aggregating $1,000 or more during that period; . . . shall, if the offense affects interstate or foreign commerce, be punished . . . ." § 1029(a)(2). Thus, Counts II and III, which charge Green with unauthorized use of an access device, include a statement that Green's actions affected interstate and foreign commerce. Because the statutes referenced in Counts I, IV, and V do not mention interstate commerce, however, those counts do not include such an express jurisdictional statement.

To confer federal jurisdiction, "the interstate commerce element of the crime with which [the defendant] is charged must be alleged in the indictment." Spinner, 180 F.3d at 515. In Spinner, the defendant was charged with access device fraud, in violation of 18 U.S.C. § 1029(a)(5), and bank fraud, in violation of 18 U.S.C. § 1344. Id. Although the Government included the federal jurisdictional element in the second count of the indictment, pertaining to bank fraud, it failed to allege that any of the access device fraud transactions in the first count affected interstate or foreign commerce. Id. The Government asserted such an omission was harmless error which was cured by inclusion of the federal jurisdictional element in the second count. The Third Circuit disagreed, finding the failure to state the elements of an offense was a "fundamental defect" and stating "[t]he fact that the United States charged interference with interstate commerce in [another count] of [the defendant's] indictment is ...


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