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United States of America v. Gregory Jones

December 21, 2011

UNITED STATES OF AMERICA,
v.
GREGORY JONES



The opinion of the court was delivered by: Eduardo C. Robreno, J.

MEMORANDUM

TABLE OF CONTENTS

I. BACKGROUND................................................ 2

II. DISCUSSION............................................... 11

A. Standard of Review.................................. 12

B. Ground One.......................................... 14

C. Ground Two.......................................... 16

D. Ground Three........................................ 21

1. Withdrawal of Guilty Plea...................... 22

2. Presentence Investigation Report............... 24

3. Perjury at Sentencing.......................... 25

4. Filing Appeal.................................. 31

E. Ground Four......................................... 33

F. Ground Five......................................... 34

III. CERTIFICATE OF APPEALABILITY............................. 35

IV. CONCLUSION............................................... 36

Gregory Jones ("Petitioner") is a federal prisoner incarcerated at FCI-Elkton. Petitioner filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence ("§ 2255 Motion").*fn1 Petitioner claims that he received constitutionally ineffective assistance of counsel.

For the reasons set forth below, the Court will deny with prejudice the § 2255 motion.

I.BACKGROUND

Petitioner pled guilty to all counts of a nine-count superseding indictment charging him with conspiracy to possess access-device-making equipment, document-making implements, and counterfeit access devices (Count I), producing counterfeit access devices (Count II), possessing unauthorized and counterfeit access devices (Counts III and IV), possessing device-making equipment (Counts V and VI), possessing document-making equipment (Counts VII and VIII), and aggravated identity theft (Count IX), in violation of 18 U.S.C. §§ 371, 1029(a)(1) and (3)-(5), 1028A, and 2. See Superseding Indictment, ECF No. 40.

The charges stemmed from the following facts:*fn2

The facts in this case are largely undisputed. At all relevant times, Jones and another individual named Brian "Judge" Morgan ("Morgan") were friends and business acquaintances. In 2002, the two men met with a third man, Dan Mitchell, who instructed them on the "theory" and necessary materials for making counterfeit credit cards.

In 2002, the three men began operating a counterfeiting plant out of an apartment located at 39th and Girard Streets in Philadelphia, Pennsylvania. The plant remained in operation until the equipment was stolen at some point in 2003. Sometime later in 2003, Morgan and Jones leased an apartment at 57th and Rodman Streets, also in Philadelphia, Pennsylvania. From that location, and from 2003 to 2006, the defendant and Morgan engaged in the theft, production, counterfeiting and distribution of credit cards and credit card numbers.

Morgan contributed most of the money with which he and Jones purchased the equipment necessary for the production of the counterfeit credit cards. Jones, on the other hand, was responsible for "loading the software [and] obtaining information as far as the logos of different things that was [sic] needed to make the documents look authentic." They shared equally in the cost of maintaining the machinery and getting new materials, and jointly set $100 as the minimum price for counterfeit credit cards. They also jointly ordered skimmers from the internet. Morgan testified that the two were involved in a fifty-fifty partnership except that they each had their own client lists and sources of credit card numbers.

At some point between 2003 and 2005, Jones and Morgan purchased new equipment and moved their illicit enterprise from the Rodman Street location to 1913 Alden Street in Philadelphia, Pennsylvania. On February 7, 2007,*fn3 a search warrant was executed on the Alden Street address and Morgan was arrested. Among those items confiscated from the Alden Street address were thousands of credit card numbers, multiple computers, scanners, an embosser, credit card receipts from numerous businesses, images of credit card holograms, tipping foil, and hundreds of completed counterfeit credit cards and drivers licenses. In total, there were 6,631 distinct, i.e. non-duplicative, credit card numbers found at 1913 Alden Street. Mr. Jones admitted that he had been continuously involved in the manufacturing of counterfeit credit cards from the date he and Mr. Morgan purchased the property.

Following Morgan's arrest, and apparently undeterred, Jones continued the illicit business at an apartment located at 4158 Girard Avenue, in Philadelphia, Pennsylvania. In May of 2006, the Secret Service executed a search warrant at that location and Jones was arrested. [One hundred forty-two] credit card numbers were found at the Girard Avenue address.

The 6,631 credit card numbers found at the Alden Street address, combined with the 142 found at the Girard Ave address, yield a total of 6,773 credit card numbers. Of these, the government seeks to hold Jones liable for approximately 6,700 distinct credit card numbers. [Two thousand seven hundred forty-eight] of the 6,700 numbers were found on credit card receipts, skimmers and the business records of the Comcast Corporation.

United States v. Jones, 557 F. Supp. 2d 630, 635-37 (E.D. Pa. 2008) (internal citations to the record and footnotes removed), aff'd, 332 F. App'x 801 (3d Cir. 2009).

Shortly after his arrest, Petitioner was released on bail. See Order, June 1, 2006, ECF No. 7. And on July 20, 2006, a grand jury returned a five-count indictment charging Petitioner with various violations of possession of counterfeit devices and counterfeit-device-making equipment. See Indictment, ECF No. 11.

On September 6, 2006, Petitioner entered into a proffer agreement with the Government. Gov't Resp. 2, ECF No. 146. However, on October 30, 2006, after three interviews with Petitioner, the Government informed him that it would no longer pursue a cooperation plea agreement because he had not been forthcoming in his interviews. Id. at 2-3.

At this point, the Government had additional evidence regarding Petitioner's counterfeiting enterprise with Morgan and offered not to seek a superseding indictment if Petitioner pled guilty to the charges in the then-pending Indictment by November 13, 2006. Id. at 3; Letter from Assistant U.S. Attorney Sarah L. Grieb to Robreno, J. (Oct. 18, 2006), Gov't Resp. Ex., vol. I, at 1 (notifying Court that Government will seek superseding indictment if case goes to trial); Letter from Assistant U.S. Attorney Sarah L. Grieb to Thomas F. Burke, Esq. (Nov. 8, 2006), Gov't Resp. Ex., vol. I, at 2 (notifying counsel that deadline ...


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