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United States of America v. David E. Ballard

January 10, 2012

UNITED STATES OF AMERICA
v.
DAVID E. BALLARD



The opinion of the court was delivered by: Surrick, J.

MEMORANDUM

Presently before the Court is the Government's Motion Pursuant to Federal Rule of Evidence 404(b) to Admit Evidence of Defendant's Prior Acts of Identity Theft and Fraud to Establish Knowledge, Intent and Plan. (ECF No. 36.) For the following reasons, the Motion will be granted.

I. BACKGROUND*fn1

On August 11, 2011, a grand jury returned an Indictment charging Defendant David E. Ballard with eight counts of mail fraud, in violation of 18 U.S.C. § 1342 (Counts One through Eight)*fn2 , and five counts of aggravated identify theft, in violation of 18 U.S.C. § 1028A (Counts Nine through Thirteen). (Indictment, ECF No. 9.) The Indictment charges that Defendant devised a scheme to defraud over 1,300 people, and to obtain money and property by means of false and fraudulent pretenses. (Id.) Specifically, it is alleged that Defendant obtained personal identification for these individuals in order to open credit card or Internet payment accounts in their names, purchased various items using the accounts without the individuals' permission, and intercepted the items after having them sent to the individuals' home or work addresses. (Id.) It is alleged that Defendant then sold these items. (Id.)

The Government intends to introduce at trial evidence obtained from executing three state search warrants and one federal search warrant. Detectives from the Philadelphia Police Department had been investigating a series of burglaries at the Safeguard Self Storage facility at 6224 Germantown Avenue, Philadelphia, Pennsylvania. (Dec 6 Hr'g Tr. 52-54, ECF No. 34.) On April 7, 2011, the detectives obtained a warrant to search Unit 315 at the storage facility ("Unit 315"). (Id. at 7; Def.'s Suppress Br. Exs. A-B, ECF No. 25.) The detectives understood that Unit 315 was rented by Defendant. (Dec. 6 Hr'g Tr. 7.) When the detectives executed the search warrant on Unit 315, they seized over 500 credit reports, credit cards, driver's licenses, Social Security Cards, checks, birth certificates, check stubs and W-2's, all belonging to individuals other than Defendant. (Id. at 24, 31, 27-29, 32, 34-35.) The detectives seized notebooks containing personal identifiers of other individuals not Defendant and information concerning purchases and sales made by Defendant. (Id. at 20-21.) The detectives also seized seven Pennsylvania driver's licenses and one identification card in Defendant's name but with different addresses listed. (Id. at 21-22.)*fn3

Defendant arrived at Unit 315 while the detectives were conducting their search and was placed under arrest. (Dec. 6 Hr'g Tr. 19, 37.) The detectives conducted a search incident to arrest and seized a laptop computer, an iPod, a cell phone and additional spiral notebooks. (Id. at 37.) A second search warrant was obtained to search the laptop computer, the iPod and a number of hard drives and flash drives seized from Unit 315. (Id. at 40; Def.'s Suppress Br. Exs. C-D.) A search of the items listed in the second warrant produced personal information for over 1,000 individuals other than Defendant. (Def.'s Suppress Br. Exs. E-F.) Subsequent investigation revealed that numerous other electronic devices, including computers, iPods and gaming systems, had been fraudulently ordered using the information found on the devices listed in the second warrant. (Id.) On April 28, 2011, a third warrant was issued, requesting information from Apple, Inc. concerning the purchase of the laptop and iPod. (Id.) The FBI was notified about the information retrieved during the search of Unit 315 and the search of the electronic devices. (Dec. 6 Hr'g Tr. 86.) The FBI sought and obtained a warrant to conduct another search of Unit 315 for items related to the identity theft charges. (Def.'s Suppress Br. Ex. G.)

The Government alleges that Defendant made numerous purchases of electronic equipment, including computers, gaming systems and camcorders, over the Internet, using many of the names and personal identifiers found in documents retrieved from Unit 315. (Gov't's Mot. 4.) The Government further alleges that Defendant many times shipped these purchases to various individuals' addresses and then attempted to intercept the purchased items using identification cards bearing the individuals' addresses. (Id.)

On October 31, 2011, Defendant filed a motion to suppress the search warrants and all of the evidence obtained pursuant to those warrants. (Def.'s Mot. Suppress, ECF No. 25.) On January 5, 2011, we issued a Memorandum and Order denying Defendant's motion. (ECF Nos. 33-34.)

On December 12, 2001, the Government filed the instant Motion Pursuant to Federal Rule of Evidence 404(b) to Admit Evidence of Defendant's Prior Acts of Identity Theft and Fraud to Establish Knowledge, Intent and Plan. (Gov't's Mot.) The Motion requests that the Court admit evidence related to Defendant's prior possession of credit reports in other individuals' names, and his prior use of personal identifying information to open credit cards in other individuals' names. The Government also seeks to admit evidence of two prior instances of trespass by Defendant to the extent necessary to establish Defendant's prior possession and use of credit reports.

The Government proposes to offer into evidence a few dozen credit reports, the testimony of a police officer who arrested Defendant during one of his prior trespasses, and the testimony of an alleged victim of Defendant's previous identity theft scheme. With this proffer, the Government intends to describe the following chain of events. Sometime in 2008, B.J., the former owner and manager of Walnut Lane Apartment House ("Walnut Lane"), began receiving mail, including credit cards that she never requested. These were addressed in her name but to a vacant apartment at Walnut Lane. (Gov't's Mot. 5.) When she checked her credit report, she discovered that her address had been changed to 5231 Pulaski Avenue.*fn4 On April 21, 2009, police arrested Defendant for trespassing at a vacant apartment at Walnut Lane. (Id.) B.J. went to the police station to press charges and was provided information about Defendant's identity. (Id.) The address given by Defendant upon his arrest was the same address as the changed address on her credit report. (Id.) When B.J. returned to Walnut Lane, she went into the vacant apartment where Defendant had trespassed and discovered, among other things, credit reports and credit cards in names of individuals not Defendant. (Id. at 6.) B.J. later discovered a series of unauthorized charges on her credit card statement. (Id.)

On May 7, 2009, the police again arrived at Walnut Lane after receiving a report that someone was trespassing in another vacant apartment at the complex. (Id.) Police found Defendant in the vacant apartment. Defendant was arrested, and the police found credit reports in the backpack that he was wearing. (Id.) The Government advises that thirty-one of the credit reports seized during these 2009 trespasses were for the same individuals whose credit reports were seized at Unit 315. (Id. at 7.)*fn5 The Government also advises that of the 187 individuals whose names and personal identifiers Defendant possessed on the two trespassing occasions, 106 were the same individuals whose personal identifiers were found and seized at Unit 315. (Gov't's Supp. Mot. 1, ECF No. 50.) Moreover, the credit reports found during the 2009 trespasses bear similar characteristics to the ones recovered from Unit 315 in that both sets contain handwritten notes of individuals' personal identifying information, website addresses and purchase orders. (Id.)

Defendant was subsequently charged in the Philadelphia Court of Common Pleas with two trespassing counts and a fraud count related to Defendant's unauthorized use of B.J.'s credit card. (Id. at 6 n.4.) Defendant was released on bail but thereafter failed to appear in state court. (Id.)

On January 4, 2012, Defendant filed a response to the Government's Motion. (Def.'s Resp., ECF No. 39.) On December 6, 2011, the Government filed a Supplement to its Motion. (Gov't's Supp. Mot.) The purpose of the Supplement was to advise the Court of additional information that the Government discovered when reviewing the credit reports and other items seized ...


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