United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
PHILIP P. SIMON, District Judge.
Defendant Willie Harris was caught running a wide-ranging credit card fraud scheme. After a trial, he was convicted by a jury of two counts of identify theft, three counts of credit card fraud, aggravated identify theft, and conspiracy to commit fraud. Harris has now made four posttrial motions in anticipation of sentencing. First, he has moved for a judgment of acquittal, arguing that the evidence presented at trial was insufficient to connect him to the fraudulent acts alleged in Counts 4, 8, and 10 of the indictment [DE 546]. Next, he alleges the government violated Federal Rule of Criminal Procedure 11 by using evidence he provided in his proffer agreement against him in their case-in-chief [DE 547]. He has moved for the return of items that he claims were seized by the government and forfeited without his notice [DE 548]. And finally, he seeks an order compelling the government to produce evidence of the number of victims and loss amounts prior to his sentencing [DE 549]. For the reasons stated below, these motions are either without merit or moot. Accordingly, Harris's motions are DENIED.
Harris was charged with participating in a credit card fraud conspiracy that lasted from March 2007 through January 2010 along with two counts of identity theft, three counts of credit card fraud, and one count of aggravated identity theft. Essentially, Harris and his co-conspirators were accused of obtaining the names and credit card numbers of victims and then impersonating those victims in order to have their own names or aliases added as authorized users to the victims' credit card accounts. They then used these fraudulently obtained credit cards to make purchases, buy gift cards, and obtain cash advances and convenience checks on the victims' accounts. This was an extensive conspiracy, involving dozens of victims in twenty-three states and hundreds and thousands of dollars in losses.
The evidence adduced at trial established that Willie Harris was at the center of the conspiracy - directing the activities of several other co-conspirators. Although the fraudulent activity began in Indiana, after Harris was convicted of credit card fraud in state court, he moved the base of his operation to Georgia. Harris would fly his co-conspirators, mostly young women, from Indiana down to his home in Georgia and assist them in obtaining fraudulent Georgia identification. He would mail fraudulent credit cards to his co-conspirators in Indiana and Wisconsin and direct them to make cash advances on the cards. On a number of occasions, Harris flew to Indiana himself to assist with the transactions. Harris would drive the women from bank to bank, telling them how much money to request, sometimes even accompanying them to the counter as they requested the money.
Some of the government's most damning evidence included a series of recordings made by several credit card companies. These are the types of recordings customarily made by companies when customers call in for assistance. In these recordings, Harris poses as a real customer who is trying to convince the customer-service representative to add Harris's alias to the victim's account. Several of Harris's co-defendants testified that it was Harris's voice on those recordings. It is difficult to place into words just how compelling the recordings were and what they revealed about the true audacity of Harris's undertaking.
Five of Harris's co-defendants pled guilty and testified against him at trial. They all, more or less, fingered Harris as the leader of this multi-state fraud ring which victimized dozens of people. On May 10, 2013, a jury found Harris guilty on all seven counts on which he was charged. Pursuant to Federal Rule of Criminal Procedure 29, he now challenges the guilty verdict on three of those counts.
A. Motion for Acquittal on Counts 4, 8, and 10
Harris argues there is insufficient evidence linking him to Counts 4, 8, and 10 of the indictment. Federal Rule of Criminal Procedure 29 requires the Court to "enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." However, "a defendant's burden in showing the evidence was insufficient to support a conviction is nearly insurmountable." United States v. Rollins, 544 F.3d 820, 835 (7th Cir. 2008). A jury's guilty verdict will be set aside "only if the record contains no evidence, regardless of how it is weighed, from which a jury could have found the defendant was guilty." Id. (emphasis added). Put another way, the evidence must be "so scant that a jury could only speculate as to the defendant's guilt, and a reasonably minded jury must have had a reasonable doubt as to the defendant's guilt." United States v. Howard, 179 F.3d 539, 542 (7th Cir. 1999). In reviewing a motion for judgment of acquittal, I must view the evidence in the light most favorable to the government. Rollins, 544 F.3d at 835. It is not my job to play thirteenth juror, re-weigh the evidence myself, or secondguess the jury's assessment of the evidence. Id.
Counts 4, 8, and 10 all stem from a November 9, 2007 transaction where Tereza Harris, an unindicted co-conspirator, obtained an unauthorized $3, 800 cash advance on the Citibank credit card of the victim with the initials BS. Based on this transaction, Count 4 charged Willie Harris with identity theft in violation of 18 U.S.C. § 1028(a)(7). Count 8 charged Harris with credit card fraud in violation of 18 U.S.C. § 1029(a)(2). Count 10 charged Harris with aggravated identity theft in violation of 18 U.S.C. § 1028A. In the alternative, the government charged Harris with aiding and abetting these offenses in violation of 18 U.S.C. § 2.
To prove credit card fraud, the government had to show that Harris 1) knowingly used or trafficked in an unauthorized credit card; 2) obtained at least $1, 000 in any one year period by doing so; 3) did so with the intent to defraud; and 4) affected interstate commerce. See Seventh Circuit Pattern Instruction for 18 U.S.C. §§ 1029(a)(2). The identity theft charges then build off of the credit card fraud. To simplify, a person commits identity theft if they use someone else's identification while attempting to commit credit card fraud, and a person commits aggravated identity theft if they use the identification to actually commit the credit card fraud. More specifically, to prove identity theft, the government had to show that a defendant 1) knowingly transferred, possessed or used the means of identification of another person; 2) knew that the means of identification belonged to another person; 3) acted with intent to commit or aid and abet credit card fraud; 4) acted without lawful authority; and 5) the transfer, possession or use of the means of identification affected interstate commerce or the means of identification was transported in the mail in the course of the possession or use. See Seventh Circuit Pattern Instruction for 18 U.S.C. § 1028(a)(7). For aggravated identity theft, the government had to prove that the defendant 1) committed the underlying felony offense of credit card fraud; 2) knowingly transferred, possessed or used a means of identification during and in relation to the offense; 3) did so without lawful authority; and 4) knew the means of identification belonged to another person. See Seventh Circuit Pattern Instruction for 18 U.S.C. § 1028A.
Willie Harris does not dispute that someone committed credit card fraud relating to the account of BS. But according to Harris, it was BS herself who was in cahoots with Tereza Harris, meaning that BS was somehow involved in the theft of her own identity. Harris's testimony in this regard was nothing short of preposterous. BS testified; she is a older lady who lives outside the State of Indiana. She testified that she did know Tereza Harris and under no circumstances did she allow Tereza Harris to be added as an authorized user on her credit card. (Tr. V.2, p. 254-258). She testified that she was not involved in this fraud and felt victimized by those who stole her identity and added someone to her credit card as an authorized user without her knowledge or consent. Id.
BS's testimony and bank records plainly establish that someone used BS's identity to add Tereza Harris as an authorized user on BS's credit card accounts and then used those fraudulently-obtained credit cards, now in Tereza Harris's name, to rack up thousands of dollars in unauthorized charges (Tr. V.2, p. 253-267; Tr. V.7, p. 104, 122-123). As for the transaction that forms the basis for Counts 4, 8 and 10, BS's testimony, bank records, and a photograph show that on November 9, 2007, Willie Harris accompanied Tereza Harris to a bank in Munster, Indiana. While in ...