U.S. v. Soape

• Decision Date: 09 March 1999
• Docket Number: No. 97-41250,97-41250
• Citation: 169 F.3d 257
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Allen Perry SOAPE, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 257

169 F.3d 257

UNITED STATES of America, Plaintiff-Appellee, v. Allen Perry SOAPE, Jr., Defendant-Appellant.

No. 97-41250.

United States Court of Appeals, Fifth Circuit.

March 9, 1999.

Alan Reeve Jackson, Tyler, TX, for Plaintiff-Appellee.

Eric Miller Albritton, Holmes Law Office, Longview, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Texas.

Before KING, Chief Judge, and POLITZ and BENAVIDES, Circuit Judges.

KING, Chief Judge:

Defendant-appellant Allen Perry Soape, Jr. appeals his conviction and sentence for conspiracy to fraudulently use counterfeit access devices, unauthorized access devices, and access devices issued to another person; fraudulent use of unauthorized access devices; fraudulent use of counterfeit access devices; fraudulently effecting transactions with access devices issued to another person; use of a fictitious name or address; and false use of a social security account number. We affirm.

I. FACTUAL AND PROCEDURAL HISTORY

On August 2, 1995, defendant-appellant Allen Perry Soape, Jr. was transferred to the Jefferson County Jail from the Angelina County Jail, where he had been incarcerated after his arrest on charges unrelated to the instant case. Soape turned over to Jefferson County authorities a number of credit and identification cards, and both Soape and the jail official who processed him executed a property log. While Soape was an inmate at the Jefferson County Jail, Steven Michael Alexander contacted Captain Michael Hebert, an internal affairs investigator for the Jefferson County Sheriff's Department, to complain that Soape possessed credit cards issued in Alexander's name. Hebert retrieved Soape's personal effects from the property room at the jail and found the following documents:

1. Two Direct Merchants Bank MasterCard credit cards in the name of Steven M. Alexander;

2. One NationsBank/NCNB Interact Pulse card in the name of Steven M. Alexander;

3. One Radio Shack American Technology Store card in the name of Steven M. Alexander;

4. One Boilermaker's National Health and Welfare Fund card in the name of Steven M. Alexander;

5. One NationsBank MasterCard credit card in the name of Steven M. Alexander, Jr.; and

6. One Texas Department of Public Safety temporary driver's license in the name of Steven Michael Alexander.

Soape was charged by an indictment filed in the Eastern District of Texas with (1) one count of conspiring with Joy A. Lovett ¹ to violate 18 U.S.C. § 1029(a)(1), (2), and (5); (2) three counts of fraudulently using unauthorized access devices in violation of 18 U.S.C. § 1029(a)(2); (3) one count of fraudulently using a counterfeit access device in violation of 18 U.S.C. § 1029(a)(1); (4) three counts of fraudulently effecting transactions with access devices issued to another person in violation of 18 U.S.C. § 1029(a)(5); (5) one count of using a fictitious name or address in violation of 18 U.S.C. § 1342; and (6) three counts of using a false social security account number in violation of 42 U.S.C. § 408(a)(7)(B). Soape pleaded not guilty to all counts and proceeded to trial pro se.

The evidence at trial consisted of the following. First, Alexander testified that he met and befriended Soape in the 1970s. During this time, Soape had access to Alexander's home and personal effects and sometimes stayed at Alexander's residence. From 1989 to 1992, Alexander permitted Soape to use two of his credit cards, but he ultimately requested their return, paid off the remaining balances, and canceled the cards. Alexander also testified that at one point, Lovett informed him that Soape had several credit cards in Alexander's name. With respect to the documents retrieved from the Jefferson County Jail, Alexander stated that he never applied for, or had any knowledge of, the Direct Merchants Bank MasterCards, the NCNB/Interact Pulse card, the Radio Shack card, or the NationsBank MasterCard, and that he did not recognize some of the addresses the applications and statements for these accounts listed as his. Furthermore, he testified, he never possessed the temporary driver's license found among Soape's personal effects, and it bore an address with which he was unfamiliar.

In addition to Alexander, several bank employees and government investigators testified regarding the specific documents at issue. Susan Dare of Medras, Inc., Direct Merchants Bank's parent company, testified that someone had applied by phone for a credit card account in the name of Steven M. Alexander, using his social security account number and an address in Lufkin, Texas, and that the Direct Merchants Bank MasterCards found in Soape's possession were issued on that account. Don Walton of NationsBank testified that someone opened a NationsBank checking account in the name of Steven M. Alexander of Lufkin, Texas with the same social security account number and that the NationsBank/NCNB Interact Pulse card found in Soape's possession was issued on that account. Two wire transfers had been made from that account to an account in Soape's name at First National Bank in Port Neches, Texas. Walton also stated that an individual had applied for a NationsBank Gold MasterCard account using the name Steven M. Alexander of Orange, Texas, with Alexander's social security account number, and that NationsBank had issued a credit card on that account. After the account was opened, a request form seeking to add the names "J.A. Lovett" and "A.P. Soape" to the account was submitted, and additional Gold MasterCards were issued in those names. The form included the signatures of the primary cardholder, Alexander, and the two individuals who were to be added. Walton further identified two Wal-Mart credit card receipts on the NationsBank MasterCard in J.A. Lovett's name, two rental car contracts charged on the NationsBank MasterCard in Alexander's name, a NationsBank MasterCard charge to STS Audio Video in the name of J.A. Lovett, and a convenience check, written on the same NationsBank MasterCard account, from Steven M. Alexander, Jr. to J.A. Lovett. Next, Jan Williamson of the Texas Department of Public Safety testified that two licenses had been issued in the name of Steven Michael Alexander, but that one license bore a post office box address and Soape's photograph as well as Alexander's true address. Two United States Postal Service employees testified that someone representing himself to be Steven Alexander applied for the post office boxes in Lufkin and Orange, Texas that appeared on the Direct Merchants Bank MasterCard statements and the NationsBank Gold MasterCard application, respectively. Finally, Nancy Grinnell of the Social Security Administration testified that the social security account number used in the accounts described above was assigned to Steven Michael Alexander, Jr.

In addition, several store employees testified about specific usages of the cards at issue. Kristi Maxon, a Wal-Mart employee, stated that both Wal-Mart receipts were from transactions using NationsBank MasterCards issued in the name of J.A. Lovett; one carried the signature of J.A. Lovett and the other of "S.A. and maybe Steven Alexander." James Bailey, a manager of STS Audio Video, stated that he sold a satellite system to a customer who presented a credit card in the name of J.A. Lovett and that the signature on the receipt was "J.A. Lovett." He also prepared a work order directing his employees to install the system at Joy Lovett's residence. According to Bailey, the customer provided the address and signed the work order "Joy Lovett." Bank employees testified that more than $1000.00 was charged on the NationsBank MasterCard account in 1993, 1994, and 1995 and on the Direct Merchants account in 1995.

Finally, prosecution witness Melissa McCaa, Lovett's daughter, took the stand. McCaa recalled that Soape had used a driver's license bearing Alexander's name but his own photograph to make either a deposit or a withdrawal at NationsBank in Lufkin, Texas and that he had paid for a hotel room and a rental car in Las Vegas, Nevada with a NationsBank MasterCard in Alexander's name. She confirmed that Lovett possessed a NationsBank MasterCard in the name of J.A. Lovett and had used it to withdraw money from a Pulse automatic teller machine, make purchases at Wal-Mart, and buy a satellite system. Finally, McCaa identified the signature and address on the STS receipt as Lovett's; the telephone number on the STS work order as Soape and Lovett's home number; the telephone number on the NationsBank wire transfer documents, the NationsBank MasterCard application, the NationsBank MasterCard request form, and the Las Vegas car rental agreements as Soape and Lovett's cellular telephone number; the signatures on the NationsBank MasterCard form requesting additional cards as Lovett's and Soape's; and the signature endorsing the convenience check as Lovett's.

Soape called several defense witnesses whose testimony suggested that Alexander had authorized Soape to use his name and credit cards. An officer at the Angelina County Jail, Lieutenant Price, stated that he contacted a person whose name appeared on a credit card in Soape's possession and was advised by that person that Soape had permission to use the card. Although he could not remember the identity of that person, Alexander's name sounded familiar. Captain Hebert testified that he talked to Price after Price had contacted this person, and Price indicated that he had spoken with Alexander and that Alexander had given Soape permission to use the cards. Finally, Melinda Knost told the jury that she observed Alexander give Soape a temporary driver's license and credit cards and sponsored a power of attorney, which she had notarized, granting Soape permission to act in Alexander's affairs.

The jury convicted Soape on all counts. The district court sentenced him to eighteen months in prison and a three-year term of...