U.S.A v. Mobley

• Decision Date: 25 August 2010
• Docket Number: No. 08-4641.,08-4641.
• Citation: 618 F.3d 539
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Stephen Michael MOBLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

618 F.3d 539

UNITED STATES of America, Plaintiff-Appellee,v.Stephen Michael MOBLEY, Defendant-Appellant.

No. 08-4641.

United States Court of Appeals, Sixth Circuit.

Argued: Aug. 3, 2010.

Decided and Filed: Aug. 25, 2010.

COPYRIGHT MATERIAL OMITTED

ARGUED: Michael M. Losavio, Louisville, Kentucky, for Appellant. Christopher K. Barnes, Assistant United States Attorney, Cincinnati, Ohio, for Appellee. ON BRIEF: Michael M. Losavio, Louisville, Kentucky, for Appellant. Christopher K. Barnes, Assistant United States Attorney, Cincinnati, Ohio, for Appellee.

Before: COLE and McKEAGUE, Circuit Judges; MAYS, District Judge. ^*

OPINION

McKEAGUE, Circuit Judge.

Stephen Michael Mobley, Jr., who pled guilty to both conspiracy to commit mail, wire, and bank fraud and aggravated identity theft, appeals, arguing that the district court lacked the factual basis required under Fed.R.Crim.P. 11(b)(3) to enter judgment on his plea as to aggravated identity theft. As the court had sufficient factual basis to conclude that Mobley used his wife's social security number to submit fraudulent credit applications “during and in relation to” the requisite predicate crime of wire fraud, we affirm Mobley's conviction.

I.

On December 27, 2007, the government filed an information charging Mobley, a resident of Kettering, Ohio, with two counts: (1) conspiracy to commit mail, wire, and bank fraud in violation of 18 U.S.C. § 1349; and (2) aggravated identity theft in violation of 18 U.S.C. § 1028A.¹ According to Count 2:

On or about May 24, 2006, during and in relation to wire fraud (18 U.S.C. § 1341),² [Mobley] did knowingly possess and use, without lawful authority, a means of identification of another person, namely, the social security number of a person identified herein as K.M.

(R. 91 at 16.) (“K.M.” is Kelley Mobley, Stephen Mobley's wife.) The following day, the government and Mobley filed a plea agreement under which Mobley waived indictment and agreed to plead guilty to both counts.

The district court accepted Mobley's plea at a hearing on January 16, 2008, at which time Mobley stated that he understood the charges and that his lawyer was fully informed about the facts and circumstances on which the charges were based. Mobley also stated that he had received and read the information, and was waiving both indictment and the public reading of the information at the hearing. Ron Verst, an officer with the Postal Inspection Service, then read the factual statement that was attached to the signed plea agreement:

Beginning in December, 2005, the defendant, Stephen M. Mobley, conspired with Ted Bettker, George Nelson, Tony Stonerock, and Jason Smith and others to devise a scheme to obtain funds under the custody and control of Citibank....

The conspiracy to execute a scheme to defraud Citibank was organized and directed by Mobley and generally involved opening fraudulent business credit card accounts. Mobley and his co-conspirators would open the fraudulent accounts by submitting account applications that were false in at least one material respect. The fraudulent accounts were opened by Mobley generally on-line in his name or under the name of one of his co-conspirators. Sometimes the application to open the fraudulent account would contain a false personal identifier. In other cases, the application would contain the real personal identifiers of co-conspirators who provided the information to Mobley in furtherance of the scheme to defraud and the name of a legitimate business entity but one with which the person in whose name Mobley was submitting the card was not affiliated.

Typically Mobley would approach other individuals about the scheme and would explain that the credit card companies write this stuff off and that once the account was opened in the individual's name, the individuals could use the credit as they wished to make purchases or obtain cash by depositing checks drawn on the account but would not need to make any payments. Mobley would offer to open a fraudulent account as described above on the condition that the individual in whose name the fraudulent Citibank account was opened give Mobley access via credit card or check drawn on the account to a certain percentage of the total credit line, usually 50 percent.

Mobley would obtain the personal identifiers of the individuals, the individual having agreed to participate in this scheme, thereby becoming a co-conspirator, as well as other information such as tax identification numbers of the individuals' businesses and submit a fraudulent business credit application to Citibank either on-line or over the telephone in the individual's name. Citibank would mail the credit cards for the account in whose name Mobley had opened the account. That individual or an agent of that individual would then deliver some or all of the credit cards to Mobley pursuant to the agreement reached. Mobley would activate the fraudulent cards and sometimes request checks from Citibank so that the credit authorized by Citibank could be converted to cash. Mobley and the other individuals would make purchases and write checks against the fraudulent Citibank business credit card accounts that Mobley had opened in their names.

In February, 2006, Mobley contacted Bettker regarding the scheme to defraud. They came to an agreement as outlined above. Mobley told Bettker that he could either pay off the credit card balances each month or not pay it off; it wouldn't matter because Bettker was already in bankruptcy. Bettker provided Mobley with his Social Security number and other personal-personal information as well as the tax identification numbers for all of Bettker's business. Mobley told Bettker that he would be approved for three business credit card accounts totaling $55,000, two for $20,000, and one for $15,000. Bettker received the cards by mail and delivered the cards to Mobley.

On February 2nd, 2006, Mobley activated the cards by making an interstate telephone call to Citibank. Mobley kept one of the fraudulent cards with a $20,000 limit, gave Bettker's wife a fraudulent card with a $20,000 limit, and sent a third fraudulent card with a $15,000 limit via overnight service through the United States mail to Bettker who was working in Florida. Mobley and Bettker had an understanding that Mobley was entitled to 50 percent of the credit limit on the third card, i.e., $7,500. Subsequently, both Mobley and Bettker made purchases using the above-referenced fraudulent credit cards.

Based on the fraudulent applications submitted by Mobley under the name Kelley Mobley, using her Social Security number, and using the business name of The Gift Box, a legitimate business located in Columbus, Ohio, but with which Mobley's wife was not affiliated, Citibank on May 24th, 2006 authorized three business billing credit cards and three subaccounts.... These cards collectively held a credit limit of $65,000.

In addition to the conduct outlined above, defendants Nelson, Stonerock, and Smith provided Mobley with their personal identifiers, Social Security number, date of birth, et cetera, and other relevant information for the purpose of allowing Mobley to submit fraudulent business credit card applications pursuant to the respective agreements with Mobley....

On March 23rd, 2006, Mobley opened or caused to be opened three fraudulent Citibank accounts in the name of L.W., a deceased individual and a relation of Stonerock. The fraudulent accounts were opening-opened using L.W.'s name but using a fraudulent Social Security number and under the business name of Bridgetech, a legitimate business located in Cincinnati, Ohio but one with which neither Mobley, Stonerock, nor L.W. was affiliated.

Various of the foregoing acts occurred in the Southern District of Ohio.

(Plea Tr. at 27-32.) When the district court asked whether Mobley was offering to plead guilty because he was “in fact guilty of the offenses charged in Counts 1 and 2,” Mobley answered “yes.” (Plea Tr. at 32.) Mobley was sentenced to serve 30 months on Count 1 and 24 months on Count 2; 12 of the 30 months imposed for Count 1 and all 24 of the months imposed for Count 2 were to be served consecutively to an undischarged 70-month sentence on a prior drug conviction. The district court entered judgment on November 19, 2008. This appeal followed.

II.

Mobley argues that the district court erred by entering judgment on his guilty plea as to Count 2 of the information, as the court failed to ensure, as required by Fed.R.Crim.P. 11(b)(3), that there was a factual basis to determine that he had in fact committed aggravated identity theft in violation of 18 U.S.C. § 1028A. In particular, Mobley argues that the district court lacked a factual basis demonstrating that: (1) Mobley had committed wire fraud; (2) Mobley had ever, without lawful authority, possessed or used the identification of another person; or (3) any of Mobley's actions occurred within the Southern District of Ohio.

Where, as here, a defendant does not present objections regarding any alleged Rule 11 violation to the district court, we review for plain error. See United States v. Lalonde, 509 F.3d 750, 759 (6th Cir.2007). Plain error review involves four prongs:

First, there must be an error or defect-some sort of “[d]eviation from a legal rule”-that has not been intentionally relinquished or abandoned.... Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it “affected the outcome of the district court proceedings.”

Puckett v. United States, --- U.S. ----, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009). Fourth, if these three prongs are satisfied, then the court “has the discretion to remedy the error-discretion which ought to be exercised only if the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Id. (...