686 F.3d 1 (1st Cir. 2012), 10-1726, United States v. Savarese

Docket Nº:10-1726, 10-1842.
Citation:686 F.3d 1
Opinion Judge:HOWARD, Circuit Judge.
Party Name:UNITED STATES of America, Appellee, v. Dennis SAVARESE, Defendant, Appellant. United States of America, Appellee, v. James DeSimone, Defendant, Appellant.
Attorney:Richard B. Klibaner, with whom Klibaner & Sabino was on brief, for appellant Dennis Savarese. Paul J. Garrity, for appellant James DeSimone. Cynthia A. Young, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney was on brief, for appellee.
Judge Panel:Before LYNCH, Chief Judge, LIPEZ and HOWARD, Circuit Judges.
Case Date:July 11, 2012
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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686 F.3d 1 (1st Cir. 2012)

UNITED STATES of America, Appellee,

v.

Dennis SAVARESE, Defendant, Appellant.

United States of America, Appellee,

v.

James DeSimone, Defendant, Appellant.

Nos. 10-1726, 10-1842.

United States Court of Appeals, First Circuit.

July 11, 2012

Heard April 5, 2012.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Richard B. Klibaner, with whom Klibaner & Sabino was on brief, for appellant Dennis Savarese.

Paul J. Garrity, for appellant James DeSimone.

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Cynthia A. Young, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney was on brief, for appellee.

Before LYNCH, Chief Judge, LIPEZ and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

Defendants-appellants Dennis Savarese and James DeSimone were indicted, along with several alleged co-conspirators, on various charges arising from their participation in a substantial credit card fraud scheme. Savarese was convicted after a six-day jury trial, while DeSimone, who elected to forgo his Sixth Amendment rights, pled guilty.1 In these consolidated appeals, they raise a myriad of issues for our review, ranging from the sufficiency of the underlying indictment to the applicability of multiple sentence enhancements. For the reasons that follow, we affirm in all respects.

I. Background

We rehearse the pertinent facts in the light most agreeable to the verdict, United States v. Pelletier, 666 F.3d 1, 3 (1st Cir.2011), deferring some details to our analysis of the issues raised on appeal.

In early August 2007, Dennis Savarese and James DeSimone were arrested outside the Prairie Meadows Racetrack in Altoona, Iowa. Found in their possession were, among other items, six stolen credit cards, each with a corresponding false identification bearing the cardholder's name, but Savarese's or DeSimone's picture. The arrests marked the culmination of a lengthy investigation, which uncovered a fraud operation spanning more than a dozen states and involving hundreds of stolen identities.

That operation, though simple in concept, was assiduously executed by co-defendants Dennis Savarese, Richard Regnetta, Arthur Rizzo, and the DeSimone family (James, Donald Sr., and Donald Jr.)— all of whom, except for Savarese, resided in the greater Boston area. Between November 2005 and August 2007, Savarese visited nearly 150 different Bally Total Fitness and 24-Hour Fitness clubs across the United States. By all accounts, these visits were devised not to achieve some pinnacle of physical fitness, but rather to steal credit cards from the storage lockers of unsuspecting gym members. On a periodic (often weekly) basis, Savarese compiled and faxed to his associates a list which identified the name on each stolen credit card, forged attempted replicas of the cardholders' signatures, and specified which co-defendant would ultimately use the cards in the scheme's subsequent phases.

Armed with this list, one or more of the defendants— usually Arthur Rizzo or, after Rizzo's December 2006 arrest, James DeSimone— would commission Boston-based photographers Dana Ross Studios to manufacture corresponding false identifications, each of which contained a name from one of the stolen cards, a picture of one of the defendants, and otherwise fictional biographical information. When enough credit cards and identifications were collected, a select group of the defendants would congregate at racetracks and various other gambling establishments of Savarese's choosing throughout the country.

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There, they used the false documentation to withdraw significant cash advances, to the tune of almost $430,000 over the life of the scheme.

In due course, a federal grand jury sitting in the District of Massachusetts returned a 28-count indictment against the six defendants, charging them with, inter alia, conspiring to commit aggravated identity theft, 18 U.S.C. § 1028A, identity fraud, 18 U.S.C. § 1028(a)(7), access device fraud, 18 U.S.C. § 1029(a)(2), and wire fraud, 18 U.S.C. § 1343, all in violation of 18 U.S.C. § 371. Savarese was separately charged with two counts of aggravated identity theft and two counts of identity fraud, while DeSimone faced seven individual counts of aggravated identity theft and one count of access device fraud. DeSimone pled guilty to all but two counts of aggravated identity theft and was sentenced to 81 months' imprisonment. Savarese, after trial, was convicted on all but one count of identity fraud. The district court denied his motion for acquittal, Fed.R.Crim.P. 29, and imposed a 168-month sentence. These timely appeals ensued.

II. Analysis

The appellants marshal an extensive list of grievances about the proceedings below. Specifically, Savarese attacks his conviction, alleging three defects: that the indictment pursuant to which he was tried was fatally deficient; that there was insufficient evidence to support his lone conviction for identity fraud; and that the trial court abused its discretion on three evidentiary rulings. Savarese and DeSimone also challenge their respective sentences, arguing that the district court improperly applied several sentencing guideline enhancements. We consider each of these claims in turn.

A. Dennis Savarese

1. Challenge to the indictment

Savarese first contends that the indictment was defective because it failed to adequately allege the " means of identification" element of aggravated identity theft. See 18 U.S.C. § 1028A. We review a preserved challenge to the sufficiency of the indictment de novo. United States v. Lopez-Matias, 522 F.3d 150, 153 (1st Cir.2008).

In general, an indictment is adequate if it specifies the elements of the offense charged, fairly apprises the defendant of the charge against which he must defend, and allows him to contest it without fear of double jeopardy. United States v. Sepulveda, 15 F.3d 1161, 1192 (1st Cir.1993). An indictment that tracks the language of the underlying statute is usually sufficient to meet this standard, " provided ... that the excerpted statutory language sets out all ... elements of the offense without material uncertainty." United States v. Troy, 618 F.3d 27, 34 (1st Cir.2010). In other words, the indictment may use the statutory language to describe the offense, but it must also be accompanied by such a statement of facts and circumstances as to inform the accused of the specific offense with which he is charged. United States v. Mojica-Baez, 229 F.3d 292, 309 (1st Cir.2000).

Here, the grand jury charged Savarese with two counts of aggravated identity theft, an offense described by statute as follows:

Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.

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18 U.S.C. § 1028A(a)(1). The relevant counts of the indictment state, in pertinent part, that:

On or about the dates set forth below, in the District of Massachusetts and elsewhere, the defendants listed below did knowingly transfer, possess, and use, in or affecting interstate commerce, without lawful authority, a means of identification of another person— to wit, the individual's name— during and in relation to the commission of access device fraud ... and wire fraud.

Immediately below this general description, an accompanying chart identifies the count, the defendant being charged (" Dennis Savarese" ), the dates of the alleged conduct (" 9/15/06" and " 8/2/07" ), and the initials of the purported victims (" D.A." and " G.C." ). Prior sections of the indictment also chronicle one of the § 1028A offenses at length, recounting in some detail the facts surrounding Savarese's theft of G.C.'s credit card from a Bally's gym in Houston, Texas, and his use of the card shortly thereafter to withdraw $950 at the Prairie Meadows Racetrack.

Thus, with respect to both counts of aggravated identity theft, the indictment faithfully tracks the language of the statute, and notifies Savarese not only of the elements of the crimes charged, but also of the relevant facts. Neither count is deficient under the applicable standards. See United States v. Pena, 448 Fed.Appx. 43, 44-45 (11th Cir.2011) (finding indictment sufficient where it charged the accused, under 18 U.S.C. § 1028A, with " knowingly possess[ing] and us[ing], without lawful authority, a means of identification of another person, that is, the date of birth of ‘ W.P.’ " ); United States v. Dvorak, 617 F.3d 1017, 1026-27 (8th Cir.2010) (finding same where indictment charged that the accused " did knowingly use without lawful authority a means of identification of another person" ); United States v. Jenkins-Watts, 574 F.3d 950, 968-69 (8th Cir.2009) (finding same where indictment charged that the accused " did knowingly and without lawful authority transfer, use, and possess one or more means of identification of another person, namely XXXX, during and in relation to a predicate felony offense, that being access device fraud" ).

Savarese disagrees, rejoining that the indictment's only reference to a means of identification— " to wit, the individual's name" — is not enough. A name, he claims, without more, cannot constitute a " means of identification" for purposes of aggravated identity theft. The language of § 1028, however, plainly contradicts this theory, defining a " means of identification" as " any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including any ... name, social...

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