United States v. Iacona

• Decision Date: 27 August 2013
• Docket Number: No. 12–1632.,12–1632.
• Citation: 728 F.3d 694
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Chad Vincent IACONA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

728 F.3d 694

UNITED STATES of America, Plaintiff–Appellee,

v.Chad Vincent IACONA, Defendant–Appellant.

No. 12–1632.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 26, 2013.

Decided Aug. 27, 2013.

Michael Jude Quinley, Attorney, Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff–Appellee.

Thomas L. Shriner, Jr., Bernard J. Bobber, Ryan N. Parsons (submitted), Attorneys, Foley & Lardner, LLP, Milwaukee, WI, for Defendant–Appellant.

Before EASTERBROOK, Chief Judge, and ROVNER and WILLIAMS, Circuit Judges.

ROVNER, Circuit Judge.

On December 2, 2011, Chad Vincent Iacona was convicted of fraud in connection with an access device and aggravated identity theft, in violation of 18 U.S.C. §§ 1029(a)(2) and 1028A respectively. Those charges stemmed from his actions in obtaining a Wells Fargo Visa card using the identification of another person, Nancy Clymer, without her authorization, and with the intent to defraud her and her business, D & L Investigations.

Iacona worked as a process server for D & L Investigations (“D & L”), a private investigation service owned by Nancy Clymer. D & L was formed by Clymer and her husband Donald, and Clymer continuedto operate it after Donald's death in 1989. The business mainly consisted of providing process service for local attorneys, but also encompassed some surveillance and other investigative work.

In May 2005, Iacona agreed to purchase the business from Clymer. Because Clymer had previously attempted to sell the business only to have the purchasers default within a month, she demanded the implementation of certain protections from Iacona. In the purchase agreement with Iacona, Clymer structured the arrangement so as to retain ownership of the business while Iacona paid $2000 per month for two years toward a total purchase price of $95,000, with a balloon payment of the remaining balance after those two years. During that payment period, Clymer would retain ownership of the business, but Iacona would run the business. The agreement also required Iacona to secure a line of credit in order to pay the recurring monthly expense for an investigative research service. Those terms were later renegotiated when Iacona had difficulty paying, and Clymer ultimately signed over the business to him in early 2008.

The testimony at trial established that Iacona quickly began to establish numerous lines of credit in the name of D & L and in Clymer's name. Almost immediately after the purchase agreement, Iacona obtained from George Weber Chevrolet a Chevrolet Malibu either in a lease or purchase arrangement (the testimony diverged on that point). The paperwork for that vehicle signed by Iacona listed him as the president of D & L although Clymer was the president at that time, and indicated that he had worked for D & L for 16 years even though at that time he had worked at D & L for only about a month of its 16–year existence. The paperwork represented the gross annual income of D & L as “$500,000 plus,” but Clymer testified that in its best year D & L earned only approximately $50,000. When Clymer learned of Iacona's acquisition of the Malibu, and that he had also opened a credit account with Office Depot, she had her attorney send a letter to the dealership and to Office Depot—with a copy to Iacona—informing them that Iacona had no authority to open a line of credit in D & L's name and that he was not the president of D & L.

Iacona nevertheless proceeded to open up numerous other credit cards, which he used to incur significant debt on purchases unrelated to the business, and continued to do so for the ensuing two years. The suspect purchases included multiple charges at Bed, Bath & Beyond, Pet Smart, grocery stores, restaurants, and charges related to a swimming pool and the purchase of a pool table. One of those credit lines, with Capital One, was obtained through an internet application in which Clymer's name, social security number, and date of birth were used. Only one credit card, however, was the focus of the criminal complaint—a Wells Fargo Visa card.

The testimony was undisputed that Rebecca Rasmussen, Iacona's sister who was hired by Iacona as a secretary for D & L, applied for the Wells Fargo Visa by phone and represented herself to be Clymer. Rasmussen used Clymer's social security number and personal information as well as information about D & L to obtain the Wells Fargo Visa with a credit limit of $50,000, split evenly into a $25,000 account in Clymer's name and a $25,000 account in Iacona's name. Under the terms of the card, Clymer was personally liable for the debts on both accounts. Iacona testified, however, that he was not present when Rasmussen made that call and that she did not do so under his direction. Instead, he asserts that he instructed her to obtain a credit card with the lowest interest rate possible, and that she obtained the Wells Fargo Visa on her own initiative.

The government presented the testimony of Rasmussen that Iacona instructed her to call to obtain that Wells Fargo Visa and that he was present during that call and supplied her with Clymer's personal information in response to the questions during that phone application. The government also played a recording of that call to allow the jury to hear pauses in Rasmussen's answers which she attributed to the delay in obtaining the answers from Iacona.

In addition, the government presented testimony that Iacona maintained control over the credit cards and payment statements. Rasmussen testified that she only opened mail related to the process serving business, and that credit card mail was left in a pile for Iacona to open himself. Postal inspector Matthew Murrow, who had investigated the allegation of identity theft, provided some corroboration for that contention. He testified that when he executed a search warrant at D & L, he observed a large pile of bills, credit card statements, and mail collection notices, some opened and some unopened, on the desk in Iacona's office, and that the stack was 3 or 4 inches high. He further testified that in that stack was a credit card in Iacona's name as an authorized user on an account in Clymer's name, and that a corresponding card for Clymer on that account was found in the garbage can next to Iacona's desk.

As part of the investigation, Murrow contacted Iacona to question him regarding the lines of credit opened in Clymer's name. Shortly after Murrow spoke with him, Iacona contacted Wells Fargo and attempted to make arrangements to pay off the debt for which Clymer was liable. He also called Clymer and left her a voicemail which she played for Murrow. In that recording, Iacona stated:

I've got some Postal Inspector calling me ... about credit cards under or it has your name on it or something like—account so, uhm, it shouldn't have anything to do with your name. We took out some accounts that were through D & L with the tax ID number so—uhm, I don't know if you know anything about that or not, but this guys [sic] calling me—asking about your name, so. Call me back so I can figure out what's going on with this.

Trial Transcript, Vol. II, 11/29/11 at 203. Contrary to that voicemail message in May 2009 by Iacona questioning whether Clymer knew about the accounts, Iacona testified at trial that he had discussed with Clymer the lines of credit years earlier.

Murrow also testified as to the debts incurred on the Capital One and Wells Fargo accounts, and provided summary exhibits indicating that the accounts were used overwhelmingly for personal rather than business-related expenses. Murrow testified that the Wells Fargo card with Clymer's name, as opposed to the one with Iacona's name on it, was used solely for transactions that did not involve face-to-face contact, such as internet purchases or ATM withdrawals. Finally, he provided a summary chart demonstrating a pattern of balance transfers from credit card accounts for which Iacona or D & L was liable to the Capital One and Wells Fargo accounts for which Clymer was personally liable.

Iacona's defense was that the use of Clymer's name to obtain credit through Wells Fargo was done without his knowledge by Rasmussen on her own initiative in response to his directive merely to obtain a low interest credit card for the business. Although initially acknowledgingthat he signed the agreement at George Weber Chevrolet and the signature card at the bank, he testified that those documents may have been forwarded via fax or mail and that Rasmussen may have signed them for him. He further testified that the signatures on the checks paying the credit card bills were not uniform and were not done by him. He stated that both Rasmussen and the office assistant that eventually replaced her, Khara Moehle, handled credit card statements and that they often forged his name on checks to pay the bills when he was out of the office. In response to that testimony, the government called as a rebuttal witness Moehle, who, consistent with Rasmussen's testimony, declared that she only opened mail from attorneys related to the process serving and investigative activities of the business and that credit card statements were left for Iacona. Other than his own testimony, the only other defense witness presented by Iacona was his father-in-law who was presented as a character witness.

In closing argument, the prosecutor repeatedly highlighted the contradictions between the testimony of Iacona, and that of the other witnesses such as Rasmussen, Clymer, Murrow...