U.S. v. Waldron, CR. 93-14-A.

• Decision Date: 27 February 2004
• Docket Number: No. CR. 93-14-A.,CR. 93-14-A.
• Citation: 306 F.Supp.2d 623
• Parties: UNITED STATES of America v. Thomas S. WALDRON
• Court: U.S. District Court — Middle District of Louisiana

306 F.Supp.2d 623

UNITED STATES of America v. Thomas S. WALDRON

No. CR. 93-14-A.

United States District Court, M.D. Louisiana.

February 27, 2004.

United States of America, by David R. Dugas, United States Attorney, Ian F. Hipwell, Assistant U.S. Attorney, James L. Nelson, Assistant U.S. Attorney, Baton Rouge, for the United States.

Hillar C. Moore, III, Baton Rouge, E. Thomas Royals, Royals and Mayfield, Jackson, MS, for Defendant.

RULING ON PETITION TO REVOKE PROBATION

JOHN V. PARKER, District Judge.

This matter is before the court on a petition to revoke the defendant's probation. On October 26, 1993, Waldron was convicted by a jury of six counts of making false statements to a federally insured financial institution, in violation of 18 U.S.C. §§ 1014 and 2. On February 4, 1994, he was sentenced to serve consecutive terms of imprisonment of 18 months on each of counts III and IV of the indictment and was ordered to pay a $1 million fine on each of those two counts, to be paid immediately. The court suspended imposition of sentence on count V and placed Waldron on five years probation to commence upon his release from prison. Imposition of sentence was suspended for the remaining three counts of conviction, counts VI, VII, and VIII.

Waldron was released from prison on April 28, 1998 and began his term of probation. On April 22, 2003, his probation officer filed with this court a "Petition for Warrant or Summons for Offender under Supervision" (doc. 222), requesting that the court issue a summons to Waldron for violation four of his conditions of probation. On the basis of the petition, Magistrate Judge Christine Noland ordered the issuance of a summons, which was served upon Waldron on April 23, 2003. He made his initial appearance on April 28, 2003. On May 22, 2003, a revised "Petition for Warrant or Summons for Offender under Supervision" (doc. 233) was filed, which alleged the same four violations of conditions of probation but added details concerning the violations. Waldron filed a motion to dismiss the summons/warrant and petition to revoke his probation, which was denied by the court (doc. 256). An evidentiary hearing on the petition to revoke his probation was held on December 2, 2003. Post-hearing briefs have been filed by both parties.

The government and Waldron entered a signed stipulation (doc. 259) in which Waldron admits that he committed violations 2, 3, and 4 of the petition. Thus, the only issue before the court at this time is whether the evidence establishes violation number 1 of the petition, that Waldron committed a crime, a violation of a condition of probation. The petition reads as follows:

Nature of Non-compliance: In order for the defendant to gain access to the use of, and activate his ability to use various credit cards, the defendant provided or caused to be provided to various credit card companies the Social Security number assigned by the Commissioner of Social Security to his son, then aged 19 and 20. This knowing use of someone else's Social Security number "for any other purpose" is a violation of Title 42, United States Code, Section 408(a)(7)(B), and was done to keep his probation officers from knowing that he had access to and was charging purchases on those credit cards.

The criminal statute at issue, 42 U.S.C. § 408(a)(7)(B), makes it a felony for anyone to do the following:

(7) for the purpose of causing an increase in any payment authorized under this subchapter (or any other program financed in whole or in part from Federal funds), or for the purpose of causing a payment under this subchapter (or any such other program) to be made when no payment is authorized thereunder, or for the purpose of obtaining (for himself or any other person) any payment or any other benefit to which he (or such other person) is not entitled, or for the purpose of obtaining anything of value from any person, or for any other purpose —

* * * * * *

(B) with intent to deceive, falsely represents a number to be the social security account number assigned by the Commissioner of Social Security to him or to another person, when in fact such number is not the social security account number assigned by the Commissioner of Social Security to him or to such other person;

The elements of the crime are: (1) false representation of a social security account number, (2) with intent to deceive, (3) for any purpose. United States v. Means, 133 F.3d 444, 447 (6th Cir.1998). Therefore, the government must satisfy the court that, with the intent to deceive his probation officers by preventing them from learning of his credit card use, Waldron falsely represented his son's social security number to be his own when he obtained credit cards.

There were four credit cards at issue in the case: an American Express card, an Advanta Mastercard, a Bank One Visa, and an American Express Delta Skymiles card. All but the Delta Skymiles card were issued to Waldron as a supplemental cardholder on the company accounts of Midpoint Construction Company, a company owned by Meridith Brown. The Delta Skymiles card was not on a company account, but was on Ms. Brown's personal account. The cards were all in the name Thomas S. Waldron or Thomas Waldron. Certified records from all the credit card companies with the exception of Bank One show that, when Waldron was added as a cardholder to the accounts, the social security number provided was that of his son, Thomas S. Waldron, Jr. ("Tommy"), who was nineteen and twenty years old at the time.¹ Certified records from Bank One show that on September 3, 1999, Ms. Brown called and had the credit card company change the social security number that it had on file for Waldron. The number was changed from Waldron's number to that of his son.

Ms. Brown, an Oklahoma City real estate broker, testified that she has known Waldron since the fall of 1998. She met him when he approached her for assistance in locating property that could be used to supply fill dirt for the Bell Isle project, an Oklahoma City construction project with which Waldron was involved. She testified that she later formed Midpoint Construction Company in order to assist Waldron in performing site and excavation work at Bell Isle. And though Ms. Brown was the sole owner of Midpoint Construction Company and its sole shareholder, Waldron was very much involved with the company. She provided local business contacts and banking relationships, while he provided his knowledge and expertise in the field.

According to Ms. Brown, the Bank One card was the first card that she got acquired for Waldron. This occurred in April 1999. She needed Waldron's social security number in order to add him as a cardholder on the account and testified that when asked, Waldron gave her his correct social security number, which she then provided to the bank. The next card for which she applied on Waldron's behalf was the American Express card in May 1999. Ms. Brown testified that this time when asked, Waldron gave her his son's social security number. She testified that she did not then realize the discrepancy, as she had not committed Waldron's social security number to memory.

Ms. Brown stated that she became aware of the fact that the social security numbers were different in September 1999 when Waldron asked her what number was listed on the Bank One account. When advised, he told her to change it to the number on the American Express account since the "government could not know he had the use of those credit cards." Ms. Brown testified that she did what Waldron asked — called Bank One and told the representative that she had previously given the wrong social security number. She then provided the number of defendant's son, Tommy. She admitted in her testimony that she falsely represented to the bank that the card was intended for Tommy and that she had mistakenly given the bank his father's social security number when the card was activated. Bank One's certified records confirm that such a change was made by Ms. Brown on September 3, 1999.

With respect to the two remaining credit cards, Ms. Brown testified that she asked Waldron for a social security number to use when filling out his paperwork, and both times he told her to use his son's number. She admitted in her testimony that by that time, she knew Waldron was misrepresenting his son's social security number to be his own to the credit card companies.

After Waldron was injured in an accident and had to be taken to the emergency room, Ms. Brown was involved in communications with the hospital and the insurance company in an attempt to have his $5,000 bill paid. She testified that at some point, the hospital let her know that it had the wrong social security number for Waldron; the number it had was that of a twenty-one year old man. She testified that at that time she told Waldron that she would no longer be involved in giving anyone a false social security number for him.

Judith Guthrie, United States Probation Officer for the Southern District of Florida, was one of Waldron's probation officers. She testified concerning the difficulty she had getting Waldron to disclose information regarding his income and assets. She testified that, although Waldron disclosed that he sometimes used the credit cards of both a girlfriend, Judy Circo, and his son, he never told her he was using his son's social security number to obtain his own credit cards. In December 1999, Ms. Guthrie instructed Waldron to provide her with an accounting of all credit cards he was using, including any that were in the name of his son. However, of the four credit cards at issue in this case, he disclosed only the Midpoint American Express card. He never disclosed to the probation officer that the American Express card had been obtained using his son's social security number. Waldron also did not disclose to Ms. Guthrie that he had the use of the other three cards, despite her requests for updated...