How I Got an ID Theft Conviction Tossed After a Lawyer Dropped the Ball

Ohio Man's Charges Dismissed in Home Depot Fraud

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Well here you go people, I’m Larry Levine, and this is Story #2 in my Lazy Criminal Defense Lawyer Series about Self Serving attorneys who screw their clients by getting them to just plead guilty, without taking the time to read and understand their charges, and how I pulled another client’s ass outta the fire.

I was still half asleep and got a call early one morning from a concerned woman in Ohio, whose 45-year-old husband Wayne was serving a 4 year bit in the Feds. He’d gone down on Aggravated Identity Theft and Access Device Fraud (Credit Card Fraud) charges, and she wanted to see if anything could be done to get him released and home early.

I’m always skeptical of the possibility of helping defendants get out of prison early, because many of my clients are just as full of shit as their Prosecutors, and neither rarely tell the complete story which can lead to disastrous results.

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THE EVIDENCE

When it came down to it, both of Wayne’s crimes were generally cut and dry…cause either you did it or you didn’t, and it didn’t help with Wayne’s goofy smiling face caught on CCTV Video checking out using phony credit cards at the register and pushing shopping carts loaded with expensive power tools, during fraudulent shopping sprees.

On the face of it, the guy was guilty as sin and was charged in a 2 count Indictment with Count One being Violations of 18 USC § 1029, Credit Card Fraud; and Count Two being 18 USC § 1028 Aggravated ID Theft.

I knew the ID Theft carried a mandatory 24 Month “Consecutive Sentence” but had to figure out how much time he should have gotten on the Credit Card Fraud.

ACCESS CARD FRAUD CHARGES
18 U.S. Code § 1029

According to Section 2B1.1 of the U.S. Sentencing Guidelines, Wayne’s base Offense Level for the Credit Card was 6, with a 2 level enhancement for a sophisticated scheme, and another 10 levels tacked on based on his dollar loss exposure exceeding $150,000 but less than $250,000 which placed him squarely at Level 18.

After a 3 level downward departure for Acceptance of Responsibility and early guilty plea, his adjusted Offense Level came in at 15 which was consistent with 24 Month sentences.

All the numbers worked so I didn’t see where anything could be done, and to me, it looked like a solid conviction, but once again I figured what the fuck it was the Feds, so I decided to look under the hood and see what I could find.

AGGRAVATED IDENTITY THEFT
18 U.S. Code § 1028

According to Title 18 U.S. Code § 1028A, Aggravated Identity Theft’s a Federal Crime where someone uses another person’s personal info for economic gain or to take the identity of someone else.

Personal identifying information can include social security numbers, driver’s license number, credit card or bank account information, and PIN numbers obtained through the internet.

Take note here of the term “Another Person”!

(a )Offenses.—

In general.—

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.

(b) Consecutive Sentence.—Notwithstanding any other provision of law—

(1)a court shall not place on probation any person convicted of a violation of this section;
(2)except as provided in paragraph (4), no term of imprisonment imposed on a person under this section shall run concurrently with any other term of imprisonment imposed on the person under any other provision of law.

c) Definition.—For purposes of this section, the term “felony violation enumerated in subsection (c)” means any offense that is a felony violation of—

(4)any provision contained in this chapter (relating to fraud and false statements), other than this section or section 1028(a)(7);
(5)any provision contained in chapter 63 (relating to mail, bank, and wire fraud);

For some BOP MANUFACTURED REASON, Wayne was unable to put me on his call list for a couple of weeks so I decided to check out his Indictment and do some digging to see what the case was all about before speaking with him.

RIPPING OFF HOME DEPOT

Apparently, Wayne and his twin brother Billy were “Ripping-Off” Home Depot. You know the place, the big box home improvement store where you can never find anyone to help out.

What the Idiot Twins were doing was manufacturing and encoding their own fraudulent Home Depot Credit Cards, and using them at stores across Ohio. While everyone else was working, these two goofy guys would spend their days like Happy Go Lucky fools traveling from store to store in a Blue Tractor Trailer Semi Truck.

By the time they got popped they’d made off with a cool quarter of a million in expensive power tools and other high ticket items like refrigerators, dishwashers, and stoves they could easily fence to contractors as well as on eBay and Craigslist.

The crime itself wasn’t hard to pull off because as long as the Card worked at the register, no Home Depot employee suspected anything or gave them a second look and would frequently carry the stolen goods out for them.

It was all too easy, and to get the big stuff out, they’d pull around to the loading dock where helpful employees would load the large items with forklifts onto their truck.

THE FRAUDULENT CARDS

Kind of seemed like a clever crime to me, but one where someone was bound to get caught. So breaking down the goods they “bought” explained the dollar loss, but I wondered who was making the cards and how they were encoding them.

It turned out the Idiot Twins had a nerd Computer Hacker younger brother named Leon to help them out. According to court documents, kid brother number 3 had broken into Home Depot’s Credit Card Authorization computer and would put names and profiles in the system with high credit limits.

The kid was clever, and manufactured his own plastic cards complete with strips of VHS recording tape lacquered on the back to encode the card’s account magnetic data, and laminated a Home Depot Logo on the front. All they had to do was slide the card, and seconds later got a receipt. It sounded like a brilliant crime as far as I was concerned.

So working as a team, Wayne did the shopping, Billy drove the truck, and the hacker brother handled the technical aspects. They had a good run, but got popped after Leon neglected to break back in Home Depot’s computer and enter payments on the accounts resulting in them going into default.

Home Depot figured out they were being scammed and at the Secret Service’s request flagged the cards but kept them active. The next time they made a large purchase the local cops rolled up and busted them as a refrigerator was being loaded on their truck with a forklift.

The more I looked into this case the bleaker it was beginning to look, and I came to a snap decision the government had an airtight conviction and Wayne was royally screwed.

THE ID THEFT THAT WASN’T

So when I finally got Wayne on his illegal cell phone I let him know I understood his crime and asked an all-important question: whose names did you steal for the credit cards and where’d you get them? His answer had me laughing my balls off.

“Hell, those aint real, we made em up,” he said with a hillbilly drawl, “we have thousands of em”

“No shit, thousands,” I said in amazement, “so…how do you know they’re really clean?” I asked

Wayne gave me a detailed explanation and essentially told me all the names they’d used were unique and misspelled, and how his brother would create name combinations out of thin air and then run them through hacked DMV computer and Social Security databases. All his supposed victims were like digital ghosts and nothing ever came up.

Since I’ve had access to a few databases as well, I ran some searches of my own, and sure as shit, not one of the names came up ANYWHERE! And all this got me thinking about the ID Theft statute Title 18 U.S. Code § 1028A what said in plain English,

Title 18 U.S. Code § 1028A

(a )Offenses.—

In general.—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.

Well, guess what folks, and maybe some of you the smart ones have already figured it out, the supposed ID Theft victims weren’t fuckin real, they were just made-up names. And because of that, the ID Theft Charge was invalid and Wayne’s dump-truck paid lawyer should have known it.

ATTACKING THE SENTENCE

When I reached out to Wayne’s wife with the news she was ecstatic and asked me what to do. I told her I’d draft a 28 USC 2255 Motion to Correct, Vacate, or Modify the Sentence of a Person in Federal Custody just on the ID Theft; and based on the Ineffective Assistance of Counsel Wayne’s lawyer provided, and what the ID Theft law said, we had a high likelihood of prevailing.

Some people get confused about what a 2255 Collateral Attack Motion’s all about. It’s not an Appeal or Habeas Corpus, but essentially allows Federal defendants a way to get back into court after they’d been sentenced, and bring new stuff to the Judge’s attention that wasn’t brought up in the original proceedings, so I felt it was the way to go.

So I took a few days writing it up outlining everything that’d happened, with special attention to the defense lawyer lacking knowledge of ID Theft laws, and the “Prosecutor’s Blatant Misconduct” for filing charges on a crime he should have known wasn’t real and asked that the ID Theft conviction be dismissed.

THE PROSECUTOR RESPONDS

I sent the documents off to Wayne for his signature, and he filed it Pro Per through the mail with his sentencing court and we waited. A month later the Court notified him they’d found merit with his motion and ordered the Government to file a response.

Of course, the Department of Justice filed a response and fought it, with the Prosecutor going on the defensive taking some bullshit stance I kid you not that, it “didn’t matter if the people were real or not”, it was the Defendant’s intent that mattered.

Intent is a touchy subject in Federal Criminal law and where it may fly in fraud cases about things like “Intended Loss of Revenue,” ID Theft laws were a bit different and actually required the crime to have happened.

CONVICTION DISMISSED

Well, apparently the Judge saw the Prosecutor’s argument as flawed because he said in his ruling that, “The Law Was Very Clear in its Meaning of Another Person!” Within a month, a new Judgement and Commitment Order (J&C)was issued and Wayne’s ID Theft charges were dismissed along with the 24-month sentence it carried.

Because of the time Wayne had already spent in custody on the Credit Card Fraud, plus earned Good Conduct Time credit, he was released 3 months later. As you can see, had his wife not retained me things would have turned out much differently.

I Can Help you too!

If you’re in trouble with the Feds and you know what I mean, contact me, Larry Levine, by email at majorviolator@gmail.com or 213.948.1069 for a no-bullshit consultation.

I served a 10-year sentence in the Feds at 11 different prisons on several charges and know the game inside and out. They even tried to release me 6 months early just to get rid of me. If you’re looking for a second opinion I can help. Check me out on my website at wallstreetprisonconsultants.com or just read my client testimonials here.

If you’re looking for an Early Release and need help, me and my team can provide answers from the time you get charged, go through the judicial process, take it to trial or a plea, get sentenced and designated, Extra Halfway House, as well as serving your sentence and dealing with the Probation Office! Remember, where a lawyer or prosecutor can bullshit you, they can’t bullshit me, because I know the game just as well as they do.

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Larry is the Publisher of the Midnight Report, CEO of World Crime Media, and Owner of Justice Broadcasting and KAOS101FM.com He also served 10 years in Federal Prison at 11 different correctional facilities and is the Founder of Wall Street and Pink Lady Prison Consultants. Larry is a frequent On Air contributor to CNN, HLN, Fox News, Inside Edition, Court TV, and WGN America discussing Criminal Justice Related Matters.

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