United States v. Gerald Bass , 785 F.3d 1043 ( 2015 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0285n.06
Case No. 14-1387
FILED
Apr 15, 2015
UNITED STATES COURT OF APPEALS
DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
GERALD BASS, ) MICHIGAN
)
Defendant-Appellant. )
)
____________________________________/ )
Before: COLE, Chief Judge; MERRITT and BATCHELDER, Circuit Judges.
MERRITT, Circuit Judge. Defendant Gerald Bass was convicted of masterminding a
fraud conspiracy that used stolen identities and hijacked credit card accounts to purchase over
$150,000 in merchandise from Detroit-area retailers. Prior to trial, Bass moved to suppress
evidence obtained from a warrant to search his cell phone, arguing that the supporting affidavit
lacked probable cause. The district court denied this motion, and a jury eventually convicted
Bass on all counts. Several months later, Bass moved for a new trial based on the purported
recantation of a co-defendant who testified against him. Following an evidentiary hearing, the
district court concluded that the witness’s alleged “recantation” lacked credibility and denied the
motion. At sentencing, the district court granted the prosecution’s request to vary upward from
the advisory Guidelines range and imposed the statutory maximum sentence of 264 months.
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Bass raises three issues on appeal: (1) Whether the district court erred when it denied Bass’s
Motion to Suppress evidence recovered from his cellphone; (2) Whether the district court abused
its discretion by denying Bass’s Motion for a New Trial based on the recanted testimony of a
government witness; and (3) Whether the district court abused its discretion by imposing a
statutory maximum sentence. For the following reasons, we AFFIRM.
I. Factual and Procedural Background
A. Investigation & Arrest
In February 2011, the Southeast Michigan Financial Crimes Task Force began
investigating claims of “account takeovers,” a type of identity theft involving the surreptitious
and unauthorized access of credit accounts. To facilitate this fraud, the suspects would obtain an
account holder’s personal identifying information (name, social security number, date of birth,
etc.), contact the credit issuing agency, and use the personal information to add themselves (or
others) to the accounts by impersonating the known account holder. Once added, the suspects
were able to make fraudulent purchases with proper identification.
The investigation revealed that phone numbers linked to Bass had been used in several
account takeovers. Video surveillance also showed several suspects—including co-defendant
Isaiah Price—signing receipts for fraudulent purchases at Bass’s direction. Additionally, both
Price and another co-defendant made statements implicating Bass as the ringleader of the fraud
scheme.
Officers arrested Bass at his mother’s residence. When they arrived, Bass opened the
interior front door but kept the barred security door locked. During this time, the officers
observed Bass “laughing and typing unknown information into his cell phone” for several
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minutes. After officers threatened to use a battering ram, Bass finally opened the door and was
arrested with his burgundy Kyocera Torino cell phone still in his hand.
B. Convictions & Sentencing
Trial testimony detailed the extent of Bass’s involvement in the fraud conspiracy. Jerome
Bagley1 testified that after meeting at a gas station, Bass asked if he wanted to make some “quick
fast money.” After Bagley agreed, Bass supplied him with fake identification, taught him to
impersonate account holders, and drove him to various stores to make fraudulent purchases. Bass
paid him $250 for his role in the scheme.
Co-defendant Isaiah Price testified to a similar role, which involved Bass’s directing him
to purchase certain items and sign the names of the unwitting victims to the store receipts. Price
further testified that he acted at Bass’s direction because Bass was the mastermind behind the
fraud scheme. He also identified recordings of Bass’s voice impersonating account holders.
Additionally, after defense counsel attempted to attack his credibility on cross-examination,
Price denied any involvement with a similar fraud scheme in 2007.
The arresting officer testified that the number for the cell phone seized incident to Bass’s
arrest matched calls identified by fraud investigators at various banks. He further identified two
dozen fraudulent receipts and surveillance videos showing Bass and Price selecting items for
Price to purchase (as well as Price opening a fraudulent account at one retailer).
Isaiah Price purportedly recanted portions of his trial testimony two months after the jury
convicted Bass on all four counts.2 In a letter to the district court judge, Price claimed he had
1
Bagley was not named as a co-defendant. Price and the other co-defendants, however, entered into plea
agreements in exchange for their cooperation with the investigation. Thus, Bass was the only one who proceeded to
trial.
2
Count One: Conspiracy to Commit Wire Fraud, in violation of 18 U.S.C. § 1349; Count Two: Access
Device Fraud, Aiding and Abetting, in violation of 18 U.S.C. §§ 1029(a)(2) and 2; Count Three: Theft of Identity,
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lied to make prosecutors happy once he realized Bass was their real “target.” In this letter, Price
claimed he “lied about a lot of crucial facts that would have made a big difference in front of the
jury” and felt remorse “about sending an innocent man to jail.” In a subsequent affidavit, Price
recanted even more of his trial testimony and claimed that: (1) he lied when he testified that
certain fraudulent signatures belonged to Bass (because Price actually made all of them); (2) he
lied when he testified that Bass had supplied him with fake identification; (2) he lied when he
identified Bass’s voice on a recording; and (4) the only time Bass received money for anything
was for driving Price around while Price committed frauds by himself. Bass moved for a new
trial based on these alleged recantations, arguing that his “conviction was secured with the
assistance and testimony of Defendant Price.”
The district court held an evidentiary hearing in which Price recanted essentially all of his
trial testimony. At that hearing, Price’s story changed again so that: (1) Bass did not create the
fraudulent scheme at the heart of this case; (2) Price—not Bass—was actually the mastermind of
the fraudulent scheme; and (3) Bass was just a “small fish” who did nothing but drive the others
and receive some stolen merchandise.
The district court concluded that Price’s recantation was not credible. Noting that Price
initially recanted only a portion of his testimony in his letter—but later recanted all of his trial
testimony at the evidentiary hearing—the court held that the “vast majority of Price’s trial
testimony was truthful” and his recantation was credible only in that: (1) Price had been
involved in credit card fraud in 2007; and (2) video surveillance showed that Price—not Bass—
had signed certain store receipts. Because it concluded that the bulk of Price’s testimony at the
evidentiary hearing was “pure fiction,” the district court denied Bass’s Motion for a New Trial.
Aiding and Abetting, in violation of 18 U.S.C. §§ 1028(a)(7) and 2; and Count Four: Aggravated Identity Theft in
violation of 18 U.S.C. § 1028A.
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Based on a criminal history category of VI and a total offense level of 25, Bass had an
applicable Guidelines range of 110 to 137 months. Prior to sentencing, however, the prosecution
requested a statutory maximum sentence of 264 months.3 The district judge granted this request,
agreeing that an above-Guidelines sentence was required to protect the public from further
criminal activity by Bass. In a lengthy discussion, the court noted Bass’s 11 prior convictions for
theft, dishonesty, fraud, and deceit over the past 20 years—including multiple identity theft
convictions in Michigan. The court thus varied upwards to the statutory maximum and imposed
a 264-month sentence. This timely appeal followed.
II. Analysis
A. Denial of Bass’s Motion to Suppress
Although officers seized Bass’s cell phone incident to his arrest, they waited to obtain a
warrant before searching its contents.4 Prior to trial, Bass challenged the sufficiency of the
affidavit supporting the search warrant and moved to suppress any evidence seized from the
phone. The district court denied this motion, finding that “the search warrant affidavit was
sufficient to establish probable cause and, alternatively, the Leon good faith exception would
apply.” At trial, the arresting officer testified that his search of the phone involved turning it on
and taking a picture of the home screen to obtain its number, which matched calls made during
some of the account takeovers. On appeal, Bass essentially makes three separate arguments as to
why the search warrant was defective. We will address each in turn.
3
240 months on Count 1 (Conspiracy to Commit Wire Fraud), 120 months on Count 2 (Access Device
Fraud, Aiding and Abetting), 180 months on Count 3 (Theft of Identity, Aiding and Abetting), all to run
concurrently, and 24 months on Count 4 (Aggravated Identity Theft) to run consecutively as required by statute.
4
Because this seizure took place in 2011, the issue of whether a cell phone could be searched incident to
arrest remained unsettled. Since then, the Supreme Court has held that the police generally must obtain a warrant
before searching the digital contents of a cell phone seized incident to arrest. See Riley v. California, 134 S. Ct.
2473, 2493 (2014).
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1. Whether the Affidavit Lacked Probable Cause
Bass argues the district court erred in upholding the magistrate’s finding of probable
cause to search his cell phone. A finding of probable cause is a legal conclusion we review de
novo. United States v. Martin, 526 F.3d 926, 936 (6th Cir. 2008) (citation omitted).
The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.” U.S. Const. amend IV. In determining whether probable cause
exists to support a search warrant, the magistrate must “make a practical, common-sense
decision whether, given all the circumstances set forth in the affidavit . . . there is a fair
probability that contraband or evidence of a crime will be found in a particular place.” Illinois v.
Gates, 462 U.S. 213, 238 (1983).
In this case, the affidavit explained that Bass was suspected of crimes in which “cell
phones were frequently used by conspirators to text or call each other during the times that the
fraudulent activity was taking place.” Noting that Bass had continued to use his phone before
opening the security door, the affiant further “believe[d] that Bass was possibly attempting to
alert other conspirators of [his] arrest by texting or attempting to call after he was notified of the
Arrest Warrant.” Thus, under the totality of the circumstances, we believe the affidavit showed a
fair probability that evidence of fraud—including contacts between co-conspirators—would be
found within the cell phone seized incident to Bass’s arrest.
2. Whether the Affidavit Established a “Nexus” Between the Place to be Searched
and the Items to be Seized
Bass also contends that the affidavit failed to show that this particular cell phone likely
contained evidence of identity theft. To justify a search, the circumstances must indicate why
evidence of an illegal activity will be found in a “particular place.” Gates, 462 U.S. at 238.
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Accordingly, “[t]he affidavit must establish a nexus between the place to be searched and things
to be seized, such that there is a substantial basis to believe that the things to be seized will be
found in the place searched.” Ellison v. Balinski, 625 F.3d 953, 958 (6th Cir. 2010) (citation
omitted).
Here, the affidavit stated that Bass and his co-conspirators frequently used cell phones to
communicate. It further noted that Bass was using this particular burgundy Kyocera Torino cell
phone when officers seized it incident to his arrest. Thus, the affidavit contained sufficient detail
to tie this particular phone to Bass’s alleged criminal activity.
3. Whether the Warrant was Overbroad
Bass further contends that the warrant was overbroad as to the property to be seized from
his phone. Because he did not raise this particular issue in his Motion to Suppress, we review for
plain error. See United States v. Lopez-Medina, 461 F.3d 724, 739 (6th Cir. 2006).
In this case, the warrant sought evidence of fraudulent conduct related to charges of
“Wire Fraud, Credit Fraud, [and] Identity Theft.” The affidavit set forth a substantial basis to
believe such evidence existed on Bass’s cell phone, but it was unclear as to the particular format
in which the evidence existed. As the Supreme Court has recently noted, modern cellphones
may contain a litany of information, in some cases equivalent to a personal computer. Riley v.
California, 134 S. Ct. 2473, 2489 (2014). Federal courts, however, have “rejected most
particularity challenges to warrants authorizing the seizure and search of entire personal or
business computers,” United States v. Richards, 659 F.3d 527, 539, (6th Cir. 2011), because
“criminals can—and often do—hide, mislabel, or manipulate files to conceal criminal activity
[such that] a broad, expansive search of the [computer] may be required.” Id. at 538 (quoting
United States v. Stabile, 633 F.3d 219, 237 (3d Cir. 2011)).
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Here, the warrant authorized the search for any records of communication, indicia of use,
ownership, or possession, including electronic calendars, address books, e-mails, and chat logs.
At the time of the seizure, however, the officers could not have known where this information
was located in the phone or in what format. Thus, the broad scope of the warrant was reasonable
under the circumstances at that time. See id. at 541 (quoting United states v. Meek, 366 F.3d
705, 716 (9th Cir. 2004) (“The proper metric of sufficient specificity is whether it was
reasonable to provide a more specific description of the items at that juncture of the
investigation.”)).
B. Denial of Bass’s Motion for a New Trial
Bass contends the district court erred in denying his request for a new trial after co-
defendant Isaiah Price allegedly recanted portions of his trial testimony. We review a district
court’s decision to deny a defendant’s motion for a new trial for an abuse of discretion. United
States v. Willis, 257 F.3d 636, 642 (6th Cir. 2001).
In Willis, this Court confirmed that the proper legal standard applied to a motion for a
new trial based on the recantation of a government witness is the test set forth in Gordon v.
United States, 178 F.2d 896, 900 (6th Cir. 1949). Under Gordon, a new trial will be granted only
if:
(1) the court is reasonably well satisfied that the testimony given by the material
witness is false; (2) without the false testimony, the jury might have reached a
different conclusion; and (3) the party seeking the new trial was taken by surprise
when the false testimony was given, and was unable to meet it or did not know of
its falsity until after the trial.
Willis, 257 F.3d at 642-43 (citing Gordon, 178 F.2d at 900).
The record fails to satisfy any of the Gordon factors. The district court held that Price’s
untruthful trial testimony was very limited and only involved statements that: (1) he had not
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previously been involved in credit card fraud in 2007 (when he had); and (2) a select few
signatures on receipts belonged to Bass (when video evidence indicated that Price had made
them). Additionally, the vast majority of Price’s trial testimony was corroborated by other
evidence, including video surveillance, telephone records, audio recordings, and the testimony of
numerous other witnesses—all of which served as overwhelming evidence of Bass’s guilt. Thus,
the very limited untruthful portions of Price’s trial testimony would not have altered the verdict.
Moreover, Bass cannot demonstrate that he was taken by surprise by any of Price’s trial
testimony because he testified consistently with interview reports provided to Bass prior to trial.
Finally, even if Bass had been surprised, his attorney met it by effectively cross-examining Price
regarding those very issues.
C. Upward Variance to Statutory Maximum Sentence
Bass challenges his statutory maximum sentence as both procedurally and substantively
unreasonable. We review these challenges for an abuse of discretion, regardless of whether the
imposed sentence is inside or outside the advisory Guidelines range. Gall v. United States, 552
U.S. 38, 41 (2007).
1. Procedural Reasonableness
Bass argues that his sentence was procedurally unreasonable because the district court
failed to respond to his contention that his recidivism was already reflected in the advisory
Guidelines range. He contends that the district court “nearly doubled” his advisory range to the
statutory maximum “without an independent rationale for the extreme variance.” Def.’s Br. at
11. On appeal, the key question is whether the record makes it clear that “the sentencing judge
listened to each argument, considered the supporting evidence, was fully aware of the
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defendant’s circumstances and took them into account in sentencing him.” United States v.
Vonner, 516 F.3d 382, 387 (6th Cir. 2008) (en banc) (internal quotations and citations omitted).
Bass’s argument is belied by the record. At the sentencing hearing, the district court
considered and denied each of Bass’s five objections to the Guidelines calculations. The court
heard arguments from both parties, including Bass’s reasons why an upward variance was
unnecessary. The court also discussed Bass’s personal characteristics and history, as well as the
seriousness of the offense. Of note, after methodically walking through each of Bass’s 13 prior
convictions over the past 20 years—including 11 for conduct involving identity theft, dishonesty,
fraud, or deceit—the court observed that Bass had no employment record other than criminal
conduct despite being “very, very bright,” though “very, very manipulative.” Ultimately, the
court concluded that Bass had “absolutely no respect for the law” and that “[he] will continue to
engage in criminal activity, and continue to engage in credit card fraud and identity theft, and
continue to be a real threat to society.”
Contrary to Bass’s assertions, the district court also walked through the § 3553(a) factors
in detail and provided a lengthy explanation as to why an upward variance to the statutory
maximum was necessary. The court weighed each factor and concluded that no sentence could
deter Bass from further criminal activity. The court also repeatedly stressed its “obligation to
protect the public from further crimes by [Bass],” finding “no doubt” that Bass would go right
back to engaging in credit card fraud and identity theft whenever he is released from prison. As
a result, the district court concluded that an upward variance was required to protect the public
from Bass as long as possible.
Finally, the district court spent considerable time explaining its decision to vary upward
to the statutory maximum. See United States v. Payton, 754 F.3d 375, 378 (6th Cir. 2014)
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(“Where the defendant or prosecutor presents non-frivolous reasons for imposing a different
sentence . . . [t]he sentencing judge should articulate enough to satisfy the appellate court that he
has considered the parties’ arguments and has a reasoned basis for exercising his own legal
decision making authority.” (quoting Rita v. United States, 551 U.S. 338, 356-57 (2007))). As
discussed above, the district court repeatedly emphasized its “obligation to protect the public”
because of Bass’s history of an inability to comply with the law. It noted that Bass “cannot
comply, cannot follow the law . . . [, and] continue[s] to engage in the same criminal conduct
despite prior convictions.” It stressed that the statutory maximum exists for cases like this, “with
individuals like [Bass] who cannot and will not stop engaging in similar criminal activity,” and
stated that it imposed the statutory maximum because of its “obligation to protect the public from
further crimes by [him].”
2. Substantive Reasonableness
Bass also challenges his sentence as substantively unreasonable. A sentence is
substantively unreasonable when the district court “selects a sentence arbitrarily, bases the
sentence on impermissible factors, or gives an unreasonable amount of weight to any pertinent
factor.” United States v. Abdulmutallab, 739 F.3d 891, 908 (6th Cir. 2014) (citation omitted). In
support of this argument, Bass contends his sentence was substantively unreasonable because his
conduct was “garden variety” identity theft and the loss was “small potatoes”—i.e., the district
judge erred by varying upwards from the Guidelines range because his crime was “not the worst”
or “most egregious” fraud offense ever seen.
Bass essentially argues that the district court failed to employ a “proportionality
principle” to distinguish why he needed an above-Guidelines sentence. District courts, however,
no longer must show “‘extraordinary’ circumstances to justify a sentence outside the Guidelines
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range.” Gall v. United States, 552 U.S. 38, 47 (2007). Similarly, “we no longer apply a form of
proportionality review to outside-Guidelines sentences, which would require the strength of the
justification for a departure to vary in proportion to the amount of deviation from the
Guidelines.” United States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007). Moreover, as explained
above, the district court properly considered all of the § 3553(a) factors and gave ample
explanation as to why an upward variance was needed to protect the public (because of Bass’s
propensity to engage in criminal conduct). See, e.g., United States v. Lanning, 633 F.3d 469,
475-76 (6th Cir. 2011) (affirming an upward variance to provide deterrence and protect the
public where the defendant “made a living as a thief”).
We therefore hold that there was no abuse of discretion.
III. Conclusion
For the foregoing reasons, we AFFIRM.
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