United States v. Mark Green

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________________

No. 11-2454
_________________

UNITED STATES OF AMERICA

v.

MARK GREEN, a/k/a Mark Andre Green, a/k/a Anthony Covington,
a/k/a Tracy Green, a/k/a Mark Wallace, a/k/a Andre Green,
a/k/a James Smith, a/k/a Adrian Mercier, a/k/a Mark Brown

Mark Green,
Appellant
_________________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-08-cr-00044-001)
District Judge: Hon. Juan R. Sánchez
_________________

Submitted Under Third Circuit LAR 34.1(a)
September 19, 2012
_________________

Before: AMBRO, GREENAWAY, JR., and TASHIMA,*Circuit Judges

(Opinion filed: March 19, 2013)

*
Hon. A. Wallace Tashima, Senior Judge, United States Court of Appeals for the Ninth
Circuit, sitting by designation.
1
 _________________

OPINION
_________________
TASHIMA, Circuit Judge

After a three-day jury trial in which he represented himself, Defendant-Appellant

Mark Green was convicted of one count of access device fraud conspiracy, two counts of

unauthorized use of an access device, and one count of aggravated identity theft. The

District Court sentenced Green to 139 months‟ imprisonment and ordered the forfeiture of

Green‟s Mercedes-Benz and $9,000. Green appeals his conviction and sentence on

twelve distinct grounds. The District Court had jurisdiction under 18 U.S.C. § 3231. We

have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1), and we will affirm

the District Court.

I. BACKGROUND

In 2007, the United States Secret Service began an identity theft investigation into

the purchase of vehicles using stolen identities and the use of those identities to obtain

unauthorized credit cards. Investigators learned that a Mercedes-Benz received over

$9,000 in repairs charged to two fraudulent credit cards at a Fort Washington dealership.

On August 2, 2007, a detective of the Upper Dublin Township Police Department seized

and searched the car, which belonged to Mark Green (“Green”), and obtained a warrant

for his arrest.

On November 16, 2007, Green voluntarily went to the Upper Dublin Township

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Police Department to speak with a detective and a Secret Service agent. He admitted that

he had applied for and used fraudulent credit cards to pay for repairs to his car. He also

told the officers that he became involved in identity theft in January 2007, and that he was

the “boss” of an organization involved in such activities. In December 2007, state police

executed a search warrant on Green‟s apartment.

Green was arrested on December 26, 2007. The government filed an indictment

on January 24, 2008, alleging that Green committed: (1) one count of access device fraud

conspiracy, in violation of 18 U.S.C. § 1029(b)(2); (2) two counts of unauthorized use of

an access device, in violation of 18 U.S.C. § 1029(a)(2); and (3) two counts of aggravated

identity theft, in violation of 18 U.S.C. § 1028A(a)(1).

On March 18, 2008, the government filed a motion for a continuance of the trial

date pursuant to 18 U.S.C. § 3161(h)(7)(A),1 explaining that the government and Green

were engaged in plea negotiations, and stating that Green‟s attorney joined the motion.

The District Court granted the motion on March 20, 2008, specifically finding that the

parties‟ plea negotiations justified an “ends of justice” continuance under

§ 3161(h)(7)(A). The District Court set a new trial date of June 30, 2008. On May 2,

2008, Green‟s attorney filed a motion for pretrial release. Green was arraigned on May 8,

2008.

1
At the time the government requested its continuance, this provision of the Speedy
Trial Act was codified at 18 U.S.C. § 3161(h)(8)(A). For ease of reference, we refer to
this provision as § 3161(h)(7)(A).

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 On June 24, 2008, six days before trial was set to begin, Green‟s attorney filed an

unopposed motion for a continuance pursuant to § 3161(h)(7)(A), explaining that he

needed additional time to prepare for trial. On June 25, 2008, the District Court granted

the continuance without specifying a new trial date. The court stated that the interests of

justice were served by granting counsel time to prepare for trial and that trial would be

continued “until a date to be set upon consultation with the parties.”

During a bail hearing held on August 15, 2008, the court stated that the first

available trial date was February 2, 2009, and the parties agreed to that date. The District

Court denied Green‟s bail motion. Nothing in the District Court record after August 15

indicates why the court did not file an order scheduling trial for February 2; no further

mention is made of the February 2 date and the next filing on the District Court docket is

dated February 27, 2009 – the day that Green‟s attorney moved to withdraw as counsel,

citing an irreconcilable conflict of interest.

On March 9, 2009, the District Court held a hearing on defense counsel‟s motion

to withdraw. There, Green complained that his attorney agreed to continuances without

authorization, that Green had difficulty getting in touch with the attorney, and that the

attorney failed to file a number of motions and an appeal that Green requested. After

discussing these complaints with Green and his attorney in some detail, the court

explained to Green that, in its view, the attorney was doing everything he could

competently to represent Green. The court gave Green the choice of representing himself

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or working things out with his attorney, explaining that Green‟s complaints did not

amount to irreconcilable differences and the court would not appoint a replacement

attorney.2

On June 26, 2009, Green‟s attorney filed a second motion for pretrial release. On

July 15, 2009, the District Court held a telephone status conference with the parties and

filed an order setting the trial date for October 26, 2009. The order was written on a

standardized § 3161(h)(7)(A) continuance form. On July 23, 2009, the District Court

held a hearing on the second bail motion. That same day, Green wrote a handwritten

letter to the District Court, asserting his right to a speedy trial and claiming that the

continuances requested by his attorney were against his wishes.

On July 27, 2009, the District Court denied Green‟s second bail motion. Green

appealed the denial of his motion to this Court, and we affirmed the District Court on

September 15, 2009. On October 23, 2009, three days before the scheduled trial date, the

District Court ordered the trial continued to November 2, 2009. Although the District

Court used a § 3161(h)(7)(A) continuance form, it did not specify any reason for the

continuance on the form.

On October 30, 2009, the District Court held a hearing on the parties‟ pretrial

motions. The court first considered Green‟s motion to suppress the statements he made to

2
The court also stated that it would take the motion to withdraw under advisement
and asked Green‟s attorney to advise the court in two weeks as to the status of the motion.
On April 21, 2009, the District Court denied the motion to withdraw, as moot.

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the police on November 16, 2007, on the basis that his Miranda waiver was not voluntary

and intelligent. The government called the two officers who spoke with Green on

November 16: the Upper Dublin Township police detective and the Secret Service agent.

The detective testified that Green voluntarily came in to speak with the police in

November, that the detective read Green his rights from a Miranda form, and that Green

confirmed that he understood his rights verbally and in writing. Green signed his name,

but did not fill out the portion of the Miranda form indicating the time that he signed it,

although he did date the form.

The Secret Service agent testified that she remembered Green being read his rights

and that Green acknowledged them and signed a Miranda waiver form. She did not know

why the portion of the form specifying the time of the waiver was blank. The meeting

lasted approximately two to two and a half hours, and Green was calm and eager to talk.

The agent took notes during the meeting of what was said. Before the meeting, she had

informed Green that he would be arrested after speaking to the police, because there was

an open warrant for his arrest.

After the suppression hearing, Green‟s attorney told the court that Green wished to

proceed pro se. The court asked Green about his experience and familiarity with the rules

of evidence and objections, and it informed Green that self-representation would be

dangerous and foolish. Green said that he felt he could present the case in the way that he

thought it should be presented. The court then asked the government to describe the

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counts in the indictment and the penalties for those offenses. The government listed the

maximum sentences for the five counts in the indictment and said that it believed the total

offense level for purposes of sentencing was six, although the government was not yet

aware of Green‟s criminal history score. The court explained to Green that his offense

level would be six for purposes of sentencing, but that Green could face a sentence higher

than the Guideline range if circumstances justified an upward departure.

The court then asked Green if he was making the decision to represent himself

freely; Green answered in the affirmative. The court warned Green that once he gave up

his right to representation, it would be binding for all purposes and he would not be

appointed a lawyer through sentencing. The court then stated that it would give Green the

weekend to think about his decision and that the court would appoint his then-attorney as

standby counsel at trial, if Green did not change his mind. The court then denied Green‟s

pro se oral motions for dismissal of the case, based on an allegedly defective indictment

and a speedy trial violation.

On November 2, 2009, the District Court denied Green‟s motion to suppress his

police statements. The court found that the testimony at the suppression hearing

demonstrated that Green voluntarily agreed to speak with law enforcement officers, was

advised of his Miranda rights, and signed the waiver form. Accordingly, the District

Court found that Green‟s waiver was knowing and voluntary.

Trial commenced on November 2, 2009. Green informed the court that he had

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decided to proceed pro se with his attorney as standby counsel. The court stated that it

would permit Green to represent himself but that the court was neither pleased nor

thought the decision wise. Green also filed as his own a motion drafted by his standby

counsel to suppress the physical evidence seized from his home in December 2007. The

court orally denied the motion. In a later-filed order, the court explained that the affidavit

supporting the search warrant for Green‟s house provided probable cause because

circumstantial evidence indicated a fair probability that Green‟s house contained evidence

of a crime.

After the court denied Green‟s suppression motion on November 2, jury selection

commenced. The court questioned prospective jurors at a sidebar with Green‟s standby

counsel and the government attorney present. The court stated that it did not want Green

at the sidebar and that his standby counsel could discuss what occurred at the sidebar with

Green. Before the jury was seated, the court asked the prosecution and Green whether

they had any other questions to pose of prospective jurors. After the jury was seated,

Green complained that his first challenge had been to juror number nine and that his

strike was not reflected in the jury‟s final composition. The prosecutor, Green‟s standby

counsel, and the District Judge reviewed their notes and all agreed that juror nine was not

among Green‟s original strikes. The court determined that Green‟s first strike had been to

juror twenty-seven and that Green‟s objection to the jury‟s final composition was noted

and overruled.

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 A three-day trial followed. The government called as witnesses the detective and

agent to whom Green made admissions, as well as a Discover Card financial investigator,

a Mercedes-Benz of Fort Washington employee, and one of the victims of Green‟s

alleged fraud. During deliberations, the jury requested that seven defense exhibits be sent

to the jury room. Green objected to the sending of two exhibits – statements written by

the Secret Service agent – because they contained additional material not testified to at

trial.

The government objected to the sending of a third exhibit – an affidavit written by

the Secret Service agent – because it contained allegations of criminal activity that went

beyond the charges and could prejudice Green. Green advocated giving the agent‟s

affidavit to the jury; his standby counsel disagreed. The court decided not to send the

affidavit to the jury. Green also argued that an exhibit containing the state criminal

complaint against him should be sent to the jury because all of the charges in it were

incorporated into the federal indictment. The court decided that the complaint would not

go to the jury either. Ultimately, the court did not send any of the requested exhibits to

the jury and, instead, instructed it to rely on their memories of testimony regarding those

exhibits.

The jury returned guilty verdicts on the single count of access device fraud

conspiracy, on both counts of unauthorized use of an access device, and on one of the two

counts of aggravated identity theft.

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 After trial, at Green‟s request, the District Court appointed a new attorney to

represent Green at sentencing. On April 15, 2010, Green filed an Omnibus Post-Trial

Motion challenging the court‟s jurisdiction over the indictment, alleging prosecutorial

misconduct, and claiming a violation of the Speedy Trial Act. The motion also raised a

sufficiency of the evidence challenge, a Confrontation Clause claim, a claim that Green

was denied his Sixth Amendment right of self-representation, and a claim that the court

erred in failing to determine whether good cause existed to appoint replacement counsel

at trial.3

The defense also submitted the affidavit of an attorney who claimed that he

represented Green in August 2007 and informed the detective, before the detective‟s

November 16 meeting with Green, that he represented Green. Based on this affidavit,

Green argued that his statements to the police should have been suppressed because the

police knew that he was represented and questioned him without his attorney present. In

response, the government admitted that Green told the officers before his interview that

he was represented by the attorney. The government asserted, however, that when the

U.S. Attorney‟s Office called the attorney, he stated that he represented Green only in a

different matter then before the Court of Common Pleas in Philadelphia. The government

did not include any affidavits or evidence supporting its contention.

The court denied Green‟s post-trial motion on May 16, 2011, after considering

3
The motion did not raise a Sixth Amendment speedy trial claim.

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Green‟s Speedy Trial Act claim in some detail. The court first noted that fifty-four non-

excludable days passed between the December 26, 2007, indictment and the parties‟ first

request for a continuance on March 18, 2008. The court then concluded that all other

days until the trial date on November 2, 2009, were excludable under the Speedy Trial

Act based on the March 18, 2008, continuance request, the June 23, 2008, continuance

request, and the government‟s oral request for a continuance in October 2009. The court

also explained why it granted a trial continuance from October 26 to November 2, 2009:

the one-week delay was necessary under § 3161(h)(3)(A) because the government

thought – until a few days before trial – that Green was planning to plead guilty, and so a

government witness was unavailable on October 26. The court concluded that sixty-three

non-excludable days4 elapsed between the filing of the indictment and Green‟s trial,

resulting in no Speedy Trial Act violation.

Green‟s presentence investigation report (“PSR”) found an offense level of 22 and

a criminal history category of IV. Following a sentencing hearing, the District Court

granted the government‟s motion for an upward departure to a criminal history category

of V and sentenced Green to 139 months‟ imprisonment. Following a forfeiture hearing,

the District Court ordered the forfeiture of Green‟s Mercedes-Benz and $9,000. The court

found that the government had met its burden of showing, by a preponderance of the

4
The record does not disclose how the District Court reached its conclusion that
sixty-three non-excludable days elapsed prior to trial. The only non-excludable delay
occurred between the indictment and the filing of the first continuance on March 18,
2008 – a delay of fifty-four days.
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evidence, that the car constituted the proceeds of and was used in the commission of the

offenses of conspiracy to commit access device fraud, access device fraud, and

aggravated identity theft, and, as such, the car was properly subject to forfeiture under 18

U.S.C. § 982. Green timely appealed his conviction and sentence.

II. DISCUSSION

A. Speedy Trial Act Claim

Green argues that the delay between his January 24, 2008, indictment and

November 2, 2009, trial violated the Speedy Trial Act, which provides that a federal

criminal trial shall commence within seventy non-excludable days of the filing date of a

federal indictment or from the date the defendant appeared before a judicial officer,

whichever is later. 18 U.S.C. § 3161(c)(1). Green first appeared before a judicial officer

on December 26, 2007, the date of his arrest, and the indictment in his case was filed on

January 24, 2008. Under § 3161(c)(1), the latter of the two dates marks the start of the

Speedy Trial Act clock.

Section 3161(h) enumerates periods of delay that are excluded in computing the

seventy-day time limit.5 The “ends of justice” exception excludes:

Any period of delay resulting from a continuance granted by any judge on
his own motion or at the request of the defendant or his counsel or at the
request of the attorney for the Government, if the judge granted such

5
Exceptions include delay resulting from pretrial motions, measured from the filing
of the motion to the conclusion of the hearing on the motion, § 3161(h)(1)(D), and any
period due to the absence or unavailability of the defendant or an essential witness,
§ 3161(h)(3)(A).

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 continuance on the basis of his findings that the ends of justice served by
taking such action outweigh the best interest of the public and the defendant
in a speedy trial.

18 U.S.C. § 3161(h)(7)(A). Section 3161(h)(7)(B) provides a non-exhaustive list of the

factors a judge must consider in determining whether to grant a § 3161(h)(7)(A)

continuance.

Green argues that the delay between his indictment and trial violated the Speedy

Trial Act because: (1) delay resulting from continuances requested or acquiesced to by

his attorney without Green‟s approval should not be excluded; (2) the District Court erred

in granting an open-ended continuance on June 25, 2008, and delay resulting from that

continuance should not be excluded; and (3) those continuances for which the District

Court did not provide “ends of justice” reasons on the record were not excludable because

of lack of justification.

We exercise plenary review over the District Court‟s interpretation of the Speedy

Trial Act and review its factual determinations for clear error. United States v. Rivera

Constr. Co., 863 F.2d 293, 295 n.3 (3d Cir. 1988). When the District Court grants a

continuance after a proper application of the Speedy Trial Act to established facts, we

apply an abuse of discretion standard of review. Id.

1. Continuances Acquiesced to or Requested by Green’s Attorney

Green‟s attorney agreed to the March 2008 continuance requested by the

government and asked for the June 2008 continuance in order to prepare himself for

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Green‟s trial. Green contends that he did not agree to these continuances. The Speedy

Trial Act specifically provides that an “ends of justice” continuance can be granted by a

judge “at the request of the defendant or his counsel.” § 3161(h)(7)(A). Therefore, the

attorney‟s requests for and agreement to continuances exclude them from the days

counted towards the Speedy Trial Act clock. See New York v. Hill, 528 U.S. 110, 115

(2000).

2. June 2008 Open-Ended Continuance

We have cautioned district courts against using open-ended continuances as a

general matter, but such continuances granted under the “ends of justice” exception are

not prohibited as long as they are reasonable in length. United States v. Lattany, 982 F.2d

866, 868, 876 n.14 (3d Cir. 1992). Although the District Court‟s decision to grant an

open-ended continuance in this case resulted in a delay of sixteen months and left it to the

parties to consult with the Court about a new trial date, it was not an abuse of discretion

because the District Court was aware that Green‟s attorney needed more time to prepare

and the Court noted that the parties were engaged in settlement negotiations.

3. “Ends of Justice” Continuances Without Reasons Provided

Green also asserts that two of the District Court‟s orders granting “ends of justice”

continuances did not include the reasons for those continuances on the record, as required

by § 3161(h)(7)(A). Although the District Court is required to set out its reasons for

granting an “ends of justice” continuance on the record in order for the delay to be

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excluded under the Speedy Trial Act, Rivera Constr. Co., 863 F.2d at 296, it need not

articulate its reasoning at the time it grants an “ends of justice” continuance, so long as it

indicates the statutory basis of the continuance at that time, Lattany, 982 F.2d at 878-79.

Subsequent explanation on the record of the court‟s earlier justification for granting the

continuance is sufficient. United States v. Fields, 39 F.3d 439, 443 (3d Cir. 1994). At the

very least, such reasons must be provided by the time the court rules on the defendant‟s

motion to dismiss the indictment for violations of the Speedy Trial Act. Zedner v. United

States, 547 U.S. 489, 506-07 (2006).

The first order that Green contends violated the requirement that reasons be stated

on the record is the District Court‟s order of July 15, 2009, setting trial for October 26,

2009. Although this order was written on a preprinted Speedy Trial Act form, it is not a

Speedy Trial Act continuance; it is merely a scheduling order setting a trial date. The

June 2008 open-ended continuance was ongoing at that time, and the order was an

attempt to end to it. Section 3161(h)(7)(A)‟s record requirement is therefore inapplicable.

The second order that Green argues violated the record requirement in

§ 3161(h)(7)(A) is the District Court‟s order of October 23, 2009, continuing trial from

October 26 to November 2. We agree that the October 23 continuance did not satisfy the

statutory prerequisites and the week-long delay between the old and new trial dates

should not be excluded in calculating the Speedy Trial Act deadline. There was,

however, no Speedy Trial Act violation. Only fifty-four non-excludable days elapsed

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between Green‟s indictment and the first Speedy Trial Act continuance in his case in

March 2008.6 Because valid, reasonable continuances were in place until October 26,

2009, only seven more days of non-excludable delay elapsed prior to the commencement

of trial on November 2, 2009. The total non-excludable delay was therefore sixty-one

days – fewer than the seventy days allowed by statute. We therefore affirm the District

Court‟s denial of Green‟s Speedy Trial Act claim.

B. Sixth Amendment Speedy Trial Claim

We review de novo a District Court‟s legal conclusion regarding a defendant‟s

claim that his constitutional right to a speedy trial was violated, and we review for clear

error the factual findings underpinning that conclusion. United States v. Battis, 589 F.3d

673, 677 (3d Cir. 2009). Where a claim of error is forfeited because it was not timely

raised in District Court, plain error review applies. Fed. R. Crim. P. 52(b); United States

v. Olano, 507 U.S. 725, 731-32 (1993); see also United States v. Cotton, 535 U.S. 625,

631 (2002).

Green did not argue before the District Court that his constitutional right to a

speedy trial was violated, although he did argue – both in an oral motion to dismiss and in

his post-verdict motion – that the Speedy Trial Act had been violated. Although he

asserted his constitutional right in a letter to the court and mentioned his speedy trial

rights in court on one occasion, neither communication indicated that he thought that right

6
See supra note 4.

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had been violated. Accordingly, the District Court had no reason to address a Sixth

Amendment speedy trial claim in its order denying Green‟s post-verdict motion. We

therefore review Green‟s Sixth Amendment speedy trial claim for plain error. In

assessing whether there has been a violation of Green‟s Sixth Amendment right to a

speedy trial, we consider the four factors set out in Barker v. Wingo, 407 U.S. 514, 530

(1972),7 together with other relevant circumstances in weighing the prosecution‟s conduct

against that of the defense. Battis, 589 F.3d at 678.

1. Length of Delay

The speedy trial clock, for Sixth Amendment purposes, begins to run from either

the date of arrest or indictment, whichever is earlier, and ends with the commencement of

trial. Hakeem v. Beyer, 990 F.2d 750, 760 (3d Cir. 1993). Green was arrested prior to his

indictment, and accordingly his pretrial delay amounted to twenty-two months, from his

arrest on December 26, 2007, to his trial on November 2, 2009.

7
The four Barker factors are: (1) the length of the delay; (2) the reason for the
delay; (3) the extent to which the defendant asserted his speedy trial right; and (4) the
prejudice suffered by the defendant. Barker, 407 U.S. at 530. If the defendant‟s right to
a speedy trial has been violated, the indictment must be dismissed. Id. at 536.

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 2. Reason for Delay

We ask whether the government or the defendant is more to blame for the delay.

Vermont v. Brillon, 129 S. Ct. 1283, 1290 (2009). Delay caused by a defendant‟s counsel

is charged against the defendant. Id. at 1290-91; see also Gattis v. Snyder, 278 F.3d 222,

231 (3d Cir. 2002).

Green‟s attorney moved for the continuance granted by the District Court between

June 2008 and October 2009. Accordingly, all of that delay is attributable to Green rather

than the government. His attorney also acquiesced in the government‟s March 2008

request for a continuance. Any negligence in failing to insist that the District Court

adhere to the court‟s oral commitment to set a February 2009 trial date is attributable to

both Green‟s attorney and the government. See Brillon, 129 S. Ct. at 1291. There is also

no evidence that the government intentionally delayed Green‟s trial date. We conclude

that this factor weighs against Green. See Battis, 589 F.3d at 678-80.

3. Defendant’s Assertion of the Speedy Trial Right

To demonstrate a convincing assertion of the right, the defendant must show a

motion or evidence of a direct instruction to counsel to assert the right at a time when it

would have had some chance of success. Id. at 681. This Green has not done.8

8
Green asserted his constitutional right to a speedy trial in a letter he sent to the
District Court in July 2009, but informal correspondence by a represented defendant to a
court is only a weak assertion of the speedy trial right, particularly when his attorney has
asked for a continuance to prepare for trial. Battis, 589 F.3d at 681 & n.7. Green‟s bail
motions did not mention the Sixth Amendment speedy trial right.

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Consequently, this factor also does not weigh in his favor.

4. Prejudice

Green argues that he has suffered prejudice because of the lengthy pretrial delay.

A defendant can establish prejudice by showing, for example, that his defense was

impaired as a result of the delay. Id. at 682. Green asserts that two exculpatory witnesses

died prior to trial. The first of these two witnesses apparently died in March 2008. The

absence of this witness at the time of the November 2, 2009, trial was not caused by any

continuance in which the defense did not join because the witness died before the defense

team‟s preparation for trial was complete. See Douglas v. Cathel, 456 F.3d 403, 419 (3d

Cir. 2006) (noting that trial continuance did not prejudice defendant because the defense

team‟s need to prepare for trial “carried beyond the death” of the witness). Green‟s

attorney had, after all, requested a continuance to prepare for trial in June 2008. As for

the second witness, who died approximately one year later, even if the prejudice factor

were to weigh in Green‟s favor, it would be offset by factors two and three, which weigh

against him. We therefore see no plainly erroneous violation of Green‟s Sixth

Amendment right to a speedy trial.

C. Defective Indictment Claims

We review the District Court‟s legal conclusions de novo and its factual findings

for clear error. United States v. Barbosa, 271 F.3d 438, 469 (3d Cir. 2001). Green argues

that his indictment was deficient for three reasons: (1) counts one, four, and five did not

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allege an effect on interstate commerce; (2) counts two, three, and five were not

sufficiently specific; and (3) the proof offered at trial as to the amount of loss on counts

two and three materially varied from that alleged in the indictment. We disagree.

1. Interstate Commerce Requirement

Green argues that under United States v. Spinner, the failure to explicitly allege a

connection to interstate commerce in counts one, four, and five deprived the District

Court of jurisdiction over his indictment.9 180 F.3d 514, 515-16 (3d Cir. 1999). We

decline to reach the argument because any error in failing to specify a link to interstate

commerce was harmless. See Neder v. United States, 527 U.S. 1, 15 (1999); United

States v. Esposito, 771 F.2d 283, 289 (7th Cir. 1985). Counts one, four, and five relied on

Green‟s conviction under § 1029(a)(2), for which an interstate commerce effect must be

proven beyond a reasonable doubt. Moreover, the District Court specifically instructed

the jury that they must find an interstate commerce link for each count of the indictment,

9
Count one, conspiracy to violate 18 U.S.C. § 1029(a)(2), did not allege any effect
on interstate commerce. Counts two and three, which charged two separate violations of
§ 1029(a)(2), specifically alleged that Green‟s conduct had an effect on interstate
commerce. Section 1029(a)(2) prohibits the knowing trafficking or use of unauthorized
access devices with intent to defraud, if such conduct leads the defendant to obtain
anything worth $1,000 or more and if the offense affects interstate or foreign commerce.
Section 1029(b)(2) criminalizes a conspiracy to commit any offense under § 1029(a), but
it does not specifically reference interstate commerce.
Counts four and five charged Green with violations of § 1028A, but they did not
specifically allege an effect on interstate commerce. Section 1028A(a)(1) provides for a
term of imprisonment for anyone who knowingly transfers, possesses, or uses, without
lawful authority, a means of identification of another person during and in relation to an
offense under § 1029(a), but it does not mention interstate commerce.
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and the court‟s instructions cured any error in the original indictment.

2. Specificity and Variance Claims

Green complains that counts two, three, and five of the indictment were

insufficiently specific to inform him of the accusations he faced. We conclude that the

indictment was sufficiently detailed under Hamling v. United States, 418 U.S. 87, 117

(1974), and United States v. Saybolt, 577 F.3d 195, 205 (3d Cir. 2009) (finding that an

indictment is sufficient if it contains the elements of the offense to be charged, informs

the defendant of what he must defend against, and enables him to plead an acquittal or

conviction in bar of future prosecutions for the same charge).

Counts two and three included a specific time frame, a location, a specific credit

card number, and the victims‟ initials. That factual background was enough to notify

Green of the particulars of the access device fraud charges against him. Similarly, count

five included a time frame, the initials of the victim whose identification was used

without authorization, and the allegation that the use of the identification was in relation

to a credit card fraud scheme. Such allegations were sufficient to notify Green of the

charges he faced and allow him to raise the double jeopardy bar for the same offense in

the future.

Finally, Green contends that the government‟s efforts to prove that his victims

suffered over $400,000 in losses due to his fraud constituted a variance from counts two

and three of the indictment, which alleged that Green obtained things of value

-21-
“aggregating $1,000 or more” and totaling “at least” $9,000. We disagree.

Although $400,000 is certainly higher than amounts originally specified in the

indictment, the latter represented a lower-bounds estimate as signified by the words “at

least.” The facts proven at trial were therefore not materially different from those in the

indictment. See United States v. Daraio, 445 F.3d 253, 259 (3d Cir. 2006). Moreover,

the District Court found that Green was aware that the government could potentially

attempt to prove a much higher amount of loss – a factual finding to which we must defer

unless it is clearly erroneous. We conclude that Green was neither prejudiced nor

surprised, and that no illegal variance occurred. See id. at 261-62.

D. Denial of Motion to Suppress Statements

We review the District Court‟s denial of Green‟s motion to suppress for clear error

as to the underlying facts, but we exercise plenary review as to its legality in light of the

court‟s properly found facts. See United States v. Givan, 320 F.3d 452, 458 (3d Cir.

2003) (citing United States v. Riddick, 156 F.3d 505, 509 (3d Cir. 1998)). Whether a

Miranda waiver was voluntary, knowing, and intelligent is a question of law subjected to

plenary review. United States v. Velasquez, 885 F.2d 1076, 1086 (3d Cir. 1989).

Green argues that the District Court erred in denying the motion to suppress his

inculpatory statements to law enforcement. He contends that because he was represented

by counsel at the time, his uncounseled statements were presumptively coerced.10 He also

10
Of course, a defendant may waive his Miranda rights whether or not he is already
represented by counsel, as long as that waiver is voluntary, knowing, and intelligent; there
-22-
argues that he did not voluntarily and intelligently waive his Miranda rights and that the

contrary testimony of the detective and Secret Service agent should receive little weight.

The District Court determined that Green‟s waiver was valid based of the

testimony of the detective and Secret Service agent at a suppression hearing. The Court

specifically found that Green voluntarily agreed to speak with the officers, was advised of

his Miranda rights, and signed a form waiving constitutional rights. These findings are

well-supported by the testimony of both officers and are not contradicted by any evidence

in the record; they are not clearly erroneous. Green has failed to point to any evidence

that he was coerced. Rather, the record indicates that Green met with the police of his

own accord and understood his rights. Accordingly, we affirm the denial of Green‟s

motion to suppress his statements made to the officers.

E. Denial of Motion to Suppress Physical Evidence

We review the District Court‟s denial of Green‟s motion to suppress physical

evidence for clear error as to the underlying facts, and we exercise plenary review as to

the legality of that ruling. Givan, 320 F.3d at 458. Accordingly, we review de novo the

District Court‟s evaluation of the magistrate‟s probable cause determination. United

States v. Stearn, 597 F.3d 540, 554 (3d Cir. 2010). We ask whether the magistrate had a

is no presumption that a waiver made by a represented defendant, even during police-
initiated interrogation, is invalid. See Montejo v. Louisiana, 556 U.S. 778, 786 (2009);
United States v. Whiteford, 676 F.3d 348, 362 (3d Cir. 2012). A waiver is knowing and
intelligent if the defendant had full awareness of both the right being abandoned and the
consequences of the decision to abandon it. Whiteford, 676 F.3d at 362.

-23-
substantial basis to support his probable cause finding, even if another magistrate might

have found the affidavit insufficient to support a warrant. Id.

Green argues that the physical evidence seized from his home should have been

excluded at trial because the allegations in the affidavit supporting the warrant to search

his home did not amount to probable cause that his apartment contained evidence of a

crime. We need not resolve the question of probable cause because the police officers

who executed the warrant fall within the “good faith” exception to the warrant

requirement.

An officer cannot be expected to question a magistrate‟s determination that

probable cause supports a warrant. United States v. Tracey, 597 F.3d 140, 150 (3d Cir.

2010) (citing United States v. Leon, 468 U.S. 897, 921 (1984)). Thus, the exclusionary

rule applies only “when police conduct is „deliberate, reckless, or grossly negligent,‟ or

when it will deter „recurring or systemic negligence.‟” Id. at 151 (quoting Herring v.

United States, 555 U.S. 135, 144 (2009)). The good faith exception does not apply where

the warrant rests on an affidavit that is so lacking in indicia of probable cause as to render

the officer‟s reliance on it entirely unreasonable. See id.

The affidavit in this case was sufficient to allow good faith reliance. See United

States v. Williams, 3 F.3d 69, 74 (3d Cir. 1993); cf. United States v. Zimmerman, 277 F.3d

426, 432-37 (3d Cir. 2002). Thus, the good faith exception applies and the District

Court‟s denial of Green‟s motion to suppress is affirmed.

-24-
F. Sufficiency of the Evidence Claim

We view the evidence in the light most favorable to the government and sustain

the verdict if any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998).

Green contends that the government did not present sufficient evidence demonstrating (1)

a link between his fraud and interstate commerce, and (2) that the victim of Count Two

did not authorize Green to use the credit card issued in the victim‟s name, because the

victim did not testify at trial. We disagree. Viewing the facts in the light most favorable

to the government, a rational juror could find that Green‟s access device fraud affected

interstate commerce.11 Similarly, we conclude that testimony from the Secret Service

agent and financial investigator permitted a rational juror to conclude that Green used the

Discover card issued in the victim‟s name without his permission.12

G. Fair Trial and Confrontation Clause Claims

11
A Mercedes-Benz of Fort Washington employee testified that the parts used to
repair a Mercedes-Benz SL500, such as the one the Fort Washington dealership repaired
and Green paid for with fraudulent credit cards, come from Germany. One of the fraud
victims also testified that his identity was fraudulently used to make purchases in
Pennsylvania, Delaware, and New Jersey.
12
The agent testified that Green told her, during the November 16 interview, that he
possessed a Discover credit card under the victim‟s name and that he applied for the
credit card using information either taken from mailboxes or stolen from cars or purses.
A financial investigator for Discover Financial Services also testified that all of the
charges to the Discover Card in the victim‟s name were fraudulent. The investigator
explained on cross-examination that he knew that the charges were fraudulent because he
spoke to the victim over the telephone and that he was “pretty satisfied” that he spoke to
-25-
 We review the District Court‟s management of a trial for abuse of discretion.

Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 604, 609 (3d Cir. 1995).

Where a motion for recusal based on judicial bias was made before the District Court, we

review its denial for abuse of discretion; where no motion was made, we review for plain

error. United States v. Dalfonso, 707 F.2d 757, 760 (3d Cir. 1983). The District Court‟s

decision to limit cross-examination is likewise reviewed for abuse of discretion. See

United States v. Friedman, 658 F.3d 342, 356 (3d Cir. 2011). However, if a defendant‟s

right to confront an adverse witness was infringed by excessive limitations on cross-

examination, we must determine whether that error was harmless beyond a reasonable

doubt. United States v. Chandler, 326 F.3d 210, 224 (3d Cir. 2003).

Green argues that the judge‟s demeanor at trial amounted to error because (1)

Green was denied a fair trial when the judge‟s hostility towards Green gave the jury the

impression that he believed Green to be guilty; and (2) the judge should have sua sponte

recused himself for bias against Green.13

We conclude that the District Judge‟s conduct was not prejudicial. A great deal of

the judicial conduct about which Green complains occurred outside of the presence of the

jury and therefore could not have communicated anything to the jury. See United States

v. Nobel, 696 F.2d 231, 237 (3d Cir. 1982) (recognizing that a “trial judge must be

the real cardholder because the speaker was able to answer security questions.
13
Green did not make a recusal motion in the District Court.

-26-
vigilant not to let his or her tone or gestures indicate the judge‟s view”); see also United

States v. Beaty, 722 F.2d 1090, 1093 (3d Cir. 1983). Green also complains that the judge

placed time limits on his cross-examination and closing statements, repeatedly asked him

if he had any more questions during his cross-examination, and warned him not to ask

argumentative questions. We disagree that this amounted to denial of a fair trial. The

judge was simply attempting to maintain order; nothing suggests that his tone was

intemperate or his requests unreasonable. See United States v. Donato, 99 F.3d 426, 435

(D.C. Cir. 1996).

Green has also failed to demonstrate that the judge‟s attempts to maintain an

orderly courtroom were so antagonistic as to require sua sponte recusal. Judicial rulings

alone almost never constitute a basis for a bias or partiality motion pursuant to 28 U.S.C.

§ 455(b)(1). Liteky v. United States, 510 U.S. 540, 555 (1994). Judicial remarks that are

critical of or hostile to the defendant do not merit recusal unless they show such a high

degree of favoritism or antagonism as to make fair judgment impossible. Id. This Green

has not shown.

Finally, Green argues that he was denied his rights under the Confrontation Clause

when the District Judge denied his request to recross-examine the detective to whom he

made inculpatory statements. We need not decide whether the court erred because any

error was harmless.14 The evidence that came out during redirect of the detective was the

14
Denial of recross on a proper subject is ground for reversal only if the denial was
harmful, considering the importance of the witness‟ testimony, whether the testimony was
-27-
same evidence testified to by the Secret Service agent during her direct examination;

accordingly, the detective‟s testimony was cumulative and corroborated by other

testimony. Green was also given a generous amount of time to cross-examine the

detective and chose not to question him about the content of his confession.

H. Sixth Amendment Right of Self-Representation

We exercise plenary review over Green‟s contention that the District Court‟s

ruling violated his Sixth Amendment right of self-representation. See United States v.

Peppers, 302 F.3d 120, 127 (3d Cir. 2002). Green contends that his exclusion from the

District Court‟s sidebars during jury selection violated his Sixth Amendment right.15 His

argument is foreclosed by United States v. Isaac, 655 F.3d 148, 152-54 (3d Cir. 2011),

cert. denied, 132 S. Ct. 2700 (May 29, 2012), which held that a pro se defendant who

proceeded with the assistance of standby counsel waived his Sixth Amendment right of

self-representation at a sidebar when he raised no objection to the District Court‟s

decision to exclude him from sidebars and acquiesced in standby counsel‟s participation

cumulative, the presence or absence of corroborating or contradictory evidence, the extent
of cross-examination otherwise permitted, and the overall strength of the prosecution‟s
case. United States v. Riggi, 951 F.2d 1368, 1376 (3d Cir. 1991).
15
Although Green frames this contention, in part, as based on a deprivation of the
opportunity to select an impartial jury, citing United States v. Weaver, 267 F.3d 231, 235-
36 (3d Cir. 2001), all of his arguments focus on the District Court‟s decision to consult
Attorney McHugh, rather than Green himself, on jury selection issues. At no point does
Green directly challenge the District Court‟s determination that Green did not properly
strike Juror Nine. It seems more appropriate, then, to characterize this contention on
appeal as purely one of violation of Green‟s right to self-representation.

-28-
in his stead. Like the defendant in Isaac, Green waived his right to participate in the jury

selection sidebars when he failed to object to his standby counsel‟s participation in his

place.16

I. Ineffective Waiver of Counsel Claim

We exercise plenary review over the question whether Green knowingly and

intelligently waived his right to counsel, and we review the facts found by the District

Court for clear error. See Peppers, 302 F.3d at 127. Deprivation of the right of self-

representation is structural error and hence is never harmless. Id. We therefore indulge

every reasonable presumption against a waiver of counsel. United States v. Jones, 452

F.3d 223, 229-30 (3d Cir. 2006).

Green appeals the District Court‟s decision to allow him to proceed pro se and

contends that the District Court erred: (1) by not inquiring into whether substitute

counsel should be appointed; (2) when it misinformed Green as to the offense level that

would be applied to him for sentencing purposes; and (3) by informing Green that if he

waived his right to counsel, he could not reassert it and the court would not appoint an

attorney for him at sentencing.

16
The District Judge also gave Green the opportunity to voice any such objections
when he asked both Green and the prosecutor if they had any further questions that they
would like the judge to ask the venire. The court had warned Green (before he waived
counsel) that Green would not be free to move about the courtroom in the same manner as
an attorney because, as an inmate, he was under the supervision of court security.

-29-
 1. Substitute Counsel

Green asserts that the District Court erred under United States v. Welty, 674 F.2d

185, 187 (3d Cir. 1982), by failing to inquire into Green‟s reasons for his dissatisfaction

with his attorney on October 30, 2009. To warrant a substitution of counsel on the eve of

trial, a defendant must “show good cause, such as a conflict of interest, a complete

breakdown in communication, or an irreconcilable conflict with his attorney.” Id. at 188.

Contrary to Green‟s assertions, the District Court did engage in this inquiry with

Green on March 26, 2009, when it held a hearing on defense counsel‟s motion to

withdraw as Green‟s attorney. The District Court concluded that Green had not made a

showing of good cause and informed Green that he would have to choose between

proceeding pro se or working out his issues with his attorney. Notably, Green has not

asserted that the District Court‟s March 2009 determination was clearly erroneous. See

United States v. Goldberg, 67 F.3d 1092, 1098 (3d Cir. 1995). In light of the fact that the

District Court had already ruled on Green‟s request for substitute counsel, that Green

unequivocally requested to represent himself at trial on October 30, and that, when asked

why he wanted to represent himself, Green did not present any new reasons for

dissatisfaction with his attorney, the court did not err by failing to inquire into the matter

in detail a second time.

2. Offense Level

Although the District Court misstated Green‟s offense level as six rather than

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twenty, Green‟s waiver was nonetheless knowing and voluntary. Green affirmatively,

unequivocally, and repeatedly stated his desire to represent himself. The District Court

thoroughly explained the risks of self-representation and the fact that Green would have

to obey the rules of evidence and criminal procedure, and it admonished Green that he

was making an unwise decision. See Jones, 452 F.3d at 229-32; Peppers, 302 F.3d at

129, 132; United States v. Stubbs, 281 F.3d 109, 119-20 (3d Cir. 2002). Green was also

properly informed of the range of possible punishments to which he could be subjected.

See United States v. Booker, 684 F.3d 421, 428 (3d Cir. 2012). The government correctly

stated the maximum punishment applicable for all five counts (such that Green had a

chance to consider the maximum possible punishment he could be facing if he was found

guilty on all or some of the counts), and the misstatement in offense levels did not alter

the maximum sentences applicable to Green‟s offenses. The District Court also

specifically warned Green that, if circumstances merited it, the court could depart upward

from the Guidelines range. Moreover, Green‟s attorney acknowledged on the record that,

prior to Green‟s final decision to proceed pro se on November 2, 2009, Green received a

letter from the government notifying him that the government was increasing his offense

level to twenty based on witness testimony. We therefore conclude that the court‟s

misstatement of Green‟s offense level did not render his waiver unknowing or

involuntary.

-31-
 3. Permanent Waiver of Counsel

Green contends that it was error for the District Court to warn him that, if he gave

up his right to counsel, the decision would be binding for all purposes and he would have

to represent himself for the balance of the proceedings. We conclude that the District

Court‟s statement did not render Green‟s waiver of counsel unknowing or involuntary.

Once waived, the Sixth Amendment right to counsel is no longer absolute and

consideration of a defendant‟s post-waiver request for the reinstatement of counsel is well

within the discretion of the District Court. United States v. Leveto, 540 F.3d 200, 207 (3d

Cir. 2008). The court warned Green about the permanency of his waiver in an attempt to

encourage Green not to waive counsel, and the court‟s statement did not dissuade Green

from reasserting his right to counsel. Rather, Green requested the reappointment of

counsel prior to sentencing – a request that the District Court granted despite its earlier

statement.

J. Denial of Jury’s Request for Exhibits in Jury Room

The admission or exclusion of evidence being a matter particularly suited to the

broad discretion of the trial judge, we review the District Court‟s evidentiary rulings for

abuse of discretion. See United States v. Casoni, 950 F.2d 893, 902 (3d Cir. 1991).17 If

17
Green agrees that an abuse of discretion standard of review applies here, but
contends that the denial of a jury‟s request to see an exhibit is automatically an abuse of
discretion unless the denial was grounded in: (1) concerns about slowing down the trial;
or (2) concerns about causing the jury to place undue emphasis on the requested exhibit.
For the origins of this test, he cites two inapposite cases that dealt with the reading of trial
testimony or the provision of written trial transcripts to a jury. See United States v.
-32-
an evidentiary ruling is an abuse of discretion, we then ask if it is harmless. See id.; Fed.

R. Crim. P. 52(a).

Denying the jury‟s request to see the two exhibits at issue here, D2 and D5, was

not an abuse of discretion. Exhibit D2 was the Secret Service agent‟s affidavit that Green

attempted to use at trial to show inconsistencies between the agent‟s various written and

verbal statements. The agent admitted on cross-examination that her affidavit was

inconsistent in some ways with her grand jury testimony. However, the affidavit also

described a great deal of alleged criminal conduct by Green for which he was not

charged, as well as information about other victims of Green‟s fraudulent schemes. The

District Court did not err in denying the jury‟s request to see an exhibit containing

information both prejudicial to Green and outside of the scope of the trial.18

Exhibit D5 was the state criminal complaint against Green written by the detective

who questioned him, and it recounted the chronology of events at the Mercedes-Benz

dealership. The probative value of D5 was extremely limited because Green elicited no

Shabazz, 564 F.3d 280, 285 (3d Cir. 2009); United States v. Bertoli, 40 F.3d 1384, 1400
(3d Cir. 1994). The issue before this Court concerns exhibits, not trial transcripts.
18
Even if the District Court‟s decision was an abuse of discretion, any error was
harmless. Green‟s cross-examination of the agent had already revealed to the jury that
her affidavit was in some respects inconsistent with her other statements and reading the
actual affidavit would not have been likely to change the jury‟s assessment of the agent‟s
credibility. In any event, because Green objected to the jury‟s request to see the agent‟s
other statements, the jury would not have had the opportunity to compare her statements
side-by-side for consistency.

-33-
testimony about its content.19 It was therefore not an abuse of discretion for the District

Court to deny the jury‟s request to see Exhibit D5. Alternatively, any error was harmless

because the jury had already heard relevant portions of D5 read aloud at trial.

K. Sentencing

We review the District Court‟s sentencing decisions for reasonableness, its

interpretation of the Sentencing Guidelines de novo, and its factual findings for clear

error. Gall v. United States, 552 U.S. 38, 46 (2007); United States v. Grier, 475 F.3d 556,

570 (3d Cir. 2007) (en banc). Green asserts error in four of the District Court‟s

sentencing decisions: (1) calculation of the loss suffered by his victims; (2) the finding

that Green was on probation when he committed his offenses; (3) the finding that he was

previously sentenced to imprisonment exceeding one year and one month; and (4) the

decision to depart upward and add one level to Green‟s criminal history category.

1. Loss Calculation

Green argues that the District Court erred in calculating the loss suffered by his

victims pursuant to U.S.S.G. § 2B1.1 because the court relied on evidence not in the

record. Loss amounts must be established by a preponderance of the evidence. United

States v. Ali, 508 F.3d 136, 145 (3d Cir. 2007). Section 2B1.1 Application Note 3(C)

19
Green unsuccessfully attempted to cross-examine the agent using D5. Green also
used D5 during his cross-examination of the detective; he asked the detective to read out
a paragraph of the state criminal complaint and then attempted to point out an
inconsistency between that paragraph and the agent‟s affidavit (Exhibit D2), although he
was prevented from doing so because of an objection from the prosecution.

-34-
provides that the court “need only make a reasonable estimate of the loss.” In making a

sentencing determination, the court may consider relevant information without regard to

its admissibility under the rules of evidence, as long as it has “sufficient indicia of

reliability.” U.S.S.G. § 6A1.3; see also United States v. Inigo, 925 F.2d 641, 660 (3d Cir.

1991).

The court added fourteen levels to Green‟s offense level because it found, citing

the testimony of a particular victim,20 that Green caused over $400,000 in losses to his

victims. In reality, that victim had not testified to his losses because Green successfully

objected to the testimony as hearsay. Nevertheless, both the prosecutor and Green‟s

newly-appointed defense attorney agreed that the victim had testified to his losses. Green

now argues that the District Court erred when it mistakenly relied on testimony that was

not given at trial. Because Green‟s attorney acquiesced in the error, plain error review

applies. See United States v. Watson, 482 F.3d 269, 274 (3d Cir. 2007). If we find plain

error, we have discretion to correct it, but we will do so only to prevent a miscarriage of

20
Two documents before the District Court at the sentencing hearing represented that
the victim lost over $400,000 due to Green‟s fraud. The first was the PSR, which
reported that the victim told the police that he was informed that $400,000 of fraudulent
purchases had been made in his name. Green‟s attorney objected to that paragraph of the
report at sentencing, and the District Court never ruled on the objection. The government
also submitted a victim-impact statement in which the victim stated that almost half a
million dollars were spent in his name in the fraud scheme. Although both of these
documents were before the District Court at sentencing, the judge repeatedly stated that
he was relying solely on the victim‟s testimony at trial in calculating the amount of loss
caused by Green. As a result, the court never explicitly discussed or decided whether the
representations in the PSR and victim-impact statement as to loss were reliable.

-35-
justice. Id.

We decline to reverse the District Court because other evidence in the record –

specifically, the PSR and a victim impact statement – supported its loss determination.

As such, any error would not amount to a miscarriage of justice.

2. Probation

U.S.S.G. § 4A1.1(d) allows the District Court to add two points to the defendant‟s

criminal history score if the defendant committed the offense of conviction while on

probation. Both sides agree that Green was on probation through June 12, 2007, but

Green argues that since he was not indicted until January 2008, § 4A1.1(d) should not

apply. Green misreads the Guidelines; the relevant question is whether Green was on

probation when he committed his fraud offenses, not at the time he was indicted for those

offenses. The District Court found, based on the indictment and the evidence at trial, that

Green was involved in his fraud offenses as early as January 2007. JA 1314. Moreover,

a victim testified that he observed fraudulent activity using his identity as early as March

2007. The court did not err in adding these points to Green‟s criminal history score.

-36-
 3. Former Sentence of Imprisonment

U.S.S.G. § 4A1.1(a) allows the court to add three points to a defendant‟s criminal

history score if the defendant has a prior sentence of imprisonment exceeding one year

and one month. Green‟s PSR stated that he was found guilty of engaging in a criminal

conspiracy in April 2002 and was sentenced to five to ten years‟ incarceration, which was

later reduced to time served. The government also provided the District Court with a

copy of a Pennsylvania Superior Court decision stating that Green received an amended

sentence of eleven and a half to twenty-three months. Consequently, the District Court

did not err in adding three points to Green‟s score.21

4. Criminal History Upward Departure

U.S.S.G. § 4A1.3(a)(1) provides that, if reliable information indicates that the

defendant‟s criminal history category substantially underrepresents the seriousness of the

defendant‟s criminal history, an upward departure in the criminal history category may be

warranted. In making that determination, the court can consider prior similar adult

criminal conduct not resulting in a conviction. § 4A1.3(a)(2)(E).

Before the sentencing hearing, at the District Court‟s invitation, the government

filed a supplemental memorandum seeking an upward departure. The eleven-page

memorandum described a great deal of uncharged criminal conduct involving

21
In any event, any error was harmless because both sides agreed at the sentencing
hearing that Green‟s final criminal history category would be a IV – whether he received
three points under § 4A1.1(a) or one point under § 4A1.1(c).

-37-
fraudulently acquired cars and unauthorized credit card use, including dates and details

about the vehicles involved. Based on the government‟s presentation, the District Court

found that Green had engaged in numerous episodes of uncharged identity theft, fraud,

and vehicle title fraud, and it granted the upward departure. On appeal, Green contends

that the District Court erred in its determination that the departure applied, because the

government‟s information was not sufficiently reliable.

A District Court may consider any information about the background and character

of a defendant in the context of granting an upward departure, but only if such

information is reliable. United States v. Warren, 186 F.3d 358, 364-65 (3d Cir. 1999).

This Court has held that the standard “should be applied rigorously.” Id. at 365. Green is

correct that the evidence in the government‟s memorandum and presentation was not

corroborated before the District Court, and the government points to nothing in the record

supporting its allegations in its briefing before this Court. Nevertheless, the

government‟s memorandum was very detailed, including dates, amounts of money,

addresses, and the initials of the victims. Given the level of detail, the District Court did

not err in finding the memorandum sufficiently reliable to justify an upward departure.

L. Forfeiture Issues

We review the District Court‟s factual findings for clear error and its

determination that the facts adduced constituted proper forfeiture de novo. See United

States v. Sokolow, 91 F.3d 396, 415 (3d Cir. 1996); see also United States v. Baker, 227

-38-
F.3d 955, 967 (7th Cir. 2000); United States v. 1977 Porsche Carrera, 946 F.2d 30, 33

(5th Cir. 1991).

Green argues that the District Court erred in ordering the forfeiture of his

Mercedes-Benz because the government did not demonstrate a nexus between Green‟s

convictions and the car. Where the government seeks forfeiture of specific property, the

court must determine whether the government has established the requisite nexus between

the property and the offense. Fed. R. Crim. P. 32.2(b)(1)(A). That determination may be

based on evidence already in the record and on any additional evidence or information

submitted by the parties and accepted by the court as relevant and reliable. Fed. R. Crim.

P. 32.2(b)(1)(B).

Under 18 U.S.C. § 982(a)(2), when a person is convicted of a violation of 18

U.S.C. § 1029, the District Court is directed to order the forfeiture of any property

constituting, or derived from, proceeds the person obtained directly or indirectly, as the

result of such violation. Section 1029(c)(1)(C) provides that the punishment for an

offense under § 1029(a) includes forfeiture of any personal property used or intended to

be used to commit the offense. The government must prove criminal forfeiture

allegations by a preponderance of the evidence. See United States v. Voigt, 89 F.3d 1050,

1083 (3d Cir. 1996).

After conducting a forfeiture hearing, the District Court ordered that Green‟s

Mercedes-Benz be forfeited because the evidence established both that the car was

-39-
purchased with proceeds connected to his offenses and that the car was used in carrying

out Green‟s offenses. The court found that there was direct evidence that Green used

fraudulently obtained credit cards to pay for repairs to the car. The court also noted that

documents and letters in a victim‟s name were found in the vehicle when it was seized.

Further, the court found compelling circumstantial evidence that Green purchased the car

with proceeds from his criminal conduct: in April 2007 Green had no verified income

other than the sale of illegally acquired cars and Green purchased the car during the

period he admitted he was using fraudulent credit cards to buy cars. The court also

observed that a Secret Service agent testified at trial that Green used a particular notary

stamp to fraudulently clear liens, that notary‟s stamp was recovered during the December

2007 search of Green‟s apartment, and the purchase paperwork for his Mercedes-Benz

had an illegible seller‟s name and the same notary stamp. Finally, the court noted that

title for the car indicated that it was salvaged and purchased for only $100.

Based on these findings, the court concluded that the evidence was sufficient to

establish that the car was purchased with funds either directly or indirectly traceable to

Green‟s criminal activities, because those were the only funds available to Green at the

time of the purchase. Moreover, the suspicious details surrounding the purchase, such as

the notary stamp and the low purchase price, supported the conclusion that the car was

purchased with fraudulent funds. Finally, the government established that Green used the

car to commit or facilitate his crimes because Green paid for repairs to the car with stolen

-40-
credit cards and kept documents related to one of his victims in the car.

Green does not argue that any of the factual findings made by the District Court

were clearly erroneous. Instead, he focuses on a state trooper‟s admission at the forfeiture

hearing that he did not know how the Mercedes-Benz was purchased, and the Secret

Service agent‟s testimony that the car was not a fraudulent purchase. While that

testimony certainly supports Green‟s position that there is no direct evidence that he

purchased the car with funds traceable to his crimes of conviction, it does not undermine

the circumstantial evidence that the car was purchased using funds Green obtained by

illegally purchasing and then selling high-end cars. Thus, we see no error in the District

Court‟s conclusion that the government proved by a preponderance of the evidence that

forfeiture was appropriate.

III. CONCLUSION

We will, therefore, affirm the judgment of the District court, including its

forfeiture order.

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