                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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.
Case No. 14-1387
United States v. Bass

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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United States v. Bass

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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Case No. 14-1387
United States v. Bass

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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Case No. 14-1387
United States v. Bass

        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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Case No. 14-1387
United States v. Bass

       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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United States v. Bass

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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United States v. Bass

       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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United States v. Bass

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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United States v. Bass

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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United States v. Bass

(“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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United States v. Bass

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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