UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5414

JACOB E. JOHNSON,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CR-94-248-DKC)

Submitted: January 28, 1997

Decided: April 17, 1997

Before HALL, WILKINS, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

M. Brooke Murdock, THIEBOLT, RYAN, MARTIN & FERGU-
SON, Baltimore, Maryland, for Appellant. Lynne A. Battaglia, United
States Attorney, Brent J. Gurney, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Jacob E. Johnson was convicted of conspiracy to commit credit
card fraud, 18 U.S.C. § 1029(b)(2) (West Supp. 1996), and related
substantive offenses. He appeals his conviction and his 105-month
sentence, contending that the district court abused its discretion in
admitting certain evidence, clearly erred in determining the amount of
loss at sentencing, and erred in departing upward from the guideline
range rather than departing downward as he requested. Johnson also
seeks leave to file a pro se supplemental brief in which he contests
the district court's denial of his motion to suppress evidence seized
from his father's house under the first of two search warrants issued
on the day of his arrest. We grant leave to file the supplemental brief
and affirm.

From 1993 until his arrest in June 1994, Johnson bought lost and
stolen credit cards and stolen identification such as driver's licenses
in Washington, D.C. He obtained viable credit card numbers and
altered the lost and stolen cards using credit card embossers stolen
from hospitals. Various women who worked for him used the fraudu-
lent credit cards to obtain cash advances at banks in return for a share
of the proceeds. Those who were drug users also received drugs.

On February 24, 1994, Johnson drove his green Cadillac from New
York to his father's house in Clinton, Maryland. Yolanda Gross and
Pamela Richardson were in the car but there was an altercation along
the way and Johnson put Gross out of the car on the New Jersey Turn-
pike. She was detained by police after she initially told them her own
vehicle had been carjacked and she was found to be carrying a small
quantity of drugs. Gross then told police that Johnson had two kilo-
grams of cocaine in his car in lockboxes, as well as credit cards and
an embossing machine, which he was taking to his father's house.
The New Jersey police passed this information on to Detective Mus-
selman of the Prince George County police narcotics enforcement
division in Maryland and the Secret Service in Washington.

Detective Musselman dispatched police officers Cavanaugh and
Bartlett in an unmarked vehicle to Johnson's father's house at 4548

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Nantahala Drive. They found the green Cadillac already there. John-
son and Richardson soon emerged, got into the car and drove away,
followed by the officers. When Johnson realized he was being fol-
lowed, he fled, but was apprehended after he ran up on a curb and
blew out all four tires. Cavanaugh handcuffed Johnson, got Johnson's
permission to search the car, and retrieved a cut-up credit card from
the floor of the back seat. Bartlett spoke to Richardson, who verified
that she and Johnson had just come from New York and that a woman
had been put out of the car in New Jersey. Other officers arrived who
checked Johnson's name and found that he had an open arrest warrant
for a probation violation. The warrant had recently been withdrawn;
however, the sheriff's department computer records still showed it as
open. Johnson was taken into custody temporarily, then released.

While these events were occurring, Musselman received a call
from Detective Flynn of the Bladensburg, Maryland, Police Depart-
ment. Flynn was part of a Secret Service task force in Washington.
Flynn knew that Gross had provided information to task force mem-
bers about Johnson's involvement in credit card fraud and counterfeit-
ing credit cards. After hearing from Flynn, Musselman decided that
Gross could be considered reliable. He applied for a warrant to search
the house on Nantahala Drive for narcotics. The warrant application
erroneously stated that Gross had supplied information to the Secret
Service which led to the arrest in Boston of persons involved in coun-
terfeiting credit cards. Musselman later testified that he got this infor-
mation from Flynn.

Flynn participated in the search of the house under the first war-
rant. He testified that a bag containing the embossing machine and a
stack of credit cards was found in the hall leading to the garage. Flynn
then applied for a second warrant authorizing a search for evidence
of credit card fraud. In preparing his warrant application, Flynn
reviewed Musselman's application for the first warrant, but he did not
include the erroneous information about Gross in his own warrant.

Johnson was arrested some months later and charged with the
instant offenses. Gross and Doris Borges, who both worked for John-
son, testified at his trial. Gross, who was romantically involved with
Johnson, said that Johnson paid the other women one-third of the
money they got from the bank and supplied them with drugs if they

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were drug users. She said she used crack cocaine during her associa-
tion with Johnson, and several times traveled to New York with him,
where he obtained cocaine. Overruling defense objections, the court
permitted Gross to testify that Johnson gave her cocaine every day.
Borges provided similar evidence. Johnson argues that his drug distri-
bution was entirely separate from his credit card conspiracy, and testi-
mony concerning it was not admissible. He also contends that, even
if such testimony was admissible under Federal Rule of Evidence
404(b), it should have been excluded under Rule 403 because its prej-
udicial value exceeded its probative value.

Evidence of other crimes committed by the defendant should be
excluded at trial, with certain exceptions. Fed. R. Evid. 404(b). How-
ever, acts intrinsic to the alleged crime are not excludable under Rule
404(b). United States v. Chin, 83 F.3d 83, 87-88 (4th Cir. 1996).
Other criminal acts are intrinsic to the charged offense if they are
inextricably intertwined with it, if they are part of a single criminal
incident, or if the other acts are preliminary to the charged offense.
Id. at 88. Because Johnson paid some of his workers in drugs, his dis-
tributions were a part of the fraud conspiracy. Therefore, the testi-
mony of Gross and Borges on this point was properly admitted and
was not overly prejudicial.

At Johnson's sentencing, the district court independently deter-
mined the loss to be approximately $361,800, and made a 9-level
enhancement under USSG § 2F1.1(b)(1).* James Bland, a bank inves-
tigator and member of the task force on credit card fraud, testified that
verified losses of $101,627 had resulted from fraudulent use of more
than fifty credit cards seized from Johnson's father's house on Nanta-
hala Drive in Clinton, Maryland, in February 1994. Johnson argued
that this amount should be treated as the loss resulting from the
offense. Had the district court agreed, Johnson would have received
a 6-level increase.

Instead, the district court estimated the amount of money fraudu-
lently obtained based on the testimony of Gross and Borges as to how
many times a week they got cash advances from banks and what the
_________________________________________________________________
*United States Sentencing Commission, Guidelines Manual (Nov.
1994).

                    4
average amounts were. The court found Gross and Borges to be credi-
ble witnesses, in part because some of their testimony was supported
by independent evidence such as the stolen embossers which were
seized by police and known losses which corresponded with the
amounts Borges said she was obtaining. Johnson argues that Gross
and Borges were not credible because they used drugs during the con-
spiracy, and that the court should have considered only the losses
resulting from the seized credit cards. He also suggests that he was
penalized for going to trial, pointing out that the loss calculation used
in sentencing both Gross and Borges was much lower than the
amount used in sentencing him.

The amount of loss is generally a factual question reviewed for
clear error. United States v. Chatterji, 46 F.3d 1336, 1340 (4th Cir.
1995). Each case is decided on its own facts. United States v.
Mancuso, 42 F.3d 836, 849 (4th Cir. 1994). This Court does not
review the factfinder's estimation of the credibility of witnesses.
United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989). Given that
the district court found Gross and Borges credible, their evidence pro-
vided a basis for the court's calculation of the total actual loss. The
court's finding is thus not clearly erroneous. While Gross and Borges
may have been sentenced using a loss amount which was lower, their
sentences are not under review in this case. Johnson has not demon-
strated that the court clearly erred in determining the loss attributable
to him.

The district court departed from criminal history category V to cat-
egory VI pursuant to USSG § 4A1.3, p.s., finding that Johnson's two
prior federal convictions for credit card fraud suggested a strong like-
lihood that he would commit the same crime again. A criminal history
category which significantly underrepresents the defendant's past
criminal conduct or the likelihood that he will commit other crimes
is an "encouraged" factor for departure. See Koon v. United States,
___ U.S. ___, 64 U.S.L.W. 4512, 4517 (U.S. June 13, 1996) (Nos. 94-
1664/8842) (district court must consider whether guidelines encour-
age or discourage departure for factor which is potential basis for
departure in a given case); United States v. Rybicki, 96 F.3d 754, 757-
58 (4th Cir. 1996).

Even when an encouraged factor is present, the sentencing court
must decide whether it is already adequately accounted for in the

                     5
applicable guidelines. This decision is reviewed de novo. Koon, 64
U.S.L.W. at 4517; Rybicki, 96 F.3d at 758. In Johnson's case, the dis-
trict court decided that the criminal history points Johnson received
for his two prior federal sentences (of six years and nine years) for
credit card fraud did not account sufficiently for the fact that he was
undeterred by either prior sentence from continuing to commit the
identical offense and thus did not reflect the likelihood that he would
commit other crimes in the future. Under USSG § 4A1.3(b), prior
sentences of substantially more than a year may be the basis for a
departure. Consequently, the district court did not err in finding that
a departure was possible on this ground.

However, the court must decide whether a departure is warranted
in the particular case, and this decision is reviewed for abuse of dis-
cretion. Rybicki, 96 F.3d at 758. We find that the court did not abuse
its discretion in departing from category V to category VI (the equiva-
lent of adding two criminal history points) because of the likelihood
of recidivism. Despite having several years of college training and the
ability to earn an honest living, Johnson has shown a clear preference
for stealing as a way of supporting himself. There is no indication in
the materials presented on appeal that his attitude has changed. The
court's analogy to a career offender is apt.

The court also departed upward by one level under USSG § 5K2.0,
p.s., on the ground that Johnson's regular distribution of drugs as part
payment to some of his workers was a factor not accounted for under
the fraud guideline, and therefore was a potential basis for an upward
departure. This is an "unmentioned" factor, and thus one which may
justify a departure only rarely, when the "`structure and theory of
[the] relevant individual guidelines and the Guidelines taken as a
whole' indicate that they take a case out of the applicable guideline's
heartland." Rybicki, 96 F.3d at 758 (citing Koon). Because drug distri-
bution is not usually an integral part of credit card fraud, the district
court did not abuse its discretion in finding that this factor made John-
son's case one in which the applicable guideline was inadequate to
punish the offense.

The court declined to depart downward, even if it had authority to
do so, to offset the consecutive sentence Johnson expected to receive
when his parole was revoked because of the instant offense. The

                    6
court's decision is not reviewable on appeal. United States v. Bayerle,
898 F.2d 28, 31 (4th Cir.), cert. denied, 498 U.S. 819 (1990).

In his pro se supplemental brief, Johnson challenges the district
court's denial of his motion to suppress evidence seized from his
green Cadillac and his father's house on the day he was arrested. He
contends that the affidavit filed by Detective Musselman in support
of the first warrant for a search of his father's house included infor-
mation which was false, that is, that Gross was a reliable informant
because she had previously provided information leading to arrests in
Boston. At the suppression hearing, the government agreed that Gross
had not assisted with arrests in Boston. Johnson contends that the
false information was included to mislead the magistrate either inten-
tionally or with reckless disregard for the truth. A defendant may
attack a facially sufficient affidavit by making a preliminary showing
that the affiant included false information intentionally or with reck-
less disregard and that the false information was essential to the prob-
able cause determination. Franks v. Delaware, 438 U.S. 154, 156
(1978). If the district court finds that the affiant has committed mate-
rial perjury or recklessness, the warrant must be voided and evidence
gathered pursuant to the warrant must be excluded. Id. Johnson
alleges that, in its ruling denying his suppression motion, the district
court made factual errors and failed to make a finding concerning
reckless disregard of the truth.

Detective Flynn testified at the suppression hearing that he
believed Musselman had confused information about Gross's assis-
tance to the Secret Service with information supplied to him at the
same time about Johnson's criminal record. Johnson had been
arrested in Boston in 1981. The district court determined that Mussel-
man had valid reasons for believing Gross to be a reliable source of
information and that the inaccurate information in his warrant appli-
cation was neither deliberately included to mislead nor critical to the
probable cause determination. The court's finding is reviewed for
clear error. United States v. Jones, 913 F.2d 174, 176 (4th Cir. 1990),
cert. denied, 498 U.S. 1052 (1991).

The district court found that Musselman did not deliberately falsify
his affidavit and that it was "reasonable to see, or guess, how all this
happened" given the speed with which events unfolded. The court

                     7
also found that the police had probable cause to search the house for
narcotics based on Gross' information because her information was
specific and some of it had been verified. The court held that the
police could reasonably infer that Johnson had taken the cocaine into
the house. Although, as Johnson points out, the court did not specifi-
cally find that Musselman was not in reckless disregard of the truth,
its finding encompasses that conclusion.

Johnson questions the court's finding that both warrant applications
were submitted to the same judge; however, the issue is not material.
Johnson also alleges that the court erred in stating that the lockboxes
were found in the Cadillac. The transcript of the hearing does not dis-
close whether or where the lockboxes were found. Even assuming the
court was in error on this point, its ultimate finding was not clearly
erroneous.

The convictions and sentence are accordingly affirmed. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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