                                                   Filed:    January 27, 2010

                     UNITED STATES COURT OF APPEALS

                         FOR THE FOURTH CIRCUIT


                               No. 07-4844(L)
                             (3:06-cr-01011-CMC)


UNITED STATES OF AMERICA,

                   Plaintiff - Appellee,

           v.

JONATHAN GIANNONE,

                   Defendant - Appellant.




                                   O R D E R



     The   court    amends   its   opinion     filed   January   7,   2010,   as

follows:

     On page 2, attorney information section, the name “Drummond C.

Smith, LAW OFFICES OF THOMAS F. LIOTTI, Garden City, New York, for

Appellant” is added at line 4.

                                               For the Court - By Direction



                                                       /s/ Patricia S. Connor

                                                             Clerk
                            UNPUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                            No. 07-4844


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

JONATHAN GIANNONE,

               Defendant - Appellant.



                            No. 08-5020


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

JONATHAN GIANNONE,

               Defendant - Appellant.



                            No. 08-8386


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.
JONATHAN GIANNONE,

                Defendant - Appellant.



Appeals from the United States District Court for the District
of South Carolina, at Columbia.       Cameron McGowan Currie,
District Judge. (3:06-cr-01011-CMC)


Argued:   December 2, 2009               Decided:   January 7, 2010


Before NIEMEYER and AGEE, Circuit Judges, and John Preston
BAILEY, Chief United States District Judge for the Northern
District of West Virginia, sitting by designation.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


ARGUED: Thomas F. Liotti, LAW OFFICES OF THOMAS F. LIOTTI,
Garden City, New York, for Appellant.      Dean A. Eichelberger,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina,
for Appellee.    ON BRIEF: Drummond C. Smith, LAW OFFICES OF
THOMAS F. LIOTTI, Garden City, New York, for Appellant.       W.
Walter Wilkins, United States Attorney, Robert F. Daley, Jr.,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                 2
PER CURIAM:

     A jury convicted Jonathan Giannone of three counts of wire

fraud, in violation of 18 U.S.C. § 1343, and two counts of

aggravated identity theft, in violation of 18 U.S.C. § 1028A.

It found that during May and June 2005, Giannone transmitted

over the Internet 8 stolen account numbers of Bank of America

debit cards as samples of what he had for sale to a confidential

informant and 21 stolen account numbers, along with the names of

11   account    holders,    of    Bank      of     America      debit    cards    in

furtherance of an actual sale to the confidential informant.

The district court sentenced Giannone to 65 months’ imprisonment

-- 41 months on the wire fraud counts and 24 months to run

consecutively on the aggravated identity theft counts.

     On appeal, Giannone raises numerous errors relating to his

convictions     and   sentence.     For     the    reasons      that    follow,   we

affirm his convictions, but vacate his sentence and remand for

resentencing.


                                        I

     The     United   States     Secret     Service    conducted        an   online

undercover     investigation     from   its      offices   in   Columbia,     South

Carolina, known as “Operation Anglerphish,” which was designed

to identify persons using the Internet to commit identity theft,

credit card fraud, fraud, and related crimes.                   A target of this


                                        3
investigation          was     an       online           community       that     trafficked            in

personal information and engaged in other criminal activities

over the Internet.             After Brett Shannon Johnson was arrested in

Charleston County, South Carolina, for defrauding sellers on the

Internet,       he    agreed       to     cooperate         in     the    investigation            as    a

confidential informant.                 In cooperation with the Secret Service,

Johnson operated under his online user name “Gollumfun” while

the    Secret        Service       recorded          his    chats        with    transcripts            of

keystrokes and real-time video of his computer screen.

       Several online chats occurred in which Pit Boss 2600 and

CIA    INTEL,    online        user      names       used     interchangeably,            contacted

Johnson,      who      was     a    well-known             and   skilled         member       of    the

community       trafficking          in       personal       information.               The    person

behind the names Pit Boss 2600 and CIA INTEL offered to sell

Johnson      some     “seriously          good       dumps,”       referring        to    the      data

encoded on the magnetic strip on the back of a credit or debit

card.        That     person       then       sent       Johnson      over      various    Internet

transmissions eight account numbers for Bank of America debit

cards, along with the names of the account owners, as samples of

what    he    had     for    sale.            While        all   of      these    accounts         were

inactive, the person indicated that he could sell Johnson more

numbers in the future.

       On    June     4,    2005,       the    person        behind      Pit     Boss     2600     sold

Johnson 21 debit card numbers for $600.                                  The person requested

                                                     4
that    the     $600    be   deposited   in    a   Bank    of   America    checking

account, and two days later, the person transferred 21 Bank of

America account numbers to Johnson, as well as the names of 11

of the account holders.             After the transfer, undercover agents

deposited $600 into the bank account, from which the defendant

in     this    case,    Giannone,    withdrew      $500.        Determining      that

Giannone was Pit Boss 2600 and CIA INTEL, the Secret Service

arrested Giannone in New York and took him to South Carolina,

where he was tried and convicted of five counts, three for wire

fraud and two for aggravated identity theft.

       The Secret Service was able to identify Giannone as the

individual using the Pit Boss 2600 and CIA INTEL online user

names based on his own e-mails, as well as external evidence.

Two witnesses who knew Giannone testified that he used the Pit

Boss 2600 name when chatting.            But more significantly, Pit Boss

2600 made statements online to Johnson that his “legit” American

Express card number ended with 1001 and that his account had

been upgraded from gold to platinum status.                      This number and

status        corresponded     to   Giannone’s      actual      American   Express

account.       In chats, Pit Boss 2600 and CIA INTEL also referred to

various       travels   throughout    the     United   States,    often    for   the

purpose of executing scams.              Bank records and flight records

subpoenaed by the Secret Service demonstrated that Giannone had

actually made the trips referred to by Pit Boss 2600 and CIA

                                         5
INTEL.     The government also demonstrated that Pit Boss 2600 and

CIA   INTEL   were    the    same    person    with   evidence   that   the   two

identities     were   used     interchangeably        in   conversations      with

Johnson.      Moreover, CIA INTEL indicated during a chat that he

was also Pit Boss 2600.

      In   sentencing       Giannone,    the    district    court   applied    an

intended loss figure in the amount of $132,327.17 to determine

Giannone’s offense level, applying U.S.S.G. § 2B1.1(b)(1).                    The

court also applied a two-level sentencing enhancement on the

wire fraud counts pursuant to U.S.S.G. § 2B1.1(b)(10)(B) because

the   offenses   involved      the   trafficking      of   unauthorized    access

devices, i.e., the account numbers.

      This appeal followed.


                                        II

      For his most substantial argument, Giannone contends that

the district court gave an erroneous instruction to the jury on

the meaning of “knowingly” in 18 U.S.C. § 1028A, the aggravated

identity theft statute.             In Flores-Figueroa v. United States,

129 S. Ct. 1886 (2009), which was decided after the jury was

instructed in this case, the Supreme Court held that to convict

a defendant under § 1028A, the government had to prove that the

defendant knew that the “‘means of identification’ he or she

unlawfully transferred, possessed, or used, in fact, belonged to


                                         6
‘another person.’”              Id. at 1888 (emphasis added).                 At trial,

however, the district court instructed the jury that a defendant

need not know that the means of identification in fact belonged

to   another       person,      which     was       consistent    with    then-existing

Fourth Circuit law.             See United States v. Montejo, 442 F.3d 213,

215-17      (4th        Cir.     2006).             Because      Giannone    did    not,

understandably, object to the instruction, our review is for

plain error under Federal Rule of Criminal Procedure 52(b).

       While the government concedes that the failure to give an

instruction consistent with Flores-Figueroa was plain error that

affected Giannone’s substantial rights, it urges that we not

take   notice      of    the    error    because       allowing    the    conviction   to

stand will not “seriously affect the fairness, integrity, or

public reputation of judicial proceedings.”                        It argues that the

proceedings overwhelmingly demonstrated that Giannone knew that

the means of identification he sold to Johnson belonged to other

people.      See Johnson v. United States, 520 U.S. 461, 469-70

(1997) (citing United States v. Olano, 507 U.S. 725, 732 (1993))

(declining to notice plain error because of clear evidence of

guilt); United States v. Cedelle, 89 F.3d 181, 186 (4th Cir.

1996) (same).

       We   agree       and    decline    to    notice    the    error.     The    record

demonstrates that the entire purpose of the transaction between

Giannone and Johnson was to traffic in the identities of real

                                                7
people.     Indeed, Giannone provided the names of 11 of the 21

account    holders   whose     accounts         he    sold    to   Johnson      for   $600,

demonstrating    that     he    knew       that       the     account     numbers       were

associated with actual people.              Moreover, Giannone stipulated at

trial that if any of the account holders referred to in the

indictment were called to testify, they would state that the

accounts were theirs and were transmitted without authorization.

     The situation here is not unlike that in Cedelle where we

declined    to   notice      plain     error         when     overwhelming       evidence

indicated that a defendant knew he was receiving depictions of

actual minors engaged in sexually explicit conduct, even though

the jury was not instructed on the required knowledge element.

Cedelle,    89   F.3d     at   185-86.               The     evidence     here    clearly

demonstrates that Giannone not only trafficked in the means of

identification       of    others         but        knew     that    the       means    of

identification belonged to real persons.


                                          III

     Giannone    also     argues     --    correctly          --   that   the    district

court erred by imposing a two-level sentencing enhancement under

U.S.S.G. § 2B1.1(b)(10), calling for an enhancement when a crime

involves the trafficking of an unauthorized access device -- in

this case the bank debit cards.




                                           8
        The    application        notes       to       the     Guidelines        governing

aggravated identity theft state that this enhancement should not

apply to a defendant convicted of aggravated identity theft when

the defendant is also convicted of the offense underlying the

aggravated identity offense, in this case the wire fraud.                                  See

U.S.S.G. § 2B1.6, App. Note 2.                        The reason is obvious.               The

aggravated identity theft charge itself imposes an additional,

consecutive      two-year        sentence        for    the     unauthorized         use   or

transfer of the account numbers, and therefore the enhancement

in § 2B1.1(b)(10) would amount to double counting.

     Even      though    Giannone      did    not       object   to    the     enhancement

below,    we   take     notice    of   the    plain         error,    vacate   Giannone’s

sentence, and remand for resentencing.


                                             IV

     Giannone’s         other     arguments            on    appeal     do     not     merit

significant discussion.             First, he contends that the district

court abused its discretion by denying his pretrial motion to

transfer this case under Federal Rule of Criminal Procedure Rule

21(b)    to    the   Eastern     District        of    New    York,    where    he    lives.

While we have already denied Giannone’s petition for a writ of

mandamus challenging the district court’s denial of his transfer

motion, we again conclude the district court did not abuse its

discretion.      While Giannone does live in New York and witnesses


                                             9
are    located    there,         the     violations    here     occurred     over    the

Internet between New York and South Carolina, where there are

also witnesses.

      Giannone also contends that the district court erred by

denying his post-trial motion for a new trial based on his claim

that the government withheld exculpatory impeaching information

in    violation      of   Brady        and    that    newly    discovered        evidence

demonstrated his innocence.                  In a pre-trial motion to dismiss,

Giannone    submitted        a    chat    transcript,    which      he    then   alleged

demonstrated that he was not the individual associated with the

screen names Pit Boss 2600 and CIA INTEL.                     After his conviction,

he admitted to the government that he had fabricated the chat

transcript, and his counsel (despite relying on the transcript

in briefs before this Court) reiterated that concession at oral

argument.     Prior to this admission, however, the government had

prepared a video demonstration for trial to show the jury how an

online chat transcript could be fabricated.                         The trial court

ultimately     did     not       permit      the   government    to      introduce   the

demonstration into evidence, but Giannone claimed in his post-

trial motion that the evidence was Brady material inasmuch as it

could demonstrate that the evidence of the transcripts between

himself and Johnson were similarly fabricated.                      This argument is

baseless     because      the     demonstration        was    not   exculpatory      but

instead would only demonstrate that Giannone had committed a

                                              10
fraud    on   the    court.    It    would    do    nothing    to   refute   the

considerable real-life testimony corroborating the chats between

Johnson and Giannone.

     Giannone also bases his Brady argument in part on a March

1, 2007 letter written by Johnson to the district judge, which

contained     descriptions    of    Johnson’s      misdeeds,   Secret   Service

misconduct, and Johnson’s drug addiction.              Giannone claims that,

although the letter was written during trial, he never received

the letter during trial and thus was unable to use it because

the government and the court suppressed the letter until after

trial.    The record establishes, however, that the letter did not

arrive at the court until March 13, 2007, which was after the

trial had been completed, and that Giannone was promptly given

the letter.

     Giannone’s other claimed Brady violations about withholding

his police record, grand jury testimony, and other miscellaneous

post-trial matters are no more persuasive.                 We conclude that

Giannone simply has not demonstrated any Brady violation.

    Next, Giannone argues that certain flight, credit card, and

bank records were improperly admitted into evidence because they

were not properly authenticated.            He did not, however, object to

the evidence on this basis, and therefore any review is for

plain error.        There clearly was no plain error as, contrary to



                                       11
Giannone’s contentions on appeal, he expressly consented to the

admissibility of the exhibits during the course of trial.

       Next, Giannone contends that the district court abused its

discretion in allowing a Secret Service agent to testify about

his experiences with airport security without being qualified as

an    expert   witness.         This   argument     is     frivolous.      The   agent

simply testified that in order to fly on an airline, one must

show identification that matches one’s airline ticket.                       This was

a factual matter, not a matter for expert testimony.

       Giannone next claims that the evidence was insufficient to

show    that   he    knowingly      used    the    means    of   identification     of

another person, as required by 18 U.S.C. § 1028A.                        The evidence

refuting this argument has already been discussed in connection

with his challenge to the jury instruction on § 1028A, and,

based on that evidence, we reject his argument that the evidence

was insufficient to support a conviction.

       Next, Giannone contends that the district court erred by

using the total balance of the 21 debit card accounts sold,

i.e.,    $132,327.17,          as   the    intended      loss    for     purposes   of

sentencing.      He notes that the amount actually realized in using

the debit cards amounted to only $12,546.92.                        This argument,

however, overlooks that the Sentencing Guidelines require that

the    greater      of   the    actual     or    intended    loss   be    applied   in



                                            12
computing an offense level.                  See U.S.S.G. § 2B1.1, App. Note

3(A).

     Finally,       Giannone       argues     that   based     on   his      cooperation

following     conviction,         he   was    entitled    to    a    motion     by    the

government     for        a    downward      departure   pursuant         to    U.S.S.G.

§ 5K1.1.      We have held, however, that we may only review “a

prosecutor’s decision not to move for departure if the refusal

is   based    on     an       unconstitutional       motive,    such      as   race   or

religion, or is not rationally related to permissible government

objective.”        United States v. LeRose, 219 F.3d 335, 341-42 (4th

Cir. 2000).        Because no improper motive has been demonstrated,

we will not review the prosecutor’s exercise of discretion.

     In sum, we affirm Giannone’s convictions and vacate his

sentence,     remanding         for    resentencing      without       the     two-level

enhancement under U.S.S.G. § 2B1.1(b)(10).


                                                                    AFFIRMED IN PART,
                                                                     VACATED IN PART,
                                                                         AND REMANDED




                                             13
