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United States v. Johnson

United States District Court, E.D. Virginia, Alexandria Division

February 25, 2016


Page 679

          For Ronnesha Michele Upchurch, Defendant: Kevin Richard Brehm, LEAD ATTORNEY, Office of the Federal Public Defender (Alexandria), Alexandria, VA.

         For Preston Holmes, III, also known as, Matthew Jones, Defendant: Juan Ever Milanes, LEAD ATTORNEY, Law Offices of Juan E. Milanes PLLC, Reston, VA.

         For Andrew Justin Johnson, also known as, Adam Johnson, Defendant: Robert Lee Jenkins, Jr., LEAD ATTORNEY, Bynum & Jenkins PLLC, Alexandria, VA.

         For Matthew Jones, also known as, Preston Holmes, Defendant: Eugene Victor Gorokhov, LEAD ATTORNEY, Burnham & Gorokhov PLLC, Washington, DC.

         For USA, Plaintiff: Ann Marie Blaylock, LEAD ATTORNEY, U.S. Attorney's Office (Alexandria-NA), Alexandria, VA; Ronald L. Walutes, Jr., LEAD ATTORNEY, United States Attorney's Office, Alexandria, VA.

Page 680


         Leonie M. Brinkema, United States District Judge.

         This case came on for trial by the Court on February 17, 2016. The sole issue in this bench trial was whether the government has sufficient evidence to establish beyond a reasonable doubt that defendant, Andrew Justin Johnson (" Johnson" or " defendant" ), knowingly and intentionally conspired with Preston Holmes, III (" Holmes" ), Matthew Jones (" Jones" ), and Ronnesha Michele Upchurch (" Upchurch" ) (collectively, " alleged coconspirators" or " codefendants" ) to commit access device fraud or wire fraud as charged in the one-count indictment. For the reasons that follow, the Court finds that the evidence was not sufficient to establish that defendant is guilty beyond a reasonable doubt of the charged conspiracy.


         Johnson was indicted on September 10, 2015 on one count of conspiracy in violation of 18 U.S.C. § 371. The indictment alleged that Johnson conspired with the codefendants to possess fifteen or more unauthorized access devices with intent to defraud in violation of 18 U.S.C. § 1029(a)(3); to effect transactions with one or more access devices issued to another person, to receive payment or any other thing of value during any one-year period in aggregate of $1,000 or more with intent to defraud in violation of 18 U.S.C. § 1029(a)(5); and to commit wire fraud in violation of 18 U.S.C. § 1343. Indictment ¶ 1 [Dkt. No. 14], Sept. 10, 2015.

         Specifically, the indictment alleged that Johnson, along with the codefendants, travelled to Six Flags America Baltimore/Washington, D.C. (" Six Flags" or " the park" ) in Upper Marlboro, Maryland between May 31 and June 8, 2015 to steal unattended bags and other personal property and then to use the access devices like credit or debit cards and identification documents found in the stolen bags to buy gift cards and other items or to open fraudulent lines of credit in the names of other persons to make further purchases, totaling over $1,000.00. Id. ¶ ¶ 6, 7.

         Johnson was scheduled to plead guilty on January 21, 2016; however, at his first plea hearing, he advised the Court that he did not wish to proceed. Minute Entry [Dkt. No. 109], Jan. 21, 2106. On February 4, 2016, Johnson came before the Court in a second attempt to plead guilty. Minute Entry [Dkt. No. 134], Feb. 4, 2016. One day before that hearing, Johnson's counsel filed a motion ex parte and under seal requesting to withdraw as counsel because he could not in good faith represent Johnson in pleading guilty to a crime which he doubted defendant had committed. Ex Parte and Sealed Motion [Dkt. No. 132], Feb. 3, 2016. In that motion and during the February 4 hearing, defense counsel explained that his client readily admitted going with the others to Six Flags on June 6, 2015 to steal unattended bags but he also consistently told counsel that his purpose for stealing the bags was to get cash, not access devices. As a result of counsel's concerns and defendant's statement that he only wanted to steal cash, the Court refused to accept Johnson's guilty plea and the government offered the alternative possibility of a bench trial. Minute Entry [Dkt. No. 134], Feb. 4, 2016. Accordingly, Johnson waived his right to a trial by jury and consented to a bench trial on February 17, 2016. See Waiver of Trial by Jury [Dkt. No. 135], Feb. 4, 2016.

Page 681


         A. Stipulated/Uncontested Facts

         The parties stipulated to nearly every fact. The stipulated and uncontested facts established that on May 31, 2015, Holmes, Upchurch, and Quarles entered the property of Six Flags and stole personal property, including access devices, from victims KP, IMVL, MD, JM, JMV, JMM, AM, BM, and SV. The stolen access devices included, among other items, Victim KP's social security card, Maryland driver's license, Bank of America debit card, and Bank of America credit card. Shortly after the theft, Holmes, Upchurch, and Quarles used Victim ...

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