United States District Court, E.D. Virginia, Alexandria Division
Ronnesha Michele Upchurch, Defendant: Kevin Richard Brehm,
LEAD ATTORNEY, Office of the Federal Public Defender
(Alexandria), Alexandria, VA.
Preston Holmes, III, also known as, Matthew Jones, Defendant:
Juan Ever Milanes, LEAD ATTORNEY, Law Offices of Juan E.
Milanes PLLC, Reston, VA.
Andrew Justin Johnson, also known as, Adam Johnson,
Defendant: Robert Lee Jenkins, Jr., LEAD ATTORNEY, Bynum
& Jenkins PLLC, Alexandria, VA.
Matthew Jones, also known as, Preston Holmes, Defendant:
Eugene Victor Gorokhov, LEAD ATTORNEY, Burnham & Gorokhov
PLLC, Washington, DC.
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.
M. Brinkema, United States District Judge.
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
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.
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.
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.
II. FACTUAL FINDINGS
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