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United States v. Jacobowitz

decided: May 31, 1989.

UNITED STATES OF AMERICA, APPELLEE,
v.
WOLF JACOBOWITZ, A/K/A "JACK RICE," TRUE NAME: "KALMAN SCHLESINGER," DEFENDANT-APPELLANT



Appeal from a judgment of conviction entered in the United States District Court for the Eastern District of New York, Edward R. Korman, Judge, for unauthorized use of credit cards with intent to defraud, 18 U.S.C. § 1029(a)(2). Affirmed.

Oakes, Chief Judge, Kearse and Mahoney, Circuit Judges.

Author: Kearse

KEARSE, Circuit Judge

Defendant Wolf Jacobowitz appeals from a final judgment of the United States District Court for the Eastern District of New York following a jury trial before Edward R. Korman, Judge, convicting him on two counts of knowing use of unauthorized access devices, i.e., credit cards, with intent to defraud, in violation of 18 U.S.C. §§ 1029(a)(2), 1029(c)(1), and 2 (1982 & Supp. V 1987). He was sentenced to two years' imprisonment on one count, given a suspended sentence and four years' probation on the other count, and ordered to pay special assessments totaling $100. On appeal, Jacobowitz contends principally that the evidence was insufficient to convict him of "unauthorized" use of credit cards since their use had been agreed to by the cardholder, and that certain evidence was admitted at trial in violation of his constitutional rights. For the reasons below, we affirm.

I. BACKGROUND

The events underlying the present prosecution were described at trial chiefly by Arthur Rice ("Rice"), the holder of the credit cards in question, testifying under a grant of immunity; two providers of services who identified Jacobowitz as having paid for services with Rice's credit cards; and Moshe Cassorla, who had assisted Jacobowitz in the use of the Rice cards. Viewed in the light most favorable to the government, the trial evidence showed the following.

On June 14, 1987, Rice was visited by his long-time acquaintance Mayer Weinberger, who requested a loan. Rice refused the loan but agreed to let Weinberger use his credit cards. He gave Weinberger two American Express cards and his Merrill Lynch and Bank of America money market account credit cards with the understanding that Weinberger would charge items to the cards. Rice agreed to avoid calls from the credit card companies for several weeks and later to report the cards as lost, thereby causing the credit card companies to pay for the items charged by Weinberger. Rice thus understood that the cards would be used fraudulently to commit a crime.

On the same day, Jacobowitz showed Rice's credit cards to Cassorla and offered him 15% of the proceeds if Cassorla would pose as Rice and make charges and cash withdrawals on the cards. Jacobowitz did not reveal how he had obtained the cards or whether he knew Rice. Cassorla did not know Rice or Weinberger. When Cassorla agreed to participate, Jacobowitz gave him biographical information on Rice, including birth date, social security number, and mother's maiden name, and had Cassorla practice Rice's signature for several hours.

During the following week or so, Jacobowitz and Cassorla traveled around the country, with Cassorla posing as Rice and Jacobowitz posing as "Jack Rice," charging their hotel bills and airline tickets on Rica's credit cards. In their travels, which took them from New York to Cleveland, to Atlantic City twice, to several cities in Nevada, and finally back to New York, they used the Rice cards to purchase more than $7,500 worth of goods and services and to withdraw from banks and gambling casinos a total of some $56,000 in cash.

In Carson City, Nevada, Jacobowitz and Cassorla visited the Kit Kat Ranch, a prostitution establishment. They paid for the services of prostitutes with the Rice credit cards.

The purchases of goods and the cash withdrawals were physically made by Cassorla, with Jacobowitz generally remaining in the background to minimize the chances of his being photographed and identified. Jacobowitz instructed Cassorla to use public telephones rather than the telephones in their hotel rooms to avoid having the calls traced to them.

The spending spree ended in New York after Cassorla attempted to charge two $9,000 watches on one of the American Express cards. When American Express, contacted for telephonic approval of the transaction, wanted to speak with Cassorla and asked him several detailed personal questions, Cassorla became uneasy and abandoned the attempted purchase. When he described the event to Jacobowitz, Jacobowitz decided to terminate their operation.

In the meantime, about a week after Rice had given his credit cards to Weinberger, Merrill Lynch employees contacted Rice after noticing an unusual amount of activity on his money market credit card. Rice told them that the card had been lost and that he was not responsible for any of the charges. Merrill Lynch informed the government, and Secret Service Agent Dennis Letts began an investigation. Though Rice suggested that he might have lost his credit cards by leaving his wallet in his car when it went through a car wash on June 16, Letts soon discovered that this story was fabricated.

Rice then retained an attorney and refused to answer any further questions. He also refused to sign routine disclaimer affidavits sent to him by Merrill Lynch and Bank of America which stated, "I did not give anyone authorization to use my credit cards nor did I use them myself." Instead, Rice sent letters to these two companies stating that he did not request payment by them, and he later paid $60,000 for amounts charged on these two cards. American Express, however, never asked him for such a disclaimer, and Rice never admitted his responsibility for the approximately $20,000 worth of charges on those two cards. These charges were ultimately absorbed by American Express.

Letts followed the trail left by the transactions on Rice's credit cards and eventually tracked down Cassorla through surveillance photographs taken at a bank and a casino, and through telephone calls that Cassorla made to his sister from his room (notwithstanding Jacobowitz's precautionary instructions) in one of the hotels in which he and Jacobowitz had stayed. When Cassorla was arrested, he initially gave his name as "Jeffrey Bergman" and produced a driver's license and credit card in that name. He later confessed his true name and his participation in the credit card fraud scheme, though for a time he remained reluctant to reveal the identity of his partner in the scheme. Upon being informed, however, that the government knew Jacobowitz was the holder of an American Express card in the name of Jeffrey Bergman, Cassorla stated that the second person involved in the scheme was Kalman Schlesinger, using the name Wolf Jacobowitz.

Jacobowitz was indicted on four counts of unauthorized use of Rice's credit cards with intent to defraud, in violation of 18 U.S.C. §§ 1029(a)(2), 1029(c)(1), and 2, and on one count of conspiring with Weinberger for such use, in violation of 18 U.S.C. §§ 1029(b)(2), and 1029(c)(1). ...


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