A jury in a federal trial convicted Joanne Tragas of one
count of conspiracy to commit various access device fraud offenses, in
violation of 18 U.S. Code § 1029(b), seven counts of aiding and abetting
unlawful activity under the Travel Act in violation of 18 U.S. Code §1952(a), one count of bank fraud, in
violation of 18 U.S. Code § 1344 and two counts of wire fraud, in
violation of 18 U.S. Code § 1343”. U.S. v.
Tragas, 2013 WL 4483514 (U.S. Court of Appeals for the 6th Circuit
2013). The judge who
had the case then sentenced her to “300 months” in prison, to be followed by “a
five-year term of supervised release”, she appealed. U.S. v.
Tragas, supra.
As to the facts that led to her conviction, the Court of
Appeals explains that the evidence presented at Tragas’ trial
established that she acted as a
middleman between overseas suppliers of stolen credit and debit card
information and street-level users of that information. [Tragas’] suppliers
obtained the information that is typically encoded in the magnetic strip on the
back of credit and debit cards and sold the information to her using
international wire transfers. After receiving the stolen data, [she] re-sold
the information to her co-conspirators in the United States.
[Her] customers, many of whom later
became her co-defendants, used machines to encode the information they received
from [Tragas] onto the magnetic strips of actual plastic cards. Any card with a
magnetic strip could be and was used, including gift cards, hotel key cards,
and actual credit cards. Once encoded, these cards contained the same
information that the legitimate cards contained.
Thus
armed with these `clones’ of legitimate credit and debit cards, the
conspirators purchased various kinds of consumer goods, including high-end
electronics, as well as bona fide gift cards. In this way, the conspirators
could quickly convert stolen credit card information into cash or easily
transferable property.
[Tragas’] primary customers in Detroit were twin
brothers Dion and Dionte Hunter, who purchased stolen credit and debit card
information from [her] and then either used it themselves or sold it to others.
[Tragas] and the Hunters never met in
person, but they communicated extensively via online chat services, which were
variously described as instant messages or `ICQ's.’ Police discovered stored
records of these chat conversations on a laptop computer belonging to the
Hunters.
U.S. v. Tragas, supra.
At her trial, the prosecution
introduced the transcripts of these
chat conversations into evidence, and the prosecutor, together with Secret
Service Agent Robert Kuykendall, read many of the conversations aloud to the
jury. Although the parties to these communications did not use names, a picture
of [Tragas] was the profile picture associated with the ICQ account-holder that
supplied the Hunters with stolen data.
Furthermore, [she] was shown to have
made purchases with the gift card information exchanged during the ICQ
conversations with the Hunters. Circumstantial evidence also indicated that the
individual conversing with the Hunters and supplying them with stolen
information was in fact [Tragas]. For example, [she] purchased a house in
Florida after the Hunters' supplier talked of buying and furnishing a new beach
house in Florida.
These conversations
revealed the scope and nature of [Tragas’] role in the conspiracy. She sold
credit and debit card information to the Hunters in exchange for payment in a
variety of different forms, including cash deposits into her bank account, wire
transfers, and information that allowed her to use the genuine gift cards that
the Hunters and others purchased with stolen card data.
[She] used the money she received to
pay her overseas suppliers, and she sometimes directed the Hunters to wire
money directly to facilitate these payments. [Tragas] purchased and re-sold the
stolen personal information of hundreds of credit and debit card users, and
their financial institutions suffered losses of approximately $2.18 million as
a result.
U.S. v. Tragas, supra.
Tragas made several arguments on appeal, but this post only
examines one. The Court of Appeals began
its analysis of the issue by noting that she first argued that a new trial
is warranted because the prosecutor,
together with Agent Kuykendall, read to the jury transcripts of online chat
conversations between [Tragas] and her co-conspirators. The exact basis for [her]
objection to this evidence is difficult to pin down, but for the reasons that
follow, we find nothing improper in the reading aloud of a properly admitted
transcript under these circumstances.
U.S. v. Tragas, supra.
The court began its analysis of Tragas’ argument on this
issue by explaining that she
argues
that merely by reading the transcripts aloud, the prosecutor and the case agent
conducted a `theatrical performance’ akin to a re-enactment. [Tragas] argues
that the prosecutor and Agent Kuykendall essentially play-acted the chat
conversations, with the prosecutor `performing’ the role of [Tragas], and
Kuykendall playing various co-conspirators.
In so doing, [she] argues, the
prosecutor interpreted and characterized the otherwise properly admitted
documentary evidence and portrayed [her] written communications in a way that
telegraphed to the jury that she was guilty.
U.S. v. Tragas, supra.
The court pointed out that Tragas
offers no support for her proposition
that the mere reading aloud of previously admitted documentary evidence is
improper or prejudicial. On the contrary, there is nothing inherently
problematic about reading such evidence to the jury. See Bank of
Nova Scotia v. United States, 487 U.S. 250 (1988) (no prejudice
to a defendant where two IRS agents read in tandem from a transcript before a
grand jury). . . .
As long as the evidence itself is
properly admitted pursuant to the Rules of Evidence and does not run afoul of
other safeguards like the Confrontation Clause, we do not see how a defendant
could be prejudiced if the evidence is read aloud to the jury.
U.S. v. Tragas, supra.
Tragas did not claim the transcripts were not properly
admitted under the Federal Rules of Evidence or they violated her rights under
the 6th Amendment’s Confrontation Clause. U.S. v. Tragas, supra. The court noted that a “staged performance
or re-enactment of an event by a prosecutor would undoubtedly be problematic
insofar as it strayed from the direct evidence introduced at trial or reflected
the prosecutor's opinions,” but found that the “prosecutor’s conduct in this
case cannot possibly be described as a re-enactment.” U.S. v.
Tragas, supra.
The Court of Appeals then explained that, in addition to
“her broad contention that the prosecutor and case agent were doing theater”,
Tragas raised three specific legal challenges to the procedure. U.S. v. Tragas, supra.
First, she asserts that the testimony
presented an improper overview or summary. A defendant may indeed be prejudiced
if a law enforcement officer is able to introduce otherwise inadmissible
evidence by giving an overview of the government's case at the outset of the
trial, . . . but once again, [Tragas]
does not contend that the chat conversations themselves were inadmissible.
Moreover, Kuykendall cannot be said to have summarized anything; rather, he was
merely reading directly from a transcript that had already been provided to the
jury in written form.
Even if Kuykendall had summarized other
evidence, [Tragas] concedes that the jury was properly instructed regarding
summary evidence. . . .
U.S. v. Tragas, supra.
Tragas also argued that the prosecutor’s reading the chat
conversations
constitutes impermissible vouching,
which occurs when `a prosecutor supports the credibility of a witness by
indicating a personal belief in the witness's credibility thereby placing the
prestige of the office of the United States Attorney behind that witness.’ U.S.
v. Trujillo, 376 F.3d 593 (U.S. Court of Appeals for the 6th Circuit 2004).
This seems to be a different theory to
support [Tragas’] primary argument that, merely by uttering the words from a
document aloud, a prosecutor imbues the evidence with some sort of magical
power. However, [she] fails to identify any comments or statements that could
be construed as bolstering or vouching for the evidence, and we find no support
for the proposition that admissible documentary evidence somehow becomes more
credible if the prosecutor reads it aloud.
U.S. v. Tragas, supra.
Finally, Tragas argued that
because the prosecutor is not a witness
and cannot be cross-examined, any opinions, testimony, or interpretations of
evidence offered by the prosecutor are prohibited by the Confrontation Clause
of the 6th Amendment. As with her other arguments, [Tragas’] contention fails
because she can point to nothing in the record indicating that the prosecutor
actually made any such statements or verbally interpreted the evidence in any
particular way.
As for the transcripts themselves, we note
that [her] own statements were properly admitted as statements by a party-opponent under Rule 801(d)(2)(A), and the statements by the Hunters
were admitted as co-conspirator statements under Rule 801(d)(2)(E). As
coconspirator statements made in furtherance of the conspiracy, they were
categorically non-testimonial and also within a `firmly rooted/ exception to
the hearsay rule. See U.S. v. Mooneyham, 473 F.3d 280 (U.S.
Court of Appeals for the 6th Circuit 2007). . . .
U.S. v. Tragas, supra.
For these and other reasons, the Court of Appeals affirmed
Tragas’ convictions. U.S. v. Tragas,
supra. If you would like to read a little more about the facts in the case
and see a photo of Tragas, check out the news story you can find here.
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