After Jaga
N. Cisse was convicted of identity fraud in violation of Ohio Revised Code §
2913.49(D), he appealed. State v. Cisse (1), 2013 WL 4822851
(Ohio Court of Appeals 2013). For
reasons that should become apparent, his brother Dame Cisse was charged with
identity fraud in violation of Ohio Revised Code § 2913.49(E) and also
convicted. State v. Cisse (2), 2013 WL 4822832 (Ohio Court of Appeals
2013). They were tried in a “joint jury
trial,” but a mistrial was declared so they were tried again. State
v. Cisse, supra (both opinions explain that). They were “sentenced to a term of
community control, three years for Dame and two years for Jaga.” State v. Cisse (1), supra.
The facts
and charges in th cases seem to be
pretty much identical, but this post only examines the one against Jaga
Cisse. The charges and the issues on
appeal in the cases but the Court of Appeals ultimately affirmed both their
convictions.
The
brothers are from Senegal and are naturalized U.S. citizens. State
v. Cisse (1), supra. They lived at 1776 Bairsford Drive, Columbus, Ohio,
were employed (“sometimes working multiple jobs”) and were enrolled in college
courses. State v. Cisse (1), supra. “According to Dame, they rarely saw each
other despite living in the same house” and mail “for both brothers came to the
house.” State v. Cisse (1), supra. Jaga’s first name “was originally `Ndiaga,’
but when he became a citizen, he changed it to `Jaga’ because” it was “easier
for Americans to pronounce.” State v. Cisse (1), supra.
The cases
involved J.P. Morgan Chase (JPMC), which operates a
major enterprise in central Ohio with offices throughout the
region and thousands of employees engaged in myriad activities involving
banking, loans, and mortgages. JPMC has an online application process by which
applicants submit an initial application online for a recruiter to review. If
the applicant meets the initial criteria for a position, the recruiter
schedules an interview between the applicant and a JPMC manager. The interview
takes place at the office location where the manager is based.
If the
applicant's interview is successful, the recruiter contacts the applicant again
to schedule a background check which includes fingerprinting, photographing,
and a drug test. This . . . occurs at yet a different location. . . .
Finally,
if the background check is successful, an offer of employment may be extended.
If something undesirable shows up in the background check, no offer of
employment is made. . . . At trial, a JPMC investigator acknowledged the inherent flaw
in this hiring process: the interviewer is not present at the background check
location, nor is the recruiter present at the interview. The possibility
exists, therefore, that the person interviewed is not the person who shows up
to be fingerprinted, photographed, and subsequently background-checked.
State v. Cisse (1), supra.
“On or
around November 9, 2009,” Dame submitted an online application to JPMC for the
position of Executive Resolution Analyst, which was rejected. State v. Cisse (1), supra. On January
12, 2010, “`Ndiaga Cisse’” submitted an online application to JPMC, which was
reviewed by a recruiter, who forwarded “`Ndiaga’s’” application to “Robert
Hall, the manager of the Customer Request Management Team.” State v. Cisse (1), supra. He interviewed “`Ndiaga Cisse’”
at the JPMC “Easton” facility in Columbus.
State v. Cisse (1), supra.
“`Ndiaga’”
told Hall to call him “`Jack’” and said he “was working on a bachelor's degree
in accounting and hoped the temporary position might lead to a permanent” one
with JPMC. State v. Cisse (1), supra.
Since “`Jack’” was “very friendly and outgoing”, Hall recommended he be hired
and “told the recruiter to contact `Jack’ regarding the background check
process.” State v. Cisse (1), supra.
The background check apparently
“went smoothly because a few weeks later . . . `Jack’ became one of Hall's new
team members.” State v. Cisse (1), supra.
About a week later, “`Jack's’” JPMC ID badge arrived and Hall gave it to him. State v. Cisse (1), supra. The opinion
says employees use the badge to “enter and exit the JPMC offices” but usually
do not wear them “throughout the workday.” State
v. Cisse (1), supra. The badges “display a photo of the employee and their name.” State
v. Cisse (1), supra.
“`Jack’” worked on Hall's team through May
2010 and Hall found him “a productive employee with an average work product,
but very personable, and always smiling.” State
v. Cisse (1), supra. Hall encouraged “`Jack’”, and others, to “apply elsewhere for permanent positions with
JPMC. State v. Cisse (1), supra.
Carly
Richardson “worked as an `Investor Reporting Mortgage’” for JPMC” at the Easton
location. State v. Cisse (1), supra. Someone on her team referred “`Jaga’ to
her as a new team member and Richardson interviewed him.” State v. Cisse (1), supra. “`Jaga’” “had accounting and mortgage
experience on his resume and would not require another background check because
he was already employed by JPMC” so Richardson added him to her “team as a temporary
employee with the title `Investor Reporter, Operations Analyst.’” State v. Cisse (1), supra.
Richardson
testified at trial that she was “not impressed” with “`Jaga’s’” performance.
State v. Cisse (1), supra. She
State v. Cisse (1), supra. She
always referred to `Jaga’ as `Jaga’ but she heard other
employees call him `Jack.’ She testified she was not impressed with his
performance as an employee and
his slowness affected the competitiveness of her unit;
consequently, she visited `Jaga's’ cubicle frequently to make sure he stayed on
task.
One day Richardson came into his cubicle and noticed `Jaga's’ JPMC ID
badge lying in plain sight; she was surprised to notice the photo was not of
the man she knew as `Jaga.’ She said, `That's not you,’ and `Jaga’ replied,
`Yes it is; I lost weight.’ `Jaga’ tried to snatch the badge from Richardson.
Richardson left `Jaga's’ cubicle and reported the matter to
her immediate supervisor, who had access to the JPMC employee Passport system
containing employee photos. Together they pulled up the photo of `Jaga,’ and it
was not the man working for Richardson as `Jaga Cisse.’ Richardson looked on
Facebook and discovered the man she knew as `Jaga’ was in fact Dame Cisse, and
that Jaga Cisse was Dame's brother.
State v. Cisse (1), supra.
Richardson
also “reported the matter to corporate security” and Kelly O’Reilly began an
investigation. O'Reilly was aware of Richardson's
Facebook research and discovered through a LexisNexis search that Dame and Jaga
lived at the same address. . . . He found a blog written by `Ndiaga Cisse’
containing a photo that matched the photo on the JPMC employee ID badge. He
reviewed forensic imaging of `Jaga's’ JPMC computer that revealed emails from
the address papadame2000@gmail.com.
State v. Cisse (1), supra. O’Reilly turned “the results of his
investigation” over to the Columbus Police, which led to charges against the
brothers. State v. Cisse (1), supra.
Jaga made
several arguments on appeal, only two of which are examined here. He argued that “the trial court should have
excluded the copies of Facebook pages taken from the web offered as exhibits
by” the prosecution. State v. Cisse (1), supra. He seems to
have argued that the copies involved inadmissible hearsay.
The Court
of Appeals rejected the argument, rather cursorily, noting that the jury was
free to look at the photos from the Facebook pages and
determine their weight. The Facebook photos were only relevant to the
investigation and how first Richardson and then investigators determined who
`Jaga Cisse’ really was. In light of Dame's subsequent admissions, the
admission of this evidence was harmless.
State v. Cisse (1), supra.
Jaga’s
other argument on appeal was that the conviction was “against the manifest
weight of the evidence”, i.e., that it did not prove he was guilty. State
v. Cisse (1), supra.
The Court
of Appeals explained that when a defendant brings such an argument, it
functions as the `thirteenth juror,’ and after `reviewing the
entire record, weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the
evidence, the jury clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be overturned and a new trial ordered.’ State
v. Thompkins, 78 Ohio St.3d 380 (Ohio Supreme Court 1997).
Reversing a
conviction as being against the manifest weight of the evidence and ordering a
new trial should be reserved for only the `exceptional case in which the
evidence weighs heavily against the conviction.’
State v. Cisse (1), supra. More
precisely, Jaga claimed there was no evidence he “knew of Dame’s scheme of
identity fraud”. State v. Cisse (1), supra.
Dame
testified at trial, and “insisted Jaga knew nothing about the identity fraud
scheme” and said “he signed the paychecks over to himself trying to make two
signatures look different.” State v. Cisse (1), supra. Dame also testified that he used Jaga’s
identity
to gain employment with JPMC. Dame testified that he was
offered a job at JPMC which was later withdrawn; he applied again under the
name `Ndiaga Cisse,’ using his brother's information. He did not tell Jaga he
was doing this or ask his permission.
Dame was unaware Jaga had changed his name
when he became a citizen, from Ndiaga, hence the discrepancy. Dame submitted
the online application using Jaga's name, date of birth, Social Security
number, and pertinent information.
When JPMC called to schedule an interview, Dame attended the
interview with Robert Hall. He knew the next part of the process would be the
background check. Dame testified he told Jaga someone from JPMC called and said
he should come in for a background check; Dame encouraged him to go because
maybe it would turn into a job. He still did not tell Jaga he had applied for a
job in his name.
State v. Cisse (1), supra.
Jaga also
testified at trial, claiming
he never knew Dame used his information to apply for a job at
and work for JPMC. When he got a call to come in for a background check, he
thought it was `weird,’ but his resume was on the Ohio State University career
services' website and he thought perhaps JPMC contacted him in connection with
that. He thought he had nothing to lose by going in for the background check
even though at that point he had never applied for any position with JPMC.
The same day he was photographed and
fingerprinted, he received an offer letter in the mail from JPMC offering him a
job. Jaga testified he thought about taking it, but he was already going to
school and working a different job, and it would be too many hours. He claimed
he called `a woman’ at JPMC and turned the job down.
Jaga speculated at trial his brother set up a series of phone
calls to make the possible job scenario more believable so it was more likely
Jaga would go in for the background check. Jaga testified he never saw any
paychecks in his name from JPMC, and never gave Dame permission to use his
driver's license or any other information. He testified the evidence regarding
the JPMC hiring process is not accurate because he was hired there in June 2011
without interviewing with any JPMC manager.
State v. Cisse (1), supra.
Notwithstanding
the above testimony, the Court of Appeals was “unable to find” that the jury “lost
its way and created such a manifest miscarriage of justice” that the conviction
should be “overturned and a new trial ordered.”
State v. Cisse (1), supra. It based that finding, at least in part, on
the following:
[Jaga] argues there is no evidence [he] knew of Dame's scheme
of identity fraud, but we disagree. Jaga admittedly went to Polaris Parkway for
the background check; he claimed it was `weird’ because he never applied for a
job with JPMC, but he went nevertheless. The jury was free to believe him or
not. The weight of the evidence and the credibility of the witnesses are
determined by the trier of fact. . . .
The jury also had the evidence of the paychecks payable to
`Ndiaga’ signed over to Dame and the fact that the brothers lived together for
months while this scheme went on despite Jaga's claims of ignorance. Dame was
also able to access Jaga's driver's license and other identifying paperwork,
although both claimed Jaga did not give him permission to do so.
State v. Cisse (1), supra.
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