IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. v. : CRIMINAL NO

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1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA : v. : CRIMINAL NO JOCELYN KIRSCH : GOVERNMENT'S MOTION TO REVOKE BAIL AND FOR PRETRIAL DETENTION I. PRELIMINARY STATEMENT The defendant has been charged by information with conspiracy, aggravated identity theft, access device fraud, bank fraud, and money laundering. According to the information, the defendant engaged in an extensive identity fraud and theft scheme with codefendant Edward K. Anderton in which they victimized numerous individuals and organizations. The government now seeks to detain the defendant because she has continued to engage in identity fraud and theft activity while she was on bail for the state charges that resulted in these federal charges, and while she was in active communication with the government concerning the filing of these federal charges. This conduct proves that the defendant cannot be trusted to follow the terms of release and thus, that she poses a significant risk of flight. Pretrial detention is necessary to ensure her appearance at trial or at a plea proceeding.

2 II. ARGUMENT Under 18 U.S.C. 3142(d) and (f)(2)(a), the defendant should be detained pretrial if the government proves by a preponderance of the evidence that the defendant poses a serious risk of flight. The defendant here poses a serious risk of flight and should be detained because she has demonstrated in the most audacious manner that she is unwilling to follow the terms of supervised release. With overwhelming evidence establishing her guilt in this case, the defendant faces substantial prison time and thus has a tremendous incentive to flee. She has no ties to the Eastern District of Pennsylvania and has significant criminal experience with false identities which would make it easier for her to flee without being apprehended. The defendant engaged in extensive identity fraud and theft activity in the present case. She stole the identity information from numerous victims from virtually anyone whose identities she and her codefendant could get their hands on including friends, colleagues, and numerous other innocent victims. This fraud involved at least $238,000 in intended loss. The evidence in this case is strong as set forth in significant part in the government s Change of Plea Memorandum filed in the case of codefendant Edward K. Anderton, which is incorporated here. In late 2007, the defendant was arrested by Philadelphia authorities for the identity fraud conduct which later resulted in the federal information in this case. At that time, she was placed on bail with conditions that included that she not commit additional crimes. Shortly after her Philadelphia arrest, she met with federal authorities concerning the filing of federal charges. During this time, while she was on bail, and claiming to accept responsibility for her misconduct, the defendant resumed her criminal lifestyle. On March 28, 2008, she stole a credit card from a 2

3 fellow employee, identified here as A.B., at a Starbucks in Moraga, California where the defendant was working. She then used the card to make several purchases, including approximately $216 in merchandise from a drug store in Moraga, and $338 in merchandise from an IKEA store in Emeryville, California. The defendant even used the stolen credit card for parking and food as she was engaging in fraud at the IKEA store. While the defendant was making the fraudulent purchases at the drug store, she attempted to disguise herself by wearing a hat and glasses much as she did repeatedly in the present case. Nonetheless, security photographs of the defendant showed her face clearly enough so that the employee victim and the Starbucks manager could identify her as the thief. The security photographs are attached here as Exhibit A. On May 28, 2008, with the defendant s consent, law enforcement officers searched the defendant s residence and found the distinctivelooking sweatshirt depicted in the security photographs. In addition to this credit card fraud activity, on April 5, 2008, the defendant stole a bicycle valued at approximately $2,000 from a Lafayette, California bicycle shop. Again, she conducted herself as she did in the present case. She posed as a legitimate customer and gave the shop a false name and address to test drive the bicycle. She then drove away on the bicycle and never returned. On May 28, 2008, officers searching her residence in California found the stolen bicycle. They interviewed an employee of the bicycle shop who positively identified the defendant (noting her distinctive purple contact lenses) in a photo array as the individual who had stolen the bike. The defendant has proven herself to be a criminal who will not follow the law or the rules of supervision when it is so unquestionably in her interests to do so. Her criminal 3

4 conduct while on bail and while she was in discussions with the federal government is nothing short of outrageous. If she cannot make the right choice to avoid criminal conduct under those circumstances, she cannot be trusted to exercise the appropriate judgment and appear in court when required to do so. She now faces a maximum term of 69 years in prison and a potential guideline sentence of as much as six to seven years, or more, in prison. The defendant has no ties to the community and lives with her family in California, which will make it more difficult for this Court to assure her appearance here as required. While it is true that the defendant has voluntarily appeared for court in the past, the stakes are now higher. She faces additional prison time for her new criminal activity, in addition to what was already a substantial guideline sentence, which increases her incentive to flee. The defendant also has experience manufacturing and using false identification documents that could make it easier for her to flee and avoid apprehension. She is a resourceful and opportunistic criminal. With the obvious incentive to flee to avoid a lengthy prison sentence, and a proven history of identity fraud activity and violating the terms of her release, the defendant poses a significant risk of flight. The government recognizes that the defendant was placed on bail temporarily, for approximately one week, in anticipation of the plea hearing scheduled before this Court for June 5, As the government advised the defendant and the Magistrate Judge, the government was prepared to seek detention for the defendant at the time of the plea. Now the defendant has sought an unexpected, eleventh-hour continuance of the plea hearing. With the uncertainty that surrounds this change in circumstances, there is no reason for this Court to allow for the serious 4

5 risk that the defendant will not appear as required. This Court should revoke the defendant s bail and detain her pending trial or a guilty plea. WHEREFORE, the government respectfully requests that this Court revoke the defendant s bail and detain the defendant pending trial. Respectfully submitted, PATRICK L. MEEHAN United States Attorney LOUIS D. LAPPEN Assistant United States Attorney LISA CAULFIELD Special Assistant United States Attorney 5

6 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA : v. : CRIMINAL NO JOCELYN KIRSCH : PRETRIAL DETENTION ORDER AND NOW, this day of June, 2008, after an evidentiary hearing and argument of counsel for the government and the defendant, the Court finds that the government has proved by a preponderance of the evidence that no condition or combination of conditions will reasonably assure the appearance of the defendant as required. The Court makes the following findings of fact: This case is appropriate for detention under Title 18, United States Code, Section 3142(e) because: i. There is probable cause to believe that the defendant has violated 18 U.S.C. 371 (conspiracy), 1028A(a)(1), (c)(4), (c)(5) (aggravated identity theft), 1029(a)(2) (access device fraud), 1344 (bank fraud), and 1956(a)(1)(A)(i), (B)(i) (money laundering). ii. The evidence in this case is strong. The government s evidence includes numerous credit cards, financial records, computer records, merchandise, cash, stolen keys, disguises, and other items found in the defendant s apartment that were part of the identity fraud activity; photographs of the defendant withdrawing fraud proceeds; eyewitness testimony from identity fraud victims; and extensive financial and other documentary evidence, much of which is

7 described in significant part in the government s Change of Plea Memorandum filed in the case of codefendant Edward K. Anderton, which is incorporated here. iii. The total maximum statutory penalty defendant faces is 69 years imprisonment, including a 2-year mandatory term of imprisonment to run consecutively to any other term of imprisonment imposed in this case. The defendant faces a guideline range of as much as six to seven years, or more, for the charged offenses. Accordingly, the defendant has a substantial incentive to flee. iv. While on pretrial release on the state charges that gave rise to the current federal charges, the defendant engaged in the additional criminal activity set forth in detail in the government s motion. In summary, the defendant stole a credit card and made several purchases with it, and stole a bicycle while using a false name. This is the same type of identity fraud and theft activity that is alleged in the information. The defendant has proven herself to be unwilling to abide by the terms of supervised release. v. The defendant has a lack of community ties and employment. She and her family live in California, which makes it more difficult for this Court to supervise her and assure that she will appear here as required. vi. The strength and nature of the case against the defendant, combined with the strong likelihood that the defendant will be incarcerated for a significant period of time, increases the high risk that the defendant will not appear as required by the Court. Therefore, IT IS ORDERED that the defendant s bail is REVOKED and that she is committed to the custody of the Attorney General for confinement in a correction facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in 7

8 custody pending appeal; that the defendant be afforded reasonable opportunity for private consultation with counsel; and that, on order of a Court of the United States, or on request of an attorney for the government, the person in charge of the corrections facility in which the defendant is confined deliver the defendant to a United States Marshal for the purpose of an appearance in connection with a court proceeding. BY THE COURT: HONORABLE EDUARDO C. ROBRENO United States District Judge 8

9 CERTIFICATE OF SERVICE I hereby certify that on this date a true and correct copy of the Government s Motion for Pretrial Detention has been served by facsimile upon the following: Ronald Greenblatt Suite Walnut Street Philadelphia, PA Facsimile: LOUIS D. LAPPEN Assistant United States Attorney DATED: June 4, 2008