Filed: January 27, 2010 

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 07-4844(L) 

 (3:06-cr-01011-CMC) 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

JONATHAN GIANNONE, 

 Defendant - Appellant. 

O R D E R 

The court amends its opinion filed January 7, 2010, as 

follows: 

On page 2, attorney information section, the name “Drummond C. 

Smith, LAW OFFICES OF THOMAS F. LIOTTI, Garden City, New York, for 

Appellant” is added at line 4. 

For the Court - By Direction 

 /s/ Patricia S. Connor 

 Clerk 
UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 07-4844

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

JONATHAN GIANNONE, 

 Defendant - Appellant. 

No. 08-5020

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

JONATHAN GIANNONE, 

 Defendant - Appellant. 

No. 08-8386

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 
JONATHAN GIANNONE, 

 Defendant - Appellant. 

Appeals from the United States District Court for the District 

of South Carolina, at Columbia. Cameron McGowan Currie, 

District Judge. (3:06-cr-01011-CMC) 

Argued: December 2, 2009 Decided: January 7, 2010 

Before NIEMEYER and AGEE, Circuit Judges, and John Preston 

BAILEY, Chief United States District Judge for the Northern 

District of West Virginia, sitting by designation. 

Affirmed in part, vacated in part, and remanded by unpublished 

per curiam opinion. 

ARGUED: Thomas F. Liotti, LAW OFFICES OF THOMAS F. LIOTTI, 

Garden City, New York, for Appellant. Dean A. Eichelberger, 

OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, 

for Appellee. ON BRIEF: Drummond C. Smith, LAW OFFICES OF 

THOMAS F. LIOTTI, Garden City, New York, for Appellant. W. 

Walter Wilkins, United States Attorney, Robert F. Daley, Jr., 

Assistant United States Attorney, OFFICE OF THE UNITED STATES 

ATTORNEY, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. 

2 
PER CURIAM: 

 A jury convicted Jonathan Giannone of three counts of wire 

fraud, in violation of 18 U.S.C. § 1343, and two counts of 

aggravated identity theft, in violation of 18 U.S.C. § 1028A. 

It found that during May and June 2005, Giannone transmitted 

over the Internet 8 stolen account numbers of Bank of America 

debit cards as samples of what he had for sale to a confidential 

informant and 21 stolen account numbers, along with the names of 

11 account holders, of Bank of America debit cards in 

furtherance of an actual sale to the confidential informant. 

The district court sentenced Giannone to 65 months’ imprisonment 

-- 41 months on the wire fraud counts and 24 months to run 

consecutively on the aggravated identity theft counts. 

 On appeal, Giannone raises numerous errors relating to his 

convictions and sentence. For the reasons that follow, we 

affirm his convictions, but vacate his sentence and remand for 

resentencing. 

I 

 The United States Secret Service conducted an online 

undercover investigation from its offices in Columbia, South 

Carolina, known as “Operation Anglerphish,” which was designed 

to identify persons using the Internet to commit identity theft, 

credit card fraud, fraud, and related crimes. A target of this 

3 
investigation was an online community that trafficked in 

personal information and engaged in other criminal activities 

over the Internet. After Brett Shannon Johnson was arrested in 

Charleston County, South Carolina, for defrauding sellers on the 

Internet, he agreed to cooperate in the investigation as a 

confidential informant. In cooperation with the Secret Service, 

Johnson operated under his online user name “Gollumfun” while 

the Secret Service recorded his chats with transcripts of 

keystrokes and real-time video of his computer screen. 

 Several online chats occurred in which Pit Boss 2600 and 

CIA INTEL, online user names used interchangeably, contacted 

Johnson, who was a well-known and skilled member of the 

community trafficking in personal information. The person 

behind the names Pit Boss 2600 and CIA INTEL offered to sell 

Johnson some “seriously good dumps,” referring to the data 

encoded on the magnetic strip on the back of a credit or debit 

card. That person then sent Johnson over various Internet 

transmissions eight account numbers for Bank of America debit 

cards, along with the names of the account owners, as samples of 

what he had for sale. While all of these accounts were 

inactive, the person indicated that he could sell Johnson more 

numbers in the future. 

 On June 4, 2005, the person behind Pit Boss 2600 sold 

Johnson 21 debit card numbers for $600. The person requested 

4 
that the $600 be deposited in a Bank of America checking 

account, and two days later, the person transferred 21 Bank of 

America account numbers to Johnson, as well as the names of 11 

of the account holders. After the transfer, undercover agents 

deposited $600 into the bank account, from which the defendant 

in this case, Giannone, withdrew $500. Determining that 

Giannone was Pit Boss 2600 and CIA INTEL, the Secret Service 

arrested Giannone in New York and took him to South Carolina, 

where he was tried and convicted of five counts, three for wire 

fraud and two for aggravated identity theft. 

 The Secret Service was able to identify Giannone as the 

individual using the Pit Boss 2600 and CIA INTEL online user 

names based on his own e-mails, as well as external evidence. 

Two witnesses who knew Giannone testified that he used the Pit 

Boss 2600 name when chatting. But more significantly, Pit Boss 

2600 made statements online to Johnson that his “legit” American 

Express card number ended with 1001 and that his account had 

been upgraded from gold to platinum status. This number and 

status corresponded to Giannone’s actual American Express 

account. In chats, Pit Boss 2600 and CIA INTEL also referred to 

various travels throughout the United States, often for the 

purpose of executing scams. Bank records and flight records 

subpoenaed by the Secret Service demonstrated that Giannone had 

actually made the trips referred to by Pit Boss 2600 and CIA 

5 
INTEL. The government also demonstrated that Pit Boss 2600 and 

CIA INTEL were the same person with evidence that the two 

identities were used interchangeably in conversations with 

Johnson. Moreover, CIA INTEL indicated during a chat that he 

was also Pit Boss 2600. 

 In sentencing Giannone, the district court applied an 

intended loss figure in the amount of $132,327.17 to determine 

Giannone’s offense level, applying U.S.S.G. § 2B1.1(b)(1). The 

court also applied a two-level sentencing enhancement on the 

wire fraud counts pursuant to U.S.S.G. § 2B1.1(b)(10)(B) because 

the offenses involved the trafficking of unauthorized access 

devices, i.e., the account numbers. 

 This appeal followed. 

II 

 For his most substantial argument, Giannone contends that 

the district court gave an erroneous instruction to the jury on 

the meaning of “knowingly” in 18 U.S.C. § 1028A, the aggravated 

identity theft statute. In Flores-Figueroa v. United States, 

129 S. Ct. 1886 (2009), which was decided after the jury was 

instructed in this case, the Supreme Court held that to convict 

a defendant under § 1028A, the government had to prove that the 

defendant knew that the “‘means of identification’ he or she 

unlawfully transferred, possessed, or used, in fact, belonged to 

6 
‘another person.’” Id. at 1888 (emphasis added). At trial, 

however, the district court instructed the jury that a defendant 

need not know that the means of identification in fact belonged 

to another person, which was consistent with then-existing 

Fourth Circuit law. See United States v. Montejo, 442 F.3d 213, 

215-17 (4th Cir. 2006). Because Giannone did not, 

understandably, object to the instruction, our review is for 

plain error under Federal Rule of Criminal Procedure 52(b). 

 While the government concedes that the failure to give an 

instruction consistent with Flores-Figueroa was plain error that 

affected Giannone’s substantial rights, it urges that we not 

take notice of the error because allowing the conviction to 

stand will not “seriously affect the fairness, integrity, or 

public reputation of judicial proceedings.” It argues that the 

proceedings overwhelmingly demonstrated that Giannone knew that 

the means of identification he sold to Johnson belonged to other 

people. See Johnson v. United States, 520 U.S. 461, 469-70 

(1997) (citing United States v. Olano, 507 U.S. 725, 732 (1993)) 

(declining to notice plain error because of clear evidence of 

guilt); United States v. Cedelle, 89 F.3d 181, 186 (4th Cir. 

1996) (same). 

 We agree and decline to notice the error. The record 

demonstrates that the entire purpose of the transaction between 

Giannone and Johnson was to traffic in the identities of real 

7 
people. Indeed, Giannone provided the names of 11 of the 21 

account holders whose accounts he sold to Johnson for $600, 

demonstrating that he knew that the account numbers were 

associated with actual people. Moreover, Giannone stipulated at 

trial that if any of the account holders referred to in the 

indictment were called to testify, they would state that the 

accounts were theirs and were transmitted without authorization. 

 The situation here is not unlike that in Cedelle where we 

declined to notice plain error when overwhelming evidence 

indicated that a defendant knew he was receiving depictions of 

actual minors engaged in sexually explicit conduct, even though 

the jury was not instructed on the required knowledge element. 

Cedelle, 89 F.3d at 185-86. The evidence here clearly 

demonstrates that Giannone not only trafficked in the means of 

identification of others but knew that the means of 

identification belonged to real persons. 

III 

 Giannone also argues -- correctly -- that the district 

court erred by imposing a two-level sentencing enhancement under 

U.S.S.G. § 2B1.1(b)(10), calling for an enhancement when a crime 

involves the trafficking of an unauthorized access device -- in 

this case the bank debit cards. 

8 
 The application notes to the Guidelines governing 

aggravated identity theft state that this enhancement should not 

apply to a defendant convicted of aggravated identity theft when 

the defendant is also convicted of the offense underlying the 

aggravated identity offense, in this case the wire fraud. See

U.S.S.G. § 2B1.6, App. Note 2. The reason is obvious. The 

aggravated identity theft charge itself imposes an additional, 

consecutive two-year sentence for the unauthorized use or 

transfer of the account numbers, and therefore the enhancement 

in § 2B1.1(b)(10) would amount to double counting. 

 Even though Giannone did not object to the enhancement 

below, we take notice of the plain error, vacate Giannone’s 

sentence, and remand for resentencing. 

IV 

 Giannone’s other arguments on appeal do not merit 

significant discussion. First, he contends that the district 

court abused its discretion by denying his pretrial motion to 

transfer this case under Federal Rule of Criminal Procedure Rule 

21(b) to the Eastern District of New York, where he lives. 

While we have already denied Giannone’s petition for a writ of 

mandamus challenging the district court’s denial of his transfer 

motion, we again conclude the district court did not abuse its 

discretion. While Giannone does live in New York and witnesses 

9 
are located there, the violations here occurred over the 

Internet between New York and South Carolina, where there are 

also witnesses. 

 Giannone also contends that the district court erred by 

denying his post-trial motion for a new trial based on his claim 

that the government withheld exculpatory impeaching information 

in violation of Brady and that newly discovered evidence 

demonstrated his innocence. In a pre-trial motion to dismiss, 

Giannone submitted a chat transcript, which he then alleged 

demonstrated that he was not the individual associated with the 

screen names Pit Boss 2600 and CIA INTEL. After his conviction, 

he admitted to the government that he had fabricated the chat 

transcript, and his counsel (despite relying on the transcript 

in briefs before this Court) reiterated that concession at oral 

argument. Prior to this admission, however, the government had 

prepared a video demonstration for trial to show the jury how an 

online chat transcript could be fabricated. The trial court 

ultimately did not permit the government to introduce the 

demonstration into evidence, but Giannone claimed in his posttrial motion that the evidence was Brady material inasmuch as it 

could demonstrate that the evidence of the transcripts between 

himself and Johnson were similarly fabricated. This argument is 

baseless because the demonstration was not exculpatory but 

instead would only demonstrate that Giannone had committed a 

10 
fraud on the court. It would do nothing to refute the 

considerable real-life testimony corroborating the chats between 

Johnson and Giannone. 

 Giannone also bases his Brady argument in part on a March 

1, 2007 letter written by Johnson to the district judge, which 

contained descriptions of Johnson’s misdeeds, Secret Service 

misconduct, and Johnson’s drug addiction. Giannone claims that, 

although the letter was written during trial, he never received 

the letter during trial and thus was unable to use it because 

the government and the court suppressed the letter until after 

trial. The record establishes, however, that the letter did not 

arrive at the court until March 13, 2007, which was after the 

trial had been completed, and that Giannone was promptly given 

the letter. 

 Giannone’s other claimed Brady violations about withholding 

his police record, grand jury testimony, and other miscellaneous 

post-trial matters are no more persuasive. We conclude that 

Giannone simply has not demonstrated any Brady violation. 

 Next, Giannone argues that certain flight, credit card, and 

bank records were improperly admitted into evidence because they 

were not properly authenticated. He did not, however, object to 

the evidence on this basis, and therefore any review is for 

plain error. There clearly was no plain error as, contrary to 

11 
Giannone’s contentions on appeal, he expressly consented to the 

admissibility of the exhibits during the course of trial. 

 Next, Giannone contends that the district court abused its 

discretion in allowing a Secret Service agent to testify about 

his experiences with airport security without being qualified as 

an expert witness. This argument is frivolous. The agent 

simply testified that in order to fly on an airline, one must 

show identification that matches one’s airline ticket. This was 

a factual matter, not a matter for expert testimony. 

 Giannone next claims that the evidence was insufficient to 

show that he knowingly used the means of identification of 

another person, as required by 18 U.S.C. § 1028A. The evidence 

refuting this argument has already been discussed in connection 

with his challenge to the jury instruction on § 1028A, and, 

based on that evidence, we reject his argument that the evidence 

was insufficient to support a conviction. 

 Next, Giannone contends that the district court erred by 

using the total balance of the 21 debit card accounts sold, 

i.e., $132,327.17, as the intended loss for purposes of 

sentencing. He notes that the amount actually realized in using 

the debit cards amounted to only $12,546.92. This argument, 

however, overlooks that the Sentencing Guidelines require that 

the greater of the actual or intended loss be applied in 

12 
13 

computing an offense level. See U.S.S.G. § 2B1.1, App. Note 

3(A). 

 Finally, Giannone argues that based on his cooperation 

following conviction, he was entitled to a motion by the 

government for a downward departure pursuant to U.S.S.G. 

§ 5K1.1. We have held, however, that we may only review “a 

prosecutor’s decision not to move for departure if the refusal 

is based on an unconstitutional motive, such as race or 

religion, or is not rationally related to permissible government 

objective.” United States v. LeRose, 219 F.3d 335, 341-42 (4th 

Cir. 2000). Because no improper motive has been demonstrated, 

we will not review the prosecutor’s exercise of discretion. 

 In sum, we affirm Giannone’s convictions and vacate his 

sentence, remanding for resentencing without the two-level 

enhancement under U.S.S.G. § 2B1.1(b)(10). 

AFFIRMED IN PART,

VACATED IN PART,

AND REMANDED